Kong Chen v. Atty Gen USA

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MANDATE ISSUED, filed.

Kong Chen v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-2186

Document: 003110271862

Page: 1

Date Filed: 09/02/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-2186 ___________ K O N G GAO CHEN, P e titio n e r v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A099 683 886) Im m ig ratio n Judge: Honorable Margaret Reichenberg ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) J u n e 9, 2010 B e f o re : BARRY, GREENAWAY and STAPLETON, Circuit Judges (O p in io n filed: July 12, 2010) ___________ O P IN IO N ___________ P E R CURIAM K o n g Goa Chen petitions for review of a decision of the Board of Immigration A p p e a ls ("BIA") dismissing his appeal of an Immigration Judge's ("IJ") decision denying h is applications for relief from removal. We will deny the petition for review.

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Case: 09-2186

Document: 003110271862

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Date Filed: 09/02/2010

C h e n is a native and citizen of China who lived in Changle City, Fujian Province. Chen entered the United States in May 2005 without a valid entry document. In March of th e following year, Chen filed applications for asylum under Immigration & Nationality A c t ("INA") § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 2 4 1 ( b ) (3 ) , 8 U.S.C. § 1231(b)(3), and for protection under the Convention Against T o rtu re , 8 C.F.R. §§ 1208.16(c), 1208.18, claiming a fear of persecution on account of his v io la tio n and opposition to China's population control policies, and for being smuggled o u t of the country. A hearing on the merits was held on May 27, 2008. Chen testified that he married h is wife on December 26, 1997, and they had a son in November 1998. Joint Appendix (h e re a f ter "App.") at 146. Chen left the country after his wife, who has remained in C h in a with their son, was forcibly taken away for an abortion. Id. at 150. Chen re c o u n te d that, two months after the birth of their son, the family planning cadres required h is wife to have an IUD inserted and to report for periodic check-ups. Id. at 152. In O c to b e r 2001, they hired a private doctor to remove the IUD. Chen's wife became p re g n a n t the following month and went into hiding at her mother's home. Id. at 153. Officials went to Chen's house in January 2002 looking for his wife to notify her to report f o r her IUD checkup. When the cadres discovered that she was not there, they tried to f o rc e Chen to tell them her whereabouts. The cadres warned Chen that he would be held re sp o n s ib le if his wife failed to report. Id. at 154. After a verbal disagreement, the cadres

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le f t and Chen went to work. Id. at 155-56. T h e cadres eventually learned about Chen's wife's pregnancy and where she was staying . Chen testified that on March 12, 2002, his wife was taken from her mother's h o u s e to a local hospital where an abortion was performed. She returned home two days late r. When Chen was informed of what had happened, he became very upset and went to th e family planning brigade to make an inquiry as to the reasoning behind the recent e v e n ts . Once there, Chen argued with one cadre in particular who threatened to arrest h im if he continued the verbal altercation. Chen left without incident. Id. at 157-59. According to Chen, his wife was then fitted with another IUD, and they were assessed a f in e in the amount of 6000 RMB. When the cadres came to collect payment for the fine tw o days later, Chen informed them that he did not have the money. To avoid the family p la n n in g officials, Chen left his village shortly thereafter to work in another area of C h in a . After living in the Fuzhou area for a couple of years, Chen left for the United S ta te s. Chen claims that the fine remains unpaid. Id. at 160. Chen stated that he fears he w ill be arrested if he returns to China because of the unauthorized pregnancy and the u n p a id fine. T h e IJ ruled that, while credible with respect to the claim of his wife's forced a b o rtio n , Chen was not eligible for asylum on that basis under Matter of J-S-, 24 I. & N. D e c . 520 (A.G. 2008). In considering whether Chen was eligible for relief based on his o w n opposition to China's family planning policies, the IJ concluded that Chen's

