Jhi Pai Chen-Zhu v. Atty Gen USA ( 2011 )

  •                                                               NOT PRECEDENTIAL
                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                         No. 10-1014
                                     JHI PAI CHEN-ZHU,
                         On Petition for Review of an Order of the
                               Board of Immigration Appeals
                                (Agency No. A094 924 065)
                   Immigration Judge: Honorable Margaret R. Reichenberg
                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     February 16, 2011
               Before: FUENTES, VANASKIE and NYGAARD, Circuit Judges
                              (Opinion filed: February 23, 2011 )
          Jhi Pai Chen-Zhu, a native and citizen of China, petitions for review of an order of
    the Board of Immigration Appeals (“BIA”), which dismissed his appeal from an
    Immigration Judge’s (“IJ”) final order of removal, and denied his motion to remand. We
    will deny the petition for review.
           Chen-Zhu entered the United States without inspection in March 2007. He
    applied for asylum and related relief based on persecution related to China’s population
    policies. He first claimed eligibility for relief based on the July 3, 2007 forced
    sterilization of his wife following the birth of a non-allowed second child, but case law
    changed during the pendency of proceedings,1 so he attempted to show he was eligible
    for relief because he would be fined and would be persecuted for leaving illegally. Chen-
    Zhu first testified that he had been threatened in January 2007 with a 26,000 RMB fine if
    his wife did not appear for a checkup (this was when his wife was pregnant with the
    second child), but when the IJ tried to clarify the issue, Chen-Zhu stated he had never
    actually been fined. A.R. 146-50. He later stated that he feared if he returned to China,
    he would have to pay a fine because he had prevented officials from collecting the 26,000
    RMB fine. A.R. 151. Chen-Zhu gave some conflicting testimony about whether he
    knew for a fact that the fine still existed. He stated that he had never received notice of a
    fine, nor had his wife. A.R. 158, 160-61. On the other hand, he testified that his wife
    told him that if the fine was not paid, the children would not get a certificate to attend
             See Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) (spouse of person subjected
    to forced sterilization procedure not per se entitled to refugee status). Soon thereafter,
    this Court similarly held that an alien is not eligible for asylum based on the persecution
    of his spouse, but “an applicant can claim refugee status if he/she can demonstrate actual
    persecution for resisting a country’s coercive family planning policy, or a well-founded
    fear of future persecution for doing so.” Lin-Zheng v. Attorney General, 
    557 F.3d 147
    157 (3d Cir. 2009) (en banc).
    school when they were older. A.R. 171. He also testified that he feared being jailed for
    having left China illegally. A.R. 173.
           The IJ found Chen-Zhu’s testimony regarding the fine to be confusing, and noted
    that he “had a great difficulty testifying about the circumstances of that fine.” The IJ
    found Chen-Zhu was not “a credible and persuasive witness regarding whether a fine has
    indeed been assessed to him for violating the family policy, how that fine was assessed or
    the likely penalties that could be placed upon him for failing to pay it.” The IJ also found
    that Chen-Zhu had not established that he would be persecuted (as opposed to
    prosecuted) for leaving China illegally. The IJ also found no evidence that Chen-Zhu
    would be tortured in China.
           In his notice of appeal to the BIA, Chen-Zhu stated that the IJ “abused her
    discretion in making a negative finding for the respondent despite the fact that the
    respondent presented internally consistent testimony during his merits hearing and that
    the respondent was credible, specific, and persuasive; the [IJ’s] negative credibility
    finding was not supported by the substantial evidence in the record.” A.R. 81 In his brief
    to the BIA, he argued that the IJ failed to consider that imposition of a substantial fine
    constituted persecution, and that the IJ erred by requiring him to produce evidence of the
    fine that was not available. A.R. 9-19. Chen-Zhu also sought a remand for consideration
    of additional evidence with regards to the fine.
           The BIA found no clear error in the IJ’s adverse credibility finding with regard to
    Chen-Zhu’s testimony about the fine.2 The BIA stated that although the adverse
    credibility finding would be dispositive, it would also address Chen-Zhu’s other
    arguments. The BIA noted that the IJ had indeed considered that a fine could constitute
    persecution, and had not unreasonably sought some corroborating evidence regarding the
    fine, specifically, a statement from Chen-Zhu’s wife. The BIA addressed Chen-Zhu’s
    motion for a remand, and noted that only three of the documents submitted were new.
    The BIA noted that one document, the statement from Chen-Zhu’s wife, post-dated the
    IJ’s decision, but that Chen-Zhu had not explained why he could not have obtained it
    earlier. The BIA also noted that Chen-Zhu did not explain why the notice of a fine could
    not have been obtained for the hearing below, and noted that a receipt showing the fine
    had been paid did not aid his case, as it appeared his “wife was able to pay the fine in full
    without difficulty within three days of receiving a notice to pay.” The BIA dismissed the
    appeal and denied the motion for a remand. Chen-Zhu filed a timely, counseled petition
    for review.
           We first consider the scope of our review. We have jurisdiction pursuant to
    section 242 of the Immigration and Nationality Act (“INA”) [8 U.S.C. § 1252]. Because
    the BIA independently assessed the record, we review only the BIA’s decision. See
    Ezeagwuna v. Ashcroft, 
    325 F.3d 396
    , 405 (3d Cir. 2003). An alien must “raise and
              Although Chen-Zhu did not discuss the IJ’s adverse credibility finding in his
    brief to the BIA, the BIA generously noted that the issue had been raised in the notice of
    appeal, and addressed the issue.
