                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                Nos. 09-3952 & 10-3068
                                     ___________

                                  SHAO JIE HUANG,
                                                 Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                      ____________________________________

                        On Petitions for Review of Orders of the
                            Board of Immigration Appeals
                             (Agency No. A088-996-356)
                         Immigration Judge: Annie S. Garcy
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 6, 2011

        Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

                              (Opinion filed April 7, 2011)
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Shao Jie Huang seeks review of final orders issued by the Board of Immigration

Appeals (“BIA”). For the reasons that follow, we will deny the petitions for review.

      Because the parties are familiar with the background, we will present it here only
briefly. Huang is a citizen of the People’s Republic of China and is from Fujian

Province. He arrived in the United States in May 2007. In September 2007, he applied

for asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). He was later charged with removability for being an alien present without

being admitted or paroled after inspection by an immigration officer. Huang conceded

removability.

       In November 2008, the Immigration Judge (“IJ”) conducted a hearing on Huang’s

claim of persecution concerning China’s restrictive family planning laws. Huang

testified that he and his wife had their first child, a daughter, in July 2005. Under the

government’s policy, they were permitted to have a second child five years later. In the

meantime, following their daughter’s birth, government officials took Huang’s wife to

the hospital to have an intra-uterine device (“IUD”) inserted to prevent pregnancy. She

was required to report for gynecological checkups every few months. Huang’s wife

secretly had a private doctor remove the IUD, and she became pregnant a few months

later, in December 2006. To avoid detection by the family planning authorities, she and

her daughter went into hiding at Huang’s grandmother’s house. In January 2007,

officials came to Huang’s home to take his wife to her checkup, but Huang made excuses

for her absence. The officials threatened him with forced sterilization and a fine. The

pregnancy was their second violation of the family planning laws, the first having

occurred when Huang’s wife already was pregnant with their first child when they

registered their marriage. Huang stated that they wish to have more children. He feared
                                              2
that, if the pregnancy were discovered, his wife would be forced to have an abortion and

would be subjected to a forced sterilization. If she delivered the child, they would not be

able to add the child to the household registry. After discussing the matter, the couple

decided to terminate the pregnancy in February 2007, feeling that they had no choice but

to do so.

         Huang left for the United Sates shortly after the termination of the second

pregnancy. The authorities in China never learned of his wife’s second pregnancy; she

had an IUD reinserted and continued to attend her periodic checkups. She and their

daughter remained in China. Huang acknowledged that he and his wife are permitted to

have another child. He stated that they wish to have at least three more children, but he

believes that one of them would be forced to undergo sterilization after having a second

child.

         The IJ denied all forms of relief and ordered Huang removed to China. On

September 14, 2009, the BIA dismissed Huang’s appeal, agreeing with the IJ’s

conclusions that Huang had not met his burden of proof on his asylum and withholding

claims and also did not establish eligibility for CAT relief. Specifically, the BIA

concurred with the IJ’s determination that Huang’s wife’s IUD insertions were

insufficient to establish an asylum claim, that Huang is precluded from basing his asylum

claim on his wife’s abortion, and that his claims of past persecution regarding the

payment of a fine and fear of future persecution based on the possibility of having

another child were based on conjecture and speculation. The BIA also found that Huang
                                               3
failed to meet the more stringent burden of proof for withholding of removal. Further,

the BIA agreed with the IJ’s conclusion that Huang failed to establish eligibility for CAT

relief, noting that Huang failed to establish that each step of a hypothetical chain of

events is more likely than not to occur.

