* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

1 The phrase “restriction on removal” was previously called “withholding of removal” before Congress amended the Immigration an d Nationality Act (“INA”), 8 U.S.C. § 1101, et seq ., in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009. While Mr. Zhen, the BIA, and the Immigration Judge (“IJ”) all use the “withholding” terminology, we refer to Mr. Zhen’s s econd claim as seeking a restriction on removal because his claim was filed after IIRIRA’s effective date. 

## F I L E D United States Court of Appeals Tenth Circuit 

### April 6, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SHI LI ZHEN, Petitioner,

vs. ALBERTO R. GONZALES, Attorney General, Respondent. No. 05-9532 (B.I.A. No. A29-810-788)

ORDER AND JUDGMENT *

Before KELLY , BALDOCK , and MURPHY , Circuit Judges.
Petitioner Shi Li Zhen, a citizen of China, petitio ns for review of a decision by the Board of Immigration Appeals (“BIA”) dismiss ing his appeal from the denial of his application for asylum and a restrict ion on removal. 1 In particular,- 2 -

he contends that: (1) he is eligible for asylum bec ause the Department of Homeland Security (“DHS”) failed to properly charge him with an aggravated felony; (2) he is entitled to a restriction on remo val because substantial evidence compels the conclusion that he will be fined, impri soned or sterilized if removed to his homeland due to the practices of the Chinese government with regard to its one-child policy; and (3) the BIA failed to conside r the entirety of the record by refusing to consider the affidavit of Mr. Aird, his expert. Our jurisdiction arises under 8 U.S.C. § 1252(a), and we affirm.

Background Mr. Zhen is a national and citizen of the People’s Republic of China. He illegally entered the United States in November of 1990. He applied for asylum, but his initial application was denied on December 11, 1991, and he was ordered deported. The BIA summarily dismissed Mr. Zhen’s appeal of that decision ten days later. Nevertheless, Mr. Zhen remained in the country, and on June 1, 1993, he married his wife, Dan Hong Dong. Mr. Zhen and M s. Dong have three children, two sons and a daughter. It appears thatsometime around 1996, Mr. Zhen and his wife moved to Denver, where he began w orking at his brother-inlaw’s Chinese restaurant. In 1999, he became a part owner in the eatery. In November of 2001, Mr. Zhen was arrested by Immigrat ion and Nationalization- 3 -

Service (“INS”) officials and charged with conceali ng and harboring illegal aliens – some of whom were his relatives. He pled guilty to one count of concealing and harboring illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), and was sentenced by the court to his time served, which am ounted to 233 days. From that point forward, Mr. Zhen has been in the custody of DHS. In April of 2004, Mr. Zhen moved to reopen his asylum proceedings based o n “changed personal circumstances,” viz., that his wife had been grante d asylum.

Discussion An alien who fears persecution if deported to a particular country has two potential modes of relief under the INA – asylum an d restriction on removal. Wiransane v. Ashcroft , 366 F.3d 889, 893 (10th Cir. 2004). If an alien is granted asylum, he is entitled to remain in this country. See8 U.S.C. § 1158. On the other hand, if an alien is granted a restriction onremoval, it simply prevents his deportation to the particular country where the per secution may occur. See 8 U.S.C. § 1231(b)(3). The decision of whether to gr ant asylum is within the discretion of the Attorney General, whereas a restr iction on removal will be granted where the alien demonstrates a clear probab ility that his life or freedom would be threatened due to his race, religion, nati onality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A);2 While we recognize that the REAL ID Act of 2005 inc ludes new

provisions relating to agency credibility determinations, codified at 8 U.S.C. §§ 1158(b)(1)(b)(iii), 1229(c)(4)(C), and 1231(b)(3)(C ), these new provisions only apply to aliens applying for asylum or other relief after May 11, 2005, the effective date of the statute. See Pub. L. No. 109-13, div. B § 101(h)(2), 119 Stat. 231, 305. Mr. Zhen applied for a re-opening of his asylum and restriction on removal relief determination in April 2004, and as such, these new provisions are inapposite. - 4 - Tulengkey v. Gonzales , 425 F.3d 1277, 1280 (10th Cir. 2005). We review the BIA’s legal determinations de novo, and its findings of fact under a substantial evidence standard. Yan v. Gonz alez , 438 F.3d 1249, 1251 (10th Cir. 2006). When we review under the substantial evidence standard, we are required “to guarantee that factual demonstrati ons are supported by reasonable, substantial and probative evidence cons idering the record as a whole.” Niang v. Gonzalez , 422 F.3d 1187, 1196 (10th Cir. 2005) (internal qu otations omitted). As such, an agency’s factual determinati ons are conclusive unless the record indicates that “any reasonable adjudicator w ould be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). 2 I. Asylum As noted above, Mr. Zhen pursued his initial reques t for asylum in 1990, and the subsequent denial and order of removal occurred in 1991. Ten years later, of course, he was convicted of harboring illegal al iens. In April 2004, Mr. Zhen moved to reopen his asylum proceedings based on “ch anged personal- 5 -

