Dong Lin v. Attorney General , 206 F. App'x 216 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-20-2006
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4029
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4029
DONG LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
(No. A77-354-082)
Immigration Judge: Honorable Annie S. Garcy
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 7, 2006
Before: SCIRICA, Chief Judge, BARRY and ALDISERT, Circuit Judges
(Filed: November 20, 2006)
OPINION OF THE COURT
ALDISERT, Circuit Judge
Dong Lin petitions for review of a final order of the Board of Immigration Appeals
(“BIA”), which affirmed an Immigration Judge’s (“IJ”) denial of Lin’s requests for
asylum, withholding of removal and relief under the Convention Against Torture
(“CAT”). We have jurisdiction to review the BIA’s order pursuant to 8 U.S.C. § 1252.
We will deny the petition.
I.
The parties are familiar with the facts and proceedings before the BIA and the IJ,
so we will revisit them only briefly. Dong Lin is an unmarried native and citizen of China
whose girlfriend was forced to undergo an abortion. He alleges that he was arrested as a
result of his girlfriend’s pregnancy, but escaped from police custody after one day of
detention with the aid of a sympathetic guard. He also alleges that the police continue
searching for him in China. Lin came to the United States alone with the aid of a
smuggler. He arrived on March 21, 2001, without a valid entry document, and was issued
a Notice to Appear. The IJ found Lin ineligible for asylum, withholding of removal or
relief under CAT. The BIA summarily affirmed.
II.
In this case, where the BIA affirmed the IJ’s judgment without opinion, “we
review the IJ’s opinion and scrutinize its reasoning.” Dia v. Ashcroft, 353 F.3d 228, 245
(3d Cir. 2003). We review the IJ’s legal conclusions de novo. See Ezeagwuna v.
Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003). We will uphold factual determinations of the
IJ that are supported “by reasonable, substantial and probative evidence on the record
considered as a whole.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004). Our review is
based “only on the administrative record on which the order of removal is based,” and
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“administrative findings of fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(A)-(B).
The Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(A), authorizes the
Attorney General to grant asylum to an alien who demonstrates that he is a “refugee”
within the meaning of 8 U.S.C. § 1101(a)(42). Section 1101(a)(42) defines a “refugee” as
an alien who is “unable or unwilling to return to . . . [his country] because of persecution
or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion . . . .” Whether an alien has
established a well-founded fear of persecution turns on the “subjective mental state of the
alien” and on the objective nature of his reasons for fearing persecution. INS v. Cardoza-
Fonseca, 480 U.S. 421, 430-431 (1987). An alien’s credible testimony may be sufficient
evidence of a well-founded fear, “where the testimony is believable, consistent, and
sufficiently detailed to provide a plausible and coherent account of the basis for his fear.”
Matter of Mogharrabi, 19 I. & N. Dec. 439, 445 (BIA 1987). The relief of asylum is not
mandatory, but rather falls to the discretion of the Attorney General. Cardoza-Fonseca,
480 U.S. at 428 n.1.
Certain limitations on the reproductive rights of one’s spouse may constitute
persecution under the Immigration and Nationality Act. The Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 amended 8 U.S.C. § 1101(a)(42) by adding the
following language:
[A] person who has been forced to abort a pregnancy or to undergo
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involuntary sterilization, or who has been persecuted for failure or refusal to
undergo such a procedure or for other resistance to a coercive population
control program, shall be deemed to have been persecuted on account of
political opinion, and a person who has a well founded fear that he or she
will be forced to undergo such a procedure or subject to persecution for
such failure, refusal, or resistance shall be deemed to have a well founded
fear of persecution on account of political opinion.
8 U.S.C. § 1101(a)(42). The BIA has held that the spouse of a woman forced to undergo
an abortion under China’s “one couple, one child” policy is deemed to have suffered past
persecution under § 1101(a)(42). Matter of C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997).
In Chen v. Ashcroft, however, we refused to extend the holding of Matter of C-Y-
Z- to protect the fiance of a Chinese woman forced to undergo an abortion. 381 F.3d 221,
224 (3d Cir. 2004). We determined that the BIA had drawn a “distinction . . . between
married and unmarried couples,” and “[w]e defer[red] to this interpretation” under
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Chen,
381 F.3d at 227, 235.
III.
In the case at bar, the Petitioner argues that he merits asylum for two reasons: he
alleges first that he was briefly detained as a result of his girlfriend’s pregnancy, and,
second, that his girlfriend’s forced abortion constitutes persecution of him on account of
his political opinion.
