                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-1738


PENG FEI YE,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   September 18, 2013                 Decided:   October 16, 2013


Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Petition denied by unpublished per curiam opinion.


ARGUED: Scott Eric Bratton, MARGARET WONG & ASSOCIATES, LPA,
Cleveland, Ohio, for Petitioner. Jonathan Aaron Robbins, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Stuart F. Delery, Principal Deputy Assistant Attorney
General, Shelley R. Goad, Assistant Director, Kristen Giuffreda
Chapman, Civil Division, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Petitioner Peng Fei Ye (“Petitioner”), a native and

citizen of the People’s Republic of China, petitions for review

of the final order of the Board of Immigration Appeals (“BIA”)

affirming the denial of his application for asylum, withholding

of removal, and protection under Article 3 of the United Nations

Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (“CAT”).                    Petitioner contends the BIA

erred in finding he did not demonstrate past persecution or a

well-founded         fear    of    future     persecution       on    account     of   his

resistance      to     China’s      coercive        population       control     program.

Because    we    agree      with    the   BIA      that   Petitioner’s     claims      for

relief are premised almost entirely on persecution suffered by

his   wife,     we    find       that   its   decision     is    legally       sound   and

supported by substantial evidence.                    Consequently, we deny the

petition for review.

                                              I.

              Petitioner married his wife, also a native and citizen

of China, in 1997.                Approximately one year later, the couple

gave birth to their first child, a son.                         Soon after, Chinese

family planning authorities forced Petitioner’s wife to have an

intrauterine device (“IUD”) inserted pursuant to the population

control    policies         of    the   Fujian      Province,    where     the    couple

resided.        In April 2001, Petitioner and his wife retained a

                                              2
private physician to remove the IUD so that they could conceive

another child.

                Petitioner’s wife became pregnant in June 2001.                      She

 left home and went into hiding with her aunt’s family in a

 different village.         Petitioner also left home in order to avoid

 the government officials tasked with enforcing the one-child

 policy.     In September of that year, Chinese officials learned

 Petitioner’s      wife    was   pregnant.            They   transported    her     to   a

 hospital,      forcibly     terminated         her   pregnancy,     and   inserted      a

 second    IUD.         Petitioner,    who      was     living   and   working      in   a

 different city, did not learn of his wife’s abortion or second

 IUD until after the procedures were complete.                          According to

 Petitioner, the officials warned his wife that either she or

 Petitioner would be sterilized if she became pregnant again.

                Several months later, with the help of a professional

 smuggler, Petitioner made the first of three attempts to flee

 China    for    the    United   States.          His    first   two   attempts     were

 thwarted after he had left China, and he returned to China

twice without incident.               He left China for the last time on

June 1, 2002, and entered the United States shortly thereafter.

On May 20, 2003, Petitioner filed an application for asylum,

withholding        of    removal,     and       CAT     protection     based   on    the

foregoing events.          His wife and child remain in China.



                                            3
                   On April 18, 2006, Petitioner appeared for a merits

 hearing       before      an     Immigration          Judge       (“IJ”)   in    Baltimore,

 Maryland.          At the conclusion of that hearing, the IJ denied his

 application for asylum on timeliness grounds but granted his

 application         for   withholding       of    removal          based   on   his   wife’s

 forced abortion.           In granting withholding relief, the IJ relied

 on    then-binding        BIA     precedent       conferring          automatic       refugee

 status to the spouse of a person forced to abort a pregnancy.

 See Matter of C-Y-Z-, 21 I. & N. Dec. 915, 918-19 (B.I.A. 1997)

 (en banc).          The IJ did not address Petitioner’s eligibility for

 CAT protection.

                   Both Petitioner and the government appealed the IJ’s

 decision.          On appeal, Petitioner challenged the denial of his

 asylum claim, and the government sought review of the grant of

 his withholding claim.              The BIA remanded the case on February

 20,       2008,    directing     the   IJ    to       make    a    specific     credibility

 finding       and    “clear      findings”       as    to     whether      Petitioner     was

 eligible for asylum or withholding based on his wife’s forced

 abortion.          J.A. 195. 1      Three months later, while the case was

 pending before the IJ, the Attorney General abrogated the rule

 set forth in Matter of C-Y-Z- and concluded that the spouse of


       1
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                              4
someone forced to undergo an involuntary abortion is not per se

entitled to refugee status.                       See Matter of J-S-, 24 I. & N.

Dec. 520, 537-38 (A.G. 2008).                         Rather, in order to qualify for

relief, an applicant in Petitioner’s position would have to

demonstrate he suffered past persecution or has a well-founded

fear of persecution on account of his own “other resistance” to

China’s population control program.                       Id. at 538.

