IMG-032                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 09-4560
                                      ____________

                                     TIANDI JIANG,
                                        Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                     __________________________________

                             Petition For Review of an Order
                          of the Board of Immigration Appeals
                              (Agency No. A071-961-011)
                        Immigration Judge: Margaret Reichenberg
                        __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 11, 2011

        Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

                            (Opinion filed: January 12, 2011)
                                    ____________

                               OPINION OF THE COURT
                                    ____________

PER CURIAM

       Tiandi Jiang (“Jiang”) 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.

       Jiang, a native and citizen of China, entered the United States on August 14, 1991,

presenting a fraudulent Japanese passport and requesting admission under the Visa
Waiver Program (“VWP”) pursuant to Immigration & Naturalization Act (“INA”) §

217(a)(2), 8 U.S.C. § 1187(a)(2).1 He was paroled into the United States, and, on August

26, 1991, filed an application for asylum, withholding of removal, and for protection

under the Convention Against Torture. The Department of Homeland Security referred

the asylum application to an Immigration Judge, and Jiang then filed a supplemental

application, in which he claimed that he feared persecution in China because of his

opposition to China’s population control policies.

       A merits hearing was held on June 17, 2008. Jiang and his ex-wife Jinju testified.2

They were married in 1981, and, on December 24, 1982, she gave birth to their first

child. On April 14, 1986, Jinju gave birth to their second child. Soon thereafter, Jinju

was sterilized involuntarily. Later when the couple registered their second child, they

were fined for the “illegal birth.” Jiang came to the United States 5 years later.

Numerous articles and items concerning population control activities in Fujian Province

were admitted into evidence, as well as medical records documenting that Jinju had

undergone a complete bilateral tubal ligation.

       On June 25, 2008, the IJ denied relief. She found Jiang credible but concluded

that he could not base his claim for asylum on his wife’s involuntary sterilization. Jiang



       1
       The VWP authorizes the Attorney General to waive the entry document
requirements for qualifying nationals of certain countries who are seeking temporary
admission to the United States as nonimmigrant visitors. See INA § 217(a), 8 U.S.C. §
1187(a); 8 C.F.R. §§ 217.1 et seq.
       2
       The date the couple divorced is not clear from the record. Jinju is now a lawful
permanent resident of the United States. A.R. 229.

                                              2
had to demonstrate a well-founded fear of persecution based on his own fear of being

persecuted, and there was no evidence showing that he suffered persecution in the past on

account of resistance to China’s population control policies. The IJ emphasized that

Jiang did not protest or resist his wife’s sterilization or the fine he received after he

registered his youngest child in their household registry, and he complied with all of the

Family Planning Office’s penalties. In addition, there was no evidence that he would be

persecuted in the future. Having determined that Jiang failed to satisfy the lower burden

of proof for asylum, the IJ further determined that he failed to qualify for withholding of

removal. Jiang also failed to demonstrate that it was more likely than not that he would

be tortured in China. The IJ ordered Jiang’s removal to China.

       Jiang appealed to the Board of Immigration Appeals and also filed a motion to

remand so that he might pursue adjustment of status based on a relative petition (Form I-

130) filed by his United States citizen daughter. In a decision dated November 19, 2009,

the Board dismissed the appeal and denied a remand. In pertinent part, the Board

determined that the IJ correctly denied Jiang’s claim for asylum because he failed to

establish that he was persecuted for resisting China’s coercive population control policy.

The Board further held that Jiang did not establish that his fine was an onerous amount or

sufficient to constitute economic persecution. Jiang also failed to establish that the fine

resulted from his resistance to China’s family planning policies. The Board affirmed the

IJ’s decision denying withholding of removal and CAT protection. With respect to

denying the motion to remand, the Board reasoned that, because Jiang requested



                                               3
admission into the United States through the Visa Waiver Program with a fraudulent

passport, he was ineligible for adjustment of status.3

       Jiang has petitioned for review of this decision. In his brief he contends that he

sufficiently demonstrated his resistance to China’s population control policies, and the

Board erred in determining that he failed to establish that he was persecuted on account

of his resistance. Moreover, the Board erred in concluding that he failed to establish a

well-founded fear of future persecution. Jiang also contends that the Board erred in

denying his motion to remand.

       We will deny the petition for review. We have jurisdiction under 8 U.S.C. §

1252(a)(1), (b)(1). To qualify for asylum or withholding of removal, an applicant must

establish that he has a well-founded fear that he will be persecuted if removed to his

home country on account of race, religion, nationality, membership in a particular social

group, or political opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b), 1231(b)(3). “[A] person

who has a well founded fear that he or she will be forced to [abort a pregnancy or

undergo involuntary sterilization] or [is] subject to persecution for [failure, refusal, or

resistance to undergo such a procedure] shall be deemed to have a well founded fear of

persecution on account of political opinion.” 8 U.S.C. § 1101(a)(42)(B).

       Spouses do not automatically qualify as refugees under the Attorney General’s

decision in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) (spouse of person forced to

undergo abortion or sterilization is not automatically a refugee under INA § 101(a)(42)).

