                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-25-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4261




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                                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                _________

                               Nos. 05-4261, 06-3892
                                    __________

                                 DONG MING WU;
                                   HUI CHEN,

                                                     Petitioners
                                          v.

               ATTORNEY GENERAL OF THE UNITED STATES

                                                     Respondent
                                     __________

                       Petition for Review of an Order of the
                        United States Department of Justice
                           Board of Immigration Appeals
                               BIA Nos. A72-565-759
                                     and A73-569-285
                     Immigration Judge: Donald Vincent Ferlise
                                     __________

                     Submitted Under Third Circuit LAR 34.1(a)
                               on December 10, 2007

               Before: RENDELL and STAPLETON, Circuit Judges,
                          and IRENAS, District Judge.

                           (Opinion filed: March 25, 2008)


__________________

   * Honorable Joseph E. Irenas, Senior Judge of the United States District Court for
     the District of New Jersey, sitting by designation.
                                        __________

                               OPINION OF THE COURT
                                     __________

RENDELL, Circuit Judge.

       Petitioner Dong Ming Wu (“Wu”) and his wife seek review of a decision by the

Board of Immigration Appeals (“BIA” or “the Board”) to affirm the denial by the

Immigration Judge (“IJ”) of their application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”).1 Wu also challenges the

BIA’s denial of his motion to remand for an adjustment of status. For the reasons stated

below, the Petition for Review will be denied.

                                    BACKGROUND 2

       A citizen of the People’s Republic of China, Wu lived in Fuzhou, China for his

entire life prior to his arrival in the United States. While living in China, Wu married his

first wife and had one child. When Wu’s first wife became pregnant a second time, in

violation of China’s family planning laws, the authorities allegedly aborted the baby.

After the abortion, Wu and his first wife lost their jobs. After one to two weeks of an

unsuccessful job search, Wu fled alone to Brazil and then to the United States. While in

  1
   Wu’s wife, Hui Chen, originally filed an I-589 asylum application on her own behalf,
but has since withdrawn that application and is now proceeding as a derivative under
Wu’s application. Thus, although there are two petitioners, we refer throughout this
opinion only to Wu, as he is the lead petitioner in this appeal.
  2
   As we write for the benefit of the parties alone, we need not set forth a lengthy
recitation of the facts.

                                              2
the United States, Wu received a divorce from his first wife, remarried, and had three

children with his second wife. Wu now contends that he would be coercively sterilized

by the Chinese government if he returned to China because he has a total of four children,

in violation of Chinese birth control law.

       On August 30, 2005, the BIA affirmed the IJ’s denial of Wu’s application for

asylum, withholding of removal, and protection under the CAT and dismissed Wu’s

appeal. The BIA found, inter alia, that, even assuming Wu was credible, he had not

established that he had suffered past persecution, nor did he establish an objectively

reasonable well-founded fear of future persecution. Wu filed a timely appeal.

       While that appeal was pending, we remanded the case to the BIA for consideration

of Wu’s application for adjustment of status in light of our decision in Zheng v. Gonzalez,

422 F.3d 98 (3d Cir. 2005). The BIA denied Wu’s motion to remand to the IJ for lack of

jurisdiction. Wu appealed that decision as well, and the two appeals have been

consolidated for review.

                                      DISCUSSION

       We review the BIA’s factual determinations under a substantial evidence standard.

Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). “Substantial evidence is more than a

mere scintilla and is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998)

(quoting Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir. 1987). The BIA’s determination



                                             3
will not be disturbed unless “any reasonable adjudicator would be compelled to conclude

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

       I.     Asylum

       In order to be eligible for asylum, an alien has the burden to establish that he or she

is a “refugee,” as defined by 8 U.S.C. §1101(a)(42). An asylum applicant may qualify as

a refugee “either because he or she has suffered past persecution or because he or she has

a well-founded fear of future persecution” on account of race, religion, nationality,

membership in a particular social group, or political opinion. 8 C.F.R. §1208.13(b). If an

applicant can establish past persecution on account of a protected ground, there is “a

rebuttable presumption of a well-founded fear of future persecution, as long as that fear is

related to the past persecution.” Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir. 2003);

see also 8 C.F.R. §208.13(b)(1). This presumption may be rebutted if the Government

proves by a preponderance of the evidence that: (1) “[t]here has been a fundamental

change in circumstances such that the applicant no longer has a well-founded fear of

persecution”; or (2) “[t]he applicant could avoid future persecution by relocating to

another part of the applicant's country of nationality . . . and . . . it would be reasonable to

expect the applicant to do so.” 8 C.F.R. §208.13(b)(1)(i); see also Shardar v. Attorney

General, 503 F.3d 308, 312-13 (3d Cir. 2007). If an applicant cannot establish past

persecution, he or she bears the burden of establishing a “subjective fear of [future]

persecution that is supported by objective evidence that persecution is a reasonable



                                               4
possibility.” Lukwago, 392 F.3d at 175 (internal quotation marks and citation omitted).

