Guang Chen v. Attorney General United State

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: JORDAN, GREENBERG and VAN ANTWERPEN, Circuit Judges. Total Pages: 5.

Case: 13-2343

Document: 003111461869

Page: 1

Date Filed: 11/22/2013

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2343
___________
GUANG ZAI CHEN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A099-538-100)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 20, 2013
Before: JORDAN, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Opinion filed: November 22, 2013)
___________
OPINION
___________
PER CURIAM
Guang Zai Chen petitions for review of a decision of the Board of Immigration
Appeals (BIA). For the reasons below, we will deny the petition for review.

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Date Filed: 11/22/2013

Chen, a citizen of China, entered the United States in January 2006. He was
charged as removable for being present in the United States without being admitted or
paroled. Chen conceded removability and applied for asylum, withholding of removal,
and relief under the Convention Against Torture (CAT). He alleged that he had suffered
past persecution and had a well-founded fear of persecution under China’s family
planning policy. After a hearing, an Immigration Judge (IJ) denied relief. On appeal, the
BIA remanded the matter for the IJ to consider Chen’s claim that he faced sterilization in
China. The IJ again denied relief, and the BIA dismissed Chen’s appeal. Chen filed a
petition for review.
We have jurisdiction under 8 U.S.C. § 1252. To establish eligibility for asylum,
Chen needed to demonstrate either past persecution or a well-founded fear of future
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion. See Wang v. Gonzales, 405 F.3d 134, 138 (3d Cir. 2005). To
establish eligibility for withholding of removal, he needed to demonstrate that it was
more likely than not that his life or freedom would be threatened in China on account of a
protected ground. 8 U.S.C. § 1231(b)(3)(A); I.N.S. v. Stevic, 467 U.S. 407, 429-30
(1984). To be eligible for withholding of removal under the CAT, he needed to
demonstrate that it is more likely than not that he would be tortured if removed to China.
8 C.F.R. § 1208.16(c)(2). We may not reverse the BIA’s decision unless the record

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evidence would compel a reasonable fact-finder to conclude that Chen had met his
burden. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
The IJ found that Chen had not suffered past persecution. App. at 12. In her
second opinion, the IJ determined that Chen did not have a well-founded fear of future
persecution. App. at 26. She noted that Chen and his wife had only one child and were
in compliance with the family planning policy. App. at 25. The IJ observed that Chen’s
wife has not been forcibly sterilized, and Chen provided no evidence of other individuals
who were sterilized after having only one child. Id. The BIA upheld the IJ’s findings.
App. at 4. The BIA noted that the written statements from Chen and his wife did not
indicate that the government officials had threatened or even tried to contact Chen. App.
at 5.
Chen contends that he suffered past persecution and has a well-founded fear of
future persecution under China’s family planning policy. He argues that when his wife
became pregnant with their second child without permission, he was forced to go into
hiding and flee the country because he was in violation of the family planning policy. He
states that after he fled China, his wife was forcibly aborted. He asserts that if returned to
China, he would be forcibly sterilized.
Spouses of those persecuted by coercive population control policies are not
automatically eligible for asylum. Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir.
2009) (en banc). A spouse remains eligible for relief if he qualifies as a refugee based on
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his own persecution or well-founded fear of persecution for “other resistance” to a
coercive population control program. Id. Chen’s allegations that he was forced to hide
and flee the country do not amount to persecution. See Jarbough v. Att’y Gen., 483 F.3d
184, 191 (3d Cir. 2007) (“Abusive treatment and harassment, while always deplorable,
may not rise to the level of persecution.”); Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir.
1993) (persecution denotes extreme conduct, including “threats to life, confinement,
torture, and economic restrictions so severe that they constitute a threat to life or
freedom.”) Chen argues without explanation that he has demonstrated resistance to the
family planning policy. However, he has not explained how he was persecuted or would
have a well-founded fear of persecution based on this unspecified resistance.
Chen argues that he submitted a family planning notice which confirms that he has
a well-founded fear of sterilization. The BIA gave little weight to Chen’s documents
because they were unauthenticated, the author was unknown, and they were obtained for
the purpose of the hearing. App. at 4. We have held that such unauthenticated
documents may properly be discounted. Ying Chen v. Att’y Gen., 676 F.3d 112, 117 (3d
Cir. 2011). Chen argues that applicants for asylum cannot be expected to obtain
authenticated documents from their persecutors. The BIA noted that because Chen’s
wife purportedly obtained the notice from the authorities on Chen’s behalf, his failure to
prove its authenticity was significant. App. at 4-5. The BIA did not err in giving the
notice little weight.
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Chen has not shown that the record would compel a reasonable factfinder to
conclude that he suffered past persecution or has a well-founded fear of persecution.
Because Chen has not met his burden for asylum, he also has not met the higher standard
for withholding of removal. See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003).
Because Chen did not address his CAT claim in his brief, we agree with the Government
that he has waived it. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005).
For the above reasons, we will deny the petition for review.

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