                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4713




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                                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                                    No. 05-4713



                                 XIU FEI WANG,
                                            Petitioner

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                      Respondent



                         On Petition for Review of an Order
                        of the Board of Immigration Appeals
                                 (No. A78-387-915)
                     Immigration Judge: Hon. Eugene Pugliese



                     Submitted Under Third Circuit LAR 34.1(a)
                                  March 8, 2007

   Before: SLOVITER and AMBRO, Circuit Judges, and POLLAK,* District Judge



                                      OPINION


SLOVITER, Circuit Judge


                 *
                  Hon. Louis H. Pollak, Senior Judge, United States District
          Court for the Eastern District of Pennsylvania, sitting by
          designation.
       Xiu Fei Wang petitions for review of the order of the Board of Immigration

Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”) denying Wang’s

application for asylum under section 208(a) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1158(a), and withholding of removal under § 241(b)(3) of the INA, 8

U.S.C. § 1232(b)(3). We will deny the petition.

                                             I.

       Wang, a 14-year-old female, who is a native and citizen of the People’s Republic

of China, entered the United States on October 12, 2002 without entry documents. The

Department of Homeland Security initiated removal proceedings against Wang by issuing

a Notice to Appear, dated March 19, 2003. At a hearing on September 18, 2003 before

the IJ, Wang admitted the allegations and conceded the charge – as such, the basis for her

removability was established.

       Wang filed a Form I-589, “Application for Asylum and for Withholding of

Removal” with the IJ within a year of her entry to the United States. Wang’s claim rests

on two grounds: first, that she has an imputed political asylum claim arising out of her

mother’s forcible sterilization while pregnant with Wang; second, that she has a political

asylum claim based on past persecution to her family because of her parents’ violation of

China’s one-child policy and a well-founded fear of future persecution on the same basis.

       According to Wang1, after the birth of her oldest sister in 1986, Wang’s mother hid


                   1
                   Wang concedes that most of the alleged persecution that
            occurred to her happened before or shortly after she was born.

                                             2
from the authorities and avoided sterilization at the urging of Wang’s grandmother, who

wanted a grandson. In 1988, Wang’s mother became pregnant a second time and was

able to keep the pregnancy secret. Wang stated that her mother did not go to the hospital

at the time, “because the doctors would have arranged for sterilization at the same time,”

and Wang’s grandmother continued to pressure Wang’s mother to have a male child.

App. at 49. Following the birth of Wang’s second sister, the county authorities received

notice of the birth of the second child and required that Wang’s parents pay a fine in the

amount of approximately $968 for violating China’s one-child policy. Wang’s mother

nevertheless refused to be sterilized and went to live in a relative’s house to escape

sterilization. Wang stated that in retaliation for the fact that the county officers could not

locate her mother, they confiscated items of the family’s personal property, smashed

doors and windows, and destroyed furniture.

       Wang’s mother became pregnant with Wang in 1989. Wang believes that while

her mother was pregnant, Chinese authorities sought her out in order to “abort the

pregnancy and sterilize her.” Id. Unable to find Wang’s mother, the authorities arrested

Wang’s grandmother and imprisoned her. Wang’s parents then reported to the authorities

in order to secure the release of Wang’s grandmother. According to Wang, her mother

was then sterilized during the sixth month of the pregnancy while Wang was in the

womb.2 Nonetheless, Wang was carried to term and she has alleged no injury physically


                    2
                    Wang submitted the declaration of a medical doctor in New
             York averring that an abdominal scar that he examined on Wang’s

                                              3
or otherwise arising from this incident. Not only was Wang’s mother sterilized, but she

was also fined approximately $1,937 for violation of the one-child policy.

       Wang stated that her parents sought to emigrate to the United States in 1994

because they were under severe financial stress due to the hardships applied by the

authorities. Wang’s mother’s asylum claim was denied on July 22, 2002.

       Wang and her two sisters remained in China with her grandmother, who Wang

stated was difficult to live with because she resented the girls and wanted a grandson.

Wang stated that the authorities required her parents to pay double tuition as a penalty for

their violation of the one-child policy. Wang’s parents eventually paid to have all three

daughters smuggled into the United States; only Wang was apprehended. Wang alleged

that if she were forced to return to China she would face future persecution based on her

family’s violation of China’s one-child policy and her speaking out against the policy.

Further, she stated that she feared economic persecution in the form of greatly increased

tuition fees.

       After an evidentiary hearing, the IJ denied Wang’s applications for asylum,

withholding of removal, and protection under the Convention Against Torture (“CAT”),3


                mother was “consistent with a mini-laparotomy done for
                sterilization,” and that the “scar’s length and location are specific
                and unique for sterilization done in the second trimester.” App. at
                106.
                       3
                         Wang has waived her claim under the CAT by failing to
                raise the issue in her brief. See Chen v. Ashcroft, 376 F.3d 215,
                221 (3d Cir. 2004).

                                                 4
on May 27, 2004. The IJ held that Wang failed to “establish any legal principle under

which the respondent would herself be eligible for asylum.” App. at 14. The BIA

affirmed without opinion the IJ’s decision. Wang timely filed this petition for review.

                                             II.

       Where the BIA summarily affirms the decision of the IJ, we review the decision of

the IJ. See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc); Abdulai v.

Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). In deciding whether an applicant

qualifies for asylum or withholding of removal, this court reviews the IJ’s factual

determination under the substantial evidence standard. Shardar v. Ashcroft, 382 F.3d

318, 323 (3d Cir. 2004); Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). Under

this standard, the IJ’s finding must be upheld unless “the evidence not only supports” a

contrary conclusion, “but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1

(1992); see also Chang v. INS, 119 F.3d 1055, 1060 (3d Cir. 1997).

