2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-1-2010

Cai Wu v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4702

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1 

IMG-309 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 09-4702 

___________ 

CAI XIANG 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. A094-802-814) 

Immigration Judge: Honorable Frederic Leeds 

____________________________________ 

Submitted Pursuant to Third Circuit LAR 34.1(a) 

October 13, 2010 

Before: SCIRICA, SMITH AND WEIS, Circuit Judges

 

(Opinion filed: November 1, 2010) 

___________ 

OPINION 

___________ 

PER CURIAM. 

 Cai Xiang Wu, petitions for review of a decision of the Board of 

Immigration Appeals (ABIA@). For the reasons below, we will deny the petition for 

review. 
2 

 Wu, a native and citizen of China, entered the United States in August 

2006. He was placed in removal proceedings for being an alien present in the United 

States without valid documentation. He conceded that he was removable as charged and 

applied for asylum, withholding of removal, and protection under the United Nations 

Convention Against Torture (ACAT@). 

 Wu claimed that he is entitled to asylum on account of his resistance to the 

family planning policy in China, as well as the economic deprivation he and his wife 

suffered for violating the policy. After the birth of their second child, Wu=s wife was 

forcibly sterilized. She was also fined 22,000 RMB, approximately $3,000, of which she 

paid half. 

 The Immigration Judge (AIJ@) determined that Wu lacked credibility in 

claiming that his refusal to pay the fine qualified as Aother resistence@ to the Chinese 

government. The IJ cited to the fact that Wu paid approximately $70,000 to enter the 

United States with the use of smugglers. The IJ also found that Wu failed to prove past 

persecution based on his wife=s forced sterilization. The IJ denied Wu=s requests for 

relief. 

 The BIA affirmed the IJ=s denial of relief but determined that the IJ=s 

adverse credibility finding was erroneous. However, the BIA also concluded that Wu 

failed to show that he was subjected to past persecution based on the imposition of the 

fine, and could not demonstrate fear of future persecution. Accordingly, because Wu 
3 

could not show that he was eligible for asylum, the BIA found that he could not meet the 

standard for withholding of removal. The BIA concluded that Wu failed to make 

arguments under the CAT, and therefore waived this issue on appeal. Wu filed a timely 

petition for review. 

 We have jurisdiction pursuant to 8 U.S.C. ' 1252. To establish eligibility 

for asylum, Wu needed to demonstrate either past persecution or a well-founded fear of 

future persecution on account of race, religion, nationality, membership in a particular 

social group, or political opinion. See Wang v. Gonzales, 405 F.3d 134, 138 (3d Cir. 

2005). To establish eligibility for withholding of removal, he needed to demonstrate that 

it was more likely than not that his life or freedom would be threatened in China on 

account of the family planning policy. Wang, 405 F.3d at 139; 8 U.S.C. ' 1231(b)(3)(A). 

To be eligible for withholding of removal under the Convention Against Torture, he 

needed to demonstrate that it is more likely than not that he would be tortured if removed 

to China. 8 C.F.R. ' 1208.16(c)(2). 

 We review the BIA=s factual determinations under the substantial evidence 

standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc). The BIA=s 

findings are considered conclusive unless Aany reasonable adjudicator would be 

compelled to conclude to the contrary.@ 8 U.S.C. ' 1252(b)(4)(B). We exercise de novo

review over the BIA=s legal decisions. Toussaint v. Attorney General, 455 F.3d 409, 413 

(3d Cir. 2006). 
4 

 Wu argues that the BIA erred in concluding that he had not shown other 

resistance to the Chinese family planning policy.1

 He contends that he has shown a 

reasonable possibility that he will be persecuted for violating the family planning policy 

and refusing to pay his fine. We need not decide whether Wu has shown other resistance 

to the family planning policy because we conclude that he has not shown that the record 

compels a finding of past persecution or a well-founded fear of future persecution on 

account of any such resistance. 

 Wu has not shown that the fine amounted to Asevere economic disadvantage 

which could threaten his family=s freedom if not their lives.@ See Zhen Hua Li v. Att=y 

Gen., 400 F.3d 157, 169 (3d Cir. 2005). Moreover, as the IJ noted, Wu made no 

statement in his asylum application regarding his inability to pay the fine. He did not 

raise this as an issue until his hearing, and as the IJ noted, there is no evidence in the 

record that Chinese officials are looking to arrest Wu or his wife or threatening to seize 

the home where his wife still resides in China. The evidence in the record does not 

establish that he would be unable to pay the money if returned to China. 

 We conclude that substantial evidence supports the BIA=s finding that Wu 

failed to demonstrate past persecution or a reasonable fear of future persecution. Because 

 

 1 The spouses of those who have been persecuted by coercive population control 

policies are not automatically eligible for asylum, but may qualify for asylum in their 

own right if they can show persecution based on Aother resistance@ to China=s population 

policy. Lin-Zheng v. Att=y Gen., 557 F.3d 147, 157 (3d Cir. 2009) (en banc). 
5 

he has not met the standard for asylum, Wu cannot meet the higher standard for 

withholding of removal. Ghebrehiwot v. Att=y Gen., 467 F.3d 344, 351 (3d Cir. 2006). 

Wu does not challenge the BIA=s conclusion that he waived his CAT claim. However, 

regardless of whether the CAT claim was waived, Wu has not shown that the record 

compels a finding that he is likely to be tortured in China so as to entitle him to relief 

under the CAT. 

 For the above reasons, we will deny the petition for review