2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-24-2011

Sheng Wu v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1116

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Recommended Citation

"Sheng Wu v. Atty Gen USA" (2011). 2011 Decisions. Paper 1598.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1116

___________

SHENG TONG WU,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A099-683-469)

U.S. Immigration Judge: Honorable Susan G. Roy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 23, 2011

Before: SCIRICA, FISHER and ALDISERT, Circuit Judges

(Filed: March 24, 2011)

___________

OPINION OF THE COURT

___________

PER CURIAM.

Sheng Tong Wu, a native and citizen of China, seeks review of a Board of 

Immigration Appeals (BIA) decision that upheld the Immigration Judge‟s (IJ) denial of 

asylum, statutory withholding of removal, and relief under the Convention Against 

Torture (CAT). For the reasons that follow, we will deny the petition for review.
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I.

In September 2005, Wu entered the United States at the U.S.–Mexico border

without being admitted or paroled by immigration authorities. He was eventually issued 

a notice to appear that charged him as being removable under 8 U.S.C. § 1182(a)(6)(A)(i) 

(“An alien present in the United States without being admitted or paroled . . . is 

inadmissible.”). Wu conceded removability. He attempted to block his removal by

claiming a fear of persecution and torture should he be removed to China.

At a hearing before the IJ in Newark, New Jersey, Wu testified that he has a wife 

and child, both of whom remain in China. Wu and his wife would like to have more 

children. Wu believes that if they have a second child in China, “one of us will be taken 

for sterilization.” (JA 136.) As further punishment for having a second child, Wu 

believes he would be fined and put in jail; the fine would be somewhere between three 

and ten years‟ salary. Wu based the range of the fine on information he read in a Chinese 

newspaper. During cross-examination by Government counsel, Wu testified that his wife 

underwent a forced abortion in the year 2000, and that an IUD was inserted thereafter. 

During questioning by the IJ, Wu testified that, if removed to China, he would be fined 

one to five years‟ salary for having been smuggled out of the country. Wu based that 

testimony on village gossip concerning a removed alien named Wu Zheng Wang.

The IJ denied all requested relief. Specifically, the IJ determined that, under In re 

J-S-, 24 I. & N. Dec. 520 (A.G. 2008), Wu was not eligible for asylum based solely on 

his wife‟s forced abortion. The IJ determined that Wu failed to establish a well-founded 
3

fear that he would be sterilized if removed, reasoning that if “the Government of China 

had the inclination to sterilize the respondent, it could have easily done so while the 

respondent remained in China for five years after they had violated the family planning 

policy, and [the Government of China] did not choose to do so.” (JA 66.) The IJ also 

determined that Wu‟s fear of being fined or detained for violation of China‟s coercive 

family planning policy was not well-founded, reasoning that Wu “was not fined 

previously, and so therefore it is speculative at best for him to assume that he would be 

subject to such a draconian fine as three to 10 years‟ salary should he be returned to 

China and violate the family planning policies.” (JA 69.) 

Concerning Wu‟s fear of a fine for having been smuggled out of the country, the IJ 

stated that, “[e]ven assuming arguendo that the respondent would be fined one to three[]

years[‟] salary for violation of the Chinese illegal departure laws, it is not on account of 

one of the five enumerated grounds.” (JA 73.) Also, the IJ determined that Wu failed to 

meet his burden of demonstrating eligibility for CAT relief. Wu‟s appeal was dismissed, 

and the BIA ordered him removed to China. This petition for review followed. 

II.

We have jurisdiction under 8 U.S.C. §1252(a)(1). When the BIA issues its own

opinion, we review the BIA‟s disposition but look to an IJ‟s findings of fact or rulings on 

particular claims when the BIA expressly defers to them. See Huang v. Att‟y Gen., 620 

F.3d 372, 379 (3d Cir. 2010). “We review the facts upon which the BIA‟s decision rests 

to ensure that they are supported by substantial evidence from the record considered as a 
4

whole, and we will reverse based on a factual error only if any reasonable fact-finder 

would be „compelled to conclude otherwise.‟” Id. (internal citations omitted). The BIA‟s 

legal conclusions, by contrast, are reviewed de novo. Id.

III.

We have reviewed the claims of error raised by Wu in his opening brief and find 

them to be without merit. Only a few of those claims require further discussion. 