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a rg u m e n t with the cadre in 2002, the cadre's threat of arrest during the argument that e n su e d after the abortion, and the ultimate imposition of a fine did not rise to the level of p e rs e c u tio n . Insofar as Chen claimed a fear of future persecution on account of his "other re sis te n c e" to China's coercive family planning policy (e.g., his refusal to pay the fine im p o s e d despite the cadres' ensuing threat of arrest), the IJ found that Chen had not p re se n te d a credible claim. In particular, the IJ found that Chen's testimony regarding the th re a t of arrest for failure to pay the fine was not included in his asylum application and, f u rth e r, was not corroborated by the letter submitted from his wife. The IJ noted that the sa m e held true for Chen's claim that his wife was arrested and detained for one day in 2 0 0 3 for failing to pay the fine. A s a result of this adverse credibility determination, the IJ concluded that Chen f a ile d to established a well-founded fear of future persecution upon his return to China. Moreover, the IJ noted that, even if credible with respect to this claim, Chen's fear of g o v e rn m e n t retribution was nonetheless not an objectively reasonable one given the fact th a t his wife has had no problems in China, save one minor incident in 2003. Because C h e n failed to meet his burden of establishing a well founded fear of future persecution o n account of his "other resistence" to China's family planning policy, the IJ concluded th a t he failed to meet the higher burden necessary for withholding of removal. Finally, h a v in g offered no action by the Chinese government that could be considered torturous tow ard him, the IJ rejected Chen's CAT claim as well. The IJ thus denied Chen's

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re q u e sts for relief and ordered him removed to China. T h e BIA dismissed Chen's appeal in an Order issued on March 31, 2009. Given this Court's opinion in Lin-Zheng v. Att'y Gen., 557 F.3d 147 (3d Cir. 2009) (en banc), th e BIA agreed that, even if credible, Chen cannot establish eligibility for asylum or w ith h o ld in g of removal due to the claimed treatment of his spouse in connection with a v io latio n of China's family planning policy law. As for the IJ's adverse credibility f in d in g , the BIA concluded that the finding was not clearly erroneous, especially given C h e n 's inability to persuasively explain the noted inconsistencies and omissions when a f f o rd e d the opportunity to do so. App. at 4 Moreover, as did the IJ, the BIA noted that ­ the credibility finding n o tw ith s ta n d in g ­ the incidents recounted by Chen do not rise to the level of past p e rs e c u tio n nor do they constitute a basis for a well-founded fear of future persecution on a c co u n t of "other resistence." Because Chen failed to meet the higher standard for a s ylu m , the BIA concluded he could not meet the standard for withholding of removal. Finally, despite the fact that he did not raise any arguments regarding the CAT claim on a p p e al, the BIA nonetheless noted in its conclusion Chen's failure to demonstrate that he is "more likely than not" to be tortured if returned to China. Chen has timely petitioned f o r review of the BIA's decision. W e will deny the petition for review. We have jurisdiction under 8 U.S.C. § 1 2 5 2 (a )(1 ), (b)(1). Where the BIA adopts the findings of the IJ and discusses some of the

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b a se s for the IJ's decision, we have authority to review both decisions. Chen v. Ashcroft, 3 7 6 F.3d 215, 222 (3d Cir. 2004). An applicant bears the burden of proving eligibility for a sylu m . Shardar v. Att'y Gen. of U.S., 503 F.3d 308, 312 (3d Cir. 2007). The applicant m a y demonstrate such eligibility by showing either past persecution or a well-founded f e ar of future persecution on account of race, religion, nationality, membership in a p a rtic u la r social group, or political opinion. See INA § 101(a)(42)(A), 8 U.S.C. § 1 1 0 1 (a )(4 2 )(A ). Significantly, "persecution connotes extreme behavior, including threats to life, confinement, torture, and economic restrictions so severe that they constitute a th re a t to life or freedom." Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003) (qu o tation s omitted). It "does not include all treatment that our society regards as unfair, u n just, or even unlawful or unconstitutional." Id. (quotation omitted). In the absence of evidence of past persecution, the applicant must demonstrate a s u b je c tiv e fear of persecution through credible testimony that his fear is genuine, Zubeda v . Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003), and the applicant must show that a rea so n ab le person in his circumstances would fear persecution if returned to the country in question. See id. The BIA's findings in this regard "are conclusive unless any re a s o n a b le adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1 2 5 2 (b )(4 )(B ) . See also Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 4 7 8 , 481 (1992). Under this deferential standard, Chen must establish that the evidence d o e s not just support a contrary conclusion but compels it. See Gao v. Ashcroft, 299 F.3d

