* Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for

Michael B. Mukasey as the respondent in this appeal.

** After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

August 27, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ZHONGZHENG WU,

Petitioner,

v.

ERIC H. HOLDER, JR.,*

United States Attorney General,

Respondent.

No. 08-9558

(Petition of Review)

ORDER AND JUDGMENT**

Before BRISCOE, HOLLOWAY, and EBEL, Circuit Judges.

Petitioner Zhongzheng Wu, a native and citizen of the People’s Republic of

China, entered the United States legally in November 2000, but overstayed his

visa. After being served with a notice to appear, he conceded removability but

sought political asylum, restriction on removal, and withholding of removability
1 “To obtain a restriction on removal a noncitizen must establish a clear

probability of persecution in that country on the basis of race, religion,

nationality, membership in particular social group, or political opinion. The

question under the clear-probability standard is whether it is more likely than not

that the noncitizen would be subject to persecution upon return to the country.” 

Razkane v. Holder, 562 F.3d 1283, 1287 (10th Cir. 2009) (quotations, citation,

brackets, and ellipsis omitted).

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under the Convention Against Torture (CAT) based on his wife’s forced

sterilization in 1984 in China and the treatment both he and his wife received

from the government associated with that sterilization. Following a hearing, the

Immigration Judge (IJ) denied petitioner asylum on two grounds: (1) that he did

not apply for asylum withing the one-year statutory time period, and (2) that he

failed to show past persecution or a well-founded fear of future persecution

within the meaning of the Immigration and Nationality Act (INA). The IJ based

his determination regarding the second ground on an adverse credibility finding. 

The IJ found that petitioner’s testimony “was not sufficiently detailed, consistent

or believable to provide a plausible and coherent account of the basis for his

fears, and, thus, cannot suffice to establish his eligibility without further

corroborating evidence.” Admin. R. at 99. The IJ found that he did not believe

petitioner’s testimony and that petitioner’s unwillingness to return to China did

not stem from persecution. The IJ went on to determine that since petitioner had

failed to show the lower burden of proof for asylum, he also failed to satisfy the

clear probability standard of eligibility required for restriction on removal1

 and

that he had likewise failed to make the required showing that he had been or
2 The BIA noted that petitioner requested asylum solely on the basis of his

wife’s alleged forced sterilization. See Admin. R. at 3 n.2.

3 We acknowledge that there are passages in petitioner’s opening brief that

appear to question other rulings by the BIA. To the extent that petitioner

intended those passages to raise other points of error to be reviewed, we decline

to review such points. Kabba v. Mukasey, 530 F.3d 1239, 1248 (10th Cir. 2008)

(holding that issues that are not sufficiently raised in an opening brief are

waived).

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would likely be tortured if returned to China to qualify for protection under the

CAT.

Petitioner appealed to the BIA raising a number of points of error. In

regard to restriction on removal pursuant to 8 U.S.C. § 1231(b)(3), the BIA noted

that In re J-S-, 24 I. & N. Dec. 520 (A.G. 2008) overruled two previous BIA

decisions in holding that a spouse of a person who has been subjected to forced

abortion or sterilization is not per se entitled to refugee status.2

 It therefore ruled

that even if it were to find petitioner credible, he was unable to qualify for

restriction on removal. This is the ruling petitioner asks us to review.3

 

The BIA issued its per curiam decision in a brief order signed by a single

board member. See 8 C.F.R. § 1003.1(e)(5). We thus review the BIA’s decision,

consulting the IJ’s explanation if necessary. See, e.g., Uanreroro v. Gonzales,

443 F.3d 1197, 1204 (10th Cir. 2006).

Petitioner’s argument is conclusory and self-contradicting. Since it raises

only a legal question, our review is de novo. See Elzour v. Ashcroft, 378 F.3d

1143, 1150 (10th Cir. 2004). Petitioner recognizes that the Attorney General’s
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decision in In re J-S- overruled two previous BIA decisions, In re S-L-L-, 24 I. &

N. Dec. 1 (BIA 2006) and In re C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997), in

holding that a spouse of a person who has been subjected to forced abortion or

sterilization is not per se entitled to refugee status. Petitioner then sets forth six

opinions from other circuit courts that predated In re J-S- and ruled that a spouse

of a person who has been subjected to forced abortion or sterilization was entitled

to refugee status. He then states, without further discussion of the case law he

relies upon: “[t]his issue appears to be one of first impression in this circuit, and

petitioner urges that the ruling of the preceding courts be followed herein.” Aplt.

Br. at 7. But our independent review of those opinions shows that the rulings

therein relied on the now-overruled, BIA decisions in reaching their conclusions. 

Thus, the reasoning in those opinions has been undercut and we must deny the

petition for review.

This is not to say that the Attorney General’s decision in In re J-Sforecloses any argument to this court that a spouse of a person who has been

subjected to forced abortion or sterilization is per se entitled to refugee status. 

We do not reach that question. Petitioner’s brief makes no argument as to why

the outcome of the cited cases should be sustained after their reasoning has been
4 It does appear that such an argument would be a difficult one to make in

that our independent research has revealed no cases decided after In re J-S- that

would be helpful to petitioner. See, e.g., Yu v. U.S. Atty. Gen., 568 F.3d 1328,

1332-33 (11th Cir. 2009) (holding (1) that 8 U.S.C. § 1101(a)(42)(B) is

unambiguous and does not confer automatic refugee status on an individual

merely because his or her spouse underwent a forced abortion or sterilization, and

(2) that even if the statute was ambiguous, the Attorney General’s decision in In

re J-S-, was reasonable and entitled to deference); Lin-Zheng v. Atty. Gen.,

557 F.3d 147, 156-57 (3d Cir. 2009) (expressly overruling one of the opinions

that petitioner in this case asks us to follow); see also Shou Wei Jin v. Holder,

572 F.3d 392, 396-97 (7th Cir. 2009).

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undermined, and we are not inclined to try and craft such an argument sua

sponte.4

The petition for review is DENIED.

Entered for the Court

William J. Holloway, Jr.

Circuit Judge