Chao Gen Lin v. Attorney General of the United States , 390 F. App'x 142 ( 2010 )

IMG-261 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3969
___________
CHAO GEN LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A099-934-646
Immigration Judge: Susan G. Roy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 22, 2010
Before: SCIRICA, SMITH AND WEIS, Circuit Judges
Opinion filed: July 23, 2010
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OPINION
___________
PER CURIAM.
Chao Gen Lin petitions for review of an order of the Board of Immigration
Appeals (“BIA”). For the reasons below, we will deny the petition for review.
Lin, a native of China, entered the United States in July 2006. He was
charged as removable as an alien who entered without being admitted or paroled. See
Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(I) [8 U.S.C. § 1182(a)(6)(A)(I)].
He conceded removability and applied for asylum, withholding of removal, and relief
under the United Nations Convention Against Torture (“CAT”). Lin claimed that he was
entitled to asylum based on his wife’s forced abortion after the discovery of her second
pregnancy. Lin also argued that he suffered persecution when he and his wife were fined
15,000 RMB–three times their annual income–after it was discovered that the couple had a
child before officially authorizing their marriage. Lin and his wife decided that Lin
needed to leave China after the forced abortion.
After Lin filed his asylum application, but before his hearing before the
Immigration Judge (“IJ”) took place, the Attorney General decided Matter of J-S-, 24 I. &
N. Dec. 520 (A.G. 2008), holding that an alien whose spouse had experienced coercive
population measures would not automatically be eligible for asylum. However, such an
alien could still qualify for asylum if he showed he had been persecuted for his own
resistance to China’s population policy.
The IJ concluded that Lin was credible, but that pursuant to Matter of J-S-,
he was not eligible for asylum on the basis of his wife’s abortion. The IJ also noted that
Lin did not offer any resistance to family planning policies. The IJ considered whether the
fine that Lin and his wife were forced to pay constituted persecution, but found that “the
record does not contain any evidence whatsoever that this fine imposed such a financial
hardship on the family that it would allow for persecution, as that term is defined in the
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Act.” A.R. 71. The IJ also noted that Lin had not claimed that he would suffer any future
persecution on account of family planning policy if he were to return to China.1 The IJ
denied asylum and withholding of removal. The IJ found nothing in the record to show
that Lin would be tortured if he returned to China, and thus denied Lin’s claim for
protection under the CAT.
On appeal, the BIA agreed with the IJ’s determination that Lin could not
claim asylum on the basis of any persecution his wife had suffered. As to Lin’s claim that
the fine constituted persecution, the BIA recognized that “deliberate imposition of severe
economic disadvantage, which threatens the petitioner’s life or freedom, may constitute
persecution.” A.R. 2 (citing Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir. 2005)). The
BIA stated that while the fine was significant, there was no evidence to show that it
“endangered the respondent’s ability to support his family or resulted in the ‘deprivation of
liberty, food, housing, employment, [or] other essentials of life.’” Id., quoting Li, 400
F.3d at 168. The BIA also rejected Lin’s claim for withholding and relief under the CAT.
Lin filed a timely petition for review.
We have jurisdiction pursuant to INA § 242 [8 U.S.C. § 1252]. Because the
BIA independently assessed the record, we review only the BIA’s final order of removal.
1
The IJ rejected Lin’s claim that he would be persecuted for leaving China illegally.
Lin does not pursue that claim here.
3
See Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003). We use a substantial
evidence standard to review factual findings, Tarrawally v. Ashcroft, 338 F.3d 180, 184
(3d Cir. 2003), including findings concerning an applicant’s past persecution or
“well-founded fear of future persecution,” Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.
2001). Under the substantial evidence standard, findings are upheld “unless the evidence
not only supports a contrary conclusion, but compels it.” Id. at 483-84. We review the
BIA’s legal conclusions de novo. See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d
Cir. 2007). 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)]. Significantly, “persecution connotes
extreme behavior, including threats to life, confinement, torture, and economic restrictions
so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft, 341 F.3d
214, 217 (3d Cir. 2003) (quotations omitted). It “does not include all treatment that our
society regards as unfair, unjust, or even unlawful or unconstitutional.” Id. (quotation
omitted).
The spouses of those who have been persecuted by coercive population
control policies are not automatically eligible for asylum. Lin-Zheng v. Att’y Gen., 557
F.3d 147 (3d Cir. 2009) (en banc) (holding that there is no automatic refugee status for
spouses of individuals subjected to coercive population control policies). Based on the
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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. Lin implicitly acknowledges this, but argues that
he established past persecution based on the “onerous fine” that was imposed. We agree
with the BIA that Lin has not established eligibility for asylum. Lin states that he “was
forced to borrow large amounts of money from his relatives because it was the only way
he could pay the outrageous fine.” Petitioner’s Brief at 9. He argues in his brief that
“[j]ust because LIN was able to pay the fine solely because his relatives lent him money, it
does not mean that the Respondent [sic] did not feel a great burden and experience
financial hardship.” Id. However, he does not explain how the fine affected him
personally, nor does he even explain any problems his family experienced from paying the
fine. See Li, 400 F.3d at 168 (in order for fine to constitute persecution, it must be so
onerous that it threatens life or freedom). We agree that Lin did not establish that the fine
constituted persecution.
Because Lin 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
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(3d Cir. 2003).2 For the above reasons, we will deny the petition for review.
2
Lin has waived any challenge to his claim that he warrants protection under the CAT
as he did not raise any arguments regarding his CAT claim in his opening brief. Chen v.
Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004).
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