                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-4-2009

Zhihong Zhao v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1577




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 08-1577


                                  ZHIHONG ZHAO,
                                                      Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                             Respondent




                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                             (Agency No. A98-892-622)
                    Immigration Judge: Honorable Henry S. Dogin


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 1, 2009

               Before: AMBRO, FISHER and JORDAN, Circuit Judges

                             (Opinion filed: June 4, 2009)


                                      OPINION




PER CURIAM

      Zhihong Zhao, a citizen of the People’s Republic of China, seeks review of a final

order of the Board of Immigration Appeals (“BIA”) affirming a decision of the
Immigration Judge (“IJ”) denying his applications for asylum, withholding of removal,

and protection under the Convention Against Torture (“CAT”). For the following

reasons, we will deny Zhao’s petition for review.

                                              I.

         Zhao entered the United States in March 2005 without inspection. On May 11,

2005, the Department of Homeland Security issued a Notice to Appear that charged Zhao

as removable under 8 U.S.C. § 1182(a)(6)(A)(i). Zhao thereafter conceded that he was

removable but filed an application for asylum, withholding of removal, and CAT relief

claiming past persecution and a well-founded fear of future persecution based on his

girlfriend’s forced abortion, his violation of China’s birth control policy, and his illegal

travel to the United States (he alleged that he was only issued an exit visa to travel to

Cuba).

         At his merits hearing, Zhao claimed that his girlfriend, Yan Hua Zhao, who lived

with him in his parents’ home, became pregnant in August 2004. Although it was against

the birth control policy to impregnate his girlfriend outside of marriage, Zhao and Yan

Hua did not get married because they were underage. They moved in with Zhao’s uncle

to avoid the family planning officials. Nevertheless, in December 2004, when neither

Zhao nor his uncle were home, government officials took Yan Hua to a hospital, where

she was subjected to a forced abortion. Letters submitted by Zhao from his girlfriend, his

father, and his uncle stated that the government officials threatened to fine, arrest, and



                                               2
imprison Zhao because he violated the family planning laws. Zhao and Yan Hua then

went into hiding, and Zhao left China, with an exit visa, in February 2005. Zhao testified

that Yan Hua remains in hiding in Shanghai because the government officials still wish to

fine her for violating the family planning laws. Zhao also alleged that he was in danger of

being persecuted if forced to return to China based on his violation of the family planning

policy and because he illegally traveled to the United States.

       On March 17, 2006, the IJ denied all requested relief after finding Zhao to be not

credible. On January 31, 2008, the BIA dismissed Zhao’s appeal.

                                             II.

       We have jurisdiction to review the BIA’s final order pursuant to 8 U.S.C.

§ 1252(a)(1). We review the BIA’s findings of facts under the substantial evidence

standard and will uphold the BIA’s determinations “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). Determinations as to whether an asylum applicant has

been persecuted or whether that individual has a well-founded fear of future persecution

are factual and are thus entitled to deference. Wang. v. Gonzales, 405 F.3d 134, 138 (3d

Cir. 2005). Because Zhao appeals only from the BIA’s determination that he failed to

demonstrate a well-founded fear of persecution based on his violation of the family




                                             3
planning policies, that is the only claim that we will consider.1 See Kost v. Kozakiewicz,

1 F.3d 176, 182 (3d Cir. 1993), see also Fed. R. App. P. 28.

       Substantial evidence supports the BIA’s finding that Zhao did not establish a well-

founded fear of persecution. See 8 U.S.C. § 1101(a)(42). First, although Zhao submitted

letters from family members stating that government officials threatened to arrest and

imprison him in 2004 for violating the family planning laws, the BIA recognized that he

did not submit any objective evidence supporting the allegation that he would be punished

upon his return to China.2 See Abdille v. Ashcroft, 242 F.3d 477, 496 (3d Cir. 2001)

(acknowledging that an applicant must “show that he has a subjective fear of persecution

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

(internal citation omitted)). The BIA appropriately determined that, under the

circumstances of this case, such a sanction does not rise to the level of persecution. Cf.

Li v. Attorney Gen., 400 F.3d 157, 168-70 (3d Cir. 2005). Given that Zhao did not


       1
              Zhao, who is represented by counsel, mentions in the Statement of the
Argument in his brief that he “established that the Chinese birth officials wanted to arrest
and imprison him for violating the Chinese birth control policy.” Although this could be
read as an argument that the BIA incorrectly determined that he did not establish past
persecution, he failed to support this argument in his brief. See Simmons v. City of
Philadelphia, 947 F.2d 1042, 1065 (3d Cir. 1991). Accordingly, he has waived the claim
that the BIA erred in its decision as to past persecution. See Kost, 1 F.3d at 182.
       2
              Although the BIA did not specifically mention the letters submitted by
Zhao’s family members, it stated that it reviewed the record and thus there is no
indication that the BIA ignored relevant evidence or misconstrued the nature of Zhao’s
claim. See Shardar v. Attorney Gen., 503 F.3d 308, 317 (3d Cir. 2007) (requiring the
BIA to show that it “reviewed the record and grasped the movant’s claims” (internal
citation omitted)).

                                             4
submit any objective evidence rebutting the Country Report, we cannot say that the

evidence compels a conclusion contrary to the BIA’s decision.

      Accordingly, we will deny the petition for review.




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