                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 11-3390
                                    ___________

                    XINGZHANG CHEN, a/k/a Xing Zhang Chen;
                         SHUYU LU, a/k/a Shu Yu Lu,
                                              Petitioners
                                    v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                             Respondent
                   ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                     (Agency Nos. A89-908-498 and A77-845-636)
                    Immigration Judge: Honorable Eugene Pugliese
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 4, 2012
                 Before: FISHER, WEIS and BARRY, Circuit Judges.
                            (Opinion filed: May 9, 2012)
                                   ___________

                                     OPINION
                                    ___________

PER CURIAM.

      Petitioners, Xingzhang Chen and his wife, Shuyu Lu, seek review of a decision by

the Board of Immigration Appeals dismissing their appeals from denial of asylum,




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withholding of removal, and protection under the Convention Against Torture. For the

reasons that follow, we deny their petition for review.

                                              I.

       Xingzhang Chen and his wife, Shuyu Lu, (the “Petitioners”) are citizens of China

who have been in the United States since 1999 and 2000, respectively. They married

while in this country and now have two children who were born in the United States.

       Each Petitioner conceded removability. Petitioner Chen applied for asylum,

withholding of removal, and protection under the Convention Against Torture (“CAT”),

sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 C.F.R. §§1208.13,

1208.16 - .18, with his wife as an intended beneficiary under his application. Because

Petitioner Lu’s claims are derivative of her husband’s, the success of her application

relies upon her husband establishing his entitlement to protection.

       Petitioner Chen’s application is predicated upon his fear that, because of his

resistance to China’s family planning policies, he will be persecuted if he is returned to

China; specifically, Chen fears that because he had two children while in the United

States, he or his wife will be forcibly sterilized and/or that he will be required to pay a

large fine upon returning to China with his family.

       Petitioners’ applications were heard by an Immigration Judge (the “IJ”) who found

that although Chen was a credible witness, the record as a whole did not establish that

either he or his wife faces a reasonable possibility of being forcibly sterilized or

otherwise persecuted upon return to China. The IJ therefore denied both applications.
                                              2
         Petitioners timely appealed the IJ’s decision to the Board of Immigration Appeals

(the “BIA”). The BIA dismissed Petitioners’ appeals, holding in its own written opinion

that the record developed failed to establish Chen’s entitlement to asylum, failed to

satisfy the more stringent requirements for his withholding of removal, and failed to

demonstrate his eligibility for protection under the CAT. In addition, the BIA denied

what it construed to be Petitioners’ motion to reopen based upon new evidence,

determining Petitioners had failed to demonstrate that the new evidence would likely

change the result of the case. Petitioners timely sought review from this Court and

moved to stay the BIA ruling pending review. We previously denied the motion for stay

and now deny the petition for review.

                                              II.

         This Court has jurisdiction to review a final order of removal under 8 U.S.C. §

1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). In this instance,

because the BIA issued its own opinion on the merits, we review its decision rather than

that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, to the

extent the BIA deferred to or adopted the IJ’s reasoning, we also look to and consider the

decision of the IJ on those points. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.

2006).

         We review the factual findings under the substantial evidence standard, see

Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir. 2007), upholding them “unless
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any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §

1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc).

Legal conclusions, including applications of law to undisputed facts of record, are

reviewed de novo. See Francois v. Gonzales, 448 F.3d 645, 648 (3d Cir. 2006).         In

summary, when “reviewing decisions of the BIA, this Court applies a deferential standard

of review. … So long as the BIA’s decision is supported by ‘reasonable, substantial, and

probative evidence on the record considered as a whole,’ we will not disturb the BIA’s

disposition of the case.” Chavarria, 446 F.3d at 515 (quoting INS v. Elias-Zacaris, 502

U.S. 478, 481(1992)). The BIA’s denial of a motion to reopen is reviewed under the

abuse of discretion standard, see Vakker v. Att’y Gen., 519 F.3d 143, 146 (3d Cir. 2008).

                                           III.

       The BIA’s opinion reveals that it undertook a thorough review of Petitioners’

claims and the evidence of record. The agency’s resolution of the appeals is reasoned

and supported by substantial evidence. Even assuming Chen was a credible witness in

testifying to his genuine fear of persecution, and thereby satisfying the first, subjective

component of the “well-founded fear of persecution” test, see Yu v. Att’y Gen., 513 F.3d

346, 348 (3d Cir. 2008), the facts of record do not establish the required second, objective

component of the test, namely that his fear of persecution is objectively reasonable, id.

       Petitioners’ evidence of record, because of disparate infirmities (in some instances

lack of any authentication, in some instances relating to differing circumstances, in some

instances lacking indicia of trustworthiness etc.) may best be characterized as raising only
                                              4
speculation of potential adverse actions, of undetermined severity, by the Chinese

authorities. Evidence presented in opposition to Petitioners’ applications, properly

considered and weighed by the BIA, magnifies the speculative nature of Petitioners’ own

case. Such a record does not satisfy Petitioners’ burdens on any of their claims.

