Xian Zhen Wu v. Attorney General of the United States

CLD-205 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1232
___________
XIAN ZHEN WU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A94 800 043)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted on the Respondent’s Motion to Dismiss or for
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 21, 2012
Before: RENDELL, HARDIMAN AND COWEN, Circuit Judges
(Opinion filed: June 29, 2012)
_________
OPINION OF THE COURT
_________
PER CURIAM
Xian Zhen Wu petitions for review of an order of the Board of Immigration
Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s (“IJ”) denial of his
applications for asylum, withholding of removal, and protection under the United Nations
Convention Against Torture. The Government has filed a “Motion for Summary Denial,”
arguing that Wu failed to exhaust the only argument that he raises in his petition for
review. Because we agree, we will grant the Government’s motion, and summarily
dismiss the petition for review. 1
Wu, a citizen of China, entered the United States in October 2006, and was
charged with removability under Immigration and Nationality Act (“INA”)
§ 212(a)(7)(A)(i)(I) [8 U.S.C § 1182(a)(7)(A)(i)(I)]. He applied for asylum, withholding
of removal, and protection under the United Nations Convention Against Torture, based
solely on an allegation that family planning officials in China forcibly sterilized his wife.
On January 8, 2010, the IJ denied relief, noting 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, 156-57 (3d Cir. 2009) (en banc). The IJ further observed that
“there is no evidence that [Wu] engaged in any conduct in response [to the sterilization]
that . . . establish[ed] . . . any sort of refusal to comply with population control measures
in China, or that [he] engaged in any other conduct that could be considered to be
protectable at this point in the law.” Because Wu had not established eligibility for
asylum, the IJ held that he could not satisfy the more difficult withholding of removal
standard. Additionally, Wu did not allege that he would be tortured in China.
1
Wu asserts that summary denial of his petition for review is inappropriate because
“[t]his Court may only dispose of a petition for review in a summary manner if it is
frivolous.” This misstates the standard. We may take summary action where an appeal
does not present a substantial question. See Third Cir. LAR 27.4 and I.O.P. 10.6.
2
Wu appealed. The BIA concluded that the IJ “correctly found that [Wu] is not
entitled to asylum or withholding of removal because he did not allege ‘other resistance’
to the coercive population control program.” Wu filed a timely petition for review and a
motion to stay removal. By order entered February 23, 2012, we denied the stay motion.
After Wu filed his brief, the Government submitted a motion to dismiss or, in the
alternative, for summary denial of the petition for review, which Wu opposes.
We have jurisdiction to review final orders of removal pursuant to INA
§ 242(a)(1) [8 U.S.C. § 1252(a)(1)]. Our jurisdiction is limited, however, to cases where
the petitioner “has exhausted all administrative remedies available to the alien as of right
. . . .” INA § 242(d)(1) [8 U.S.C. 1252(d)(1)]; Abdulrahman v. Ashcroft, 330 F.3d 587,
594–95 (3d Cir. 2003). “To exhaust a claim before the agency, an applicant must first
raise the issue before the BIA . . . so as to give it ‘the opportunity to resolve a controversy
or correct its own errors before judicial intervention.’” Bonhometre v. Gonzales, 414
F.3d 442, 447 (3d Cir. 2005) (citing Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004)).
In his brief, Wu raises only one claim, namely, that he established past persecution
based on his “other resistance” to China’s family planning policies. In particular, Wu
asserts that he “actively hid from family planning officials by leaving his home with his
wife to stay at their aunt’s house.” The Government argues that we lack jurisdiction over
this claim because Wu did not raise it before the IJ or the BIA. We agree.
To establish eligibility for asylum, an alien must prove that he is a “refugee,” as
defined in INA § 101(a)(42) [8 U.S.C. § 1101(a)(42)]. In the context of coercive
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population control programs, refugee status extends to an individual who has been
subjected to an involuntary abortion or sterilization procedure, has been persecuted for
failing or refusing to undergo such a procedure, or has a well-founded fear of such
persecution in the future. Id. When Wu initially applied for asylum, a husband who
established that his wife underwent a forced abortion or involuntary sterilization was per
se entitled to refugee status. See In re C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) (en
banc); see also Sun Wen Chen v. Att’y Gen., 491 F.3d 100, 103 (3d Cir. 2007). The law
changed, however, by the time of Wu’s merits hearing, such that a spouse of one who has
been persecuted by coercive population control policies is not automatically eligible for
asylum. Lin-Zheng, 557 F.3d at 156-57 (overruling Sun Wen Chen). Nevertheless, a
spouse remains eligible for relief if he qualifies as a refugee based on his own persecution
or well-founded fear of persecution for “other resistance” to a coercive population control
program. Id. at 157 (citing INA § 101(a)(42) [8 U.S.C. § 1101(a)(42)].
In this case, Wu did not present any evidence or testimony to the IJ concerning his
resistance to his wife’s forced sterilization or the population control program. Rather,
Wu merely acknowledged in his testimony that he was not present when his wife was
forcibly sterilized, asserted that he did not experience any problems with the Chinese
government in connection with the forced sterilization, and conceded that he did not have
any other problems while living in China. As noted, the IJ concluded that Wu was not
eligible for asylum because he had not alleged that he was persecuted for engaging in any
form of “other resistance.” Wu appealed that decision, but he did not raise or argue
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“other resistance” in his brief to the BIA. Consequently, the BIA concluded that the IJ
correctly denied relief. Wu now argues, for the first time, that he was persecuted for
“other resistance” to China’s coercive population control program by hiding from the
authorities after the birth of his second child. He emphasizes that such resistance need
not be active or forceful. See In re M-F-W- & L-G-, 24 I. & N. Dec. 633, 638 (BIA
2008) (discussing the “other resistance” provision of INA § 101(a)(42) [8 U.S.C.
§ 1101(a)(42)]). Importantly, however, Wu did not raise this claim before the IJ or the
BIA. Therefore, we lack jurisdiction to consider it. 2 Castro v. Att’y Gen., 671 F.3d 356,
365 (3d Cir. 2012); see also Wu v. Att’y Gen., 571 F.3d 314, 317 (3d Cir. 2009) (holding
that petitioner failed to exhaust claim that he was persecuted for “other resistance” by
hiding from family planning officials).
Accordingly, because Wu failed to exhaust the only claim that he raises in his
brief to this Court, we will grant the government’s motion and summarily dismiss the
petition for review.
2
Even if we could consider this claim, the record does not compel the conclusion that
Wu’s act of hiding with his wife constitutes “other resistance,” or that he suffered any
harm rising to the level of persecution as a result of his hiding. Cf. Yu v. Att’y Gen., 568
F.3d 1328, 1334 (11th Cir. 2009) (stating that “[t]o the extent that Yu’s hiding from
authorities with his wife to avoid her sterilization could be construed as ‘other resistance,’
Yu has failed to show that he was persecuted because of that resistance.”).
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