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


12-11-2007

Wang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2927




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-2927


                                 HUI FANG WANG,

                                               Petitioner

                                          v.

                             ATTORNEY GENERAL OF
                              THE UNITED STATES,

                                           Respondent


                        Petition for Review of an Order of the
                            Board of Immigration Appeals
                                  (No. A78-444-652)


                   Submitted pursuant to Third Circuit LAR 34.1(a)
                                September 27, 2007

                Before: McKEE, BARRY & FISHER, Circuit Judges

                         (Opinion Filed: December 11, 2007)


                                      OPINION


McKEE, Circuit Judge.

      Hui Fang Wang petitions for review of that portion of an order of the Board of


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Immigration Appeals that affirmed the Immigration Judge’s denial of her claims for

asylum, withholding of removal, and protection under the Convention Against Torture

(“CAT”). For the reasons that follow, we will deny the petition for review.

                                             I.

       Inasmuch as we write primarily for the parties who are familiar with this case, we

need not set forth the factual or procedural history except insofar as it may be helpful to

our brief discussion. We must uphold the BIA’s denial of relief if it is based on

“reasonable, substantial, and probative evidence on the record considered as a whole.”

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). (internal quotation marks and citation

omitted).

       Wang argues that the BIA’s decision was not based on substantial evidence

because the BIA did not properly weigh testimony that friends and family were

persecuted under China’s coercive family planning policy. She also argues that the

BIA’s decision is contrary to Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004).

       Wang relies in part upon the following statement by the BIA: “[w]hile the record

is replete with documentary evidence of mistreatment of Chinese citizens who violated

the population control laws while living in China, there is nothing to show that Chinese

nationals returning to China with foreign-born children have been subjected to forced

sterilization or persecution.” A.R. 4. Wang argues that the BIA did not specify the

evidence it was referring to - the background documentation or the evidence pertaining to



                                             2
Wang’s family. She argues that if the BIA did not consider evidence such as her

mother’s forced sterilization, her sister’s forced abortion, Wang’s own forced

gynecological exams, and evidence about the treatment of her fellow villagers, the BIA’s

decision is not supported by sufficient evidence. Wang claims that this evidence is itself

sufficient to establish a reasonable fear of persecution. We disagree.

       Even assuming that the BIA did not adequately consider the evidence pertaining to

Wang’s family, we do not believe that evidence undermines the BIA’s conclusion that

Wang failed to establish a reasonable fear of future persecution. The BIA bottomed its

holding on the lack of evidence of the application of the one child policy to Chinese

nationals returning to China with foreign-born children. Thus, the ordeals that other

members of her family had to endure is irrelevant to Wang’s claim of “refugee” status.

Moreover, the BIA specifically noted that the record is replete with “evidence of

mistreatment of Chinese citizens who violated the population control laws while living in

China.” Therefore, the BIA did consider the evidence pertaining to Wang’s mother and

sister, both of whom are Chinese citizens who violated the family planning laws while

living in China.

       Wang’s claim that the BIA’s decision is inconsistent with our decision in Guo v.

Ashcroft, is also unpersuasive. Guo challenged the BIA’s denial of her petition to reopen

a previously denied asylum application in light of the intervening births of two children

to the alien. 386 F.3d at 560. Guo’s initial asylum petition had been based on fear of



                                             3
religious persecution. After the BIA affirmed the IJ’s denial of that claim, Guo attempted

to reopen in order to assert a claim for asylum based on China’s coercive family planning

policy. She argued that she had a reasonable fear of future persecution because of the

intervening birth of two children in the United States.

       To prevail on a motion to reopen, an alien must establish a prima facie case of

eligibility for asylum. Id. at 563. Wang’s attempt to rely on Guo ignores the distinction

between the quantum of proof that is required to establish a prima facie case, and the

proof required to actually establish that one is a “refugee” entitled to relief from removal.

As we explained: “Guo argues that the evidence she submitted, even if initially

insufficient to establish eligibility for asylum, at least satisfied the prima facie evidence

requirement.” . Id. at 564. Thus, in ruling that the BIA should have granted Guo’s

petition to reopen, we merely allowed her to present a new ground for asylum to the IJ; a

ground that was not previously available. We did not hold that her claim was

meritorious, nor did we determine as a matter of law that Chinese officials would apply

the coercive family policy to children born outside of China.

       The record supports the BIA’s determination that Wang has failed to make out a

prima facie case for eligibility for asylum and thus has also failed to make out a prima

facie case on her withholding and CAT claims. See Gou, 386 F.3d at 561 n.4.

                                              II.

       Accordingly, for the reasons set forth above, we will deny her petition for review.



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