       In seeking review, Petitioners first argue that the BIA incorrectly reviewed their

evidence under a de novo standard instead of the clearly erroneous standard. However,

at the beginning of its opinion, the BIA stated that it reviewed findings of fact and

credibility under the clearly erroneous standard, and applied a de novo standard to

remaining issues, including whether the burden of proof is met and issues of discretion.

That is the correct approach and presents no error. See Kaplun v. Att’y Gen., 602 F.3d

260, 268 (3d Cir. 2010); Yusupov v. Att’y Gen., 650 F.3d 968 (3d Cir. 2011).

       Petitioners next argue that the BIA considered evidence in the record in a

selective and arbitrary manner. They maintain that the BIA relied excessively on State

Department reports, see, e.g., Chen v. INS, 359 F.3d 121, 130 (2d Cir. 2004), and

discounted other evidence for arbitrary reasons. In a similar vein, Petitioners assert that

the BIA engaged in improper fact finding when reviewing the documentary evidence they

submitted. Petitioners’ arguments are not well founded.

       The BIA’s opinion in this instance, unlike that in Huang v. Att’y Gen., 620 F.3d

372, 388-89 (3d Cir. 2010) relied upon by Petitioners (wherein this Court held the BIA

may not ignore evidence favorable to an alien and must do more than “cherry-pick” a few

pieces of evidence), indicates that the Board undertook a thorough review of the entire
                                             5
record. The BIA properly considered and weighed State Department reports which

provided evidence contradicting Petitioners’ claim that their fear of persecution is

objectively reasonable, see Yu v. Att’y Gen., 513 F.3d at 349 (State Department reports

may constitute substantial evidence), but the BIA also gave close consideration of the

evidence submitted by Petitioners. It considered the documents they submitted from

China (including, among others, an unsigned, unauthenticated notice from the “Villagers’

Committee” regarding family planning policy and sanctions for violation of the policy

and letters from family members recounting their own forced sterilization and fines for

violations of the family planning policy). However, as the BIA’s opinion explains in

detail, because the record reflects that such documents were either unauthenticated or

lacked minimal indicia of trustworthiness, detailed the circumstances of individuals not

similarly situated, and/or were from interested witnesses who were unavailable for cross-

examination, the BIA gave them less weight in its consideration of Petitioners’

applications.

       While we have held that failure to authenticate under 8 C.F.R. § 287.6 does not

warrant “per se exclusion of documentary evidence, and a petitioner is permitted to prove

authenticity in another manner,” the BIA correctly held that Petitioners’ failure to

authenticate certain of their evidence in any manner undermines its evidentiary value.

Chen v. Gonzales, 434 F.3d 212, 218 n.6 (3d Cir. 2005). Further, statements from other

family members in China regarding their own experiences after having children in China

were based on dissimilar circumstances from those of Petitioners. Accordingly, the
                                             6
BIA’s decision (like that of the IJ) to accord little weight to such evidence is reasonable

and presents no error.

       Moreover, as the BIA correctly noted, although Petitioners raised the specter of

economic persecution by Chinese authorities, they failed to present evidence that Chen

faced economic sanctions “so severe that they constitute a threat to life or freedom.”

Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Petitioners did not, for instance, provide

any evidence other than Chen’s personal estimate as to any potential fine for an

individual in his circumstances.

       Petitioners contend that BIA precedent does not preclude them from asylum

eligibility based on their United States-born children.   The BIA, however, did not hold

that Petitioners were precluded from establishing eligibility, but ruled rather that they had

failed to establish that there is a reasonable possibility Chen or his wife will be forcibly

sterilized or otherwise persecuted for having had children without permission while in the

United States.

       As Petitioners failed to meet the burden of proof for entitlement to asylum, they

failed to meet the higher burden for withholding of removal under 8 U.S.C. § 1231(b)(3).

See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). Likewise, the record does

not support their claim for CAT protection. See id. at 182-83.

                                             IV.

       Finally, Petitioners contend the BIA abused its discretion in denying their motion

for remand. The BIA properly interpreted Petitioners’ motion as a motion to reopen. See
                                              7
Korytnyuk v. Ashcroft, 396 F.3d 272, 282 (3d Cir. 2005). As noted above, we review the

BIA’s denial of the motion for abuse of discretion. Id.; see also Vakker v. Att’y Gen., 519

F.3d 143, 146 (3d Cir. 2008).

       In support of their motion, Petitioners submitted an unsworn statement from a

Chinese citizen who recounts that after being removed to China he was forcibly sterilized

as a sanction for having had two children while in the United States. Petitioners maintain

that the BIA erred in failing to reopen the proceedings for consideration of such new

evidence.

       As noted by the BIA, the statement proffered by Petitioners was unsworn,

unnotarized, reflected facts particular to another individual which may not be

representative of Petitioners’ circumstances, and may have been made for the purposes of

litigation. Consequently, the BIA concluded that the Board could not be certain of the

declarant’s identity, “much less the reliability of the substance contained” in the

statement. On that basis, we find the BIA acted within its discretion in finding the

statement to be of insufficient evidentiary value to change the outcome of the case and in

denying Petitioners’ motion to reopen. See Guo v. Ashcroft, 386 F.3d 556, 563 & n.7

(3d Cir. 2004).




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