Qi Lin v. Atty Gen USA

Filing 3010166380

Qi Lin v. Atty Gen USA

Doc. 3010166380

Case: 09-4045

Document: 003110166380

Page: 1

Date Filed: 06/02/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-4045 ___________ Q I LIN P e titio n e r v. A T T O R N E Y GENERAL OF THE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. A99 023 507) Im m ig ra tio n Judge: Honorable Annie S. Garcy ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) M a y 26, 2010 B e f o re : BARRY, STAPLETON and NYGAARD, Circuit Judges (O p in io n filed: June 2, 2010) ___________ O P IN IO N ___________ P E R CURIAM Q i Lin, a citizen of China, arrived in the United States in October 2005. He c o n c ed e d that he was removable for entering without a valid entry document. See Im m ig ra tio n and Nationality Act ("INA") § 212(a)(7)(A)(i)(I) [8 U.S.C.

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Case: 09-4045

Document: 003110166380

Page: 2

Date Filed: 06/02/2010

§ 1182(a)(7)(i)(I)]. Lin applied for asylum, withholding of removal, and for protection u n d e r the Convention Against Torture, claiming that, as the spouse of a woman who had b e e n forced to have IUDs inserted and undergo an abortion, he qualified as a refugee u n d e r the Act. Administrative Record ("A.R."), 376-77. Lin's wife submitted a written s ta te m e n t, explaining that she became pregnant after the birth of her daughter in May of 2 0 0 1 . On September 2, 2003, family planning officials came to their house. During a stru g g le to prevent Lin's wife from leaving, one of the officials fell. A.R. 85, 377. Lin w a s blamed for the incident, but he was not arrested or charged with any crime. A.R. 1 2 0 . Lin's wife was taken to the hospital, where an abortion was performed. A.R. 222. L in also claimed that he had to pay a 10,000 RMB fine, that the government refused to p e rm it him to have a second child, and that he fears persecution because he left China ille g a lly. A.R. 95, 97, 106. He also asserted that he was "trouble[d] and harass[ed]" by th e birth control officials. A.R. 377. T h e Immigration Judge ("IJ") denied relief, noting that spouses do not au tom atica lly qualify as refugees under the Attorney General's decision in Matter of J-S-, 2 4 I. & N. Dec. 520 (AG 2008) (spouse of person forced to undergo abortion or ste riliza tio n is not automatically a refugee under INA § 101(a)(42)). With respect to L in 's other allegations, the IJ held that the 10,000 RMB fine did not constitute p e rs e c u tio n , that the evidence did not support Lin's claim that the Chinese government w o u ld deny a permit to have a second child, and that Lin did not depart China illegally.

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Case: 09-4045

Document: 003110166380

Page: 3

Date Filed: 06/02/2010

O n appeal to the Board of Immigration Appeals ("BIA"), Lin conceded that his w if e 's experiences no longer automatically qualify him for asylum. A.R. 16-17. Instead, h e requested that the Board remand the matter so he could demonstrate that he will be p erse cu ted based on "other resistance" to China's family planning policies. A.R. 12. In p a rtic u la r, he alleged that the 10,000 RMB fine and the government's refusal to issue a b irth permit constituted persecution. A.R. 13-17. The BIA dismissed the appeal, c o n c lu d in g that Lin failed to present any new evidence that the fine amounted to e c o n o m ic persecution or that the Chinese government will prevent him from having a s e c o n d child. Lin filed a timely petition for review. We have jurisdiction pursuant to INA § 242 [8 U.S.C. § 1252]. "[W]hen the BIA b o th adopts the findings of the IJ and discusses some of the bases for the IJ's decision, [ th is Court has] authority to review the decisions of both the IJ and the BIA." Chen v. A sh cro ft, 376 F.3d 215, 222 (3d Cir. 2004). This Court ultimately will review the BIA's a n d IJ's factual findings for substantial evidence. See Briseno-Flores v. Att'y Gen., 492 F .3 d 226, 228 (3d Cir. 2007). "The [IJ's and] BIA's determination will not be disturbed u n le s s `any reasonable adjudicator would be compelled to conclude to the contrary.'" Yu v . Att'y Gen., 513 F.3d 346, 348 (3d Cir. 2008) (quotation omitted). An applicant for a s ylu m has the burden of establishing that he is unable or unwilling to return to his home c o u n try "because of [past] persecution or a well-founded fear of future persecution on a c co u n t of race, religion, nationality, membership in a particular social group, or political

