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


5-7-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5512




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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-5512


                                       RU LIN,

                                                Petitioner,

                                           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 File No. A78-016-035


                                 Argued March 1, 2007

       BEFORE: SCIRICA, Chief Judge, McKEE and NOONAN*, Circuit Judges

                                 (Filed: May 7, 2007)

STUART ALTMAN, ESQ. (Argued)
264 East Broadway
Suite 1003C
New York, NY 10002




      *
        The Honorable John T. Noonan, Jr., United States Circuit Judge for the Ninth
Judicial Circuit, sitting by designation.
LIU YU, ESQ.
Law Offices of Yu & Associates, PLLC
401 Broadway, Suite 506
New York, New York 10013

Attorneys for Petitioner


K.T. NEWTON, ESQ. (Argued)
Assistant United States Attorney
PATRICK L. MEEHAN
United States Attorney
VIRGINIA A. GIBSON
Assistant United States Attorney
Chief, Civil Division
615 Chestnut Street
Philadelphia, PA 19106

ERICA B. MILES, ESQ.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

Attorneys for Respondent



                                       OPINION



McKEE, Circuit Judge.

      Petitioner Ru Lin, a native and citizen of China, petitions for review of an order of

the Board of Immigration Appeals affirming the Immigration Judge’s denial of her

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


                                            2
Torture (“CAT”). For the reasons that follow, we will deny Lin’s petition for review.1

                                              I.

       We assume the parties’ familiarity with the facts and proceedings below and

therefore set forth only those facts necessary for our brief discussion.

       Lin testified before the IJ that government family planning officials harassed her

by frequently visiting her home and workplace, and requesting that she submit to a

gynecological examination to determine if she was pregnant. Lin refused to undergo the

examinations because she believed that they violated her right of privacy as well as basic

human rights. The IJ found Lin’s testimony credible, but concluded that she had

nevertheless failed to carry her burden of showing past persecution or a well-founded fear

of future persecution. The IJ reasoned that repeated requests to submit to a gynecological

exam did not rise to the level of “persecution.” The BIA adopted and affirmed the

decision of the IJ.2

                                             II.



       1
        We have jurisdiction to review the final order of the BIA under 8 U.S.C. § 1252.
When the BIA adopts the decision of the Immigration Judge, this Court reviews the
decision of the IJ. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004) (citing Abdulai v.
Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001)).
       2
         In adopting the IJ’s decision, the BIA noted that, on appeal, Lin contended that
“the Chinese government forced her to be stripped naked regularly and constantly, for
involuntary gynecological exam to make sure she is not pregnant.” Joint Appendix
(“J.A.”) at 2. In fact, the Board notes, Lin never testified that she was required to report
for an exam. Rather, she testified that, although she was told to report for an exam, she
never went and was never forced to submit to one.

                                              3
       Lin seeks protection under the 1996 amendment to the Immigration & Nationality

Act (“INA”), 8 U.S.C. § 1101(a)(42)(A), which amended the definition of “refugee” to

include those individuals subject to China’s coercive family planning policies. The

provision reads as follows:

       [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, shall be
       deemed to have been persecuted on account of political opinion, and a person who
       has a well founded fear that he or she will be forced to undergo such a procedure
       or subject to persecution for such failure, refusal, or resistance shall be deemed to
       have a well founded fear of persecution on account of political opinion.

8 U.S.C. § 1101(a)(42)(B).

       In resolving asylum claims under the statute, the IJ must first determine whether

the applicant has been persecuted in the past or has a well-founded fear of future

persecution. If the alien establishes either past persecution or a well-founded fear of

future persecution, the IJ must then determine if that persecution was “on account of” the

alien’s “resistance” to a “coercive population control program.” See, e.g., Li v. Aschcroft,

356 F.3d 1153, 1158-61 (9th Cir. 2004). If the basis for the application is a well-founded

fear of future persecution, the alien must establish both a subjectively genuine fear of

persecution and an objectively reasonable possibility of persecution. INS v. Cardoza-

Fonseca, 480 U.S. 421 (1987).