    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.” Abdulrahman v. Ashcroft, 
    330 F.3d 587
    , 594-
    95 (3d Cir. 2003); INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)]. However, where the alien’s
    notice of appeal to the BIA sets forth sufficient facts and law to inform the BIA of the
    basis of an issue on appeal, failure to address the issue in the alien’s brief on appeal to the
    BIA does not strip this Court of jurisdiction to review the claim. Hoxha v. Holder, 
    559 F.3d 157
    , 163 (3d Cir. 2009). We may thus review the adverse credibility finding,
    despite Chen-Zhu’s failure to address the issue in his brief to the BIA. See also Lin v.
    Att’y Gen., 
    543 F.3d 114
    , 123 (3d Cir. 2008) (where BIA raises claim sua sponte, claim
    is considered exhausted for purposes of review in court of appeals).
           We agree with the Government that Chen-Zhu has waived review of the BIA’s
    decision denying his motion to remand. Chen-Zhu’s sole mention of the remand issue is
    a passing reference at the beginning of his brief stating that he seeks to challenge the
    BIA’s denial of his motion to remand, and a mention at the very end of the brief asking
    the Court to reverse the BIA’s decision denying a remand. Petitioner’s Brief at 11, 39.
    Such passing references are not sufficient to bring the issue before this Court. Voci v.
    409 F.3d 607
    , 610 n.1 (3d Cir. 2005); see also Vallejo Piedrahita v. Mukasey,
    524 F.3d 142
    , 144-45 (1st Cir. 2008) (“it is not enough merely to mention a possible
    argument in the most skeletal way, leaving the court to do counsel’s work, create the
    ossature for the argument, and put flesh on its bones”) (internal quotation and citation
    omitted). The Government similarly argues that Chen-Zhu has waived review of the
    BIA’s corroboration finding because he failed to present any meaningful arguments
    regarding the issue in his opening brief here. We need not reach the question of whether
    this argument is waived, because, as we explain, we find the adverse credibility finding
    dispositive of Chen-Zhu’s claims.3
           An applicant may demonstrate eligibility for asylum by showing either past
    persecution or a well-founded fear of future persecution on account of race, religion,
    nationality, membership in a particular social group, or political opinion. See INA
    § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A)]. The spouses of those who have been
    persecuted by coercive population control policies are not automatically eligible for
    asylum. Lin-Zheng, 557 F.3d at 157 (holding that there is no automatic refugee status for
    spouses of individuals subjected to coercive population control policies). Based on the
    statutory definition of “refugee” under INA § 101(a)(42) [8 U.S.C. § 1101(a)(42)], we
    concluded in Lin-Zheng that refugee status extends only to the individual who had been
    subjected to an involuntary abortion or sterilization procedure, had been persecuted for
    failing or refusing to undergo such a procedure, or had a well-founded fear of such
    persecution in the future. See id. at 156. Chen-Zhu does not acknowledge this holding in
    his brief. Nevertheless, he could still establish past persecution based on his own
    resistance to China’s family planning policy. See id. at 157 (noting that spouses remain
    eligible for relief if they qualify as a refugee under INA § 101(a)(42) based upon their
    own persecution, or well-founded fear of persecution, for “other resistance” to a coercive
             Although Chen-Zhu argued to this Court in his motion for a stay of removal that
    he will be persecuted and fined for leaving China illegally, he did not raise the issue in
    population control program). Chen-Zhu could potentially establish that his refusal to pay
    a fine imposed for the illegal birth of his second child constituted “other resistance,” and
    could then prove that he was, or would be, persecuted as a result of that resistance.
    “Deliberate imposition of severe economic disadvantage which threatens a petitioner’s
    life or freedom may constitute persecution.” Li v. Att’y Gen., 
    400 F.3d 157
    , 168 (3d Cir.
    2005). However, as noted, the IJ found that Chen-Zhu’s testimony regarding a fine was
    not credible, and the BIA upheld that finding.
           An adverse credibility finding is reviewed under the substantial evidence test, and
    must be upheld unless “any reasonable adjudicator would be compelled to conclude to
    the contrary.” Gao v. Ashcroft, 
    299 F.3d 266
    , 272 (3d Cir. 2002) (quoting 8 U.S.C.
    § 1252(b)(4)(B)). To reverse an adverse credibility finding, the evidence of credibility
    must be so strong “that in a civil trial [the alien] would be entitled to judgment on the
    credibility issue as a matter of law.” Chen v. Ashcroft, 
    376 F.3d 215
    , 222 (3d Cir. 2004).
    Chen-Zhu states throughout his brief that he provided “consistent” testimony, and states
    that he “did not ever contradict his own answers nor . . . become unresponsive in any of
    the line of questioning posed by the IJ or the Government’s attorney.” Petitioner’s Brief
    at 30. His statement is belied by the record. His testimony concerning the issue of
    whether a fine was imposed or threatened, when (if at all) it was imposed, and whether
    the Chinese government still expected him to pay it, was very confusing and
    contradictory. A.R. 146-71. We are not compelled to conclude that Chen-Zhu testified
    credibly. Because Chen-Zhu did not have corroborative evidence at the time of his
    his brief; the issue is thus waived.
    hearing, his failure to provide credible testimony regarding the fine is dispositive.
           Because Chen-Zhu cannot satisfy the asylum standard, he cannot satisfy the more
    difficult withholding of removal standard. See Zubeda v. Ashcroft, 
    333 F.3d 463
    , 469-70
    (3d Cir. 2003). We further find no evidence in the record that he is likely to be tortured if
    he is returned to China. For the above reasons, we will deny the petition for review.