Zi He Lin v. Attorney General of the United States ( 2010 )

IMG-259 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3655
___________
ZI HE LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A089-009-226)
Immigration Judge: Susan G. Roy
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
July 14, 2010
Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: July 22, 2010)
_________
OPINION
_________
PER CURIAM
Zi He Lin petitions for review of a final order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”). We
will deny the petition for review.
I.
Zi He Lin, a native and citizen of the People’s Republic of China, entered the
United States in 2007 and was placed in removal proceedings for being an alien present
without being admitted or paroled. Lin applied for asylum, withholding of removal, and
CAT protection, claiming that he had been persecuted for resisting China’s family
planning policy. Lin also stated in his asylum application that he feared both “further
persecution on account of the family planning policy” and being fined, jailed, and tortured
for his illegal departure if he returned to China.
During the hearing on his application, Lin testified that his wife was forced to have
an intrauterine device implanted after the birth of their first child. In 2005, she had the
device removed and shortly thereafter became pregnant. To protect the pregnancy, Lin
and his wife went into hiding at her parents’ home. The authorities came looking for the
couple some time after the birth of their second child, so Lin decided to leave China. He
left in April 2007, about two years after he claimed he went into hiding. After he left,
Lin’s wife was sterilized and she was fined for the birth of the second child.
The IJ made mixed findings about Lin’s credibility. While she found that Lin
presented credible testimony about his wife’s sterilization 1 , the IJ did not believe Lin’s
1
The IJ concluded that there was no evidence in the record showing that the
sterilization was involuntary.
2
testimony about hiding from authorities. The IJ based this adverse credibility finding on
an inconsistency between Lin’s testimony and a letter from his mother-in-law, as well as
the implausibility of Lin’s testimony that he went to the police station to renew his
government identification card while in hiding because he had not broken any laws,
despite having the second child in violation of the family planning policy.
Denying relief, the IJ concluded that Lin could not establish that he is entitled to
asylum merely because he is the spouse of someone who has been forcibly sterilized. See
Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008). The IJ also determined that Lin could
not establish an independent basis for asylum by claiming that his hiding constituted
“other resistance” to the coercive family planning policy. The IJ concluded that, even if
Lin’s testimony were to be believed, mere hiding could not be deemed “other resistance,”
particularly where the applicant did not suffer any persecution himself as a result of
hiding. As for the fine levied for the birth of the second child – which Lin testified he
paid – the IJ found no evidence suggesting that the amount was egregious enough to
make it rise to the level of economic persecution. Finally, the IJ concluded that Lin could
not establish a well-founded fear of future persecution because his wife had already been
sanctioned for violating the family planning policy and there was no evidence that he left
China illegally, or that authorities were still seeking him. The BIA dismissed Lin’s
appeal, affirming the IJ’s credibility findings and conclusion that Lin had not shown that
he was entitled to relief. Lin filed a timely petition for review.
3
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252 to review final orders of
removal. In this case, the BIA affirmed the decision of the IJ and discussed some of the
bases for the IJ’s decision, so we therefore review the decisions of both the IJ and BIA.
See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). In doing so, we review factual
findings for substantial evidence and may not disturb them “‘unless any reasonable
adjudicator would be compelled to conclude to the contrary.’” Sandie v. Att’y Gen., 562
F.3d 246, 251 (3d Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). We exercise plenary
review over conclusions of law, subject to the established principles of deference
accorded agency decision-making. See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 231
(3d Cir. 2008).
Under the Immigration and Nationality Act (“INA”), an applicant may demonstrate
eligibility for asylum by showing 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. 8 U.S.C. § 1101(a)(42)(A). The INA further states that “a
person who has been forced to abort a pregnancy or to undergo involuntary sterilization . .
. shall be deemed to have been persecuted on account of political opinion.” 8 U.S.C.
§ 1101(a)(42)(B). We recently held, however, that there is no automatic refugee status
for spouses of individuals subjected to coercive population control policies. Lin-Zheng v.
Att’y Gen., 557 F.3d 147, 157 (3d Cir. 2009) (en banc). Thus, the IJ and the BIA
4
properly held that Lin was not entitled to asylum based on his wife’s sterilization.
But spouses remain eligible for relief if they can establish that they personally
were persecuted for resisting a coercive family planning policy, or that they have a well-
founded fear of future persecution for that resistance. See 8 U.S.C. § 1101(a)(42). In his
brief, Lin states that his claim for past persecution is based on the fine for the second
child and “severe emotional harm” caused by the loss of “his natural right to have more
children.” Pet. Brief at 17. Although the IJ discussed and rejected the fine as a basis for
demonstrating past persecution, Lin did not present this aspect of his claim to the BIA in
either his notice of appeal or his brief. By thus failing to exhaust his administrative
remedies, he has failed to preserve his right to judicial review of the claim. See 8 U.S.C.
§ 1252(d)(1); Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003).
Turning to the second aspect of the past persecution claim, Lin testified only that
he wanted to have more children and that he “felt very sorry for my wife and sorry about
letting her go through such a [sic] suffering.” Administrative Record at 43. “[U]nder the
right set of circumstances, a finding of past persecution might rest on a showing of
psychological harm.” Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004). But Lin’s
claim is based solely on distress about the lost opportunity for more children and, as such,
it is in essence a claim of persecution on account of his wife’s sterilization, which is no
longer a cognizable basis for asylum. See Lin-Zeng, 557 F.3d at 156. Even assuming
that a spouse’s emotional suffering caused by a forced abortion or sterilization remains a
5
cognizable basis for asylum, we conclude that Lin’s spare testimony about wanting more
children and feeling sorry for his wife does not establish that he suffered psychological
harm rising to the level of persecution.
Lin also challenges the IJ’s adverse credibility finding regarding his testimony
about hiding from authorities during and after his wife’s second pregnancy. Because Lin
has not presented to us the only claim that the adverse credibility finding has any bearing
upon 2 – i.e., whether hiding constituted “other resistance” to the coercive family planning
policy – we conclude that review of that finding is not necessary to a disposition of Lin’s
petition.
Accordingly, we will deny the petition for review.
2
An issue is waived when not presented in accordance with the requirements of Rule
28(a) of the Federal Rules of Appellate Procedure. See Ghana v. Holland, 226 F.3d 175,
180 (3d Cir. 2000).
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