1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3696

___________

MEI CHEN, 

a/k/a Mei Mei Lin 

a/k/a Mei Hua Chen

 

v.

ATTORNEY GENERAL OF THE 

UNITED STATES OF AMERICA

 Mei Chen,

 Petitioner

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A089-250-759)

Immigration Judge: Honorable Rosalind K. Malloy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 13, 2013

Before: SCIRICA, VANASKIE and COWEN, Circuit Judges

(Opinion filed: March 26, 2013 )

_________

OPINION

_________

PER CURIAM
2

Via a petition for review, Mei Chen challenges a Board of Immigration Appeals 

(BIA) order of removal that denied her applications for relief. For the following reasons, 

we will deny her petition.

Chen is a citizen of the People‘s Republic of China, hailing from Fujian Province. 

Using a fraudulent passport, she entered the United States in 1999. Many years later, 

following the birth of her first child and during her second pregnancy, Chen filed an 

application for asylum and related relief, claiming that she feared persecution in her 

native China based on her violation of the one-child policy and her conversion to 

Christianity since arriving in the United States. An Immigration Judge (IJ) denied the 

application, concluding—on the basis of an inconclusive evidentiary record and in light 

of agency and Circuit case law—that Chen had not met her burden of proof.

Chen appealed. The BIA affirmed in a thorough opinion, holding that Chen‘s fear 

of persecution was not objectively reasonable. Turning first to Chen‘s Christianity claim, 

the BIA pointed to a lack of factual development and a wide spectrum (in terms of both 

locality and variety) of tolerated religious practices in China, compounded by Chen‘s 

lack of firsthand experience as a practicing Christian in her country of citizenship. With 

regard to Chen‘s one-child claim, the BIA noted, first, that Chen had not persuasively 

shown that her children would be considered Chinese nationals for the purpose of the 

one-child policy. Second, even if Chen‘s children would be considered Chinese 

nationals, record evidence supported the IJ‘s conclusion that they would not be counted 

under the policy so long as they were not added to the household registration. The BIA 
3

also questioned whether Chen had actually violated the policy to begin with. Finally, 

even assuming that Chen had violated the policy and that her children would be counted

under it, Chen had not shown that the measures taken against her would likely rise to the 

level of persecution. Because Chen had failed to satisfy the burden of proof required to 

obtain asylum relief, her withholding of removal claim necessarily failed, too.1 

Chen now seeks review from this Court. We have jurisdiction under 8 U.S.C. 

§ 1252(a) to review the BIA‘s decision, looking to the IJ‘s opinion only to the extent that 

the BIA deferred to it. Factual findings are evaluated under the ―substantial evidence‖ 

standard: we may reverse them only if no reasonable fact finder could make that finding 

on the administrative record. See Malik v Att‘y Gen., 659 F.3d 253, 256 (3d Cir. 2011); 

see also 8 U.S.C. § 1252(b)(4)(B) (―[T]he administrative findings of fact are conclusive 

unless any reasonable adjudicator would be compelled to conclude to the contrary.‖).2 

―So long as the BIA‘s decision is supported by  ̳reasonable, substantial, and probative 

evidence on the record considered as a whole,‘ we will not disturb [its] disposition of the 

case.‖ Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006) (quoting INS v. EliasZacarias, 502 U.S. 478, 481 (1992)). 

Because Chen did not claim to have suffered persecution in the past, she applied 

 

1 Chen waived consideration of her Convention Against Torture claim on appeal.

2 Chen suggests that we should review, in part, for an abuse of discretion. See Pet‘r‘s Br. 

7. However, she does not challenge any agency decision, such as a denial of a motion to 

reopen, that would be subject to that standard. See, e.g., Oliva-Ramos v. Att‘y Gen., 694 

F.3d 259, 270 (3d Cir. 2012).
4

for asylum on the basis of a well-founded fear of persecution if she were to be removed 

to China. See Dong v. Att‘y Gen., 638 F.3d 223, 228 (3d Cir. 2011). The BIA 

determined that Chen‘s fear was not objectively reasonable, and we find its conclusion to 

be supported by substantial evidence. 

