2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-4-2004

Chen v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3185

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Recommended Citation

"Chen v. Atty Gen USA" (2004). 2004 Decisions. Paper 418.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 03-3185

____________

YONG ZHEN CHEN,

 Petitioner

v.

JOHN ASHCROFT,

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A77-322-686)

____________

Argued July 13, 2004

Before: RENDELL, BARRY and FISHER, Circuit Judges.

(Filed: August 4, 2004)

Marco Pignone, III (Argued)

Wilson & Pignone

117 South 17th Street, Suite 908

Philadelphia, PA 19103

Attorney for Petitioner
2

Matthew L. Zabel (Argued)

United States Department of Justice

Appellate Section

950 Pennsylvania Avenue, N.W., Room 4632

Washington, DC 20530

Douglas E. Ginsburg

John D. Williams

Terri J. Scadron

Robbin K. Blaya

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.

Petitioner Yong Zhen Chen appeals the order of the Board of Immigration Appeals

(“BIA”) denying his applications for asylum, withholding of deportation, and relief under

the Convention Against Torture. Because the BIA’s order was supported by substantial

evidence, we will dismiss the petition for review.

Chen was engaged and the woman became pregnant. The couple had not

undergone a traditional Chinese wedding ceremony, and even if they had, could not

register a traditional marriage because the woman was underage under China’s birth

control policy. She was subsequently ordered to have an abortion by Chinese birth-
3

control officials. When officials arrived to escort the woman to the abortion, Chen tried

to prevent them from entering their home. He was surrounded and beaten while his

fiancee was dragged from the bedroom and kicked. She bled and suffered a miscarriage. 

The next day, Chen complained to officials that they had killed his baby. He was

detained at the police station, handcuffed to a window frame, slapped, and knocked

unconscious. Two days later, he was released on bail. Officials threatened to order Chen

to return to the station at any time, and that he would have to pay a fine. Officials came

to Chen’s home “many times” and said his “wife” could not live with him. Chen could

not pay a fine and officials removed property from his home when he tried to leave China.

The immigration judge denied Chen’s applications for asylum, withholding of

deportation, and relief under the Convention Against Torture. The BIA affirmed, finding

that Chen “failed to show that he or his spouse has been forced to abort a pregnancy,

forced to undergo involuntary sterilization, or persecuted for resistance to a coercive

population control program.” Chen filed a timely petition for review.

To obtain reversal, Chen “must show that the evidence he presented was so

compelling that no reasonable factfinder could fail to find the requisite fear of

persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). Although we

sympathize with Chen and do not condone his treatment at the hands of the birth-control

officials, the BIA’s finding that Chen did not warrant asylum is supported by substantial

evidence. See Prasad v. INS, 47 F.3d 336 (9th Cir. 1995) (no past persecution despite
 

1Nor is petitioner aided by the Ninth Circuit’s recent decision in Ma v. Ashcroft, where

the Court overturned a BIA order denying asylum to a man whose traditional marriage

could not be officially registered. 361 F.3d 553 (9th Cir. 2004). That decision is

inapposite as Chen was unmarried, either officially or traditionally.

4

custodial beating); Kapcia v. INS, 944 F.2d 702 (10th Cir. 1991) (asylum denied despite

repeated two-day detentions where petitioner was interrogated and beaten).

Alternatively, Chen argues that he may bootstrap his asylum application through

the nature of his relationship with his fiancee. As support, he cites to the BIA’s decision

of In re C-Y-Z, 21 I. & N. Dec. 915 (BIA 1997), where the BIA held that the spouse of a

woman who underwent an involuntary sterilization merited asylum. Chen asks that C-YZ be extended to non-married adults who were legally prohibited from officially marrying

due to the minimum age requirements of China’s birth control policy. We decline to

extend C-Y-Z, because the plain language of the definition of “refugee” requires an

individualized analysis of the alleged persecution. 8 U.S.C. § 1101(a)(42). To the extent

that C-Y-Z takes a categorical approach regarding spouses, that approach should not be

extended to the current context, and the BIA does not urge us to hold otherwise. As the

BIA’s conclusions regarding Chen’s experiences were supported by substantial evidence,

we may not substitute our view for that of the BIA.1

We have considered Chen’s remaining arguments and find them to be without

merit. Accordingly, the petition for review will be DENIED.