      IMG4-093                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-1698
                                      ___________

                                   QIN ZHEN CHEN,
                                                       Petitioner
                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                         Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A089 198 135)
                     Immigration Judge: Honorable Annie S. Garcy
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 25, 2012

            Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges

                              (Opinion filed: July 26, 2012)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      Qin Zhen Chen petitions for review of an order of the Board of Immigration

Appeals (“BIA” or “Board”), which dismissed her appeal of an Immigration Judge’s

(“IJ”) decision that denied her application for asylum, withholding of removal, and

protection under the United Nations Convention Against Torture (“CAT”). We will deny
the petition for review.

       Chen is a Chinese citizen who arrived in the United States in 2008 and filed a

timely, affirmative application for asylum, withholding of removal, and protection under

the CAT, asserting that she was persecuted for violating China’s family planning policy.

The application was denied and a notice to appear for removal hearings was issued soon

thereafter.

       At her July 2009 removal proceeding, Chen testified that she and her husband

were married in a traditional wedding ceremony in March 1996 and had a son in April

1997. In September 1997, Chen was detained at a family planning detention center for

three to four days because she had failed to register her son’s birth. Chen testified that,

during her detention, she was deprived of food and water and held in unsanitary

conditions. She stated that she was not sterilized because the officials learned that she

had a serious thyroid condition. Her husband, however, was arrested and forcibly

sterilized on September 22, 1997. After Chen’s husband was sterilized, she was

released. 1 She was also fined 10,000 RMB because she gave birth without permission.

Chen did not pay the entire fine. Instead, she paid 2,000 RMB because she had to

register her son in order for him to go to school. She testified that she had not paid the

remainder of the fine even though the officials attempted to collect it several times per

year. Although Chen remained in China until 2008 (never having paid the fine), she was

not harmed or threatened. She was able to live with her mother and brother, and her


1
  Chen’s husband emigrated to the United States in 2000. He applied for asylum but his
claim for relief was unsuccessful.


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husband sent money to her from the United States. However, she stated that the

“harassment” by the birth control officials and the denial of her husband’s asylum

application caused her to come to the United States. 2 Her son remains in China.

         The IJ denied Chen’s application for relief in July 2009. She found Chen to be

credible but determined that, under Lin-Zheng v. Attorney General, 557 F.3d 147 (3d Cir.

2009) (en banc), Chen was not eligible for asylum based on her husband’s sterilization.

The IJ also determined that Chen did not resist the population control policy, as she paid

the fine in part and “cannot establish that the government of China considers her refusal

to pay as resistance,” especially because “there is no evidence that failure to pay the fine

intruded on the respondent’s life or freedom in China.” The IJ then concluded that

Chen’s detention and the imposition of the fine did not constitute persecution and that she

had not established a reasonable or well-founded fear of future persecution.

         On February 23, 2012, the BIA dismissed Chen’s appeal. 3 The BIA noted that she

claimed that she was persecuted due to her “resistance” to the population control policy

but determined that she had not met her burdens of proof and persuasion. It first

concluded that she did not personally suffer any harm (economic or otherwise) that rose

to the level of persecution. The BIA then concluded that because Chen had not met her

burden for asylum, she could not meet the more stringent burden for withholding of



2
    Chen was able to obtain a legitimate Chinese passport and apparently left China legally.
3
  On November 12, 2009, the BIA remanded the case to the IJ due to problems with
transcription of the IJ’s decision. The IJ reissued its decision denying Chen’s application
on November 20, 2009.


                                              3
removal. Additionally, the BIA held that she failed to demonstrate her entitlement for

relief under the CAT. Chen thereafter filed in this Court a counseled petition for review.

       We have jurisdiction to review a final order of removal under 8 U.S.C.

§ 1252(a)(1). The BIA’s decision is reviewed under the substantial evidence standard

and will be upheld “unless the evidence not only supports a contrary conclusion, but

compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (internal citation

omitted).

       As the BIA concluded, Chen may not rely on her husband’s sterilization to

establish automatic asylum eligibility based on past persecution. See Lin-Zheng, 557

F.3d at 156-57. Based on the statutory definition of refugee under 8 U.S.C.

§ 1101(a)(42), we have determined that refugee status extends only to individuals who

have been subjected to an involuntary abortion or sterilization procedure, have been

persecuted for failure to undergo such a procedure, or have a well-founded fear of such

persecution in the future. Id. Spouses are eligible for relief if they qualify as a refugee

based on their own persecution or well-founded fear of persecution for “other resistance”

to a coercive population control program. Id. at 157.

       Substantial evidence supports the BIA’s conclusion that Chen did not establish

eligibility for any type of relief. Chen argues that she was persecuted for resisting the

family planning policy by refusing to pay the fine that was levied for failure to register

her son’s birth. However, even assuming that failure to pay a fine constitutes “other

resistance,” substantial evidence supports the BIA’s determination that Chen’s treatment

did not rise to the level of persecution. See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.


                                              4
1993) (defining persecution as “threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom”). As the BIA

explained, Chen paid part of the fine in order to register her son for school. She remained

in the country for several years after the fine was assessed, and although officials asked

her to pay the fine many times each year, she was not punished in any way for failing to

comply. See Yu v. Att’y Gen., 568 F.3d 1328, 1334 (11th Cir. 2009) (stating that the

petitioner did not demonstrate past persecution by hiding with his wife to avoid her

sterilization, being fined, or being threatened with arrest). This treatment neither rose to

the level of persecution nor provided any basis for determining that she would be

persecuted in the future if she returns to China. Additionally, Chen’s three-day detention,

while unfortunate, did not rise to the level of persecution. Cf. Toure v. Att’y Gen., 443

F.3d 310, 318-19 (3d Cir. 2006); Voci v. Gonzales, 409 F.3d 607, 614 (3d Cir. 2005).

We further agree with the BIA that her failure to demonstrate eligibility for asylum

necessarily precludes her from meeting the more stringent standard for withholding of

removal. See Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir. 2008). 4

       In sum, the evidence does not compel us to overturn the BIA’s decision to deny

Chen’s claims, and for the foregoing reasons, we deny the petition for review.




4
 Finally, we agree that Chen failed to establish eligibility for protection under the CAT.
See 8 C.F.R. § 208.16(c)(4).


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