Wu claims that substantial evidence does not support the BIA‟s finding that Wu 

and his wife violated China‟s coercive family planning policy. He states that, because his 

“wife‟s second pregnancy was accidental[, it was] not considered a violation.” However, 

there is no evidence in the record to support Wu‟s argument that his wife was subjected 

to a forced abortion even though she did not violate the family planning policy, and in 

fact the page of the joint appendix Wu cites to support his argument actually undermines 

it. (JA 624) (Wu‟s affidavit: “I have been persecuted by the Chinese government due to 

our violation of the family planning policy.”) Wu also claims that the BIA 

“misconstrue[d]” his persecution claim as one alleging a fear of sterilization based on the 

prior violation of the family planning policy. The BIA did no such thing. (JA 4) (BIA 

decision: “The respondent further argues that he will suffer sterilization or economic 

persecution if he has more children.”) (emphasis added).

The BIA did not err in determining as a matter of law that “any past persecution 

suffered by the respondent‟s spouse in China, without evidence of harm due to resistance 

offered by the respondent, does not constitute a proper basis for relief or protection for 
5

the respondent.” (JA 3); see Lin-Zheng v. Att‟y Gen., 557 F.3d 147, 156 (3d Cir. 2009)

(en banc) (“[T]here is no room for us to conclude that Congress intended to extend 

refugee status to anyone other than the individual who has either been forced to submit to 

an involuntary abortion or sterilization . . . .”). In addition, substantial evidence supports 

the IJ‟s finding, to which the BIA deferred, that Wu failed to offer evidence of acts that 

could constitute “other resistance” to China‟s family planning policy. See Lin-Zheng, 

557 F.3d at 157. 

Substantial evidence supports the BIA‟s determination that Wu lacks a wellfounded fear of sterilization upon repatriation to China. A “well-founded fear” has 

subjective and objective components: “the alien must entertain a subjective apprehension 

that persecution will follow repatriation, and that apprehension must be objectively 

reasonable in light of the circumstances of the alien‟s case.” Huang, 620 F.3d at 381. 

The BIA correctly determined that Wu‟s fear was not objectively reasonable, given that 

Wu “was not sterilized in the past for violating the family planning policy,” and the fact 

that “[h]is wife has not been sterilized” on account of that violation. (JA 4.)

Finally, substantial evidence supports the BIA‟s determination that Wu lacks a 

well-founded fear of economic persecution based on a prospective violation of China‟s 

family planning policy. As we have explained, the term persecution includes “economic 

restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 

F.3d 1233, 1240 (3d Cir. 1993). In Li v. Attorney General, 400 F.3d 157 (3d Cir. 2005), 

we concluded that, 
6

[i]n the aggregate, a fine of more than a year and a half‟s 

salary; blacklisting from any government employment and 

from most other forms of legitimate employment; the loss of 

health benefits, school tuition, and food rations; and the 

confiscation of household furniture and appliances from a 

relatively poor family constitute deliberate imposition of 

severe economic disadvantage which could threaten [Li‟s]

family‟s freedom if not their lives.

Id. at 169.

Here, Wu contends that “[e]vidence, including Mr. Wu‟s past fines, shows that 

Mr. Wu will face onerous fines, either to compel him to be sterilized or in addition to 

sterilization.” We have searched the record in vain for evidence of Wu‟s alleged “past 

fines.” And for all Wu‟s testimony about prospective fines amounting to some multiple 

of his salary (purportedly as a construction worker in Lianjiang, JA 617), there is no 

evidence in the record indicating what that salary is or how Wu‟s family would be 

disadvantaged by its absence. Cf. Liao v. U.S. Dep‟t of Justice, 293 F.3d 61, 70 (2d Cir. 

2002) (alien failed to prove past economic persecution, where “[n]o testimony or other 

evidence was presented regarding petitioner‟s income in China, his net worth at the time 

of the fines, or any other facts that would make it possible for us to evaluate his personal 

financial circumstances in relation to the fines.”). Furthermore, we agree with the BIA 

that, “[u]nlike the applicant in [Li] . . . there is no indication that [Wu] would face the 

loss of his health benefits, or other property, and he has not shown that he would have 

difficulty finding employment in China.” (JA 4.) 

Accordingly, Wu‟s petition for review will be denied.