       In December 2009, Huang filed with the BIA a motion to reopen his case to file a

successive asylum application based on previously unavailable evidence. In support, he

asserted that in May 2009, family planning officials imposed on his wife a fine of RMB

11,800, for their prior violation of the family planning policy. The officials threatened

sterilization of Huang’s wife and removal of their daughter from the household

registration if the fine remained unpaid after three months. Huang noted that his wife

protested that she and Huang already had paid a fine of RMB 3,000, to no avail. Huang

further stated that officials came to the house every two weeks to ask for payment. With

financial assistance from friends, Huang gave the money to his father (a United States

permanent resident) to take with him during a visit to China; his father gave the money to

Huang’s wife, who then paid the fine on August 28, 2009. The officials warned that if

the couple violated the policy again, one of them would be sterilized and another heavy

fine would be assessed. Huang stated his fear of forced sterilization or imposition of a

heavy fine if he and his wife were to have a second child. With his motion to reopen,

Huang submitted a new asylum application and statement. He also submitted exhibits,

which included a letter and identity documents from his father, a receipt for the payment

of the new fine, and a letter and identity documents from neighbors in China who also
                                              4
had to pay a fine under similar circumstances. On June 24, 2010, the BIA denied the

motion to reopen, noting that the documents from China had not been authenticated under

8 C.F.R. § 1287.6, and that Huang had not established the authenticity of the documents

in an alternative manner. The BIA held that the evidence was insufficient to show that

Huang would be subjected to economic harm amounting to persecution or that he would

be subject to forcible sterilization, and that Huang thus failed to show a realistic chance

of establishing eligibility for relief to warrant reopening.

       Huang filed timely petitions for review regarding both of the BIA’s decisions, and

the matters have been consolidated in this Court for disposition. We have jurisdiction

pursuant to 8 U.S.C. § 1252. The BIA agreed with the IJ’s decision and added its own

reasoning, and thus, we review the decisions of both the IJ and the BIA. See Sandie v.

Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). We review the agency’s factual

determinations under the substantial evidence standard. See id. at 251. The agency’s

findings are considered conclusive unless “any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We exercise de novo

review over the agency’s legal decisions. See Sandie, 455 F.3d at 251. We apply the

abuse of discretion standard to our review of the BIA’s denial of Huang’s motion to

reopen. See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). Applying that

standard, Huang must show that the BIA’s denial of his motion was somehow arbitrary,

irrational, or contrary to law. See id.

       Huang acknowledges this Court’s decision in Lin-Zheng v. Attorney General,
                                               5
557 F.3d 147 (3d Cir. 2009), and that there is no automatic refugee status accorded to

spouses of individuals who have been forced to undergo an abortion. However, under

Lin, spouses remain eligible for relief if they qualify as a refugee under 8 U.S.C.

§ 1101(a)(42) based upon their own persecution, or well-founded fear of persecution, for

“other resistance” to a coercive population control program. See id. at 157. Huang

argues that the BIA failed to assess whether he established eligibility for asylum in his

own right. For example, Huang argues that he suffered past persecution in light of the

fine imposed for the first pregnancy, the threat that he would be sterilized while his wife

was in hiding, and the severe emotional harm he suffered when his wife had an abortion.

The BIA did not ignore his arguments. Instead, in its decision, the BIA referred to that

portion of his brief addressing those claims on appeal and rejected his arguments as

unpersuasive. It also specifically considered and rejected Huang’s argument that the

3,000 RMB fine constituted persecution.

       Moreover, the record does not compel a finding that Huang suffered past

persecution or has a well-founded fear of future persecution on account of his “other

resistance” to China’s family planning policies. Persecution includes “threats to life,

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

life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). However, it “does not

encompass all treatment that our society regards as unfair, unjust or even unlawful or

unconstitutional.” Id. Concerning the RMB 3,000 fine, although “the deliberate

imposition of severe economic disadvantage which threatens a petitioner’s life or
                                             6
freedom may constitute persecution,” Li v. Att’y Gen. of the U.S., 400 F.3d 157, 168 (3d

Cir. 2005), Huang did not show that the fine rose to that level. As the BIA noted,

Huang’s assertion that the fine was particularly onerous was based not on his own

financial situation but instead on the supposition that the fine probably exceeded his

annual income--an assumption based on his young age at the time of the fine and a rural

net income figure published in a State Department China report. As for the threat that

Huang would be sterilized if his wife did not report for her examination, we are not

compelled by the record to conclude that BIA erred in deciding that the evidence for that

claim is too speculative to be credited. Nor can we say that the record compels the

conclusion that, contrary to the BIA’s judgment, Huang has established persecution in his

own right, based on his wife’s abortion. Concerning Huang’s claimed fear of future

persecution if he and his wife were to have a second child in the future and would want

additional children, we are not persuaded that the agency erred in finding the claim to be

speculative. The record contains evidence that Huang and his wife have one child and

are in compliance with family planning laws, and that they would be permitted to have

another child under local policy.

