Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-16-2006

Gao v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2266




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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                         No. 04-2266


                                           YU GAO

                                                       Petitioner

                                               v.

                  ATTORNEY GENERAL OF THE UNITED STATES

                                                         Respondent


                        On Petition for Review of an Order of the
                           United States Department of Justice
                             Board of Immigration Appeals
                                  BIA No. A77-341-025
                    (Honorable Alberto J. Riefkohl, Immigration Judge)




                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    January 30, 2006

           Before: MCKEE, VAN ANTWERPEN, and SILER*, Circuit Judges.

                                  (Filed: February 16, 2006)
                                             ____

                                   OPINION OF THE COURT


______________
*     Honorable Eugene E. Siler, Jr., Circuit Judge for the United States Court of Appeals for
      the Sixth Circuit, sitting by designation.
VAN ANTWERPEN, Circuit Judge.

       Petitioner Yu Gao, a native and citizen of China, seeks review of the April 15, 2004,

Order of the Board of Immigration Appeals (“BIA”) that affirmed without opinion the

Immigration Judge’s (“IJ”) denial of her applications for relief. We have jurisdiction over

the petition for review pursuant to 8 U.S.C. § 1252(a)(1), and for the reasons set forth below,

we will deny the petition.

                                               I.

       Because we write solely for the benefit of the parties, we will set forth only those facts

necessary to our analysis. Gao entered the United States on or about October 13, 2000, at

which time she was 17 years old. The Immigration and Nationalization Service initiated

removal proceedings against her on October 14, 2000, charging her with being a likely public

charge and with entering the United States without valid entry documents, in violation of 8

U.S.C. §§ 1182(a)(4)(A) and (a)(7)(A)(i)(I). Gao conceded her removability and applied for

asylum, withholding of removal, and relief under the Convention Against Torture.

       The IJ held an evidentiary hearing on April 12, 2002. At that hearing, Gao testified

that she had been harassed at school because her parents had violated China’s family

planning policy.1 When asked about the specific events that constituted this discrimination,



       1
        Gao testified that after her mother had an IUD inserted in accordance with China’s
population control policies, the IUD fell out and she became pregnant with Gao’s younger
sister. After the subsequent birth of Gao’s younger brother (the family’s third child), her
father underwent a sterilization procedure.

                                               2
Gao stated that she lacked friends because her classmates did not like her and that her teacher

did not care about her school work. As a result, she “just felt like I didn’t have any hope

there, and I didn’t have any freedom. I just received unfair treatment.”

       Gao claimed that the Chinese government took some action against her parents for

their violation of the nation’s population control policies. See IJ Op. at *3. Although she

was not married and had never been pregnant, she testified that she thought she would suffer

the same or worse fate as her mother if she were returned to China. Gao also testified that

she feared being punished if returned to China because she had illegally left the country.

       In a written opinion issued after the hearing, the IJ denied Gao’s applications for

relief. The IJ found that Gao was not married, had never been pregnant, and had presented

no evidence that she was an activist who was opposed to China’s birth control policies or had

ever tried to “stop or derail” the actions taken against her parents. IJ Op. at *3. The IJ also

concluded that Gao’s fear of punishment if returned to China after violating that country’s

immigration laws was not a basis for relief. 

The BIA affirmed the IJ without

opinion on April 15, 2004.

                                              II.

       Where, as here, the BIA affirmed the IJ without opinion, this Court reviews the IJ’s

opinion. Dia v. Ashcroft, 

, 245 (3d Cir.2003) (en banc). Pursuant to 8 U.S.C.

§ 1252(b)(4)(B), “administrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Determinations that an alien



                                              3
experienced persecution or has a well-founded fear of persecution are findings of fact

reviewed under the substantial evidence standard. See Abdille v. Ashcroft, 

,

483-84 (3d Cir. 2001) (holding that agency’s finding “must be upheld unless the evidence

not only supports a contrary conclusion, but compels it”). Under this standard, we will

uphold the agency’s findings of fact to the extent that they are supported by reasonable,

substantial, and probative evidence on the record considered as a whole. Gao v. Ashcroft,

, 272 (3d Cir. 2002) (citations omitted).

                                             III.