       To qualify as a “refugee” who may receive asylum, an alien must establish that she

is unable or unwilling to return to her country of nationality “because of persecution or a

well-founded fear of persecution on account of race, religion, nationality, membership in

a particular social group, or political opinion.” Elias-Zacarias, 502 U.S. at 481 (internal

quotation marks and citations omitted).

       To establish “past persecution” and entitlement to asylum, an applicant must show:

(1) an incident, or incidents, that constituted persecution; (2) that occurred on account of

one of the statutorily protected grounds; and (3) were committed by the government or

                                              5
forces the government is either unable or unwilling to control. Berishaj v. Ashcroft, 378

F.3d 314, 323 (3d Cir. 2004). An asylum “applicant can demonstrate that she has a well-

founded fear of future persecution by showing that she has a genuine fear, and that a

reasonable person in her circumstances would fear persecution if returned to her native

country.” Gao, 299 F.3d at 272. Lastly, the threshold for establishing eligibility for

withholding of removal is even higher than that for establishing entitlement to asylum and

requires the petitioner to demonstrate a “clear probability” that, upon deportation to the

country of origin, “her life or freedom would be threatened on account of one of the

statutorily enumerated factors.” Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998).

       The definition of persecution, as stated by this court and the BIA, 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); see also

Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985). Therefore, “persecution does

not encompass all treatment that our society regards as unfair, unjust, or even unlawful or

unconstitutional.” Fatin, 12 F.3d at 1240.

       Congress has provided that “a person who has been forced to abort a pregnancy or

to undergo involuntary sterilization, or who has been persecuted for failure or refusal to

undergo such a procedure or for other resistance to a coercive population control

program” is “deemed to have been persecuted on account of political opinion.” 8 U.S.C.

§ 1101(a)(42)(B). “Similarly, a person who has a well-founded fear that he will be

subject to such procedures or will be subject to persecution for resisting such procedures

                                              6
is ‘deemed to have a well founded fear of persecution on account of political opinion.’”

Wang v. Gonzales, 405 F.3d 134, 139 (3d Cir. 2005) (quoting 8 U.S.C. §

1101(a)(42)(B)).

       This court, in combination with the BIA, has established a clear set of principles

for purposes of interpreting 8 U.S.C. § 1101(a)(42)(B). In Wang, 405 F.3d at 143, we

denied the petition for review filed by a child whose parents violated China’s one-child

policy when his sister was born three years after his birth. His parents were fined 20,000

yuan, a sum equal to 100 times the family’s lowest estimated monthly salary. Id. at 136.

The family fled the village but later received permission to pay the fine on an installment

basis. Id. “Nevertheless, the government repeatedly subjected the Wang family

household to property destruction and harassment because the fine remained unpaid.” Id.

In 1996, the government forcibly sterilized petitioner’s mother and completely destroyed

the family home. Id. at 140. Notwithstanding the horrors visited upon petitioner’s

family, we found that “the authorities’ intrusions into the family’s life had their

limitations as neither [petitioner] nor his sister had any trouble attending school, and the

authorities never arrested, detained or fined [him]. Accordingly, it is clear that the

authorities did not direct the actions at [him].” Id. at 136.

       Wang sought to sustain his claim for relief by relying on the BIA’s decision in In

re C-Y-Z, 21 I. & N. Dec. 915, 918 (B.I.A. 1997), that the applicant husband could

establish eligibility for asylum by virtue of his wife’s forced sterilization. In Wang, we

distinguished the BIA’s holding in C-Y-Z, holding that “a child . . . is not a spouse.” 450

                                               7
F. 3d at 143. We stated, “whereas a husband has a direct interest in whether his wife can

have additional children, a child is in a very different position as the family planning

policies as applied to his parents can affect him only as a potential sibling and not as a

parent.” Id. We reasoned that inasmuch as we had previously held in Chen v. Ashcroft,

381 F.3d at 225-27 that “the BIA’s interpretation of INA § 101(a)(42)(B) not to reach

unmarried partners was reasonable,” the decision in Wang to deny a potential sibling

asylum was more than justifiable, as “his interest in the birth of a child to his parents is

more remote than that of a parent, married or not.” Wang, 405 F.3d at 143. It is clear

then that although a spouse can prove persecution on the basis of political opinion, a child

cannot.

       Wang argues that her situation differs from that of the applicant in Wang because

she was in her mother’s womb when the forcible sterilization occurred. The IJ was not

persuaded: “The Court does not believe that the principle announced by the Board in

Matter of C-Y-Z should be extended to other members of the family. . . . [Asylum] is not

a derivative type of benefit in a sense that the persecution of a family member is the

persecution of the applicant, who happens to be related to that family member.” App. at

12. The IJ stated that C-Y-Z merely stands for the proposition that because husband and

wife are both part of the procreative process, “if either of those partners is deprived of the

opportunity to procreate obviously it substantially impacts on the other partner’s ability to

have children.” App. at 13.

       We agree. The fact that Wang was in utero at the time of her mother’s forcible

                                               8
sterilization, standing alone, is not enough for Wang to surmount this court’s holding in

Wang that children are not entitled to relief merely on the basis of persecution to their

parents for the latter’s violation of the one-child policy. The facts of this case are

indistinguishable from those in Wang. As we stated in Wang, “for the child to be

persecuted he must show that the persecution threatened his “life or freedom[.]” 405 F.3d

at 144. Wang has made no showing that she was physically or emotionally affected by

her mother’s forcible sterilization while she was in utero. Therefore, Wang cannot prove

persecution on account of political opinion, nor can she prove persecution on any of the

other statutorily enumerated bases. The economic persecution suffered by her family,

while deplorable, did not rise to the level of that even in Wang. Accordingly, we will

deny the petition for review.




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