Baojin Liu v. Atty Gen USA

IMG-267 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3893
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BAOJIN LIU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-782-488)
Immigration Judge: Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 22, 2010
Before: AMBRO, CHAGARES AND ALDISERT, Circuit Judges
(Opinion filed September 10, 2010)
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OPINION
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PER CURIAM
Baojin Liu seeks review of the Board of Immigration Appeals’ (“BIA”) final order
dismissing his appeal of the Immigration Judge’s (“IJ”) denial of asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We will deny the
petition.
Liu, a native and citizen of China, entered the United States in August 2007. He was
later charged with entering the United States without being admitted or paroled, in violation
of INA § 212(a)(6)(A)(i). Liu conceded removability and applied for asylum, withholding
of removal, and relief under the CAT, claiming that he experienced past persecution and
fears future persecution on account of China’s coercive family planning policy.
Specifically, Liu claimed that after his wife gave birth to their first child, a son, she
was forcibly taken by family planning officials for insertion of an IUD device. Liu testified
that although officials determined that she was not suitable for an IUD at that time, they
required her to report to them for monthly check-ups. Liu claimed that when he found out
about the attempted IUD insertion, he went to his local government service center to ask why
his wife had been taken.
Liu claimed that after his wife became pregnant for a second time, the couple went
into hiding at her aunt’s home. However, Liu testified that family planning officials
discovered the couple and Liu’s wife was removed from the home and forced to undergo an
abortion and IUD insertion. During the incident, Liu attempted to push the officials away
from his wife, but they restrained him and pushed him to the ground. Soon thereafter, Liu
left China for the United States. Liu testified that he would like to have more children, but
fears that his wife will be sterilized if she has another child. He also testified that he believes
he will be fined and detained by the Chinese government if he is returned to China.
In an October 2008 opinion, the IJ denied Liu’s application for asylum and related
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relief. Although the IJ found that he testified credibly, he was unable to conclude that Liu
suffered past persecution, or had a well-founded fear of future persecution, on account of
China’s family planning policy. First, the IJ concluded that pursuant to the Attorney
General’s decision in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), Liu did not
automatically qualify as a refugee based on his wife’s alleged forced abortion and IUD
insertion. To the extent that Liu sought relief based upon his own opposition to the family
planning policy, the IJ concluded that his experiences in China did not rise to the level of
persecution. The IJ also found that Liu presented no evidence suggesting that the Chinese
government is still seeking to punish him based on his alleged previous opposition to the
country’s family planning policy. The IJ concluded that Liu’s claim of future persecution
was too speculative and he was not entitled to relief.
Liu appealed the IJ’s ruling and, in September 2009, the BIA affirmed. Liu filed a
timely petition for review in this Court.
We have jurisdiction under 8 U.S.C. § 1252. “[W]hen the BIA both adopts the
findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to
review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d
Cir. 2004). Whether an applicant has demonstrated past persecution or a well-founded fear
of future persecution is a question of fact, which we review for substantial evidence.
Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003). This means that we must uphold
the BIA’s findings to the extent they are “supported by reasonable, substantial and probative
evidence on the record as a whole.” Id.3
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.” Id. We have held, however, that there is no
automatic refugee status for spouses of individuals who have been subjected to coercive
population control policies. Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir. 2009) (en
banc). Thus, to the extent that Liu relies on his wife’s forced abortion and IUD insertion to
support his application for asylum, our decision in Lin- Zheng precludes the claim.
Spouses remain eligible for relief in their own right provided that they qualify as
refugees based upon their own persecution. See id. (noting that the statute confers refugee
status on a person who has been persecuted for “other resistance” to a coercive population
control program or has a well-founded fear that he will be subject to persecution for such
resistance); see also 8 U.S.C. § 1101(a)(42)(B). Here, Liu argues that he “provided
substantial evidence [of] a local coercive family planning policy in his place of last habitual
residence and evidence that he resisted those practices both vocally. . . and physically.” (See
Pet. Br. at 19.)
Persecution includes “threats to life, confinement, torture, and economic restrictions
so severe that they constitute a real threat to life or freedom.” Lukwago v. Ashcroft, 329
F.3d 157, 168 (3d Cir. 2003) (internal quotation marks and citation omitted). It does not
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include “all treatment that our society regards as unfair, unjust, or even unlawful or
unconstitutional.” Id. at 167-168. We agree with the BIA that Liu, who has the burden of
establishing his eligibility for asylum, see 8 C.F.R. § 208.13(a), has not met that standard.
Liu did not claim to have ever been jailed, fined, or hospitalized for his alleged
resistance to the family planning policy. Although he claimed that when officials forcibly
took his wife to have an abortion he was restrained and pushed to the ground, such a claim
of “other resistance” does not rise to the level of past persecution or constitute a basis for a
well-founded fear of future persecution. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.
2004) (an alleged beating that does not result in any injuries that required medical attention
does not constitute persecution).
Where past persecution is not established, an alien can demonstrate a well-founded
fear of future persecution by showing that he has “genuine fear,” and that a “reasonable
person in [his] circumstances would fear persecution if returned to [his] native country.”
Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003) (internal quotation marks and
citation omitted). The BIA correctly noted that there is no record evidence suggesting that
Chinese authorities have a present interest in Liu, or that he has a well-founded fear of future
persecution based on his purported resistance to the family planning policy. We conclude
that the asylum claim was properly denied.
Because Liu did not meet his burden of proof as to his asylum claim, his claim
for withholding of removal necessarily fails, as does his claim for protection under the
CAT. See Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir. 2008).
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Accordingly, we will deny the petition for review.
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