              Relying          on   this        new    authority,     the      IJ    issued    a

decision      on    remand       denying        Petitioner’s      asylum,       withholding,

and    CAT    claims       on   the     merits.          Although     the     IJ    determined

Petitioner         was    credible        and     had,     in   fact,    filed       a   timely

application        for     asylum,        she     concluded     he    had     not    made     the

requisite showing of personal resistance or persecution under

Matter of J-S-.

              Petitioner once again appealed the decision to the

BIA.     On    May       30,    2012,      the    BIA     dismissed     the    appeal.        In

adopting      and        affirming        the    IJ’s     decision,      the       BIA   agreed

Petitioner         had     failed       to       establish      either      resistance        or

persecution as defined by Matter of J-S-.                             The BIA also found

Petitioner had not shown any other grounds for eligibility.

Petitioner now seeks review from this court.

                                                 II.

             Where, as here, the BIA has expressly adopted the IJ’s

decision and        included        its    own        reasons   for   affirming,         we   are

                                                  5
obliged to review both decisions on appeal.                         See Barahona v.

Holder, 691 F.3d 349, 353 (4th Cir. 2012).                          We evaluate the

BIA’s    legal      determinations       de       novo,    “affording       appropriate

deference     to    the    BIA’s    interpretation           of   the   INA    and       any

attendant regulations.”            Li Fang Lin v. Mukasey, 517 F.3d 685,

691-92   (4th      Cir.    2008).         The      BIA’s    factual     findings         are

“conclusive unless any reasonable adjudicator would be compelled

to conclude to the contrary.”                     8 U.S.C. § 1252(b)(4)(B); see

also Crespin-Valladares v. Holder, 632 F.3d 117, 124 (4th Cir.

2011).      We      will   affirm       the       BIA’s    determination      regarding

eligibility      for    asylum     or    withholding        of    removal     if    it   is

supported by substantial evidence on the record considered as a

whole.   INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

                                         III.

            The     central   issue       before      us    is    whether   Petitioner

demonstrated past persecution or a well-founded fear of future

persecution        on   account     of    his       political      opinion,        thereby

entitling him to asylum, under the following provision:

     [A] person who has been forced to abort a pregnancy or
     to undergo involuntary sterilization, or who has been
     persecuted for failure or refusal to undergo such a
     procedure or for other resistance to a coercive
     population control program, shall be deemed to have
     been persecuted on account of a political opinion, and
     a person who has a well founded fear that he or she
     will be forced to undergo such a procedure or subject
     to such persecution for such failure, refusal, or
     resistance shall be deemed to have a well founded fear
     of persecution on account of political opinion.

                                              6
8   U.S.C.      §    1101(a)(42)(B)            (emphasis             supplied).           Petitioner

contends he qualifies for asylum under this subsection because

he has been persecuted for his “other resistance” to China’s

one-child       policy        and     has         a       well-founded           fear     of    future

persecution based on the same.                            We conclude, however, that the

decisions      of     the    BIA     and     IJ       (collectively          “the       agency”)   are

supported by substantial evidence.

               Consistent        with        Matter        of    J-S-,      we    have    held,    “an

applicant who establishes that his spouse was subjected to a

forced    abortion          is     not       ‘entitled          to     refugee      status       under

[§ 1101(a)(42)(B)]’ based on that fact alone, but rather must

establish a well-founded fear of persecution in his own right.”

Yi Ni v. Holder, 613 F.3d 415, 425 (4th Cir. 2010) (quoting

Matter    of    J-S-,       24   I.      &   N.       Dec.      520,      537-38    (A.G.      2008)).

Applicants          can     satisfy       this        burden         by    presenting          evidence

showing      they         suffered       persecution            “for       engaging       in    ‘other

resistance’ to a coercive population control program[.]”                                        Matter

of J-S-, 24 I. & N. Dec. at 535.                                In other words, Petitioner

must demonstrate (1) he “‘resisted’ China’s coercive population

control program”; (2) he “suffered or has a well-founded fear

that he will suffer ‘persecution’ by the Chinese government”;

and (3) such persecution was or would be “inflicted ‘on account

of’” his resistance.               Id. at 542.


