                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-15-2007

Jin Hua Yang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1477




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-1477


                                   JIN HUA YANG,

                                                Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                Respondent



                        On Petition for Review of an Order of
                          The Board of Immigration Appeals
                     Immigration Judge: Honorable Annie S. Garcy
                                  (No. A97-949-277)


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 8, 2007

                    Before: SLOVITER and AMBRO, Circuit Judges
                               POLLAK,* District Judge

                                (Filed: March 15, 2007)


                                       OPINION

AMBRO, Circuit Judge


   *
    Honorable Louis H. Pollak, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
       Jin Hua Yang, a Chinese citizen, seeks review of the final order of removal by the

Board of Immigration Appeals denying him asylum, withholding of removal, and

protection under the Convention Against Torture.1 In our Court, Yang presses only

arguments relating to asylum and withholding of removal.2 Because we conclude that a

reasonable factfinder would not be compelled to conclude that Yang has a well-founded

fear of persecution upon return to China, we deny his petition for review.

                                            I.

       Yang’s claims for asylum and withholding of removal are based on events that

took place between June and October of 2003.3 In March of that year, Yang’s older sister

had become pregnant with her third child, in violation of China’s family planning policy.

On June 17, government officials went to her house after she had missed a scheduled

“IUD checkup.” Yang’s sister, however, was in hiding at her parents’ home and Yang’s

brother-in-law told the officials that she was working in another province. On September

20, Yang’s brother-in-law was arrested by two government officials after Yang’s sister

had failed to show up for two more IUD checkups.

       One week later, on September 27, two government agents went to Yang’s parents’

   1
   We have jurisdiction to review final orders of the BIA under 8 U.S.C. § 1252(a)(1).
   2
    Any argument based on the Convention Against Torture is therefore waived. See Lie
v. Ashcroft, 396 F.3d 530, 532 (3d Cir. 2005) (citing Nagle v. Alspach, 8 F.3d 141, 143
(3d Cir. 1993)).
   3
    Though the Immigration Judge expressed skepticism about the truthfulness of much
of Yang’s testimony, she assumed for the sake of her analysis that it was true. We do the
same.

                                             2
house (at which Yang also lived) to look for his sister. She was inside, but Yang’s

parents answered the door. The officials indicated that they believed Yang’s sister to be

there and threatened his parents with arrest if they did not turn her in or allow the officials

to search the house. His parents did not do either. Yang, monitoring the situation from

upstairs with his sister, then went down to help his parents deal with the officials. A ten-

minute, heated discussion among the five ensued, during which Yang physically pushed

the officials. Neither fell to the ground or was harmed, and the officials eventually left

the Yang home.

       Fearing reprisal, Yang went into hiding at a friend’s house. Government officials

came looking for Yang at his parents’ home the next day. Two days after that, Yang’s

sister submitted to an abortion and her husband was released from jail. Yang, however,

left China on October 12 with the assistance of smugglers and made his way into the

United States on January 14, 2004. Though Chinese officials occasionally went to

Yang’s parents’ house in search of Yang for several months after the September 2003

altercation, they have not done so since February 2004. Yang’s sister and brother-in-law

were not fined, remain employed, and continue to live in China without incident (as do

Yang’s parents).




                                              3
                                               II.

                                               A.

       The Attorney General has the discretion to grant asylum to an alien who qualifies

as a “refugee.” 8 U.S.C. § 1158(b). The term “refugee” includes those who are unable or

unwilling to return to their home country “because of persecution or a well-founded fear

of persecution on account of race, religion, nationality, membership in a particular social

group, or political opinion.” Id. § 1101(a)(42)(A). Moreover, individuals persecuted “for

resistance to a coercive population control program . . . shall be deemed to have been

persecuted on account of political opinion, and a person who has a well founded fear that

he or she will be . . . subject to persecution for such . . . resistance shall be deemed to

have a well founded fear of persecution on account of political opinion.” Id.

§ 1101(a)(42).

