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w . v i l l a no va . e du/thir dc ir c uit_2004/409NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

No. 03-3355

SHAO YAN LI N, Petitioner

v. BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES

ON PET IT ION F OR REVI EW OF AN ORDE R OF THE BOARD OF IMM IGRATION APPEALS Agency No. A 72 492 294

Submitte d Under Third Circ uit LAR 34.1(a)

July13, 2004

Bef or e: RENDEL L, BARRY, and FIS HE R, Circuit Judges (Opinion Fi led: August 6, 2004 )

OPI NION

BA RR Y, Circuit

Judge Shao Yan Lin, a nati ve and citizen of the People’s Republic of China , petiti ons for review of a fi nal order

of the Board of I mmigrati on Appeals (“BIA”), revers ing the2

dec ision of th e Im mig ratio n Ju dge (“IJ” ) an d de nying her app licatio n fo r asylu m. W e ha ve ju ri sd ic ti on u nde r 8 U. S. C. § 12 52( a) , and w il l d en y th e p etit io n f orre vi ew. I. Lin enter ed the Unit ed State s on October 21, 1992, and was plac ed in excl usion proceedi ngs. On March 12, 1993, s he fil ed an appli cati on for asy lum with the Immigration and Naturalization Service (“I NS”). She alleged that she suffered harm as a result o f her a ctivities rela ting to th e Jun e 198 9 pro -dem ocrac y mov eme nt. Lin subsequently file d an amended asy lum appli cati on, indi cati ng, as an addi tionalground, that s he feared per secuti on on account of China ’s one-c hild familyplanning pol icy . She

con ced ed e xclu dab ility. He arings we re held befo re the IJ , and L in alleg ed the follow ing fa cts. In 19 89, L in was a teacher

in an el ementaryschool i n China. On June 2, 1989, she t ook time off fr om her tea ching positio n and attend ed he r first an d on ly pro-de mo cracy de mo nstration in Fuzhou City . She ret

urned to work the next day . Although two of the organi zers of t he de m on str ati on w er e L in ’s f or m er cla ss m ate s, L in ha d n o l ea de rsh ip ro le b ut w as m er ely a participant. Follow ing the dem onstration, Lin learn ed that Ch inese autho rities were looking for

her former c lassmates. Li n offered t o hide the m at her par ents’ home, and theystay ed there for approxi matelyone month, until mi d-July 1989. The authoriti es soon suspect ed that

Lin housed the organize rs. In late July , Lin was questioned byschool offici als and or dered to attend daily “patri otic” studysessi ons. I n May 1990, te n months1 Th e rec ord ind icate s tha t Yu ’s pe tition for asylum is still p end ing

. 3 after she housed the organiz ers, Lin was dismis sed from her teaching posi tion. She was unab le to fin d ano ther tea ching job b ecau se the a utho rities had repo rted the termin ation to wha t she described as the “sup erior education departm ent of the are a.” (App . at 145). Although Lin subs equentl y t ried t o work as a cler

k, cashi er, and f

ruit vendor, s he “couldn’t

reall y make money on these. ” ( Id. ). In M arch 1 991 , Lin re ceive d a no tice to appe ar at the local p olice sta tion. Sh e did n ot go to the sta tion bu t, rather, w ent into hiding out

of fear of bei ng jail ed. In August 1991, she went to Russia with the hel p of a “sna kehe ad.” T he au thorities s ubse quen tly visited he r paren ts’ hom e a fe w tim es to inq uire abo ut h er w her eab out s. Th ey also con fisc ated som e of her per son al be lon gin gs. Lin arri ved in thi s country i n October 1992. I n January1994, she married Chen Yu, a Chinese ci tize n resi ding here, apparently ill egall y. They have one s on, who was bor n he re in Au gus t 19 97. L in sta tes th at the y plan to h ave mo re ch ildre n. In a de ci si on d at ed March 8 , 2 001 , t he I J gr anted Li n’ s pe ti ti on f oras y lu m. 1 Although the IJ determined that Lin did not establi sh past persecution, he nevertheless found her to be credibl e and determined that she est ablis hed a well- founded fear of persecution if returned to China. The fear of persecution was based on her parti cipation in th e pr o-d em ocr acy m ove me nt, as we ll as o n C hin a’s f am ily plan nin g po licy. The g overnm ent appea led to the BIA . In a decision da ted July 17, 2003, the B IA sustained the a ppeal and reversed the IJ’s d ecision. The BIA initiallyagreed w ith the IJ4

