Qin Zhen Chen v. Attorney General of the United States

IMG4-093 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1698
___________
QIN ZHEN 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. A089 198 135)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 25, 2012
Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges
(Opinion filed: July 26, 2012)
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OPINION
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PER CURIAM
Qin Zhen Chen petitions for review of an order of the Board of Immigration
Appeals (“BIA” or “Board”), which dismissed her appeal of an Immigration Judge’s
(“IJ”) decision that denied her application for asylum, withholding of removal, and
protection under the United Nations Convention Against Torture (“CAT”). We will deny
the petition for review.
Chen is a Chinese citizen who arrived in the United States in 2008 and filed a
timely, affirmative application for asylum, withholding of removal, and protection under
the CAT, asserting that she was persecuted for violating China’s family planning policy.
The application was denied and a notice to appear for removal hearings was issued soon
thereafter.
At her July 2009 removal proceeding, Chen testified that she and her husband
were married in a traditional wedding ceremony in March 1996 and had a son in April
1997. In September 1997, Chen was detained at a family planning detention center for
three to four days because she had failed to register her son’s birth. Chen testified that,
during her detention, she was deprived of food and water and held in unsanitary
conditions. She stated that she was not sterilized because the officials learned that she
had a serious thyroid condition. Her husband, however, was arrested and forcibly
sterilized on September 22, 1997. After Chen’s husband was sterilized, she was
released. 1 She was also fined 10,000 RMB because she gave birth without permission.
Chen did not pay the entire fine. Instead, she paid 2,000 RMB because she had to
register her son in order for him to go to school. She testified that she had not paid the
remainder of the fine even though the officials attempted to collect it several times per
year. Although Chen remained in China until 2008 (never having paid the fine), she was
not harmed or threatened. She was able to live with her mother and brother, and her
1
Chen’s husband emigrated to the United States in 2000. He applied for asylum but his
claim for relief was unsuccessful.
2
husband sent money to her from the United States. However, she stated that the
“harassment” by the birth control officials and the denial of her husband’s asylum
application caused her to come to the United States. 2 Her son remains in China.
The IJ denied Chen’s application for relief in July 2009. She found Chen to be
credible but determined that, under Lin-Zheng v. Attorney General, 557 F.3d 147 (3d Cir.
2009) (en banc), Chen was not eligible for asylum based on her husband’s sterilization.
The IJ also determined that Chen did not resist the population control policy, as she paid
the fine in part and “cannot establish that the government of China considers her refusal
to pay as resistance,” especially because “there is no evidence that failure to pay the fine
intruded on the respondent’s life or freedom in China.” The IJ then concluded that
Chen’s detention and the imposition of the fine did not constitute persecution and that she
had not established a reasonable or well-founded fear of future persecution.
On February 23, 2012, the BIA dismissed Chen’s appeal. 3 The BIA noted that she
claimed that she was persecuted due to her “resistance” to the population control policy
but determined that she had not met her burdens of proof and persuasion. It first
concluded that she did not personally suffer any harm (economic or otherwise) that rose
to the level of persecution. The BIA then concluded that because Chen had not met her
burden for asylum, she could not meet the more stringent burden for withholding of
2
Chen was able to obtain a legitimate Chinese passport and apparently left China legally.
3
On November 12, 2009, the BIA remanded the case to the IJ due to problems with
transcription of the IJ’s decision. The IJ reissued its decision denying Chen’s application
on November 20, 2009.
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removal. Additionally, the BIA held that she failed to demonstrate her entitlement for
relief under the CAT. Chen thereafter filed in this Court a counseled petition for review.
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 her husband’s sterilization to
establish automatic asylum eligibility based on past persecution. See Lin-Zheng, 557
F.3d at 156-57. 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. Id. Spouses are eligible for relief if they qualify as a refugee
based on their own persecution or well-founded fear of persecution for “other resistance”
to a coercive population control program. Id. at 157.
Substantial evidence supports the BIA’s conclusion that Chen did not establish
eligibility for any type of relief. Chen argues that she was persecuted for resisting the
family planning policy by refusing to pay the fine that was levied for failure to register
her son’s birth. However, even assuming that failure to pay a fine constitutes “other
resistance,” substantial evidence supports the BIA’s determination that Chen’s treatment
did not rise to the level of persecution. See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.
4
1993) (defining persecution as “threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom”). As the BIA
explained, Chen paid part of the fine in order to register her son for school. She remained
in the country for several years after the fine was assessed, and although officials asked
her to pay the fine many times each year, she was not punished in any way for failing to
comply. See Yu v. Att’y Gen., 568 F.3d 1328, 1334 (11th Cir. 2009) (stating that the
petitioner did not demonstrate past persecution by hiding with his wife to avoid her
sterilization, being fined, or being threatened with arrest). This treatment neither rose to
the level of persecution nor provided any basis for determining that she would be
persecuted in the future if she returns to China. Additionally, Chen’s three-day detention,
while unfortunate, did not rise to the level of persecution. Cf. Toure v. Att’y Gen., 443
F.3d 310, 318-19 (3d Cir. 2006); Voci v. Gonzales, 409 F.3d 607, 614 (3d Cir. 2005).
We further agree with the BIA that her failure to demonstrate eligibility for asylum
necessarily precludes her from meeting the more stringent standard for withholding of
removal. See Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir. 2008). 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 deny the petition for review.
4
Finally, we agree that Chen failed to establish eligibility for protection under the CAT.
See 8 C.F.R. § 208.16(c)(4).
5