       Because Huang was ineligible for asylum, we also agree that he was unable to

meet the higher standard applicable to applications for withholding of removal. See

Wong v. Att’y Gen., 539 F.3d 225, 236-37 (3d Cir. 2008). As for his CAT claim,

although Huang asserts generally that he is eligible for relief based on the evidence, he

identifies no record support for his position and makes no specific challenge to the
                                             7
agency’s decision on this point. We conclude that he has not shown that he is entitled to

CAT relief.

       We now turn to the BIA’s denial of Huang’s motion to reopen. Motions to reopen

are reserved for only “compelling circumstances.” See Guo v. Ashcroft, 386 F.3d 556,

561 (3d Cir. 2004). A motion to reopen must establish prima facie eligibility for relief,

that is, a reasonable likelihood of establishing entitlement to relief, upon review of

evidence accompanying the motion as well as record evidence. See id. at 563 and n.7

(citing Sevoian, 290 F.3d at 173 n.5. Such showing notwithstanding, the BIA “has

discretion to deny a motion to reopen even if the party moving has made out a prima

facie case for relief.” 8 C.F.R. § 1003.2(a).

       Huang argues that the BIA erred in discounting the evidence solely because the

evidence was not authenticated pursuant to the requirements of 8 C.F.R. § 1287.6. In its

decision, the BIA recognized that the failure to authenticate pursuant to § 1287.6 is not an

automatic rule of exclusion. See Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir. 2004).

Although the BIA noted that Huang did not prove authenticity of the evidence in another

manner, and although Huang now protests that he should not have been faulted for failing

to authenticate his documents, the BIA did not exclude the evidence from consideration

and did not solely rely on the lack of authentication in denying Huang’s motion to

reopen. Rather, it also relied on Matter of T-Z-, 24 I. & N. Dec. 163, (BIA 2007), for the

proposition that a showing of economic sanctions does not amount to persecution where

the record contains little information concerning the respondent’s own financial situation.
                                                8
Huang argued in his motion to reopen that the two separate fines amounted to two to

three times the annual income of his family while he was living in China, but he pointed

to no particular evidence in the record of his income or net worth at the time the second

fine was imposed, which occurred while he was living and working in the United States.1

We discern no abuse of discretion here.

       Huang also challenges the BIA’s statement that the evidence does not indicate that

Huang would be subject to forced sterilization in China. He argues that the BIA ignored

the portion of the State Department Country Report on Human Rights Practices for

China, 2006, that indicates that forced sterilizations do occur in China, in Fujian Province

in particular. See Pet’r. Brief at 13 (citing C.A. No. 10-3086 J.A. 306.) Because the

Report on the cited page states that officials in Fujian Province reportedly forcibly

sterilized women, the statement provides little support for Huang’s position that he would

subject to forced sterilization for a violation of the family planning laws, and the BIA’s

failure to consider that portion of the evidence thus does not appear to have been arbitrary

or irrational. As the BIA noted in its decision, the Report also lists punishments such as

fines, adverse job-related consequences, expulsion from the party, and destruction of

property were applied to violators of the family planning laws in China. Although the

Report also states that one parent was often pressured to undergo sterilization in cases

       1
        At the hearing before the IJ in 2008, Huang testified that he was employed as a
kitchen worker in the United States. At the time of the hearing, he had been working for
about thirteen months and was earning about $10,000 per year. (C.A. No. 09-3952 J.A.
149.)
                                             9
where the family already had two children, Huang and his wife have only one child. In

sum, Huang does not point to evidence that shows that the BIA abused its discretion in

finding that Huang failed to demonstrate a realistic likelihood that he can establish

eligibility for asylum on his claim, or that the BIA’s decision was arbitrary, irrational, or

contrary to law.

       We will deny the petitions for review.




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