IMG-268                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 09-4062
                                      ___________

                                    GUANG CUN YE,
                                                        Petitioner,
                                             v.

                  ATTORNEY GENERAL OF THE UNITED STATES
                     ____________________________________

                         On a Petition For Review of an Order
                         of the Board of Immigration Appeals
                              Agency No. A094-798-102
                     Immigration Judge: Honorable Eugene Pugliese
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 22, 2010

       Before: FUENTES, VANASKIE and VAN ANTWEPEN, Circuit Judges

                              (Opinion filed August 5, 2010)
                                      ___________

                                       OPINION
                                      ___________


PER CURIAM

       Guang Cun Ye (“Ye”) petitions for review of the Board of Immigration Appeals’

final order of removal. For the reasons that follow, we will deny the petition for review.

       Ye, a native and citizen of China, entered the United States without authorization

or inspection on June 13, 2006. He was served the next day with a Notice to Appear,
which charged that he was removable pursuant to Immigration & Nationality Act (“INA”)

§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States

without having been admitted or paroled. Ye submitted an application for asylum under

INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8

U.S.C. § 1231(b)(3), and for protection under the Convention Against Torture, 8 C.F.R.

§§ 1208.16(c), 1208.18, claiming a fear of persecution on account of his opposition to

China’s population control policies.

       In a statement submitted with his asylum application, Ye detailed the bases of his

claim and supported it with a statement from his wife and mother-in-law. After Ye’s wife

gave birth to their son, she was made to have an Intra-Uterine Device (“IUD”) inserted

and was also required to attend inspections regarding this IUD. In May of 2000, she had

the IUD removed by a private doctor, and in August of 2000 she became pregnant. She

then skipped her scheduled IUD inspections. Local family planning officials began

searching for her, and finally found her at home on October 10, 2000. She was taken to

the hospital and her pregnancy was terminated against her will. Subsequently, another

IUD was inserted. Ye left China with the help of a smuggler in 2006.

       Venue in Ye’s case eventually was changed to Newark, New Jersey Immigration

Court. Prior to his merits hearing, Ye submitted an additional affidavit to the

Immigration Judge, detailing a second basis for asylum. In this statement, Ye claimed

that he now fears persecution on account of his Christian religion. He was attending

church in the United States and came to realize that the teachings of the church here

                                             2
differed from that of the state-sponsored Christian church in China. If returned to China,

he would cease attending the state-sponsored church and join an underground church – an

act that would subject him to persecution by the Chinese government. Ye submitted

documentary evidence in support of this claim, including the 2008 United States

Department of State International Religious Freedom Report for China. He also

submitted several articles and two certificates attesting to his regular attendance at the

Church of Grace in Manhattan signed by Pastor Matthew Ding and Minister Zeng Ming

Lin, A.R. 234, 480.

       A merits hearing was held on November 18, 2008. Ye generally testified

consistent with his asylum application, and he testified that he and his wife wanted to

have more children, A.R. 145. He was born in Fujian, China. On cross-examination, Ye

testified that he never personally had any contact with family planning officials. A.R.

151. He has never been harmed and he was not present when his wife was taken away for

the abortion. With respect to his fear of religious persecution, Ye testified that he attends

the Church of Grace in Manhattan. His pastor and members of his church have told him

that the church he attended in China was “fake.” A.R. 146. Because the church is fake,

“you will not have immortal life or live forever.” Id. at 147. Ye continued: “In China,

they put love in the first place and in United States they put belief in the first place, and

also in China, the church did not say that abortion is not allowed. However, in the United

States the Christianity says that a Christian cannot have an abortion because that is some

-- that is a gift that is given by God.” A.R. 158. Ye testified that, if he worships at an

                                               3
underground church in China, which he intends to do, he will be arrested, and if he is

arrested he will be beaten and prosecuted.

       The IJ issued his oral decision denying all relief on the same day as the merits

hearing. The IJ held that Ye failed to establish eligibility for asylum or withholding of

removal on the basis of his wife’s forced abortion. He could not show past persecution

solely on the basis of what happened to his wife under Matter of J-S-, 24 I. & N. Dec. 520

(A.G. 2008), and he failed to submit any evidence that he was harmed or had otherwise

resisted China’s population control policies. His claim that he and his wife might have

additional children and thereby be subject to persecution was too speculative to support a

well-founded fear of future persecution. The IJ further determined that Ye failed to

establish his eligibility for asylum or withholding of removal based on his religious

beliefs. He did not contend that he suffered past persecution on this ground, and his claim

of a well-founded fear of future persecution was vague. The IJ noted that testimony from

Ye’s Church of Grace pastor about the church’s practices – and how those practices differ

from Christian churches in China – might have been useful in helping him meet his

burden of proof, but Ye did not call his pastor as a witness. Moreover, Ye’s documentary

materials did not establish that participation in an underground church in China results in

persecution if one is detected. The Chinese government’s treatment of such churches

varied widely and was often permissive rather than oppressive. Regarding protection

under the CAT, the IJ determined that Ye failed to establish a clear probability of torture,

by or with the acquiescence of the Chinese government, if removed.

