Yu Chai Wang v. Attorney General of the United States , 513 F. App'x 178 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2770
___________
YU CHAI WANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(A098-644-960)
Immigration Judge: Honorable Miriam K. Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 7, 2013
Before: SLOVITER, CHAGARES and GREENBERG, Circuit Judges
(Opinion filed: February 11, 2013)
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OPINION
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PER CURIAM.
Yu Chai Wang, 1 a native and citizen of China, petitions for review of a final
removal order entered by the Board of Immigration Appeals (“BIA”), which dismissed
1
Petitioner’s name also appears in the record as “Yue Chai Wang.”
Wang’s appeal of an Immigration Judge’s (“IJ”) decision denying her applications for
relief from removal. For the reasons that follow, we will deny the petition for review.
Wang entered the United States without inspection in 2002, married another
Chinese national in 2003, and filed an application for asylum in 2004. The government
commenced removal proceedings, and Wang conceded her removability as an alien
present in the United States without being admitted or paroled. Wang pursued asylum
and withholding of removal based on her claimed fear of returning to China now that she
and her husband have three U.S.-born children. 2 Wang maintained that, if she and her
family return to her husband’s rural village in Fujian Province, she or her husband would
be sterilized and assessed a fine of up to 30,000 Yuan for having exceeded the number of
children allowed under China’s family planning law. Unable to pay such a fine, Wang
claimed that she or her husband would be jailed.
The IJ rejected Wang’s request for relief, concluding that she failed adequately to
corroborate her fear of persecution and failed to demonstrate that her fear is objectively
well-founded. The BIA dismissed Wang’s appeal. It held that Wang failed to meet her
burden of proof inasmuch as she did not establish an objectively reasonable well-founded
fear of persecution arising from the birth of her three children in the United States. After
reviewing the background materials and individualized evidence, the BIA explained that
the evidence of record does not establish, even accepting a
violation of the family planning policy of [Wang]’s home
2
Wang did not seek Convention Against Torture protection.
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province, that such a violation would be punished in a way
that would give rise to a well-founded fear of future
persecution. The evidence establishes no uniform policy
regarding the implementation of the population control law
with respect to children born outside China. While some
individuals may be fined for such births, often no action is
taken in the Fujian Province. Sporadic reports of forcible
abortions and sterilizations, which are unauthorized under
Chinese law, are insufficient to establish a well-founded fear
of persecution.
A.R. at 5. Wang timely filed this petition for review.
We have jurisdiction under 8 U.S.C. § 1252(a). Where, as here, “the BIA issues
its own decision on the merits, rather than a summary affirmance, we review its decision,
not that of the IJ.” Hanif v. Att’y Gen., 694 F.3d 479, 483 (3d Cir. 2012). We consider
the IJ’s decision “only insofar as the BIA deferred to it.” Roye v. Att’y Gen., 693 F.3d
333, 339 (3d Cir. 2012). We review factual findings, such as the BIA’s determination
regarding Wang’s fear of future persecution, for substantial evidence. See Yu v. Att’y
Gen., 513 F.3d 346, 348 (3d Cir. 2008); Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d
Cir. 2006). In applying this deferential standard, we must accept the BIA’s finding
“unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B). “So long as the BIA’s decision is supported by ‘reasonable,
substantial, and probative evidence on the record considered as a whole,’ we will not
disturb the BIA’s disposition of the case.” Chavarria, 446 F.3d at 515 (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)).
Because Wang made no claim of having suffered persecution in the past, she had
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the burden of proof to establish that she has a well-founded fear of persecution in the
future. See Yu, 513 F.3d at 348. Persecution “encompasses threats to life, confinement,
torture, and economic restrictions so severe that they constitute a threat to life or freedom,
including forced sterilization.” Id. (quotation marks omitted). To establish that her fear
of future persecution is well-founded, Wang had to prove both a subjective fear, and that,
as an objective matter, “‘a reasonable person in [her] position would fear persecution,
either because [s]he would be individually singled out for persecution or because there is
a pattern or practice in [her] home country of persecution against a group of which [s]he
is a member.’” Khan v. Att’y Gen., 691 F.3d 488, 496 (3d Cir. 2012) (quoting Huang v.
Att’y Gen., 620 F.3d 372, 381 (3d Cir. 2010)).
In affirming the denial of Wang’s asylum application, the BIA did not question
Wang’s subjective fear, but it found that her fear of persecution lacks an objectively
reasonable basis. The BIA first reviewed the background evidence of record regarding
China’s population control law. It concluded that Wang failed to distinguish her case
from earlier decisions in which the BIA held that much of the same documentary
evidence was insufficient to show a reasonable possibility that authorities in Fujian
Province would forcibly sterilize a returning national with multiple U.S.-born children.