that Li n did not s uffer past persecution. I t als o did not di sturb t he IJ’s finding of credibi lit y because it

concluded that even i f Lin were credible, she fail ed to est ablis h a well-founde d fear of per secuti on if ret urned to China . According to the BIA, i t was “unclear whether the applic ant los t her teaching j ob as a res ult of he r all eged poli tica l acti viti es. I n any eve nt, a lthough s he was unable t o find another tea ching posi tion, the applic ant was able to find ot her employ ment without any government int erferenc e.” (App. at 3) . The BIA indicated that Lin was “never det ained, physi call y abus ed, or eve n threatened with such t

reatment by government offici als as a resul t of her a llege d political acti viti es.” Id. Moreover, it stat ed that

Lin’s parents, who allegedl y house d the demo nstration organ izers, continue to reside in China withou t incident. Lastly, the BIA determ ined th at Lin did n ot estab lish a fe ar of p ersecu tion on acco unt o f Ch ina’s f amily plann ing p olicy bec ause : (1) it is un clear w hethe r Lin’s child w ill return to Ch ina w ith her; (2) Lin m ay not have bro ken the p opulation co ntrol law be cause the c hild was b orn outsid e of C hina; a nd (3 ) Lin’s positio n that sh e w ill have additio nal ch ildren “ is mer ely speculat ive at this point. ” Id. at 3- 4. Li n f il ed a p etit

io n f orre vi ew i n thi s Co urt. Bec au se th e BI A is su ed it s o wn dec ision , we rev iew the d ecis ion of th e B IA , and not that o f the IJ. Awolesi v. Ashcrof t , 341 F.3d 227 , 231 ( 3d C ir. 2003 ); Abdulai v. Ashcroft , 239 F.3 d 54 2, 54 9 (3 d C ir. 20 01)

. We must uphold the BIA’s dec isi on if it is supported bysubstant ial e vidence i n the record, sustaining th at decision “un less the eviden ce not on ly supports a contrary5

conclusi on, but c ompels it .” Zubeda v. Ashcroft , 333 F.3d 463, 471 (3d Cir. 2003) (quoti ng Abdille v. Ashcroft , 242 F.3 d 47 7, 48 3-8 4 (3 d C ir. 20 01) ). II. An alien may be grante d asy lum “because of pe rsecution or a well -founded fear of persecution on account

of race, reli gion, national ity , membershi p in a part icular soci al gro up, o r po litical opi nio n.” 8 U.S .C. § § 11 01( a)(4 2)(A ). M ore ove r, a person who has been forced to abort a pregnancy or to undergo invo luntary steriliza tion, or w ho h as be en pe rsecu ted fo r failure or ref usal to undergo such a pr ocedure or for other resist ance to a coe rcive popul ation controlprogram, s hall be deemed to have been per secuted on a ccount of political opinion, and a person who has a wellfounded fear t hat he or s he will be f orced to unde rgo such a pr ocedure or s ubject to pers ecuti on for such failure, refusal, or resi stance s hall be deemed to have a wellfounded fea r ofper sec utio n on acc oun t of p olitic al op inio n. 8 U .S.C . § 11 01( a)(4 2)(B ). To e stablish eligibility for a sylum b ased on p ast per secu tion, pe titioner m ust sho w: “(1) an i ncident , or i ncident s, that ri se to t he levelof persecution; ( 2) that is ‘on a ccount of’ one of the stat

utori ly -prot ected gr ounds; and ( 3) is c ommitted bythe government or forces t he government i s eit

