Chen v. Atty Gen USA ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2946
___________
SHAN TENG CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A098-903-554)
Immigration Judge: Honorable Miriam K. Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 21, 2011
Before: FUENTES, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: December 22, 2011)
_________
OPINION
_________
PER CURIAM
Shan Teng Chan, a Chinese citizen, seeks review of a final order of the Board of
Immigration Appeals (“BIA”). For the following reasons, we will deny the petition for
review.
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I.
Chen entered the United States without inspection in August 2004. In March
2005, he filed an application for asylum, withholding of removal, and protection under
the United Nations Convention Against Torture (“CAT”), claiming that he was
persecuted under China’s family planning policy. Chen was later charged as removable
under 8 U.S.C. § 1182(a)(6)(A)(i).
At his removal proceedings, Chen testified that after his wife gave birth to a child
in 1991, she was forced to wear an IUD and to consent to periodic checkups. Chen
assisted his wife in having the IUD removed in September 1994, and his wife became
pregnant one month later. Chen’s wife went into hiding, but was discovered by the
authorities and forced to have an abortion in 1995. Then, in February 2004, when Chen
tried to intervene in his sister’s forced sterilization, family planning officials slapped him,
pushed him away, and accused him of resisting the family planning laws. Chen did not
indicate that he had any additional problems with the Chinese officials or that they have
looked for him since he departed from China.
In June 2009, an Immigration Judge (“IJ”) denied Chen’s application for relief,
determining that he failed to meet his burden of proof. In June 2011, the BIA affirmed
the IJ’s decision. 1 The BIA agreed that Chen did not establish past persecution,
explaining that he was not per se entitled to refugee status based on his wife’s forced
1
The BIA determined that it was improper for the IJ to assess the petition under the
REAL ID Act because Chen’s application was filed before its enactment. It properly
concluded, however, that the error was harmless because it did not “alter the results in
this case.”
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abortion. See Lin-Zheng v. Att’y Gen., 557 F.3d 147 (3d Cir. 2009) (en banc); Matter of
J-S-, 24 I. & N. Dec. 520 (A.G. 2008). Chen also did not show that his “resistance” to
the family planning policies resulted in harm that could be classified as persecution. The
BIA concluded that Chen did not have a well-founded fear of persecution on account of
any resistance to the family planning policy, as he did not indicate that he had problems
in China following his encounter with the family planning officials, or that officials had
looked for him since he had left China.
Chen, through counsel, has filed a petition for review which the government
opposes.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C.
§ 1252(a)(1). The BIA’s decision is reviewed under the substantial evidence standard
and will be upheld “unless the evidence not only supports a contrary conclusion, but
compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (internal citation
omitted).
As the BIA concluded, Chen may not rely on his wife’s forced abortion to
establish automatic asylum eligibility based on past persecution. See Lin-Zheng, 557
F.3d at 156. Based on the statutory definition of refugee under 8 U.S.C. § 1101(a)(42),
we have determined that refugee status extends only to individuals who have been
subjected to an involuntary abortion or sterilization procedure, have been persecuted for
failure to undergo such a procedure, or have a well-founded fear of such persecution in
the future. Lin-Zheng, 557 F.3d at 156. Spouses are eligible for relief if they qualify as a
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refugee based on their own persecution or well-founded fear of persecution for “other
resistance” to a coercive population control program. Id. at 157.
Chen argues that he was persecuted for resisting the family planning policies when
he tried to stop officials from forcibly sterilizing his sister. However, even assuming that
his actions constitute “other resistance,” substantial evidence supports the BIA’s
determination that Chen was not persecuted. See Fatin v. INS, 12 F.3d 1233, 1240 (3d
Cir. 1993) (defining persecution as “threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom”). 2 Chen asserts that
he was slapped, pushed, and accused of resisting the family planning policies when he
tried to help his sister. This type of treatment does not constitute persecution.
Further, Chen also has not set forth any argument sufficient to compel us to
overturn the BIA’s decision that he failed to establish a well-founded fear of future
persecution if he returns to China. See Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d
Cir. 2003) (explaining a petitioner’s burden to prove a well-founded fear of future when
he or she has not established past persecution).
Because the threshold for asylum is lower than that for withholding of removal,
Chen cannot successfully challenge the denial of his withholding of removal claim. See
Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir. 2008). Finally, we agree that Chen failed to
establish eligibility for CAT protection. See 8 C.F.R. § 208.16(c)(4).
2
Chen also asserts that he is eligible for relief because he resisted the family planning
policies because he removed his wife’s IUD. However, as the Government argues, Chen
does not allege that he suffered any harm due to this action and thus he cannot establish
that he is eligible for relief. See Fatin, 12 F.3d at 1240.
4
In sum, the evidence does not compel us to overturn the BIA’s decision to deny
Chen’s claims, and for the foregoing reasons, we will deny the petition for review.
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