Yong Chen v. Atty Gen USA

Filing

MANDATE ISSUED, filed.

Yong Chen v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-3827

Document: 003110260462

Page: 1

Date Filed: 08/23/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-3827 ___________ Y O N G DI CHEN, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, R espondent ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (B IA No. A79-319-079) ( U .S . Immigration Judge: Honorable Miriam Mills) ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) J u n e 23, 2010 B e f o r e : SCIRICA, JORDAN and VANASKIE, Circuit Judges. (F ile d : June 30, 2010) ___________ O P IN I O N OF THE COURT ________ P E R CURIAM. Y o n g Di Chen, proceeding pro se, petitions for review of a Board of Immigration A p p e a ls ("BIA") decision dismissing his appeal of an Immigration Judge's ("IJ") decision d e n yin g his applications for relief from removal. We will deny the petition for review. C h en is a native and citizen of China who came to the United States in 2000. In

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Case: 09-3827

Document: 003110260462

Page: 2

Date Filed: 08/23/2010

2 0 0 1 , Chen filed an application for asylum and withholding of removal. A notice to a p p e ar was issued shortly thereafter charging that Chen was subject to removal for being p re se n t in the United States without having been admitted or paroled. Through counsel, C h e n conceded that he is removable as charged. He also sought relief under the C o n v en tio n Against Torture ("CAT"). C h e n testified that he was married in 1995 and that he has one daughter who was b o rn in 1996. His wife and daughter live in China. Chen stated that, after his daughter w a s born, family planning officials forced Chen's wife to have an IUD inserted. Chen h ire d a private doctor to remove the IUD and his wife became pregnant. She hid at her m o th e r's home. In May 1997, six cadres arrived at his mother-in-law's house and took his w if e away. Chen testified that he confronted cadres in his village and they ignored him. He went home and his wife returned and told him that she had an abortion. Chen stated th a t the doctor gave his wife an abortion certificate. Two weeks later, Chen's wife was re q u ire d to have an IUD inserted. Chen testified that he does not want to return to China b e c a u s e he was persecuted there and he would not be able to have more children. The IJ concluded that Chen was not credible, noting, among other things, that the a b o rtio n certificate appeared to have been recently printed and that the background ev iden ce did not reflect that involuntary abortion certificates were in fact issued. The IJ a ls o did not admit into evidence documents Chen had submitted because they were not c e rtif ie d pursuant to 8 C.F.R. § 287.6. The IJ thus denied Chen's applications for asylum

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Case: 09-3827

Document: 003110260462

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Date Filed: 08/23/2010

a n d withholding of removal.1 The IJ also denied CAT relief, noting that Chen had not s h o w n that it was more likely than not that he would be tortured if removed. The BIA adopted and affirmed the IJ's decision insofar as the IJ found Chen not c re d ib le . Chen filed a petition for review. We granted the Government's unopposed m o tio n to remand the proceedings to the BIA based upon Liu v. Ashcroft, 372 F.3d 529, 5 3 3 (3d Cir. 2004), in which we held that it was error to exclude an abortion certificate for la c k of certification under § 287.6 because the document could be authenticated by other m e a n s. The BIA vacated its decision and remanded the case to the IJ to give Chen the o p p o rtu n ity to authenticate his documents and for the IJ to make a new credibility finding. O n remand, the matter was assigned to a different IJ, who issued an interlocutory d e c i sio n stating that Chen had submitted authentication certificates for certain documents, b u t not the abortion certificate. Noting that there was widespread fabrication of birth c o n tro l documents from Fujian Province and that the authenticity of the abortion c e rtific a te was crucial to Chen's claim, the IJ ordered Chen to submit all evidence of his a ttem p ts to authenticate that document. After receiving Chen's response, the IJ denied his a sylu m claim. The IJ did not make an adverse credibility finding but concluded that Chen

The IJ further stated that, if Chen was credible, he would have had to find past p e rse c u tio n but he would have denied asylum based on a fundamental change in c irc u m s ta n c es . The IJ explained that Chen did not have a well-founded fear of p e rs e c u tio n because he was no longer in violation of China's family planning policies and h e could now have another child under those policies because more than four years had p a s s e d since the birth of his daughter. 3