       The immigration laws also provide that the Attorney General must withhold

deportation of an individual to a particular country if his “life or freedom would be

threatened in that country because of [his] race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). Under this

provision, the immigrant must show that “it is more likely than not that he will face

persecution if he is deported.” Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. 1997)

(internal quotation marks omitted) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 430

(1987)). The test for asylum, therefore, “is less exacting” than that for withholding of

removal. Id. It does not require that persecution be more likely than not, as “[f]ear can be

                                               4
well-founded ‘even when there is a less than 50% chance of the occurrence taking

place.’” Id. (quoting Cardoza-Fonseca, 480 U.S. at 431). Therefore, if an immigrant does

not make the requisite showing for asylum, he does not qualify for withholding of

removal a fortiori. See Guo v. Ashcroft, 386 F.3d 556, 561 n.4 (3d Cir. 2004); Mulanga

v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003).

       Persecution is “extreme conduct” that is so severe as to constitute a “threat[] to

life, confinement, torture, [or] economic restrictions so severe that they constitute a real

threat to life or freedom.” Chang, 119 F.3d at 1066; see also Fatin v. INS, 12 F.3d 1233,

1240 (3d Cir. 1993). “[P]ersecution does not encompass all treatment that our society

regards as unfair, unjust, or even unlawful or unconstitutional,” Fatin, 12 F.3d at 1240,

though considering the nature of a petitioner’s potential prosecution and punishment on

return is appropriate, see Chang, 119 F.3d at 1059–62. In addition, a petitioner’s fear of

persecution must also be “well-founded,” a concept both subjective and objective. See

Lin v. INS, 238 F.3d 239 (3d Cir. 2001). “An applicant can demonstrate that [he] has a

well-founded fear of future persecution by showing that [he] has a genuine fear, and that a

reasonable person in [his] circumstances would fear persecution if returned to [his] native

country.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).

       “We must uphold the BIA’s factual findings if they are ‘supported by reasonable,

substantial, and probative evidence on the record considered as a whole.’” Lie, 396 F.3d

at 534 n.3 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 480 (1992)). Substantial

evidence is lacking in the context of a case such as ours only where “a reasonable

                                              5
factfinder would have to conclude that the requisite fear of persecution existed.” Dia v.

Ashcroft, 353 F.3d 228, 248 (3d Cir. 2003) (en banc). “We will reverse only if the

evidence not only supports a contrary conclusion, but compels it.” Guo, 386 F.3d at 561.

                                             B.

       We will assume for purposes of this case that Yang’s actions constituted

“resistance” to China’s family planning laws and thereby could qualify him as a

“refugee” under § 1101(a)(42). See generally Cao v. Att’y Gen., 407 F.3d 146 (3d Cir.

2005). Nevertheless, we cannot conclude that the record evidence compels the

conclusion that Yang has a well-founded fear of persecution if he were removed to

China.4

       Quite simply, nothing in the record indicates what, if anything, would happen to

him once there. Indeed, Yang’s own testimony about his family’s experience since 2003

itself constitutes substantial evidence that he would not be subject to persecution in

China. His brother-in-law was released from jail when his sister submitted to an abortion,

and neither was fined for his or her initial resistance to China’s family planning policy.

Both remain employed. Moreover, Yang’s parents have suffered no reprisal for their role

in concealing Yang’s sister, despite the fact that they were involved in the same

altercation with the authorities as was Yang. “[W]hen family members remain in [the]

petitioner’s native country without meeting harm, and there is no individualized showing



   4
    Yang does not argue that he has suffered from past persecution.

                                              6
that [the] petitioner would be singled out for persecution, the reasonableness of [the]

petitioner’s well-founded fear of future persecution is diminished.” Lie, 396 F.3d at 537;

see also Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839 (8th Cir. 2004). Finally, the record

indicates that though government officials periodically inquired as to Yang’s whereabouts

for some time after the relevant events, no official has done so since early 2004. In short,

a reasonable person would not be compelled to conclude that Yang should fear

persecution upon his return to China.

                                      *   *   *   *   *

       For the foregoing reasons, the decision of the BIA is supported by substantial

evidence, and we thus deny Yang’s petition for review.




                                              7