                                             4
       Ye appealed to the Board of Immigration Appeals. The Board dismissed the

appeal on September 23, 2009, adopting and affirming the decision of the IJ, see Matter

of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). In pertinent part, the Board held that

Ye failed as a matter of law to establish persecution on account of his wife’s abortion, see

Matter of J-S-, 24 I. & N. Dec. 520, and he did not demonstrate any resistance on his own

part to China’s population control policies. In addition, the Board agreed with the IJ that

Ye could not establish a well-founded fear of persecution on account of these policies,

because his assertion that he would have more children and would thereby be persecuted

was speculative and dependent on many variables. Regarding his claim of religious

persecution, the Board held that Ye failed to establish any past persecution in China on

this ground, and he did not proffer sufficient evidence to establish a well-founded fear of

persecution on account of his religion if he were removed to China.

       Ye now petitions for review of the Board’s decision. In his brief, he contends that

the Board’s determination that he did not establish a well-founded fear of persecution on

account of his religion is not supported by substantial evidence; the Board’s

determination that he did not establish a well-founded fear of persecution on account of

his opposition to China’s population control policies is not supported by substantial

evidence; and he established past persecution on the basis of his wife’s forced abortion

under traditional principles of asylum law.1


   1
    Ye does not challenge in his brief the agency’s denial of his applications for
withholding of removal and protection under the CAT, and thus these issues are waived.
                                               5
       We will deny the petition for review. We have jurisdiction under 8 U.S.C. §

1252(a)(1), (b)(1). Where the Board adopts and affirms the findings of the IJ and

discusses the bases for the IJ’s decision, we have authority to review both decisions.

Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). See also Hashmi v. Att’y Gen. of

U.S., 531 F.3d 256, 259 (3d Cir. 2008). An applicant bears the burden of proving

eligibility for asylum. Shardar v. Att’y Gen. of U.S., 503 F.3d 308, 312 (3d Cir. 2007).

See also Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). The Board’s findings

“are conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B). See also Immigration & Naturalization Serv. v.

Elias-Zacarias, 502 U.S. 478, 481 (1992). Under this deferential standard, Ye must

establish that the evidence does not just support a contrary conclusion but compels it. See

Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).

       To establish refugee status and, thus, eligibility for asylum, the applicant must

credibly demonstrate past persecution or a well-founded fear of persecution on account of

one or more of the statutorily protected grounds. 8 C.F.R. §§ 1208.13(a), (b); Camara v.

Att’y Gen. of U.S., 580 F.3d 196, 202 (3d Cir. 2009). Persecution is defined as “threats

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

threat to life or freedom.” Kibinda v. Att’y Gen. of U.S., 477 F.3d 113, 119 (3d Cir.

2007) (quoting Fatin v. Immigration & Naturalization Serv., 12 F.3d 1233, 1240 (3d Cir.




See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
                                              6
1993)). It refers only to “severe” conduct and “does not encompass all treatment our

society regards as unfair, unjust or even unlawful or unconstitutional.” Id. In the

absence of evidence of past persecution, the applicant must demonstrate a subjective fear

of persecution through credible testimony that his fear is genuine, Zubeda v. Ashcroft,

333 F.3d 463, 469 (3d Cir. 2003), and the applicant must show that a reasonable person in

his circumstances would fear persecution if returned to the country in question, see id.

       Ye did not claim that he had been persecuted in the past on the basis of his

Christian religion. As to his claim that he has a well-founded fear of persecution based

on his potential future involvement in an “underground” church, the record does not

compel a conclusion contrary to that of the Board’s insufficient evidence determination.

According to an article submitted by Ye, his Church of Grace is a Protestant church. A.R.

192. The 2008 International Religious Freedom Report indicates that Protestantism is an

officially recognized religion in China (as is Catholicism). A.R. 217. Nevertheless, Ye

appeared to testify that there were doctrinal differences between his Manhattan Church of

Grace and the state-supported Christian churches in China with respect to the issue of

abortion, and the Chinese government perceives unregulated religious groups as a

challenge to its authority. See id. at 220.