Although the IJ found credible Petitioner’s claim that he had been detained, the IJ
did not accept that the alleged detention resulted from his girlfriend’s unauthorized
pregnancy. The IJ went to some lengths to express that she had found portions of
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Petitioner’s testimony credible, stating that she was “confident about the Respondent’s
credibility and believes that he is credible . . . .” When it came to Petitioner’s contention
that his detention was brought on by his girlfriend’s pregnancy, however, the IJ was less
convinced:
The [Petitioner] claims that he has been arrested and released,
but there is absolutely nothing that the respondent has done to
really explain to the Court what kind of charges must be
against him. He claims that he fears that he’s going to be sent
away to some sort of re-education camp for unmarried men,
presumably to be taught birth control or abstinence or
whatever, but the Court has not one hint or bit of information
to convince the Court that such a program in fact exists.
Therefore, the respondent has presented no evidence
whatsoever that the government of China seeks to persecute
him through its coercive population control measures, because
there’s no evidence of any measures that exist that are ever
taken against the unmarried male.
(App. at 36.) The IJ was troubled by Petitioner’s failure to present evidence that China
has any law penalizing unmarried men whose girlfriends become pregnant. The IJ granted
Petitioner an extension to obtain information about such a law, but Petitioner did not
present any. (App. at 34.) Given the absence of evidence of any such law, the IJ also
found that Petitioner had failed to show that he would be arrested or otherwise persecuted
upon his return to China.
As to Petitioner’s second alleged basis for obtaining asylum—his girlfriend’s
abortion—the precedential bite of our decision in Chen precludes us from granting relief.
It is helpful to examine the facts in Chen. In that case, the male petitioner and his fiancée
lived together at the petitioner’s parents’ house. Cai Luan Chen and Chen Gui were then
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19 and 18 years of age, respectively. The couple discovered that Chen Gui was pregnant,
and they applied for a marriage license at the local government office. They were told that
their application could not be approved since the legal age to marry was 25 for men and
23 for women.
We are satisfied that the material facts in the case at bar fall squarely within the
precedential shadow cast by Chen, and this compels us to deny relief. See Allegheny
County Gen. Hosp. v. NLRB, 608 F.2d 965, 969-970 (3d Cir. 1979) (footnote omitted)
(describing the doctrine of precedent). Like Cai Luan Chen, Petitioner was not married to
his girlfriend when she was forced to undergo an abortion. If anything, Petitioner’s claim
is weaker than that of Cai Luan Chen because he is not and never was engaged to his
girlfriend; thus, he is less able to argue that he has lost the “opportunity to have and raise
children.” Chen, 381 F.3d at 226.
The IJ correctly determined that Petitioner failed to make out a legally sufficient
claim that his girlfriend’s forced abortion constituted persecution of him. Separately, the
factual determinations of the IJ rested on substantial evidence in the record which,
considered as a whole, supported the IJ’s conclusion that the evidence was insufficient to
meet Petitioner’s burden of proof.
IV.
In addition to asylum, Petitioner seeks withholding of removal and relief under
CAT. A person who seeks withholding of removal must show that his “life or freedom
would be threatened” on account of one of the five grounds enumerated in §
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1101(a)(42)(A). To show that his life or freedom would be threatened, the alien must
establish a “clear probability of persecution.” INS v. Stevic, 467 U.S. 407, 430 (1984).
Under the clear probability standard, an alien must prove that it is “more likely than not”
that he would be subject to persecution on account of one of the five statutory grounds.
Id. at 424. This clear probability standard requires a greater evidentiary showing than is
needed to establish a well founded fear—the requirement for asylum. Cardoza-Fonseca,
480 U.S. at 446. “Thus, if an alien fails to establish the well-founded fear of persecution
required for a grant of asylum, he or she will, by definition, have failed to establish the
clear probability of persecution” needed to qualify for withholding of removal. Zubeda v.
Ashcroft, 333 F.3d 463, 469-470 (3d Cir. 2003). In the case at bar, in which Petitioner has
failed to make out a claim for asylum, he cannot meet the “clear probability” standard.
The IJ therefore was correct in dismissing Petitioner’s claim for withholding of removal.
Petitioner’s CAT claim also lacks merit. He did not refer to torture at his hearing
before the IJ, and does not raise any issue on appeal regarding CAT. His CAT claim is
therefore deemed abandoned and waived. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.
1993).
V.
We have considered all contentions of the parties and conclude that no further
discussion is necessary.
The petition for review will be denied.
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