              A.      Past Persecution

       In his petition for review before this Court, Wu argues that he “has suffered past

persecution and is eligible for the relief of asylum as a spouse of [a] victim . . . because he

was legally married to his ex-wife at the time when she was forcibly aborted by the

Chinese government.” (Pet’r’s Br. 26.) In his appeal to the BIA, however, Wu explicitly

disavowed any reliance upon past persecution as a basis for his asylum application. As

stated in his brief on appeal:

              It is clear from Respondent husband’s testimony and his
              written affidavit for asylum that Respondent husband and his
              wife’s asylum application is based on a well-founded fear of
              future persecution on account of the coercive birth control
              policy of China only, as the first sentence in Respondent
              husband’s amended affidavit reads, “I apply for political
              asylum because I fear that I will be persecuted by the coercive
              family planning policy if I were to return to China.” It is also
              clear that Respondent husband did not intend to apply for
              asylum based on the forcible abortion of his ex-wife in China
              as he freely admitted in his asylum application and to the
              Court he has divorced his ex-wife in 1994 and that his only
              fear was either he or his wife would be sterilized upon
              returned [sic] because they have four children. In this sense,
              Respondent husband’s ex-wife’s forcible abortion is not
              material to Respondent’s asylum application though it may be
              relevant to the subjective fear of Respondent husband.

(App. 44-45 (emphasis in original).)

       Despite Wu’s intent not to rely on past persecution as a ground for asylum, the

BIA nonetheless considered it as a potential argument, but rejected that argument on its



                                              5
merits. While the BIA held in Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997), that an

alien whose spouse was forced to undergo an abortion or sterilization procedure can

establish past persecution under 8 U.S.C. §1101(a)(42), the BIA declined to extend this

decision to ex-spouses. According to the BIA, “[n]either the [INA], nor our case law

extends protection to individuals based solely on their prior spousal relationship to a

woman who was forcibly aborted.” 3 (App. 34.) On the record before us, we find no

reason to disturb the BIA’s decision in this regard.

              B.     Well-Founded Fear of Future Persecution

       To succeed under the second prong of the asylum analysis, Wu has the burden to

establish “a well-founded fear of persecution,” which encompasses “threats to life,

confinement, torture, and economic restrictions so severe that they constitute a threat to

life or freedom,” including forced sterilization. 8 U.S.C. §1101(a)(42); Yu v. Attorney

General, No. 06-3933, 2008 WL 126632, at *1 (3d Cir. Jan. 15, 2008); Fatin v. I.N.S.,

12 F.3d 1233, 1240 (3d Cir. 1993). Specifically, Wu must demonstrate “a subjective fear

. . . that is supported by objective evidence that persecution is a reasonable possibility.”

Balasubramanrim v. I.N.S., 143 F.3d 157, 165 (3d Cir. 1998). The BIA is charged with




  3
   The BIA reaffirmed this position in Matter of S-Y-Y-, 24 I&N Dec. 1 (BIA 2006),
refusing to extend C-Y-Z- to boyfriends or fiancés and limiting its holding “to applicants
who are legally married under Chinese law.” Id. at 4 (emphasis added); cf. Zhuang v.
Gonzales, 471 F.3d 884, 890 (8th Cir. 2006) (noting that the court is “unaware of any
authority that expands this doctrine to cover a former spouse’s involuntary sterilization,
even if the sterilization was performed while the couple was married”).

                                              6
determining whether or not Wu has made this showing; our role is only to ascertain

whether the BIA’s conclusion is supported by substantial evidence. Yu, 2008

WL 126632, at *1.

       Our recent decision in Yu, containing facts analogous to those of the instant case,

governs the issues raised here. In Yu, two petitioners, a husband and wife from China’s

Fujian providence, sought asylum, withholding of removal, and protection under the CAT

based on their fear that one or both of them would be forcibly sterilized for violating

China’s family planning regime were they made to return. Yu, at *1. The Yu couple

alleged that they were at risk because they had a second child while residing in the United

States and relied, almost exclusively, on an affidavit prepared by retired demographer

Dr. John Aird in order to prove the objective reasonableness of their claimed fear of

sterilization. Analogous to the situation in Yu, Wu relies heavily on an affidavit by

Villanova Law Professor Joseph W. Dellapenna and on several news articles to support

the contention that the Fujian Province strictly enforces China’s coercive birth control

policy. However, as in Yu, the record here contains the 2004 State Department Country

Report for China—which rejects the notion that returning Chinese citizens face

persecution if they have multiple children outside the country. We have “repeatedly

recognized that State Department reports may constitute substantial evidence.” Yu, 2008

WL 126632, at *2. After a review of the record before it, the BIA determined that Wu

“has not sustained his burden of proving eligibility for relief in the form of asylum.”



                                              7
(App. 34.) Considering the record as a whole, we cannot say that the BIA’s decision is

not supported by substantial evidence.

