2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-24-2011

Chen Yang v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1337

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-1337

___________

CHEN HUA YANG,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A094-778-530

(U.S. Immigration Judge: Honorable Henry S. Dogin)

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 16, 2011

Before: SCIRICA, FISHER and ALDISERT, Circuit Judges.

(Filed: February 24, 2011 )

___________

OPINION OF THE COURT

___________

PER CURIAM.

Petitioner seeks review of the decision of the Board of Immigration Appeals

(“BIA”), dismissing her appeal from the Immigration Judge’s (“IJ”) denial of her

application for relief. For the reasons that follow, we will deny the petition for review.
2

Petitioner, Chen Hua Yang, is a female native and citizen of China. She arrived in 

the United States in June 1996 without a valid entry document and, on September 5, 

2006, was charged with removability pursuant to INA § 237(a)(1)(A). On December 19, 

2006, she applied for asylum, withholding of removal, and protection under the 

Convention Against Torture (“CAT”). At the hearing before the IJ, both Yang and her 

husband testified. They were married in New York City in November 1999 and 

subsequently had two children. The first, a boy, was born on February 9, 2000, and the 

second, a girl, was born on November 5, 2006. Both Yang and her husband testified that 

they feared that they would be sterilized upon their return to China since they had already 

had two children in America. In support of her claim, Yang submitted an affidavit from 

her father indicating that she would likely be sterilized if she returned to China. (A.R. 

128.) She also testified that her mother was forcibly sterilized in 1993, and her cousin in 

2006, each after giving birth to two children. However, as noted by the IJ, neither had 

ever been to the United States, and both of their children were born in China. Relying 

primarily on the BIA’s decision in In re J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), the IJ 

concluded that Yang had failed to demonstrate a likelihood of future persecution on the 

basis of having had two American-born children. Accordingly, the IJ denied relief, and 

the BIA affirmed and dismissed her appeal. Yang filed a timely petition for review.

We have jurisdiction over this petition for review pursuant to 8 U.S.C. § 1252. 

We exercise de novo review over the legal determinations of the BIA. See Kaplun v. 

Attorney Gen., 602 F.3d 260, 265 (3d Cir. 2010).
3

Yang argues that the BIA erred in concluding that her case fell entirely within the 

scope of J-W-S-, and that the BIA failed to specifically address each of the documents 

she submitted in support of her claim. In particular, she maintains that the Board 

overlooked the following documents: The United States Department of State Report titled 

“Tips for Travelers to the People’s Republic of China,” issued February 14, 2007, and the 

July 1999 Changle City Family Planning Administration Question and Answer 

Information Booklet,1

S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), and concluded that they did not demonstrate 

that individuals in Yang’s situation were objectively likely to be sterilized upon their 

return to China. See id. at 257-58 & n.1. Yang also argues that J-W-S- only addressed 

generalized conditions in China, and not the specific conditions in Fujian Province. 

However, in J-W-S-, the BIA addressed both enforcement in China generally and in the 

smaller towns of Fujian Province specifically. See 24 I. & N. Dec. at 192-93. The BIA 

did not conclude that the parents of children born outside of China were exempt from 

neither of which were part of the record in J-W-S-. While the BIA 

did not mention either of these two documents by name in its opinion, we do not require

the BIA to “‘expressly parse or refute on the record’ each individual argument or piece of 

evidence offered by the petitioner,” particularly when the BIA has been asked to consider 

that evidence previously. See Wang v. Bd. of Immigration Appeals, 437 F.3d 270, 275 

(3d Cir. 2006). The BIA specifically considered both of these documents in In re 

 1 Yang appears to be referring to the document titled “The Campaign of Chang Le City to 

Propagandize the General Family Planning Knowledge into Mass Families by Means of 
4

enforcement of the family planning laws upon their return to China but, rather, that the 

penalty, if any, would involve fines or other economic sanctions. See id. at 190. The 

“Tips for Travelers” document does not contradict this, but simply states that “children 

born in the United States to PRC national parents, who are neither lawful permanent 

residents nor U.S. citizens, are not recognized as U.S. citizens under Chinese nationality 

law.” (A.R. 268.) The document does not discuss how this policy may or may not relate 

to the nation’s family planning policies. 

Accordingly, we conclude that the BIA did not err in dismissing Yang’s appeal. 

Yang briefly argues that she also established that a pattern or practice of persecution of 

parents of two or more foreign-born children exists in China. See 8 C.F.R. 

§ 1208.13(b)(2)(iii). We agree with the Attorney General that this claim was not raised 

below and is therefore unexhausted. See Lin v. Attorney Gen., 543 F.3d 114, 120-21 (3d 

Cir. 2008). We also agree that Yang has either abandoned or failed to exhaust her claim 

for protection under the CAT. See id. Based on the foregoing, we will deny the petition 

for review.

 

Questions and Answers on Visiting and TV.” (A.R. 356-62.)