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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2946

___________

SHAN TENG CHEN,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the 

Board of Immigration Appeals

(Agency No. A098-903-554)

Immigration Judge: Honorable Miriam K. Mills

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 21, 2011

Before: FUENTES, JORDAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed: December 22, 2011)

_________

OPINION

_________

PER CURIAM

Shan Teng Chan, a Chinese citizen, seeks review of a final order of the Board of 

Immigration Appeals (“BIA”). For the following reasons, we will deny the petition for 

review. 
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I.

Chen entered the United States without inspection in August 2004. In March 

2005, he filed an application for asylum, withholding of removal, and protection under 

the United Nations Convention Against Torture (“CAT”), claiming that he was 

persecuted under China’s family planning policy. Chen was later charged as removable 

under 8 U.S.C. § 1182(a)(6)(A)(i). 

At his removal proceedings, Chen testified that after his wife gave birth to a child 

in 1991, she was forced to wear an IUD and to consent to periodic checkups. Chen 

assisted his wife in having the IUD removed in September 1994, and his wife became 

pregnant one month later. Chen’s wife went into hiding, but was discovered by the 

authorities and forced to have an abortion in 1995. Then, in February 2004, when Chen 

tried to intervene in his sister’s forced sterilization, family planning officials slapped him, 

pushed him away, and accused him of resisting the family planning laws. Chen did not 

indicate that he had any additional problems with the Chinese officials or that they have 

looked for him since he departed from China. 

In June 2009, an Immigration Judge (“IJ”) denied Chen’s application for relief, 

determining that he failed to meet his burden of proof. In June 2011, the BIA affirmed 

the IJ’s decision.1

 1 The BIA determined that it was improper for the IJ to assess the petition under the 

REAL ID Act because Chen’s application was filed before its enactment. It properly 

concluded, however, that the error was harmless because it did not “alter the results in 

this case.”

 The BIA agreed that Chen did not establish past persecution, 

explaining that he was not per se entitled to refugee status based on his wife’s forced 
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abortion. See Lin-Zheng v. Att’y Gen., 557 F.3d 147 (3d Cir. 2009) (en banc); Matter of 

J-S-, 24 I. & N. Dec. 520 (A.G. 2008). Chen also did not show that his “resistance” to 

the family planning policies resulted in harm that could be classified as persecution. The 

BIA concluded that Chen did not have a well-founded fear of persecution on account of 

any resistance to the family planning policy, as he did not indicate that he had problems 

in China following his encounter with the family planning officials, or that officials had 

looked for him since he had left China. 

Chen, through counsel, has filed a petition for review which the government 

opposes. 

II.

We have jurisdiction to review a final order of removal under 8 U.S.C. 

§ 1252(a)(1). The BIA’s decision is reviewed under the substantial evidence standard 

and will be upheld “unless the evidence not only supports a contrary conclusion, but 

compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (internal citation 

omitted). 

As the BIA concluded, Chen may not rely on his wife’s forced abortion to 

establish automatic asylum eligibility based on past persecution. See Lin-Zheng, 557 

F.3d at 156. Based on the statutory definition of refugee under 8 U.S.C. § 1101(a)(42), 

we have determined that refugee status extends only to individuals who have been 

subjected to an involuntary abortion or sterilization procedure, have been persecuted for 

failure to undergo such a procedure, or have a well-founded fear of such persecution in 

the future. Lin-Zheng, 557 F.3d at 156. Spouses are eligible for relief if they qualify as a 
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refugee based on their own persecution or well-founded fear of persecution for “other 

resistance” to a coercive population control program. Id. at 157.

Chen argues that he was persecuted for resisting the family planning policies when 

he tried to stop officials from forcibly sterilizing his sister. However, even assuming that 

his actions constitute “other resistance,” substantial evidence supports the BIA’s 

determination that Chen was not persecuted. See Fatin v. INS, 12 F.3d 1233, 1240 (3d 

Cir. 1993) (defining persecution as “threats to life, confinement, torture, and economic 

restrictions so severe that they constitute a threat to life or freedom”).2

Further, Chen also has not set forth any argument sufficient to compel us to 

overturn the BIA’s decision that he failed to establish a well-founded fear of future 

persecution if he returns to China. See Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d 

Cir. 2003) (explaining a petitioner’s burden to prove a well-founded fear of future when 

he or she has not established past persecution). 

 Chen asserts that 

he was slapped, pushed, and accused of resisting the family planning policies when he 

tried to help his sister. This type of treatment does not constitute persecution.

Because the threshold for asylum is lower than that for withholding of removal, 

Chen cannot successfully challenge the denial of his withholding of removal claim. See

Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir. 2008). Finally, we agree that Chen failed to 

establish eligibility for CAT protection. See 8 C.F.R. § 208.16(c)(4). 

 2 Chen also asserts that he is eligible for relief because he resisted the family planning 

policies because he removed his wife’s IUD. However, as the Government argues, Chen 

does not allege that he suffered any harm due to this action and thus he cannot establish 

that he is eligible for relief. See Fatin, 12 F.3d at 1240.
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In sum, the evidence does not compel us to overturn the BIA’s decision to deny 

Chen’s claims, and for the foregoing reasons, we will deny the petition for review.