       Although the IJ denied Gao’s applications for asylum, witholding of removal, and

relief under the Convention Against Torture, on appeal Gao challenges only the denial of her

asylum application. See Pet. Br. at 2. To establish an asylum claim, an applicant must show

either past persecution or a well-founded fear of future persecution on account of, inter alia,

political opinion. 8 U.S.C. § 1101(a)(42)(A). The applicant must establish a credible

“subjective fear of persecution that is supported by objective evidence that persecution is a

reasonable probability.” 

.

       A review of the record reveals that the IJ’s denial of Gao’s asylum application was

supported by substantial evidence. First, Gao presented no evidence that she was harassed

at school because of her own or some imputed political opinion regarding China’s family

planning policy (which would be a statutory basis for asylum relief) and not simply on

account of her parents’ failure to comply with China’s population control policies.


                                              4
Accordingly, her failure to present evidence that she was singled out on an enumerated

ground undercuts her asylum claim. See Wang v. Gonzales, 

, 142 (3d Cir.

2005) (observing that alleged persecution suffered by alien’s parents was not dispositive of

alien’s asylum claim because “Wang must have suffered from persecution and the

persecution must have been ‘on account of’ one of the five statutory bases for granting

relief”) (emphasis in original).

       Further, persecution is “extreme conduct,” Voci v. Gonzales, 

, 614 (3d

Cir. 2005), and “does not encompass all treatment that our society regards as unfair, unjust,

or even unlawful or unconstitutional.” Fatin v. INS, 

, 1240 (3d Cir. 1993).

With this standard in mind, we are not compelled to disagree with the IJ’s determination that

the verbal harassment Gao encountered at her school did not rise to the level of persecution.

See Sepulveda v. United States Att’y Gen., 

, 1231 (11th Cir. 2005) (a finding

of persecution requires more than isolated incidents of verbal harassment or intimidation).

       Substantial evidence also supports the IJ’s determination that Gao’s claim that she

might experience punishment if returned to China for her violation of that nation’s

immigration law did not establish a well-founded fear of persecution. An alien’s fear of

prosecution for violations of generally applicable laws does not by itself qualify them as

eligible for asylum, Chang v. INS, 

, 1060 (3d Cir. 1997), and a country’s

restriction on travel is not generally considered persecution. Li v. INS, 

, 988

(9th Cir. 1996). Although relief is available to aliens who are punished for violating a


                                             5
generally applicable law when that punishment is on account of one of the enumerated

grounds and is so severe as to constitute persecution, see 

, Gao

presented no evidence that the punishment she might face for her violation of China’s

immigration law would be on account of any of the enumerated grounds or that the

punishment would be so severe as to rise to the level of persecution. See 

argues – without much elaboration – that she has a well-founded fear

of future persecution if returned to China because she wants to have more than one child and

will be subject to forced birth control measures if returned to China. Pet. Br. at 6. Although

Gao may intend generally to have children in the future, it is not certain that she will actually

do so, and a general intent to have children in the future does not establish a well-founded

fear of future persecution. See S-Cheng v. Ashcroft, 

, 323 (8th Cir. 2004)

(alien’s “general plans to have more children” too speculative to support well-founded fear

of persecution); see also Li v. Gonzales, 151 Fed. App’x 137, at 140-41 (3d Cir. 2005)

(unpublished opinion) (same).

                                              IV.

       We have considered all other arguments made by the parties on appeal, and conclude

that no further discussion is necessary.      For the foregoing reasons, we conclude that

substantial evidence supports the IJ’s denial of Gao’s asylum petition and will deny the




                                               6
petition for review.2




       2
         We would be remiss if we did not mention our concern with the IJ’s cursory opinion
in this case and the BIA’s decision to affirm that lean decision without an opinion of its own.
But notwithstanding the IJ’s spare legal analysis, we are nevertheless persuaded that the
ultimate conclusion was supported by substantial evidence. See Cao He Lin v. United States
Department of Justice, 

, 401-02 (2d Cir. 2005) (observing that remand not
required if it would be an “idle and useless formality”); see also Santhalingam v. Ashcroft,
71 Fed. App’x 911, at *4 (3d Cir. 2003) (unpublished opinion) (affirming IJ’s finding that
alien lacked fear of future persecution despite IJ’s “sparse” reasoning when there was only
“scant” evidence in the record of such fear).

                                              7