       But, even assuming Ye would attend an underground church in China, if removed,

he did not submit any objective evidence that would establish a well-founded fear of

persecution on this ground. Although the activities of unregistered or “underground”

Protestant groups remain outside the scope of legal protection, they have continued to

                                              7
expand and no longer operate in strict secrecy. See id. at 218. As noted by the IJ, in

some regions of China, government supervision of unregistered churches is minimal. See

id. at 220. Some unregistered churches have significant membership, properties and

financial resources. See id. at 221. In any event, other than his assertions of what he was

told by the pastor of the church he attended in New York City, Ye did not present any

evidence of such doctrinal differences between the church he had attended in China

before his voluntary departure and the church he attended in the United States that would

substantiate his assertion that he would be compelled to attend some underground church

upon his return to China.

       Ye contends in his brief that the testimony of his pastor is not required by Board

precedent, see Matter of S-M-J-, 21 I. & N. Dec. 722, 725 (BIA 1997), and that the IJ

erred in insisting upon such testimony. This argument, and Ye’s further statement that he

effectively presented his pastor’s testimony by supplying a phone number where the IJ

could reach the pastor, see Petitioner’s Brief, at 21-22, misses the mark. The applicant

bears the burden of proving eligibility for asylum. Shardar, 503 F.3d at 312; Abdille, 242

F.3d at 482. Here, the IJ assessed the sufficiency of Ye’s proof and appropriately found it

wanting; the lack of witness testimony was only one of several deficiencies in Ye’s case.

Ye also contends that the IJ did not sufficiently consider that unregistered churches

continue to be illegal, see Petitioner’s Brief, at 33, but, insofar as the IJ fully considered

the 2008 International Religious Freedom Report, which makes that fact plain enough, the

illegality of underground churches in China was necessarily considered.

                                               8
       The record also does not compel the conclusion that Ye established either past

persecution or a well-founded fear of persecution on account of China’s population

control policies. See 8 U.S.C. § 1252(b)(4)(B). Regarding past persecution, the abortion

Ye’s wife was forced to undergo does not establish that Ye is per se eligible for asylum.

Lin-Zheng v. Att’y Gen. of U.S., 557 F.3d 147, 155-56 (3d Cir. 2009) (en banc) (“[T]here

is no room for us to conclude that Congress intended to extend refugee status to anyone

other than the individual who has either been forced to submit to an involuntary abortion

or sterilization.....”). See also Matter of J-S-, 24 I. & N. Dec. 520.

       Both Lin-Zheng and Matter of J-S- foreclose eligibility for asylum in Ye’s case

solely on the basis of his wife’s forced abortion. Thus, he can only establish a basis for

asylum if he shows that he suffered past persecution or has a well-founded fear of

persecution in China on account of his “other resistance” to the Chinese government’s

population control policies. Lin-Zheng, 557 F.3d at 157; Matter of J-S-, 24 I. & N. Dec.

at 538. The phrase other resistance “covers a wide range of circumstances, including

expressions of general opposition, attempts to interfere with enforcement of government

policy in particular cases, and other overt forms of resistance to the requirements of the

family planning law,” see Matter of S-L-L-, 24 I. & N. Dec. 1, 10 (BIA 2006). Ye’s

evidence does not compel the conclusion that he exercised “other resistance” to China’s

population control policies. 8 U.S.C. § 1252(b)(4)(B). While in China, he was not

harmed by the Chinese government; he testified that he had no dealings with the family

planning officials. A.R. 151.

                                               9
       In addition, substantial evidence supports the Board’s determination that Ye failed

to demonstrate a well-founded fear of future persecution. Ye has only one child and is

not currently in violation of China’s one-child policy. His wish to have a second child

does not, by itself, constitute objective evidence of a well-founded fear of persecution.

Without evidence of his locale’s family planning enforcement initiatives, and Ye offered

no such evidence, the record does not support a finding, let alone compel the conclusion,

that Ye himself would be, for example, subjected to a severe economic sanction or

involuntarily sterilized. His wife’s abortion alone does not establish that he would be

persecuted if he attempted to have additional children, or that he would offer “other

resistance” to China’s policies upon his return to China. Ye’s contention that his wife’s

abortion makes him eligible for asylum based on “traditional principles of asylum law” is

contradicted by our holding in Lin-Zheng, 557 F.3d at 155-56.

       For the foregoing reasons, we will deny the petition for review.




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