                                                      7
          We    first    consider    whether     the    record      compelled   the

agency to conclude Petitioner suffered persecution on account of

his resistance to China’s family planning policy.                       Petitioner

argues   he    “resisted”     the     policy     within       the     meaning   of

§ 1101(a)(42) when he assisted his wife in the removal of her

IUD, deliberately conceived an unauthorized child, and hid from

the authorities.       The agency disagreed.           We find it unnecessary

to   review    this     particular    dispute     because,       even    assuming

Petitioner’s conduct amounts to “other resistance,” the agency

properly found he did not suffer persecution on account of that

resistance.    See 8 U.S.C. § 1101(a)(42); Matter of J–S–, 24 I. &

N. Dec. at 520. 2

          Petitioner       himself     was     never     arrested,      detained,

sterilized,    or     physically    mistreated    by    the    family    planning

authorities.     Indeed, he presented no evidence the authorities

were even aware of his alleged resistance to the family planning

policy, much less that they took any action “on account of” such

resistance.     See Mei Fun Wong v. Holder, 633 F.3d 64, 79 (2d

     2
       The record belies Petitioner’s assertion that the agency
did not reach this issue. See J.A. 113 (finding Petitioner had
presented no evidence “that he was punished for ‘other
resistance to a coercive population control program.’ What the
record reflects is that his wife was forcibly subjected to an
abortion and that [Petitioner] left China.”).             Although
Petitioner may have preferred a more fulsome analysis, it is
difficult to imagine how the agency could have done so where, as
here, it had no other evidence of persecution to analyze.



                                       8
Cir. 2011) (recognizing the requirement of a nexus between the

persecution and the applicant’s “other resistance”).                      Rather, as

the IJ found, “the evidence shows that the authorities targeted

only       his     wife[.]”       J.A.   113.       While    the       treatment    of

Petitioner’s spouse is undoubtedly relevant to his claim, it

does not, standing alone, carry his evidentiary burden.                       Matter

of J-S-, 24 I. & N. Dec. at 534-35.                  Accordingly, we conclude

the agency’s finding that Petitioner failed to establish past

persecution is supported by substantial evidence. 3

                 We turn next to the question of whether the agency was

compelled         to   conclude   Petitioner     demonstrated      a    well-founded

fear       of    future   persecution    on   account   of   his       resistance   to

China’s family planning policy.                 Petitioner’s argument in this

regard is derived almost entirely from his testimony that family


       3
        To the extent Petitioner argues he had inadequate
opportunity to litigate this claim in light of the change in the
law wrought by Matter of J-S-, our review of the record leads us
to conclude otherwise. The Attorney General issued Matter of J-
S- while this case was pending before the IJ on remand, and
Petitioner had ample opportunity to present his claim to the
agency within the framework of that decision.            Indeed,
Petitioner never sought to reopen the evidentiary record before
the IJ, and he has not, to date, provided even the vaguest hint
of the kind of evidence he would present if given such an
opportunity.  In short, Ye has failed to identify any evidence
or argument with respect to his “other resistance” claim that
has not been “adequately considered or developed before the
[IJ],” Matter of J-S-, 24 I. & N. Dec. at 543 n.15, and the BIA
did not err in failing to remand his case, once again, to the
IJ.



                                          9
planning officials told his wife they would sterilize either her

or Petitioner if she violated the population control policy “in

the future.”        J.A. 384.       As the agency found, however, there is

no indication in the record that, if deported, Petitioner will

engage in behavior that would bring him within the purview of

this threat.        See Yi Ni, 613 F.3d at 429.               His claimed fear of

sterilization, consequently, is “speculative” and “depend[ent]

on   many   factors       outside    of    [his]    control.”          Id.        Indeed,

Petitioner suffered no threats or harm when he twice returned to

China after his initial attempts to flee, and he does not claim

any threat has arisen in the years since he departed.                            Thus, we

conclude     the     agency’s       finding       that     Petitioner        failed      to

demonstrate     a     well-founded         fear    of     future    persecution          is

supported by substantial evidence.

            Inasmuch        as    Petitioner       has     failed     to     demonstrate

either that he experienced past persecution or that he has a

well-founded       fear     of    future     persecution       on     account      of     a

statutorily    protected         ground,    he    cannot    establish        eligibility

for asylum.        Further, as the standard for statutory withholding

of   removal   is    more    stringent      than    the    standard        for   granting

asylum,     Petitioner’s         failure    to     satisfy     these        requirements

necessarily    means        he    cannot    meet     the     higher        standard     for

withholding of removal.             See Camara v. Ashcroft, 378 F.3d 361,

367 (4th Cir. 2004).             We likewise conclude the agency’s denial

                                           10
of Ye’s CAT claim is supported by substantial evidence.           See

Dankam v. Gonzales, 495 F.3d 113, 118-19 (4th Cir. 2007).

                                   IV.

          For   the    foregoing   reasons,   we   deny   Petitioner’s

petition for review.

                                                      PETITION DENIED




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