                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3232
                                    ___________

Jin Zhu S-Cheng,                      *
                                      *
            Petitioner,               *
                                      * Petition for Review of an
      v.                              * Order of the Board of
                                      * Immigration Appeals.
John Ashcroft, Attorney General of    *
the United States,                    *
                                      *
            Respondent.               *
                                 ___________

                              Submitted: June 15, 2004
                                 Filed: August 12, 2004
                                  ___________

Before LOKEN, Chief Judge, BYE and MELLOY, Circuit Judges.
                              ___________

BYE, Circuit Judge.

      Jin Zhu S-Cheng, a citizen of the People’s Republic of China, petitions for
review of the Board of Immigration Appeals’ (BIA's) order affirming an Immigration
Judge’s (IJ's) denial of her application for asylum and withholding of removal. We
conclude this court lacks jurisdiction to review the agency’s determination to initiate
removal proceedings rather than exclusion proceedings. As to those claims over
which we have jurisdiction, we find substantial evidence to support the decision of
the BIA. Consequently, we deny the petition for review.
                                          I

       Ms. Cheng’s family paid a so-called snakehead, or smuggler, $20,000 to secure
her passage from China to the United States. The smuggler gave her a Chinese
passport to enter Peru, and once in Peru, provided her with an Indonesian passport to
enter the United States. Ms. Cheng arrived at the Miami airport on March 21, 1993.
Per the smuggler’s instructions, she applied for admission by stating she was fleeing
an arranged marriage and was seeking asylum. Immigration officers detected the fake
Indonesian passport and issued her a Notice to Applicant For Admission Detained For
Hearing Before an Immigration Judge (Form I-122), thus placing her in exclusion for
seeking to gain admission by fraud. Although Form I-122 was served on Ms. Cheng,
it was never filed with the Immigration Court. Following a couple of weeks in
detention, she was released pending a hearing.

       The exclusion hearing never occurred, but the immigration process continued
to move forward. In May 1994, about one year after her entry, Ms. Cheng filed an
application for asylum. As a basis for asylum, she falsely stated, upon advice of a
travel agent, that she had been involved in democratic protests in China.

      On January 10, 1996, Ms. Cheng gave birth to her son, Kevin Dong. A couple
of months later, she married the father, Yong-Huan Dong, who was then a lawful
permanent resident of the United States. On April 15, 1996, the INS approved Mr.
Dong’s I-130 visa petition on behalf of his wife. The notice document states Ms.
Cheng, the beneficiary, is ineligible to apply for adjustment of status. On December
30, 1997, the INS served Ms. Cheng with a Notice to Appear (NTA), charging her
with being removable as an alien who, at the time of entry, was inadmissible because
she was not in possession of a valid entry document. On April 16, 1999, the INS
withdrew the 1997 NTA and issued a new NTA charging Ms. Cheng with being
removable based on her procurement of a visa by fraud or misrepresentation and her
lack of a valid entry document.

                                         -2-
       On March 7, 2000, Ms. Cheng admitted the allegations in the NTA and
conceded she was removable. In July 2000, she withdrew her 1994 asylum
application and filed a new application. She declared the new basis for seeking
asylum was her fear she would be persecuted under China’s coercive population-
control law. On November 3, 2000, Mr. Dong was sworn in as a United States
citizen.

        On October 16, 2002, Ms. Cheng testified at an evidentiary hearing before an
IJ. She testified she was the oldest of six children and was born in 1973 in the Fujian
Province of China, where her family still lives. There, local authorities harassed her
mother for violating China’s one-child law. Ms. Cheng further testified Chinese
officials, in addition to imposing large fines, forced her mother to submit to
sterilization by tubal ligation after the birth of the fourth child. The operation did not
work, however, and Ms. Cheng’s mother then gave birth to the two additional
children. Her mother was also forced to submit to the insertion of an IUD device,
which she had privately removed. Finally, Ms. Cheng admitted she lied in her earlier
application. After hearing her testimony, the IJ found she was not a credible witness.

         Ms. Cheng based her asylum claim on the fear she will suffer the same
harassment her mother endured. “If I ever go back to China now,” she explained, “I
maybe will follow my mom’s pattern and to be sterilized. Because Chinese
government, Chinese regulation says any family has one son, then need to be
sterilized.” When asked whether her husband and son will accompany her to China
if she is deported, Ms. Cheng replied: “They, my husband and son, will not allow me
back to China because we all have, our house, everything is here.” When asked
whether she and her husband planned to have more children, Ms. Cheng replied, “Yes
. . . . My husband and I want a couple of more children.”

       To rebut Ms. Cheng’s testimony, the government presented several studies and
articles on the enforcement of the population-control law in China’s Fujian province.

                                           -3-
One such study, the State Department’s 1998 Profile of Asylum Claims on China,
found that enforcement of the population-control law is very lax in the Fujian
province. According to the State Department study, sterilization or the use of IUD
appears to be urged only for families that have had two or perhaps three children, and
the consulate did not find any cases of physical force actually being applied in
connection with an abortion or sterilization. Another study, a 2000 fact-finding
report from a Canadian political counselor, concludes Fujian local authorities lack the
capacity or will to implement the national birth-control policy. The report noted that
almost one-third of families in the region have three children or more, there are
incentive programs instead of sanctions to encourage compliance, forced abortion and
sterilization are reportedly no longer tolerated, sterilization by tubal ligation is
encouraged but not required after two children, fines are viewed as a social subsidy
fee for the cost to society of raising the additional children, and there is no evidence
of any significant abuse of returning illegal migrants.