       Also like the petitioner in Yu, Wu argues that the BIA’s assessment of the

objective reasonableness of his fear contradicts Guo v. Ashcroft, 386 F.3d 556, 56 (3d Cir.

2004). In Guo, the Third Circuit reversed a BIA refusal to grant a petitioner’s motion to

reopen her asylum proceeding predicated on her claimed fear of future persecution due to

multiple children she gave birth to in the United States; the motion to reopen was based

upon the submission by the petitioner of an affidavit written by a “specialist on

demographic development and population policy in China.” Id.

       Wu cannot make the same procedural claim that the Guo petitioner made,

however. As we recognized in Yu, Guo is distinguishable because the issue before the

BIA in that case was whether the petitioner had made a prima facie showing for

reopening. Here, as in Yu, the issue is whether the petitioners have carried their “ultimate

burden of persuasion in making an asylum claim.” Yu, at *3. The BIA found that they

did not, and we conclude that this finding was supported by substantial evidence “on the

record considered as a whole.” 4 See Balasubramanrim, 143 F.3d at 161 (internal

quotation marks and citation omitted).




  4
   Wu’s reliance on the Eighth Circuit’s decision in Yang v. Gonzales, 427 F.3d 1117
(8th Cir. 2005), and the Second Circuit’s decision in Shou Yung Guo v. Gonzales,
463 F.3d 109 (2d Cir. 2006), does not affect our conclusion in this regard, as those cases
are distinguishable on their facts.

                                             8
       II.    Withholding of Removal and the CAT

       Because the threshold for asylum is lower than the threshold for protection under

the withholding of removal and CAT provisions, our rejection of Wu’s asylum claim

“necessarily requires” that we reject his withholding and CAT claims as well. See, e.g.,

Yu, 2008 WL 126632, at *3. As no additional analysis is required, we need proceed no

further with a discussion of these claims.5

       III.   Wu’s Claim for Adjustment of Status

       Wu claims that the BIA improperly denied his request for a remand to the IJ to

adjudicate his application for an adjustment of status. The BIA explained that “[w]hile

this case was pending before us on remand, amendments to the regulations regarding the

availability of adjustment of status for arriving aliens in removal proceedings were

promulgated.” (App. 3 (citing 71 Fed. Reg. 27,585-592 (May 12, 2006) (now codified at

8 C.F.R. §1245.2(a)(1)(ii))).) The amended regulations make clear that, unless certain

criteria are met, “the immigration judge does not have jurisdiction to adjudicate any

application for adjustment of status filed by the arriving alien.” 8 C.F.R.

§1245.2(a)(1)(ii). According to the BIA, these new amendments “are applicable to all




  5
  To the extent that Wu’s CAT claim is based on his allegedly unlawful escape from
China, we agree with the BIA that Wu cannot sustain his burden of proving that he will
more likely than not be tortured—as defined in 8 C.F.R. §1208.18(a)—upon his return to
China. The 2004 State Department report (China: Profile of Asylum Claims and Country
Conditions), which is part of the administrative record in this case and upon which the
BIA relied, supports this conclusion.

                                              9
cases pending administrative or judicial review on or after May 12, 2006.” (Id.) Wu

contends (in a conclusory fashion) that his case “should be grandfathered from the

Interim Regulations . . . and remanded to the Immigration Court.” 6 (Pet’r’s Br. 31-32.)

Finding no legal basis for this contention, we are not so convinced. Accordingly, Wu and

his wife must pursue any applications for status with the United States Citizenship and

Immigration Services, independent of their removal proceedings.

                                       CONCLUSION

        For the reasons set forth above, the Petition for Review will be DENIED.

_______________




STAPLETON, J., concurring and dissenting:

       The BIA, interpreting 8 U.S.C. § 1101(a)(42)(B), has held that “forced sterilization

of one spouse . . . is an act of persecution against the other spouse” because it “naturally

and predictably has a profound impact on both parties to the marriage.” Matter of C-Y-Z,

21 I.&N. Dec. 915 (BIA 1997). Under this ruling, it would appear that Wu suffered past

persecution beginning at the time of his wife’s forced abortion. Without some further

explanation of the BIA’s decision that Wu has not experienced past discrimination, it is

impossible for this Court to determine whether the ruling in this case is consistent with




   6
   Wu does not meet the criteria set forth in 8 C.F.R. §1245.2(a)(1)(ii), which would
permit the Immigration Court to review his adjustment of status application.

                                              10
that in Matter of C-Y-Z or is an arbitrary and capricious deviation from it. Because we are

responsible for making that determination, I would remand this matter to the BIA in order

to secure a statement of the rationale behind its disposition of the past persecution issue.

Smriko v. Ashcroft, 387 F.3d 279, 291 (3d Cir. 2004).7




   7
  Because the BIA chose to address the past persecution issue, Wu has exhausted his
administrative remedies with respect to it, and I find it properly before us.

                                              11