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Date Filed: 08/23/2010

h a d failed to adequately corroborate his claim that his wife had an involuntary abortion a n d had thus failed to satisfy his burden of proof. The IJ stated that Chen had not a u t h e n tic a te d the abortion certificate or shown any failed attempt to do so. The IJ also d e n ie d Chen's claims for withholding of removal and protection under the CAT. The BIA dismissed Chen's appeal, stating that the issue regarding the authenticity o f the abortion certificate was not outcome determinative of his case. Citing Lin-Zheng v. A tto rn e y General, 557 F.3d 147 (3d Cir. 2009) (en banc), the BIA explained that aliens w h o s e spouses suffered persecution in the coercive population control context are not per s e eligible for asylum, although they may show past persecution or a well-founded fear of p e rs e c u tio n on account of their own "other resistance" to a coercive population control p r o g r a m . The BIA noted that Chen did not argue that he suffered past persecution or has a w e ll-f o u n d e d fear due to his own resistance to a coercive population control program. The B IA also rejected Chen's argument that, if he has more children, he will be forcibly s te riliz e d , noting that Chen did not then have two children and that his wife was not p re g n a n t. The BIA concluded that Chen had not met his burden of proof for asylum or w ith h o ld in g of removal. This petition for review followed.2 W e have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the BIA's factual d e te rm in a tio n s for substantial evidence and the BIA's legal conclusions de novo. Lin-

The BIA also upheld the denial of CAT relief. Chen does not pursue this claim in his p e titio n for review. 4

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Document: 003110260462

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Date Filed: 08/23/2010

Z h e n g , 557 F.3d at 155. Under the substantial evidence standard of review, factual d e ter m in a tio n s must be upheld unless "any reasonable adjudicator would be compelled to c o n c lu d e to the contrary." See id. (citations omitted). As recognized by the BIA, we addressed the definition of a "refugee" in Lin-Zheng a n d held that, based on the ordinary meaning of the statutory language, only the person w h o has been forced to submit to an involuntary abortion or sterilization, has been p e rs e c u te d for failure or refusal to undergo such a procedure, or has a well-founded fear of th a t occurring in the future is a refugee. 557 F.3d at 155-57. We stated that spouses, like C h e n , remain eligible for relief in their own right provided that they qualify as a refugee b a se d upon their own persecution. Id. at 157. We explained that a spouse can claim re f u g e e status if he can show actual persecution for resisting a country's coercive family p la n n in g policy or a well-founded fear of future persecution for doing so. Id. In his brief, Chen argues that he is eligible for asylum based on his wife's forced abortion. These arguments are foreclosed by Lin-Zheng. Chen does not argue that he was h a rm e d for his own resistance to China's family planning policies or that he has a wellf o u n d e d fear of future persecution based on his own resistance. To the contrary, Chen te s tif ie d that the cadres ignored him when he confronted them. Chen also disputes a s ta te m e n t by the BIA that the abortion certificate undermines his claim that the abortion w a s forced. Because the BIA correctly held that Lin-Zheng precludes Chen's claim, it is u n n e c e s s a r y to address these arguments.

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Document: 003110260462

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Date Filed: 08/23/2010

C h e n also challenges the BIA's conclusion that he did not establish a well-founded f e ar of persecution based on his intention to have more children if he returns to China. C h en first argues that the IJ did not address whether he had a well-founded fear of future s te riliz a tio n and that the BIA engaged in impermissible fact finding in concluding that he d id not establish such a fear based on his intention to have more children. We disagree. As noted by the Government, the BIA assumed that the fact alleged by Chen (that he p la n n e d to have more children) was true, but concluded that his intention was insufficient to meet his burden to establish a well-founded fear of persecution. Chen further argues that substantial evidence does not support the conclusion that h e does not have a well-founded fear of persecution. The BIA decided that Chen had not e sta b lis h e d a well-founded fear of persecution based on his intention to have a second c h ild . We agree with the Government that Chen has not pointed to evidence establishing th a t family planning officials would seek to target him for forced sterilization if he re tu rn e d to China. Chen has not shown that the record compels the conclusion that he has a well-founded fear of persecution.3

We also agree with the Government that Lin v. Gonzales, 445 F.3d 127 (2d Cir. 2 0 0 6 ), relied upon by Chen, is distinguishable. In Lin, the IJ found that an alien, who had b e e n threatened with forced sterilization after the birth of her second child, would have a w ell-fo u n d ed fear of persecution if she became pregnant again, but found her future p re g n a n cy speculative. The court of appeals found that substantial evidence did not s u p p o rt the conclusion that a future pregnancy was speculative where the alien already h a d two children and stated that she intended to have more. Id. at 135-36. Unlike in Lin, C h e n has never been threatened with forced sterilization and the BIA did not conclude th a t he would have a well-founded fear of persecution if his wife became pregnant; 6

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Case: 09-3827

Document: 003110260462

Page: 7

Date Filed: 08/23/2010

A c c o rd in g ly, we will deny the petition for review.

instead, the BIA noted that sterilization may occur after the birth of a second child and s ta te d that Chen did not meet his burden of proof by simply stating his intention to have a s e c o n d child. 7