circumstances,” viz., that his wife had been grante d asylum. Mr. Zhen first contends that he must be formally charged by the DH S as an alien convicted of an aggravated felony before an IJ can determine that h e is thereby barred from asylum eligibility. This contention is without mer it. The record establishes that Mr. Zhen was convicted of concealing and harboring illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), and served a sentence of 233 days. Under 8 U.S.C. § 1101(a)(43) (N), his prior conviction clearly qualifies as an “aggravated felony.” See 8 U.S.C. § 1101(a)(43)(N) (explaining that the term “aggravated felony” shall mean, inter alia, “an offense described in paragraph (1)(A) or (2) of section 132 4(a) of this title (relating to alien smuggling)”). Further, because pursuant to § 1158(b)(2)(B)(i), aliens convicted of an aggravated felony “shall be conside red to have been convicted of a particularly serious crime,” Mr. Zhen is not enti tled to asylum because asylum is simply not available to one “convicted by a final j udgment of a particularly serious crime.” 8 U.S.C. § 1158(b)(2)(A)(ii); see alsoIlchuk v. Attorney General , 434 F.3d 618, 621 (3rd Cir. 2006). Accordingly, th e BIA’s conclusion on this score is correct. II. Restriction on Removal In order to obtain a restriction on his removal to China, Mr. Zhen must show that his “life or freedom would be threatened in [China] because of [his]- 6 -

race, religion, nationality, membership in a partic ular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Mr. Zhen can apply for and receive a restriction on his removal to China, provided he de monstrates a “clear probability” that his life or freedom would be thre atened. See Wiransane , 366 F.3d at 894; see also 8 U.S.C. § 1231(b)(3)(A), (b)(3)(B). This standar d for restriction on removal stands as “more demanding th an the well-founded fear standard applicable to an asylum claim.” Wiransane , 366 F.3d at 894 (internal citation and quotations omitted). As such, if Mr. Zhen fails to establish the objective component of a well-founded fear of perse cution, he will ipso facto fail to establish an entitlement to restriction on remov al. Batalova v. Ashcroft , 355 F.3d 1246, 1255 (10th Cir. 2004). In this case, the BIA found that Mr. Zhen failed to meet his burden of demonstrating that it is more likely than not that he would be persecuted on account of his opposition to China’s coercive popul ation control measures and his foreign born children. The BIA had numerous reason s for its finding: (1) Mr. Zhen had not alleged any past persecution, (2) his wife and children could remain in the United States, (3) while the evidence might suggest sanctions and penalties due to the birth of United States citizen children, the evidence contained only a single incident of forced abortion that might suppo rt his fear of forced sterilization, and (4) in sum, he did not establishthat it was more likely than not- 7 -

that he would suffer any harm rising to the level o f persecution. Admin. R. at 4- 5. We agree. We certainly understand and empathize with the painand suffering that Mr. Zhen foresees in becoming separated from his wife and children upon removal. But Mr. Zhen’s argument for restriction on removal has no merit, and substantial evidence supports the BIA’s decision. As an initial matter, Mr. Zhen does not contend her e that he has suffered any past persecution. Second, because Ms. Dong has indicated that neither she (who has received asylum) nor her children (as Unit ed States citizens) would return to China if Mr. Zhen were to be deported, he is unable to argue now that they would be forced to return with him and suffer persecution. Id. at 397. Mr. Zhen has simply failed to present evidence that it is more likely than not that he will be sterilized or otherwise persecuted. Indeed , his argument centers on his contention that his wife and children will be remov ed as well, in which case either he or his wife will be subjected to forced s terilization. But as noted above, the United States State Departm ent profiles on Chinese asylum claims do not support Mr. Zhen’s argument, s ee Aplee. Br. attach. A1- A13, A14-A20, A21-A32, and he has only pointed to o ne instance of statemandated persecution for violating the one-child po licy – a pregnant woman was forced to abort her child after being deported to and arriving in China. See- 8 -

Admin. R. at 409-10. Indeed, Mr. Zhen’s one experthimself admitted that “there are few published accounts on the handling of cases of Chinese nationals forcibly returned to China from abroad with unauthorized chi ldren.” Id. Thus, despite our disdain for such practices, Mr. Zhen has failed to demonstrate a “clear probability” that his life or freedom would be thre atened were he to be removed to China. See Wiransane , 366 F.3d at 894; see also 8 U.S.C. § 1231(b)(3)(A), (b)(3)(B). III. BIA Failed to Consider the Entirety of the Reco rd Lastly, Mr. Zhen argues that the BIA failed to cons ider the entirety of the record because it failed to “consider the affidavitof John Shields Aird, a nationally acknowledge [sic] expert on China’s popu lation control policy.” Aplt. Br. at 20. The BIA did consider Mr. Aird’s affidav it – indeed, it explicitly referred to it in its order. See Admin. R. at 6 (referring to exhibit seven of the administrative record, Mr. Aird’s affidavit). Mr. Zhen’s actual complaint is that the BIA did not find it persuasive. The BIA was no t required to accept the conclusions contained therein.
AFFIRMED. Entered for the Court

Paul J. Kelly, Jr. Circuit Judge