                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-4-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3185




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"Chen v. Atty Gen USA" (2004). 2004 Decisions. Paper 418.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                        No. 03-3185
                                       ____________

                                   YONG ZHEN CHEN,

                                                  Petitioner

                                             v.

                            JOHN ASHCROFT,
                 ATTORNEY GENERAL OF THE UNITED STATES,

                                              Respondent
                                       ____________

                            On Petition for Review from an
                       Order of the Board of Immigration Appeals
                               (Board No. A77-322-686)
                                     ____________

                                   Argued July 13, 2004

               Before: RENDELL, BARRY and FISHER, Circuit Judges.

                                   (Filed: August 4, 2004)

Marco Pignone, III (Argued)
Wilson & Pignone
117 South 17th Street, Suite 908
Philadelphia, PA 19103
      Attorney for Petitioner
Matthew L. Zabel (Argued)
United States Department of Justice
Appellate Section
950 Pennsylvania Avenue, N.W., Room 4632
Washington, DC 20530

Douglas E. Ginsburg
John D. Williams
Terri J. Scadron
Robbin K. Blaya
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
        Attorneys for Respondent

                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Petitioner Yong Zhen Chen appeals the order of the Board of Immigration Appeals

(“BIA”) denying his applications for asylum, withholding of deportation, and relief under

the Convention Against Torture. Because the BIA’s order was supported by substantial

evidence, we will dismiss the petition for review.

       Chen was engaged and the woman became pregnant. The couple had not

undergone a traditional Chinese wedding ceremony, and even if they had, could not

register a traditional marriage because the woman was underage under China’s birth

control policy. She was subsequently ordered to have an abortion by Chinese birth-



                                             2
control officials. When officials arrived to escort the woman to the abortion, Chen tried

to prevent them from entering their home. He was surrounded and beaten while his

fiancee was dragged from the bedroom and kicked. She bled and suffered a miscarriage.

       The next day, Chen complained to officials that they had killed his baby. He was

detained at the police station, handcuffed to a window frame, slapped, and knocked

unconscious. Two days later, he was released on bail. Officials threatened to order Chen

to return to the station at any time, and that he would have to pay a fine. Officials came

to Chen’s home “many times” and said his “wife” could not live with him. Chen could

not pay a fine and officials removed property from his home when he tried to leave China.

       The immigration judge denied Chen’s applications for asylum, withholding of

deportation, and relief under the Convention Against Torture. The BIA affirmed, finding

that Chen “failed to show that he or his spouse has been forced to abort a pregnancy,

forced to undergo involuntary sterilization, or persecuted for resistance to a coercive

population control program.” Chen filed a timely petition for review.

       To obtain reversal, Chen “must show that the evidence he presented was so

compelling that no reasonable factfinder could fail to find the requisite fear of

persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). Although we

sympathize with Chen and do not condone his treatment at the hands of the birth-control

officials, the BIA’s finding that Chen did not warrant asylum is supported by substantial

evidence. See Prasad v. INS, 47 F.3d 336 (9th Cir. 1995) (no past persecution despite



                                              3
custodial beating); Kapcia v. INS, 944 F.2d 702 (10th Cir. 1991) (asylum denied despite

repeated two-day detentions where petitioner was interrogated and beaten).

       Alternatively, Chen argues that he may bootstrap his asylum application through

the nature of his relationship with his fiancee. As support, he cites to the BIA’s decision

of In re C-Y-Z, 21 I. & N. Dec. 915 (BIA 1997), where the BIA held that the spouse of a

woman who underwent an involuntary sterilization merited asylum. Chen asks that C-Y-

Z be extended to non-married adults who were legally prohibited from officially marrying

due to the minimum age requirements of China’s birth control policy. We decline to

extend C-Y-Z, because the plain language of the definition of “refugee” requires an

individualized analysis of the alleged persecution. 8 U.S.C. § 1101(a)(42). To the extent

that C-Y-Z takes a categorical approach regarding spouses, that approach should not be

extended to the current context, and the BIA does not urge us to hold otherwise. As the

BIA’s conclusions regarding Chen’s experiences were supported by substantial evidence,

we may not substitute our view for that of the BIA.1

       We have considered Chen’s remaining arguments and find them to be without

merit. Accordingly, the petition for review will be DENIED.




   1
    Nor is petitioner aided by the Ninth Circuit’s recent decision in Ma v. Ashcroft, where
the Court overturned a BIA order denying asylum to a man whose traditional marriage
could not be officially registered. 361 F.3d 553 (9th Cir. 2004). That decision is
inapposite as Chen was unmarried, either officially or traditionally.

                                             4
