Xian Chen v. Holder , 410 F. App'x 694 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1583
XIAN CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: December 6, 2010 Decided: February 3, 2011
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Gary J. Yerman, New York, New York, for Petitioner. Tony West,
Assistant Attorney General, Daniel E. Goldman, Senior Litigation
Counsel, Jonathan Robbins, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Xian Chen, a native and citizen of the People’s
Republic of China, petitions for review of an order of the Board
of Immigration Appeals (“Board”) dismissing his appeal from the
immigration judge’s order denying his applications for asylum,
withholding from removal and withholding under the Convention
Against Torture (“CAT”). Chen claims the Board abused its
discretion by denying relief he sought based on his claims that
he was a Falun Gong practitioner and that he feared returning to
China because he was now in violation of China’s family planning
policy. We deny the petition for review.
The Immigration and Nationality Act (INA) authorizes
the Attorney General to confer asylum on any refugee. 8 U.S.C.
§ 1158(a) (2006). The INA defines a refugee as a person
unwilling or unable to return to his native country “because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (2006).
“Persecution involves the infliction or threat of death,
torture, or injury to one’s person or freedom, on account of one
of the enumerated grounds . . . .” Qiao Hua Li v. Gonzales, 405
F.3d 171, 177 (4th Cir. 2005) (internal quotation marks and
citations omitted). An individual who has been forced to submit
to a sterilization procedure is “deemed to have been persecuted
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on account of political opinion.” 8 U.S.C. § 1101(a)(42)
(2006).
An alien “bear[s] the burden of proving eligibility
for asylum,” Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir.
2006); see 8 C.F.R. § 1208.13(a) (2010), and can establish
refugee status based on past persecution in his native country
on account of a protected ground. 8 C.F.R. § 1208.13(b)(1)
(2010). “An applicant who demonstrates that he was the subject
of past persecution is presumed to have a well-founded fear of
persecution.” Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.
2004).
Without regard to past persecution, an alien can
establish a well-founded fear of persecution based on a
protected ground. Id. at 187. The well-founded fear standard
contains both a subjective and an objective component. The
objective element requires a showing of specific, concrete facts
that would lead a reasonable person in like circumstances to
fear persecution. Gandziami-Mickhou v. Gonzales, 445 F.3d 351,
353 (4th Cir. 2006). “The subjective component can be met
through the presentation of candid, credible, and sincere
testimony demonstrating a genuine fear of persecution . . . .
[It] must have some basis in the reality of the circumstances
and be validated with specific, concrete facts . . . and it
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cannot be mere irrational apprehension.” Qiao Hua Li, 405 F.3d
at 176 (internal quotation marks and citations omitted).
A determination regarding eligibility for asylum or
withholding of removal is affirmed if supported by substantial
evidence on the record considered as a whole. INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). Administrative findings of
fact are conclusive unless any reasonable adjudicator would be
compelled to decide to the contrary. 8 U.S.C. § 1252(b)(4)(B)
(2006). This court will reverse the Board only if “the evidence
. . . presented was so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution.” Elias-
Zacarias, 502 U.S. at 483-84; see Rusu v. INS, 296 F.3d 316, 325
n.14 (4th Cir. 2002). When the Board and the immigration judge
both issue decisions in an immigration case, this court will
review both decisions. Kourouma v. Holder, 588 F.3d 234, 239-40
(4th Cir. 2009).
We conclude that substantial evidence supports the
finding that Chen was not the victim of past persecution.
Accordingly, he was not eligible for the presumption that he had
a well-founded fear of persecution. We further conclude that
substantial evidence supports the finding that Chen’s fear of
returning to China because he started practicing Falun Gong was
not objectively reasonable. Chen failed to show that government
authorities knew of or would learn of his Falun Gong practice.
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We also conclude that substantial evidence supports
the finding that Chen did not show a well-founded fear of
persecution based on the birth of his two children. Even if
Chen is in violation of China’s policy, he must still show that
there is “a reasonable possibility that Chinese Government
officials would enforce the family planning policy against [him]
through means constituting persecution.” Matter of H-L-H- & Z-
Y-Z-, 25 I. & N. Dec. 209, 211 (BIA 2010). Because there was
highly probative evidence stating that there was no evidence
showing that Chinese citizens returning to China were persecuted
because of having children born in the United States, we
conclude the record does not compel a different result.
We also deny Chen’s petition for review as it pertains
to his claim under the CAT. He did not show it was more likely
than not that he will be tortured if he returns to China. See 8
C.F.R. § 1208.16(c) (2010).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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