her ‘unabl e or unwill ing’ t o control .” Abdulrahman v. Ashcroft , 330 F.3d 587, 592 (3d Cir. 200 3) (citations and interna l quotations om itted). If past per secuti on has not been e stabl ished, petit ioner maysti ll be gr anted asylum if she sho ws that s he h as a we ll-fo und ed f ear o f pe rsec utio n if r etur ned to h er n ative cou ntry. Gao v. Ashcroft , 299 F .3d 26 6, 272 (3d C ir. 2002 ). To d o so, p etitioner mu st dem onstra te that: (1) she ha s a subje ctive fear of per secuti on in her nat ive country on account of one6

of the st atutorily

enumerated gr ounds; (2) there i s a reas onable poss ibil ity of sufferi ng such perse cution if she w ere to re turn to th at cou ntry; and (3 ) she is u nable to return to that c oun try bec aus e of suc h fe ar. 8 C.F .R. § 208 .13( b)(2 ). The BIA found that Lin di d not suffer past per secuti on in China. We will not distu rb th is fin din g be cau se th e rec ord sure ly doe s no t com pel a con trary co nclu sion . W e have prev iously held that “p ersecu tion co nno tes extre me b ehav ior, inclu ding ‘threats to life , confi nement, t ortur e, and economi c rest rictions so s evere that the y cons tit ute a threat to li fe or free dom.’” Ahmed v. Ashcroft , 341 F.3d 214, 217 (3d Cir. 2003) (ci tati on omitt ed). Here, the al legations that Lin was fi red from her teaching posi tion, and that the authori ties visi ted her parents ’ home to ask about her whereabout s, si mply do not amount to p erse cutio n. We will als o uphold the BIA’s finding t hat Lin di d not est ablis h a well-f ounded fear of per secuti on if ret urned to China . The recor d does not demonst rate t hat Lin was ever threatened wit

h or subje cted t o detention or phy sicalmistr eatment on ac count of her activities relating to the pro-dem ocracy dem onstration in 19 89. M oreover, as the B IA indicated, Lin’s par ents, in whose home the two organizers were harbored, have resi ded in C hin a fo r the pas t fou rteen years w itho ut in cide nt. See In re A-E -M , 21 I. & N. Dec. 115 7 (B IA 1 998 ) (notin g that th e reaso nable ness o f petition er’s fe ar of p ersecu tion is undercut when hi s family remains i n the native country unharmed for a l ong period of time a fter pe titioner’s d epartu re); see also Medhin v. Ashcroft , 350 F .3d 68 5, 691 (7thCir. 20 03); Agu il ar -S ol is v. INS , 168 F .3d 56 5, 573 (1st C ir. 1999 ); Cua dr as v. INS , 910

F.2 d 56 7, 57 1 (9 th C ir. 19 90)

. In addition, acco rding to the S tate Depa rtment C ountry Repo rt on Ch ina (dated A pril 14, 1998), “[t]he more rem ote in time the ap plicant’s political involvement , the less l ikely he or she would be t o face reprisal s from the Government.” ( App. at 525). Lin’s al leged i nvolvement i n the pro- democracy demonstration took pl ace over fourteen y ears ago, further undermining any contention that s he w ill suf fer p erse cutio n if s he r etur ns to Ch ina. M oreo ver, the re is sub stantial e viden ce to su ppo rt the B IA’s conc lusion that L in fail ed to est ablis h a well-f ounded fear of per secuti on based on China’s familyplanning policy. The Co untry Report indica tes that in the Fuzh ou area (w here Lin is fro m), “sterili zati on or use of the IUD appears to be ur ged only for famili es who have already had two children or perhaps three ( if the firs t two are girls) , even i f the ext ra chil d was approv ed.” (Ap p. at 535) (em phasis add ed). The R eport also no tes that although “ there

are no repo rts of a ny nation al polic y” conc erning the en force men t of the one- child ru le with regard to Chinese parents who have childr en in the United States, anec dotal information has r evealed t hat “[a] t lea st some coupl es that have chil dren in t

he United States beyond the nominal li mits and then return to China are, at worst, given modest fine s.” (A pp. a t 54 1). III. Fo r the for ego ing reas ons , we wil l den y the p etitio n fo r rev iew

.