A.     Past Persecution

       Substantial evidence supports the IJ’s determination that Lin does not qualify for

asylum based upon past persecution. To establish eligibility for asylum based on past

                                             4
persecution Lin must first show that she suffered “one or more incidents rising to the

level of persecution[.]” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003).

       Lin’s evidence of past persecution consisted of her credible testimony that Chinese

family planning officials harassed her by visiting her workplace and her home every day

as a means of pressuring her to submit to a gynecological exam. We recognized in Li v.

Attorney General, that unfulfilled threats must be of a highly imminent and menacing

nature in order to rise to the level of persecution. 400 F.3d 157, 164 (3d Cir. 2005) (citing

Boykov v. INS, 109 F.3d 413, 416-17 (7th Cir. 1997). The petitioner there alleged threats

of physical mistreatment, detention and sterilization. Id. at 165. While we acknowledged

that the threats were “certainly disturbing,” we concluded that they were not “sufficiently

imminent or concrete . . . to be considered past persecution.” Id.; see also Boykov, 109

F.3d at 416 (“mere threats will not, in and of themselves, compel a finding of past

persecution.”); Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (unfulfilled threats, even

repeated death threats, do not qualify as past persecution unless they are so menacing they

cause significant actual harm).3

       The threats relied on here are far less menacing than the threats that fell short in Li.

Lin does not allege threats of physical mistreatment, detention or sterilization. Rather,

she is claiming either that the family planning officials’ visits could themselves be



       3
        In general, unfulfilled threats are “‘within that category of conduct indicative of a
danger of future persecution.’” Li, 400 F.3d at 165 n.3 (quoting Lim, 224 F.3d at 936; see
also Boykov, 109 F.3d at 416).

                                              5
considered persecution, or that they are tantamount to a threat of an unwanted

gynecological examination in the future which establishes a well-founded fear of

persecution. She does not allege, however, that the officials threatened to forcibly

examine her if she did not submit or that she was threatened with imprisonment or

permanent loss of employment if she refused.4

       While we acknowledge that the threat of an uninvited procedure as physically

intrusive as a gynecological exam is disturbing, the events Lin described in her testimony

were both less imminent and less menacing than the threats described in Boykov, Lim and

Li v. Attorney General, and the threats in those cases did not rise to the level of past

persecution. Accordingly, we cannot conclude that the unfulfilled threats described by

Lin meet the standard for past persecution.

       Lin urges us to adopt and apply the analysis of the Court of Appeals for the Ninth

Circuit in Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004). There the court interpreted


       4
         Lin argues on appeal that she was labeled a “bad girl” by the family planning
officials and that she was unable to maintain employment when she escaped to another
province as a direct result of her refusal to submit to the exam. However, Lin did not
make that argument to the BIA. She only made it to the IJ. Accordingly, she has waived
any claim that concerns about future economic harm constitute a well-founded fear of
future persecution. See 8 U.S.C. § 1252(d)(1) (2005); see also Bonhometre v. Gonzales,
414 F.3d 442, 447 (3d Cir. 2005) (“To exhaust a claim . . . an applicant must first raise
the issue before the BIA or IJ.”); Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.
2003) (“[A]n alien is required to raise and exhaust his or her remedies as to each claim or
ground for relief if he or she is to preserve the right of judicial review of that claim.”);
Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989) (noting that the exhaustion
requirement “bars consideration of particular questions not raised in an appeal to the
Board”).


                                              6
“other resistance” to include opposition to forced pregnancy examinations administered

under China’s coercive family planning policy. The IJ here correctly noted that we have

not yet had occasion to consider the parameters of “other resistance to a coercive

population control program” under 8 U.S.C. § 1101(a)(42)(B). However, we need not

reach the issue of“other resistance” because the harm Lin alleges is not tantamount to

persecution.

