UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1738

PENG FEI YE,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals. 

Argued: September 18, 2013 Decided: October 16, 2013

Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Petition denied by unpublished per curiam opinion. 

ARGUED: Scott Eric Bratton, MARGARET WONG & ASSOCIATES, LPA, 

Cleveland, Ohio, for Petitioner. Jonathan Aaron Robbins, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. 

ON BRIEF: Stuart F. Delery, Principal Deputy Assistant Attorney 

General, Shelley R. Goad, Assistant Director, Kristen Giuffreda 

Chapman, Civil Division, Office of Immigration Litigation, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Respondent.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Petitioner Peng Fei Ye (“Petitioner”), a native and 

citizen of the People’s Republic of China, petitions for review 

of the final order of the Board of Immigration Appeals (“BIA”) 

affirming the denial of his application for asylum, withholding 

of removal, and protection under Article 3 of the United Nations 

Convention Against Torture and Other Cruel, Inhuman or Degrading 

Treatment or Punishment (“CAT”). Petitioner contends the BIA 

erred in finding he did not demonstrate past persecution or a 

well-founded fear of future persecution on account of his 

resistance to China’s coercive population control program. 

Because we agree with the BIA that Petitioner’s claims for 

relief are premised almost entirely on persecution suffered by 

his wife, we find that its decision is legally sound and 

supported by substantial evidence. Consequently, we deny the 

petition for review.

I.

Petitioner married his wife, also a native and citizen 

of China, in 1997. Approximately one year later, the couple 

gave birth to their first child, a son. Soon after, Chinese 

family planning authorities forced Petitioner’s wife to have an 

intrauterine device (“IUD”) inserted pursuant to the population 

control policies of the Fujian Province, where the couple 

resided. In April 2001, Petitioner and his wife retained a 
3

private physician to remove the IUD so that they could conceive 

another child.

Petitioner’s wife became pregnant in June 2001. She

left home and went into hiding with her aunt’s family in a 

different village. Petitioner also left home in order to avoid

the government officials tasked with enforcing the one-child 

policy. In September of that year, Chinese officials learned

Petitioner’s wife was pregnant. They transported her to a 

hospital, forcibly terminated her pregnancy, and inserted a 

second IUD. Petitioner, who was living and working in a 

different city, did not learn of his wife’s abortion or second 

IUD until after the procedures were complete. According to 

Petitioner, the officials warned his wife that either she or 

Petitioner would be sterilized if she became pregnant again. 

Several months later, with the help of a professional 

smuggler, Petitioner made the first of three attempts to flee 

China for the United States. His first two attempts were

thwarted after he had left China, and he returned to China

twice without incident. He left China for the last time on 

June 1, 2002, and entered the United States shortly thereafter. 

On May 20, 2003, Petitioner filed an application for asylum, 

withholding of removal, and CAT protection based on the 

foregoing events. His wife and child remain in China.
4

On April 18, 2006, Petitioner appeared for a merits 

hearing before an Immigration Judge (“IJ”) in Baltimore, 

Maryland. At the conclusion of that hearing, the IJ denied his 

application for asylum on timeliness grounds but granted his 

application for withholding of removal based on his wife’s 

forced abortion. In granting withholding relief, the IJ relied

on then-binding BIA precedent conferring automatic refugee 

status to the spouse of a person forced to abort a pregnancy. 

See Matter of C-Y-Z-, 21 I. & N. Dec. 915, 918-19 (B.I.A. 1997) 

(en banc). The IJ did not address Petitioner’s eligibility for 

CAT protection.

Both Petitioner and the government appealed the IJ’s 

decision. On appeal, Petitioner challenged the denial of his 

asylum claim, and the government sought review of the grant of 

his withholding claim. The BIA remanded the case on February 

20, 2008, directing the IJ to make a specific credibility 

finding and “clear findings” as to whether Petitioner was 

eligible for asylum or withholding based on his wife’s forced 

abortion. J.A. 195.1 Three months later, while the case was 

pending before the IJ, the Attorney General abrogated the rule 

set forth in Matter of C-Y-Z- and concluded that the spouse of 

 1 Citations to the “J.A.” refer to the Joint Appendix filed 

by the parties in this appeal.
5

someone forced to undergo an involuntary abortion is not per se 

entitled to refugee status. See Matter of J-S-, 24 I. & N. 