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2 6 6 , 272 (3d Cir. 2002). T h e more exacting withholding of removal standard requires an alien to show by a " c le a r probability" that his life or freedom would be threatened on account of a protected g ro u n d in the proposed country of removal. Immigration & Naturalization Serv. v. S te v ic , 467 U.S. 407 (1984). See also Immigration & Naturalization Serv. v. CardozaF o n s e c a , 480 U.S. 421, 430 (1987) ("would be threatened" standard has no subjective c o m p o n e n t ).1 W e recently held that there is no automatic refugee status for spouses or unmarried p a rtn e rs of individuals subjected to coercive population control policies. Lin-Zheng v. A tt'y Gen., 557 F.3d at 157. However, spouses remain eligible for relief if they can estab lish their own persecution for resisting China's coercive reproductive policy or a w e ll- f o u n d e d fear of future persecution for that resistance. See 8 U.S.C. § 1101(a)(42). We agree with the BIA that Chen is unable to make such a showing. C h e n challenges the agency's credibility determination and contends that he has e s ta b lis h e d his eligibility for relief notwithstanding the adverse credibility determination. We disagree. Initially we note that, given the record evidence in this case, we are unable to hold that any reasonable adjudicator would be compelled to conclude that Chen

We do not read Chen's brief to set forth any issue with respect to the denial of his C A T claim. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005) (issue deemed w a iv e d where no argument, other than mere mention of denial of claim, is included in ap p ea l brief). 7

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te stif ie d truthfully about the fine levied against him and his wife. W h ile Chen testified that he refused to pay the fine, neither his asylum application n o r the letter written by his wife set forth such an assertion. See App. at 270, 365. In f a c t, and contrary to any contention that the amount of the fine was "intrinsically p e rse c u to ry," he claimed in his asylum application that he and his wife were "forced to p a y a fine" as a result of their unauthorized second pregnancy. See id. at 365. Likewise, th e re were noted discrepancies and inconsistencies between Chen's testimony regarding th e pressures exerted on him and his wife by the Chinese officials' attempts to collect p aym en t of the fine and the supporting relief documents. See id. at 70, 86-90. Moreover, a s the IJ observed, see id. at 176-179, when Chen was questioned about the fine, his te stim o n y on the issue was evasive and unresponsive, making him out to be ­ at times ­ a d if f ic u lt witness. See 8 U.S.C. § 1158(b)(1)(B)(iii) ("Considering the totality of the c irc u m s ta n c es , and all relevant factors, a trier of fact may base a credibility determination o n the demeanor, candor, or responsiveness of the applicant..."). F in a lly, we agree with the BIA and the IJ that ­ even assuming a favorable c re d ib ility determination on the fine issue ­ the harm that Chen suffered did not rise to the le v e l of past persecution nor does it constitute a basis for finding a well-founded fear of f u tu re persecution. While Chen's complaints to the cadres and arguments about his w if e 's abortion with family planning officials may constitute "other resistance," the re c o rd does not compel a finding that his experiences based on that resistance rise to the

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level of persecution. In fact, Chen's encounters with the cadres were fairly uneventful. Additionally, while Chen claimed that a fine totaling 6000 RMB was imposed against h im , he did not allege that the fine was so onerous that it threatened his life or freedom. See Li v. Att'y Gen., 400 F.3d 157, 168 (3d Cir. 2005). Moreover, we cannot conclude th a t the short detention of his wife back in 2003 was sufficiently severe such that Chen w o u ld now have a reasonable fear that more drastic collection measures amounting to p e rs e c u tio n await him. Because Chen cannot satisfy the asylum standard, the BIA correctly concluded that h e cannot satisfy the more difficult withholding of removal standard. See Zubeda, 333 F .3 d at 469-70. Accordingly, we will deny the petition for review.

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