       3
         The government has represented that, on April 8, 2010, Jiang’s request for
admission under the Visa Waiver Program was “formally refus[ed].” See Respondent’s
Brief, 6 n.4.
                                               4
Matter of J-S- overruled Matter of S-L-L-, 24 I. & N. Dec. 1 (BIA 2006), and Matter of

C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997). We independently reached the same

conclusion in Lin-Zheng v. Att’y Gen. of U.S., 557 F.3d 147 (3d Cir. 2009) (en banc)

(overruling Sun Wen Chen v. Att’y Gen. of U.S., 491 F.3d 100, 107-108 (3d Cir. 2007).

       Spouses may still establish eligibility for asylum by showing “other resistance,” or

resistance in their own right. 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. at 10. See also Matter of M-

F-W- & L-G-, 24 I. & N. Dec. 633, 638 (BIA 2008) (removing IUD or failing to attend

mandatory gynecological appointment sufficient to show other resistance).

       We must uphold the agency’s findings as long as they are “supported by

reasonable, substantial, and probative evidence on the record considered as a whole.”

Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

“[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We conclude that

Jiang’s evidence does not compel the conclusion that he exercised resistance to China’s

population control policies sufficient to qualify him for refugee status. See id. During

the administrative proceedings, Jiang argued that a fine imposed by the Chinese

government when he registered his second child was onerous. A fine may rise to the

level of economic persecution. Li v. Att’y Gen. of U.S., 400 F.3d 157, 168 (3d Cir.

                                             5
2005) (deliberate imposition of severe economic disadvantage which threatens person’s

life or freedom may constitute persecution). Jiang asserts that the government levied a

“huge” fine on him, A.R. 618, but he does not state the amount of the fine or indicate

how it threatened his life or freedom, see id. The Board thus correctly determined that

Jiang failed to establish that the fine was severe enough to constitute economic

persecution.

       Further, the Board correctly determined that Jiang failed to establish that the fine

was on account of his resistance to China’s population control policies. The fine was

imposed as a result of the birth of his second child, and Jiang himself stated in his

affidavit in support of his asylum application that his ex-wife became pregnant when her

IUD accidentally became dislodged. A.R. 618. Similarly, Jujin stated in her affidavit

that the IUD “got loose.” A.R. 229. This unexpected event thus was not the result of

Jiang’s resistance to China’s population control policies.

       Accordingly, substantial evidence supports the Board’s holding that Jiang failed to

establish past persecution. Jiang also failed in his burden to show a well-founded fear of

persecution. He paid the fine for the birth of his second child and his wife was sterilized

in 1986. There was no evidence that any more harm would befall him in China. See

Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003) (in absence of evidence of past

persecution alien must demonstrate subjective fear of persecution through credible

testimony that his fear is genuine and that a reasonable person in his circumstances would

fear persecution if returned to his home country). Because Jiang could not meet the

asylum standard, he necessarily cannot satisfy the withholding of removal standard. See

                                              6
Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407 (1984) (withholding of

removal standard requires alien to show by “clear probability” that his life or freedom

would be threatened on account of a protected ground in the proposed country of

removal). See also Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S.

421, 430 (1987) (“would be threatened” standard has no subjective component). In

addition, the record does not compel a conclusion that Jiang met his burden of

establishing that it is more likely than not that he will be tortured upon his return to

China. See 8 C.F.R. § 1208.16(c)(2).

       Regarding the motion to remand, we review the Board’s decision for an abuse of

discretion. See McAllister v. Att’y Gen. of the U.S., 444 F.3d 178, 185 n.7 (3d Cir.

2006). We have jurisdiction to review this order. Bradley v. Att’y Gen. of the U.S., 603

F.3d 235, 237 n.1 (3d Cir. 2010), petition for cert. filed, 79 U.S.L.W. 3210 (September

20, 2010). Jiang contends in his brief that, although the VWP has a no-contest clause

limiting a VWP entrant to contesting removal only through an asylum application, see 8

U.S.C. § 1187(b)(2), those who enter the United States under the VWP nevertheless

remain eligible to adjust status through an immediate relative petition pursuant to the

Ninth Circuit Court of Appeals’ decision in Freeman v. Gonzales, 444 F.3d 1031, 1034

(9th Cir. 2006) (included in the class of non-immigrants who may petition for adjustment

of status are VWP entrants, but only those who seek adjustment pursuant to an immediate

relative petition). See Petitioner’s Brief, at 17. The government counters that the

Immigration & Naturalization Service refused admission to Jiang after finding him

inadmissible under INA § 212(a)(6)(c)(i), 8 U.S.C. § 1182(a)(6)(c)(i), as an alien who, by

                                              7
fraud or misrepresenting a material fact seeks to procure admission into the United States.

See Respondent’s Brief, at 19. Freeman thus does not apply to Jiang because it dealt with

an alien who was admitted under the VWP. See id.

       We note that the Ninth Circuit subsequently narrowed Freeman to cover only

VWP entrants who petition to adjust their status during their lawful 90-day stay, see

Bradley, 603 F.3d at 241-42 (citing Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir.

2008)). In Bradley, we joined in this narrower view, holding that an alien was not

eligible to apply for adjustment of status after expiration of the 90-day VWP stay, and we

noted that this narrower view was shared by six of our other sister Courts of Appeals, see

id. at 242 n.7. Jiang’s application to adjust status was filed on June 3, 2009, A.R. 12,

almost 8 years after he was paroled into the United States. We thus are not persuaded by

his argument that the Board abused its discretion in denying his motion to remand.

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




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