Dec. 520, 537-38 (A.G. 2008). Rather, in order to qualify for 

relief, an applicant in Petitioner’s position would have to

demonstrate he suffered past persecution or has a well-founded 

fear of persecution on account of his own “other resistance” to 

China’s population control program. Id. at 538. 

Relying on this new authority, the IJ issued a 

decision on remand denying Petitioner’s asylum, withholding, 

and CAT claims on the merits. Although the IJ determined

Petitioner was credible and had, in fact, filed a timely 

application for asylum, she concluded he had not made the

requisite showing of personal resistance or persecution under 

Matter of J-S-. 

Petitioner once again appealed the decision to the 

BIA. On May 30, 2012, the BIA dismissed the appeal. In 

adopting and affirming the IJ’s decision, the BIA agreed

Petitioner had failed to establish either resistance or 

persecution as defined by Matter of J-S-. The BIA also found

Petitioner had not shown any other grounds for eligibility. 

Petitioner now seeks review from this court. 

II.

Where, as here, the BIA has expressly adopted the IJ’s 

decision and included its own reasons for affirming, we are 
6

obliged to review both decisions on appeal. See Barahona v. 

Holder, 691 F.3d 349, 353 (4th Cir. 2012). We evaluate the 

BIA’s legal determinations de novo, “affording appropriate 

deference to the BIA’s interpretation of the INA and any 

attendant regulations.” Li Fang Lin v. Mukasey, 517 F.3d 685, 

691-92 (4th Cir. 2008). The BIA’s factual findings are 

“conclusive unless any reasonable adjudicator would be compelled 

to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see 

also Crespin-Valladares v. Holder, 632 F.3d 117, 124 (4th Cir. 

2011). We will affirm the BIA’s determination regarding 

eligibility for asylum or withholding of removal if it is 

supported by substantial evidence on the record considered as a 

whole. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

III.

The central issue before us is whether Petitioner

demonstrated past persecution or a well-founded fear of future 

persecution on account of his political opinion, thereby 

entitling him to asylum, under the following provision:

[A] person who has been forced to abort a pregnancy or 

to undergo involuntary sterilization, or who has been 

persecuted for failure or refusal to undergo such a 

procedure or for other resistance to a coercive 

population control program, shall be deemed to have 

been persecuted on account of a political opinion, and 

a person who has a well founded fear that he or she 

will be forced to undergo such a procedure or subject 

to such persecution for such failure, refusal, or 

resistance shall be deemed to have a well founded fear 

of persecution on account of political opinion.
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8 U.S.C. § 1101(a)(42)(B) (emphasis supplied). Petitioner

contends he qualifies for asylum under this subsection because 

he has been persecuted for his “other resistance” to China’s 

one-child policy and has a well-founded fear of future 

persecution based on the same. We conclude, however, that the

decisions of the BIA and IJ (collectively “the agency”) are 

supported by substantial evidence. 

Consistent with Matter of J-S-, we have held, “an 

applicant who establishes that his spouse was subjected to a 

forced abortion is not ‘entitled to refugee status under 

[§ 1101(a)(42)(B)]’ based on that fact alone, but rather must 

establish a well-founded fear of persecution in his own right.” 

Yi Ni v. Holder, 613 F.3d 415, 425 (4th Cir. 2010) (quoting 

Matter of J-S-, 24 I. & N. Dec. 520, 537-38 (A.G. 2008)). 

Applicants can satisfy this burden by presenting evidence

showing they suffered persecution “for engaging in ‘other 

resistance’ to a coercive population control program[.]” Matter 

of J-S-, 24 I. & N. Dec. at 535. In other words, Petitioner

must demonstrate (1) he “‘resisted’ China’s coercive population 

control program”; (2) he “suffered or has a well-founded fear 

that he will suffer ‘persecution’ by the Chinese government”; 

and (3) such persecution was or would be “inflicted ‘on account 

of’” his resistance. Id. at 542.
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We first consider whether the record compelled the 