Among other things, the BIA looked to its decision in Matter of J-H-S-, where it
determined that “physical coercion to achieve compliance with family planning goals is
uncommon and unsanctioned by China’s national laws, and that the overall policy is
much more heavily reliant on incentives and economically-based penalties.” 24 I. & N.
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Dec. 185, 203 (BIA 2007). The BIA found that Wang failed to prove that any fine
imposed upon her for violating the family planning law would rise to the level of
persecution. 3
Turning next to Wang’s individualized evidence, the BIA determined that it does
not show an objectively reasonable fear of persecution. The BIA observed that much of
the evidence is unauthenticated or presented by individuals who were not subjected to
cross-examination. The BIA further explained that the notices obtained by Wang’s father
and father-in-law from the village committees in Wang’s town failed to specify the
penalties for refusing to undergo sterilization after the birth of a second child. In
addition, Wang’s evidence of other women who were sterilized, including her sister-in-
law, reflected the plight of individuals who were not similarly situated to Wang because
they did not have U.S-born children. The BIA also rejected as unpersuasive two
affidavits from individuals who allegedly were sterilized after returning to China from
Romania and Japan, as Wang did not know those individuals and their affidavits were not
prepared for Wang’s removal proceeding.
After a careful review of the voluminous record, we are satisfied that the BIA’s
3
In her opening brief, Wang does not challenge the BIA’s finding that any fine would
fail to qualify as persecution. Consequently, Wang has waived review of that issue
and we do not address it further. See Skretvedt v. E.I. DuPont De Nemours, 372 F.3d
193, 202-03 (3d Cir. 2004) (“We have held on numerous occasions that ‘[a]n issue is
waived unless a party raises it in its opening brief, and for those purposes a passing
reference to an issue will not suffice to bring that issue before this court.’”) (quoting
Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)).
Wang’s claim before this Court is therefore limited to whether the record compels a
finding that she would face persecution in the form of forced sterilization.
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decision is support by substantial evidence. Wang contends that the IJ erred by failing to
afford Wang an opportunity to corroborate the letters from her father and father-in-law.
However, Wang’s focus upon the IJ’s analysis ignores the fact that our review is limited
to the analysis in the BIA’s decision; we have no cause to review a portion of the IJ’s
decision that the BIA did not refer to or adopt. See Roye, 693 F.3d at 339. The BIA
expressly denied relief due to the failure of Wang’s evidence as a whole – including the
materials from her father and father-in-law – to establish an objective basis for her fear of
forced sterilization. That determination finds support in the record.
The BIA correctly observed that the notices obtained by Wang’s father and father-
in-law from the local village committees are unauthenticated, and that those documents
fail to specify any penalties for refusal to undergo sterilization after the birth of a second
child. In addition, none of the individuals who provided letters for Wang claims to have
given birth to children in the United States before returning to China, and Wang
conceded in her testimony that she does not know any woman who was sterilized in
China after having U.S.-born children. This record supports the BIA’s determination that
Wang failed to present supporting evidence from similarly situated individuals.
Wang maintains that her children will be viewed as Chinese citizens in China, that
her children will “count” against the number allowed under family planning policy, and
that there is “objective evidence that the Chinese government forcibly sterilizes returning
Chinese nationals.” Petitioner’s Br. at 15. Wang fails, however, to point to specific
evidence in this voluminous record which would be sufficient to compel this Court to
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reject the BIA’s contrary finding. The BIA observed that there is “no uniform policy
regarding the implementation of the population control law with respect to children born
outside China,” and that “[s]poradic reports of forcible abortions and sterilizations” are
insufficient. A.R. at 5. Substantial evidence supports these determinations. See, e.g.,
Ying Chen v. Att’y Gen., 676 F.3d 112, 114-15 (3d Cir. 2011) (discussing the BIA’s
“persuasive[]” decision in Matter of H–L–H & Z–Y–Z–, 25 I. & N. Dec. 209 (BIA 2010),
where the BIA rejected a claimed fear of forced sterilization in Fujian Province based on
the same State Department report – the May 2007 Profile of Asylum Claims and Country
Conditions – found in the record in the present case).
Because withholding of removal carries a higher burden of proof than asylum,
Wang’s request for that relief was properly denied. See Ying Chen, 676 F.3d at 117.
For these reasons, we will deny the petition for review.
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