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Case: 09-4045

Document: 003110166380

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Date Filed: 06/02/2010

o p in io n [ .]" INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A)]. Persecution "connotes e x tre m e behavior, including threats to life, confinement, torture, and economic re stric tio n s so severe that they constitute a threat to life or freedom." Ahmed v. Ashcroft, 3 4 1 F.3d 214, 217 (3d Cir. 2003) (internal quotations omitted). The spouses of those who have been persecuted by coercive population control p o lic ie s are not automatically eligible for asylum. See Lin-Zheng v. Att'y Gen., 557 F.3d 1 4 7 , 156 (3d Cir. 2009) (en banc). Based on the statutory definition of "refugee" in INA § 101(a)(42) [8 U.S.C. § 1101(a)(42)], we concluded in Lin-Zheng that refugee status e x te n d s only to the individual who had been subjected to an involuntary abortion or s te riliz a tio n procedure, had been persecuted for failing or refusing to undergo such a p ro c e d u re , or had a well-founded fear of such persecution in the future. See id. Lin re c o g n ize s this, but argues that he established past persecution based on his opposition to h is wife's abortion. See id. at 157 (noting that spouses remain eligible for relief if they q u a lif y as a refugee under § 101(a)(42) [8 U.S.C. § 1101(a)(42)] based upon their own p e rs e c u tio n , or well-founded fear of persecution, for "other resistance" to a coercive p o p u lation control program). In his brief, Lin claims that he was beaten, but the record c o n ta in s no testimony or statement supporting his allegation. He testified that he s tru g g le d with a birth control official who had come to take his wife to the hospital, and th a t the official "trouble[d] and harass[ed]" him. These incidents simply do rise to the le v e l of persecution. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005).

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Case: 09-4045

Document: 003110166380

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Date Filed: 06/02/2010

In addition, Lin has failed to demonstrate that the 10,000 RMB fine and the g o v e rn m e n t's refusal to issue a birth permit constitute persecution, nor did he show that a re m a n d was necessary to develop such evidence. Lin testified that the fine was imposed v e rb a lly and that he did not take it seriously. A.R. 115; see also Yu v. Att'y Gen., 568 F .3 d 1328, 1334 (11th Cir. 2009) (concluding that petitioner who hid from authorities w ith his wife to avoid her sterilization did not show "other resistance" and that fine was in s u f f ic ie n t to establish past persecution). With respect to the birth permit, Lin explained that the local birth control policy allows a couple to have a second child four years after a g irl is born. A.R. 81. Lin testified that he applied for such a permit, but explained that v illa g e officials denied his application and "kept putting things off." A.R. 95. But Lin s u g g e ste d that he could apply again, noting that the village officials "gave us [a] w a rn in g ," that "it will be difficult to get things done when I go to them in the future" and th a t "sometimes they will not issue certificates." A.R. 95. Given this testimony, a re a so n a b le adjudicator would not be compelled to conclude that the BIA incorrectly d eterm ined that "it is speculative that the government of the PCR would deny [Lin] a b irth permit to have a second child." In sum, substantial evidence supports the determination that Lin has not suffered p a st persecution and does not have a reasonable fear of future persecution. Because Lin c a n n o t satisfy the asylum standard, he cannot satisfy the more difficult withholding of re m o v a l standard. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003).

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Case: 09-4045

Document: 003110166380

Page: 6

Date Filed: 06/02/2010

Additionally, there is no evidence that Lin had been or would be tortured. F o r the foregoing reasons, we will deny the petition for review.

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