Cai Hong Wang v. U.S. Attorney General , 176 F. App'x 969 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 19, 2006
No. 05-15113 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A77-998-473
CAI HONG WANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 19, 2006)
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Cai Hong Wang seeks review of the decision of the Board of Immigration
Appeals (BIA) adopting and affirming an immigration judge’s (IJ) order of
removal, denial of Wang’s application for asylum or withholding of removal under
the Immigration and Nationality Act (INA), and denial of relief under the United
Nations Convention on Torture (CAT). In her application for asylum and
withholding of removal, Wang claimed a well-founded fear of future persecution
on the ground that her mother had been sterilized by force, that she herself had
violated local marriage policies, and that this violation provoked investigation and
intimidation by local officials.1 Although the IJ’s findings focused on Wang’s
questionable credibility, the BIA rested its adoption and affirmation of the IJ’s
decision on the ground that Wang “has not established a protected ground.
Asylum for coercive population control has not been extended to the children of
those subjected to forcible abortion or sterilization.” Because such failure was the
sole basis of the BIA’s ruling, and because we are satisfied that this ground was
sufficient to support the IJ’s ruling, this is the only issue we need address here.
See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (holding that
when the BIA issues a decision, this court reviews only that decision, except to the
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Wang’s initial application also claimed actual persecution arising from her alleged violation
of local marriage policy, which restricts marriage to individuals above a certain age. However, in
addition to denying at trial that she ever suffered persecution in China, neither the policy itself nor
the single instance of actual persecution cited by Wang (a confrontation between her onetime
boyfriend and allegedly violent government officials) supports a claim of past persecution.
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extent that the BIA expressly adopts the IJ’s decision).
Upon de novo review, we affirm the BIA’s legal determination that the
daughter of a forcibly sterilized mother does not, on that basis alone, fall within the
INA’s definition of “refugee.” This holding is supported by the plain language of
the INA, which specifically provides that, “[f]or purposes of determinations under
this chapter, 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 . . . .” 8 U.S.C. § 1101(a)(42)(B).
Furthermore, substantial evidence supports the IJ’s factual determination
that Wang has not established a “well founded fear that . . . she will be forced to
undergo [involuntary sterilization] or [will be] subject to persecution for . . .
failure, refusal, or resistance” to do so. Id. Although Wang testified that she
would be forcibly sterilized if she had more than one child in China, the IJ’s
contrary finding was amply supported by the following facts, also corroborated by
the record: (1) Wang currently has no children and therefore would not be in
violation of the family planning policy if she returned to China; (2) the Chinese
government prohibits the use of force to compel a person to submit to an abortion
or sterilization; (3) should Wang actually have more than once child upon
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returning to China, the family planning rules in Wang’s province of origin admit
exceptions when the first child is a girl and are, in any event, weakly enforced.
For the foregoing reasons, Wang cannot establish eligibility for asylum or
withholding of removal under the INA. Her ineligibility for asylum confirms that
she is also unable to carry the weightier burden for relief under CAT.
AFFIRMED.
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