      Based on the evidence presented at the hearing, the IJ found Ms. Cheng’s fear
of abortion and forced sterilization was based upon speculative facts. The IJ denied
her applications for asylum and withholding of removal and issued a final order of
removal. On August 14, 2003, the BIA dismissed her appeal, and this petition for
review followed.

                                           II

       We review the BIA’s findings of fact, including its decision that an applicant
has failed to establish eligibility for asylum or withholding of removal, under a
standard equivalent to the substantial-evidence standard. See Menendez-Donis v.
Ashcroft, 360 F.3d 915, 918 (8th Cir. 2004). We reverse the BIA’s denial of asylum
or withholding of removal only if we find no reasonable fact-finder could arrive at the
conclusion reached by the BIA. INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992);
8 U.S.C. § 1252(b)(4)(B).

                                          -4-
        Persons seeking political asylum must show they have a well-founded fear of
being persecuted “on account of race, religion, nationality, membership in a particular
social group or political opinion” if they return to their country. See Agada v.
Ashcroft, 368 F.3d 867, 868 (8th Cir. 2004) (quoting 8 U.S.C. § 1101(a)(42)(A)). In
this case, the government concedes Congress has determined forcible abortion or
sterilization constitutes persecution under the Immigration and Nationality Act (INA),
8 U.S.C. § 1101(a)(42)(B).

      Under the deferential standard of review, we cannot say it would be impossible
for a reasonable fact-finder to agree with the BIA’s decision. In other words,
substantial evidence supports the BIA’s conclusion Ms. Cheng failed to prove she had
a well-founded fear of suffering a forcible abortion or sterilization in China.

       First, substantial evidence supports the BIA’s finding that Ms. Cheng’s fear of
an abortion was based on hypothetical or speculative facts. To begin with, she did
not show she was in violation of the one-child policy by having an American-born
child living in the United States. Furthermore, even if she was in violation of the
policy, it was speculative to conclude Chinese authorities would learn of the child.
When the IJ asked Ms. Cheng whether her husband and son would accompany her to
China, she suggested they would not, by stating, “They, my husband and son, will not
allow me back to China because we all have, our house, everything is here.”
Although she testified she had general plans to have more children, it was unknown
whether she would carry another child in China.

       Similarly, because Ms. Cheng did not show she was in violation of the one-
child law or that Chinese authorities would learn of her son, the BIA again concluded
it was speculative to believe she would be subject to any forced-sterilization policy.
Furthermore, the State Department and Canadian reports showed the Chinese
government had replaced sanctions with incentives to encourage compliance with the

                                         -5-
law; there was no evidence of forced sterilization or abortions in recent years
especially in Ms. Cheng’s home province; Chinese authorities urged sterilizations
after a second or third child; and up to a third of the families in Ms. Cheng’s province
have three or more children.

      Finally, the BIA’s adoption of the IJ’s finding Ms. Cheng lacked credibility
was not erroneous. Ms. Cheng lied in her entry application and her first asylum
request. Thus, based on her track record, the BIA had a reasoned basis to disbelieve
her claims she planned to have another child and subjectively feared China’s
enforcement of the population-control law. As the IJ stated, hers was an “evolving
claim changing as [she] sees fit.”

      Ms. Cheng also brings a procedural challenge to the BIA’s decision. She
maintains she should be in exclusion proceedings rather than removal proceedings
because upon entering the United States in 1993 she was served Form I-122, the
notice which normally initiated exclusion proceedings before April 1, 1997. Now
that we have denied her petition for review of the denial of her asylum application
and withholding of removal, the distinction is critical to Ms. Cheng.

       In exclusion proceedings, she would be allowed the opportunity to adjust her
status to that of a lawful permanent resident, pursuant to her husband’s approved visa
petition, without leaving the United States. In removal proceedings, in contrast, she
cannot adjust her status without first returning to China and applying for an
adjustment from there, a process which may take years. Ms. Cheng, in other words,
faces a dilemma: She must either return to China alone, leaving behind her husband
and American-born child, or uproot her entire family and return to the country from
which she sought refuge in the first instance.

      While some may sympathize with this dilemma, we are without jurisdiction to
grant Ms. Cheng's requested relief. Section 242(g) of the INA provides that “no court

                                          -6-
shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising
from the decision or action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against an alien under the Act.” 8 U.S.C.
§ 1252(g) (2003) (emphasis added). In other words, this court may hear challenges
to immigration decisions but lacks jurisdiction to hear a challenge to the decision to
forgo or initiate proceedings against an alien.

      While Ms. Cheng characterizes her challenge as a prayer for exclusion
proceedings, she is actually challenging the Attorney General’s decision to commence
removal proceedings. In essence, she wishes to invade the prosecutorial discretion
of the agency and determine herself how the agency should proceed against her.
Here, the agency chose to commence removal proceedings, not exclusion
proceedings. See 8 C.F.R. § 1240.30 (stating an alien is considered to be in exclusion
proceedings only upon filing Form I-122 with the Immigration Court). This choice
was within the discretion of the agency and cannot be reviewed by the courts. See
Reno v. Am. Arab Anti-Discrimination Comm., 525 U.S. 471, 486-87 (1999).

                                          III

      For the foregoing reasons, we deny the petition for review of the BIA's order
and dismiss the procedural claim.
                      ______________________________




                                         -7-