agency to conclude Petitioner suffered persecution on account of 

his resistance to China’s family planning policy. Petitioner

argues he “resisted” the policy within the meaning of

§ 1101(a)(42) when he assisted his wife in the removal of her 

IUD, deliberately conceived an unauthorized child, and hid from

the authorities. The agency disagreed. We find it unnecessary 

to review this particular dispute because, even assuming 

Petitioner’s conduct amounts to “other resistance,” the agency

properly found he did not suffer persecution on account of that

resistance. See 8 U.S.C. § 1101(a)(42); Matter of J–S–, 24 I. & 

N. Dec. at 520.2 

Petitioner himself was never arrested, detained, 

sterilized, or physically mistreated by the family planning 

authorities. Indeed, he presented no evidence the authorities

were even aware of his alleged resistance to the family planning 

policy, much less that they took any action “on account of” such

resistance. See Mei Fun Wong v. Holder, 633 F.3d 64, 79 (2d 

 2 The record belies Petitioner’s assertion that the agency 

did not reach this issue. See J.A. 113 (finding Petitioner had 

presented no evidence “that he was punished for ‘other 

resistance to a coercive population control program.’ What the 

record reflects is that his wife was forcibly subjected to an 

abortion and that [Petitioner] left China.”). Although 

Petitioner may have preferred a more fulsome analysis, it is 

difficult to imagine how the agency could have done so where, as 

here, it had no other evidence of persecution to analyze. 
9

Cir. 2011) (recognizing the requirement of a nexus between the 

persecution and the applicant’s “other resistance”). Rather, as 

the IJ found, “the evidence shows that the authorities targeted 

only his wife[.]” J.A. 113. While the treatment of 

Petitioner’s spouse is undoubtedly relevant to his claim, it 

does not, standing alone, carry his evidentiary burden. Matter 

of J-S-, 24 I. & N. Dec. at 534-35. Accordingly, we conclude

the agency’s finding that Petitioner failed to establish past 

persecution is supported by substantial evidence.3

We turn next to the question of whether the agency was 

compelled to conclude Petitioner demonstrated a well-founded 

fear of future persecution on account of his resistance to 

China’s family planning policy. Petitioner’s argument in this 

regard is derived almost entirely from his testimony that family 

 3 To the extent Petitioner argues he had inadequate 

opportunity to litigate this claim in light of the change in the 

law wrought by Matter of J-S-, our review of the record leads us 

to conclude otherwise. The Attorney General issued Matter of JS- while this case was pending before the IJ on remand, and 

Petitioner had ample opportunity to present his claim to the 

agency within the framework of that decision. Indeed, 

Petitioner never sought to reopen the evidentiary record before 

the IJ, and he has not, to date, provided even the vaguest hint 

of the kind of evidence he would present if given such an

opportunity. In short, Ye has failed to identify any evidence 

or argument with respect to his “other resistance” claim that 

has not been “adequately considered or developed before the 

[IJ],” Matter of J-S-, 24 I. & N. Dec. at 543 n.15, and the BIA 

did not err in failing to remand his case, once again, to the 

IJ. 
10

planning officials told his wife they would sterilize either her 

or Petitioner if she violated the population control policy “in 

the future.” J.A. 384. As the agency found, however, there is 

no indication in the record that, if deported, Petitioner will 

engage in behavior that would bring him within the purview of 

this threat. See Yi Ni, 613 F.3d at 429. His claimed fear of 

sterilization, consequently, is “speculative” and “depend[ent] 

on many factors outside of [his] control.” Id. Indeed,

Petitioner suffered no threats or harm when he twice returned to 

China after his initial attempts to flee, and he does not claim 

any threat has arisen in the years since he departed. Thus, we

conclude the agency’s finding that Petitioner failed to 

demonstrate a well-founded fear of future persecution is 

supported by substantial evidence.

Inasmuch as Petitioner has failed to demonstrate 

either that he experienced past persecution or that he has a 

well-founded fear of future persecution on account of a 

statutorily protected ground, he cannot establish eligibility 

for asylum. Further, as the standard for statutory withholding 

of removal is more stringent than the standard for granting 

asylum, Petitioner’s failure to satisfy these requirements

necessarily means he cannot meet the higher standard for 

withholding of removal. See Camara v. Ashcroft, 378 F.3d 361, 

367 (4th Cir. 2004). We likewise conclude the agency’s denial 
11

of Ye’s CAT claim is supported by substantial evidence. See

Dankam v. Gonzales, 495 F.3d 113, 118-19 (4th Cir. 2007).

IV.

For the foregoing reasons, we deny Petitioner’s 

petition for review. 

PETITION DENIED