Chen argues that the BIA erred with regard to her religion claim because ―the 

Chinese government will not allow her to freely practice her religion.‖ The BIA 

correctly dismissed this claim as speculative, observing that it was ―not clear which 

church she would attend in China or whether the government would become aware of her 

religious convictions.‖ See Dieng v. Holder, 698 F.3d 866, 872 (6th Cir. 2012) 

(emphasizing that fear of future persecution cannot be based on ―speculative 

conclusions‖). The BIA acknowledged that the 2007 Religious Freedom Report on 

China indicates that religious repression can and does occur, especially with regard to 

unsanctioned groups and their leaders, but indicated that the report also stresses the 

―regional‖ variations in treatment of these groups. While abhorrent, not all ―harassment 

and discrimination‖ necessarily rises to the level of ―persecution‖ contemplated by the 

asylum statute. See Wong v. Att‘y Gen., 539 F.3d 225, 236 (3d Cir. 2008). We therefore 

conclude that the record does not compel a contrary outcome. See also Chen v. 

Gonzales, 470 F.3d 1131, 1137–38 (5th Cir. 2006) (discussing the 2003 Religious 

Freedom Report in the context of a very similar claim).

Chen‘s one-child claim is more troubling, but we ultimately find that substantial 

 
5

evidence supports the BIA‘s conclusion. Chen argues that she has satisfied the threepronged standard for such a claim set out by Matter of J-H-S-, 24 I. & N. Dec. 196 (BIA 

2007): ―the details of local family planning policies, proof that an alien violated such 

policies, and evidence that local enforcement efforts against the violation will rise to the 

level of persecution.‖ Id. at 201.3 She points to her submission of ―evidence establishing 

the details of the local family planning policy,‖ evidence tending to show a ―violat[ion 

of] the policy,‖ and evidence that the response to her violation would be either forced 

sterilization or economic penalties so severe as to constitute persecution. Chen also 

suggests that the BIA failed to consider certain evidence before it, and was derelict in 

declining to credit her evidentiary submissions. But the BIA specifically determined that 

she had not met the J-H-S- test, pointing to conflicting information in the administrative 

record, including uncertainty over whether Chen had actually violated China‘s family 

planning policies based on her agricultural registration and the five-year stretch 

separating the births of her children. And even if Chen was in violation of the policy, the 

BIA concluded that the evidence she submitted—letters from persons whose stories, 

while alarming, did not precisely mirror her situation; statements from village committees 

and other Chinese government sources that were unauthenticated—did not counterweigh 

evidence suggesting that whatever penalty she might draw for her violation would not 

 

3 Chen does not challenge the validity of the J-H-S- formulation, but we note that several 

of our sister Circuits have approved it. See, e.g., Shao v. Mukasey, 546 F.3d 138, 157 

(2d Cir. 2008); Wang v. Keisler, 505 F.3d 615, 623–24 (7th Cir. 2007). We have 

discussed J-H-S- on several occasions, albeit not in a precedential opinion.
6

amount to persecution.4 As the Government points out, even if we disagreed with the 

BIA under a de novo standard of review, under the ―substantial evidence‖ standard we 

must leave the agency‘s findings undisturbed unless a reasonable fact finder would be 

compelled to conclude to the contrary. See Jarbough v. Att‘y Gen., 483 F.3d 184, 191

(3d Cir. 2007). The record does not compel a contrary outcome here.

Because we determine that the BIA‘s asylum decision was supported by 

substantial evidence, it necessarily follows that Chen has not satisfied the ―more 

demanding‖ standard of obtaining withholding of removal relief. Valdiviezo-Galdamez 

v. Att‘y Gen., 663 F.3d 582, 591 (3d Cir. 2011). Thus, the petition for review will be 

denied.

 

4 Chen specifically assails the agency‘s decision to give less weight to some of her 

submissions, arguing that her credibility should extend to the contents of her evidentiary 

proffer. She cites no cases for this proposition. Of course, an alien‘s credibility can be 

closely tied to the materials she submits, but an otherwise-credible person can 

nevertheless submit fraudulent, questionable, or unauthenticated documents without 

herself being deemed dishonest. Cf. Corovic v. Mukasey, 519 F.3d 90, 97–98 (2d Cir. 

2008) (discussing test used to associate alien‘s submission of a fraudulent document with 

his lack of credibility).