       Unlike the case before us, in Li the petitioner was able to meet her burden of

establishing that the treatment involved rose to the level of persecution. Li, 356 F.3d at

1159. There, government officials “made good” on threats that she would “pay” for her

announced opposition to the family planning policy. Id. at 1158. Officials forcibly took

Li to a birth control center where she was subjected to a “crude and aggressive”

gynecological exam while being held down by two nurses. Id. The examination

continued for half an hour despite Li’s “vehement protests.” Id. When officials realized

that Li was not pregnant, they told her that she could be subjected to the same

examination at any time in the future and that if a subsequent examination discovered a

pregnancy she would be forced to have an abortion and her boyfriend would be sterilized.

Id. The court concluded that the “timing and physical force” associated with the exam

“compel[led] the conclusion that its purpose was intimidation and not legitimate medical

practice.” Id. In fact, her treatment at the hands of family planning officials was

characterized as “rape-like.” Id. at n.4 (citing Lopez-Galarza v. INS, 99 F.3d 954 (9th

Cir. 1996) (recognizing that rape may constitute persecution)).

                                             7
       In contrast, Lin’s evidence of persecution consists of frequent visits by family

planning officials who repeatedly asked her to submit to an exam. Though we may view

such official harassment by the government as odious, it does not compel a conclusion

that the conduct was persecution.

       A “rape-like,” “forced gynecological examination lasting thirty minutes and

attended by threats does not meet any civilized understanding of a routine medical

procedure,” id. at n.2, and can readily satisfy the statutory requirement of persecution.

However, fears of official visits to one’s home and workplace or concerns that the

community would look down on an unmarried woman for submitting to a gynecological

exam, does not rise to that level. Indeed, Lin admits that if she were to attend the

examination she does not know what would happen.

B.     Future Persecution

       Past threats that do not rise to the level of past persecution can be indicative of a

danger of future persecution. Li, 400 F.3d at 165, n.3. The IJ found that Lin testified

credibly and therefore the subjective prong of our inquiry into a well-founded fear of

future persecution is satisfied.

       The objective prong requires Lin to show the reasonableness of her fear of

persecution. Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001). Here again, the IJ’s

rejection of Lin’s claim is supported by substantial evidence.

       Lin cites her refusal to submit to the exams required by the local family planning

officials, their harassment of her at home and at work, and the 2003 State Department

                                              8
Country Report as objective evidence of her well-founded fear of persecution.

       As explained above, Lin’s testimony does not compel a finding that her fear of

future persecution is reasonable because the treatment she fears does not rise to the level

of persecution. There is no evidence that she will be forcibly examined in a manner that

would constitute persecution. She provided no evidence that she would be subjected to a

forced exam or other harsh treatment. See Boykov, 109 F.3d at 417 (finding no

reasonable basis to believe alien would be persecuted upon return to Bolivia where court

determined past treatment did not amount to persecution and she presented no evidence

that she would suffer less humane treatment if returned). Lin’s claim also fails to find

objective support in the 2003 State Department Country Report.

       Under our deferential standard of review, we find substantial evidence also

supports the conclusion that Lin did not have an objectively well-founded fear of future

persecution.

                                             III.

       Lin also appeals the denial of her claims for withholding of removal and relief

under the Convention Against Torture. Because both claims require meeting a

significantly higher burden of proof than a claim for asylum, we also affirm the decision

to deny these claims. See Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004) (“An alien

who fails to establish that he or she has a well-founded fear of persecution, so as to be

eligible for a grant of asylum, necessarily will fail to establish the right to withholding of

removal.”); Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004) (“the standard for

                                               9
invocation of the CAT is more stringent than the standard for granting asylum.”).

                                           IV.

      For the reasons set forth above, we conclude that the IJ’s rejection of Lin’s claim

for relief under the INA, and under the Convention Against Torture is supported by

substantial evidence. Accordingly, we will affirm the decision of the BIA.




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