2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 10-15-2004 

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w . v i l l a no va . e du/thir dc ir c uit_2004/226NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

___________ NO. 03-3920

___________ JEN CHI NG ZHENG Petitioner

v. JOHN ASHCROFT, ATTORNEY GENERA L OF THE UNITED STATES Respondent

___________ On Petiti on for Review of an Order of t he United States Department of Justi ce Bo ard o f Imm igration Ap peals (BIA No. A77 309 637)

___________ Sub mi tted Pur su an t to Th ird Ci rc ui t L AR 34.1(a)

October 8, 2004 BE FO RE : SL OV ITE R, V AN AN TW ER PE N a nd C OW EN , Circuit Judges (Fil ed : October

15, 2004)

___________ OPI NION

___________ VA N A NT W ER PE N, Circuit Judge Ren Ching Zheng (“Peti tioner”), al so known as Jen Ching Zheng, pet iti ons for review of a deci sion of the Board of Immigration Appeals ( “BIA”) affirming the deci sion2

of the Immigr ation J udge (“IJ ”). The I J denied Petiti oner’s application for asy lum and withholdi ng of removal under the Immigr ation and National ity Act (“INA”), fi nding that Petiti oner failed to meet the stat utory prerequisites and lacked credibi lity . The IJ also denied Petitioner’ s applicati on for withholding of removal under the C onvention Against Tortu re (“C AT ”), find ing tha t Petition er failed to sho w th at he is m ore like ly than no t to be tort ured if he returns to China. For the r easons set forth bel ow, we deny thepetit ion. I. FACTUAL AND PROCEDURAL HI STORY Sin ce w e w rite o nly fo r the par ties, w e ne ed o nly res tate th e rele van t fac ts. Petitioner, a nati ve citizen of the People’s Republic of China (“China”) , was born i n and lived in the F uzho u pro vince . Acc ordin g to h is testimo ny, Petition er’s w ife ga ve birth to their first s on o n A ugu st 9, 19 89 an d app roxim ately one mo nth late r she w as fo rced to have an IUD implanted. In 1995, Petiti oner and his wife fled t o the Guanxi provi nce of Ch ina w here h is wif e’s IU D w as rem oved at their re ques t. On J anua ry 8, 199 6 he a nd h is wif e ha d a s eco nd s on, a ppa ren tly with out the k now ledg e of the g ove rnm ent. Ap prox imate ly two years later, the f amily brie fly returne d to the Fuz hou prov ince to visit Petitioner’s parents. Sh ortly after they returned to the Gu anxi prov ince, Petitioner’s fath er re ceiv ed tw o no tices for the P etitio ner and his w ife w hich he f orw ard ed to them . The first no tified P etitioner that he wa s bein g asse ssed a 10,00 0 R M B fin e, presu mab ly for viol ating t

he one-bir

th poli cy. The second summoned his wife to report for sterili zati on. Although Pet iti oner and his wife disregarded both notice s, they were not3

bothered by

offici als after their return to t he Guanxi provinc e. Petiti oner came to t he United States in 2000, alle gedlyto avoid payi ng the fi ne. The B IA t ookapp el la te ju ri sdi ct io n ov erth e de ci si on o f the I J pu rs uan t to 8 C. F. R. § 3.1(b) (3), (9), now 8 C.F.R. § 1003.1( b)(3), (9). This Court has juri sdiction over t he petit ion for rev iew pur sua nt to 8 U .S.C . § 12 52( a)(1 ). II . STANDARD OF REVIEW This Court’ s juri sdiction over fi nal order s of removal ge nerall y l eads us t o review the decision o f the BIA . How ever, in cases in w hich the B IA m erely adopts the IJ’s opi nio n, th e C our t of A ppe als w ill rev iew the I J’s d ecis ion . Gao v. Ashcroft , 299 F.3d 266, 271 (3d Cir. 200 2). The scop e of re view is narro w. T his C ourt ap plies su bstan tial evide nce re view to find ing s of fac t. Abdille v. Ashcroft , 242 F .3d 47 7, 483 (3d C ir. 2001 ). Un der this stand ard, w e are b oun d by the a dm inistrative findin gs of fact u nless th ose f inding s wo uld
com pel a reas ona ble a dju dica tor to arriv e at a con trary co nclu sion . 8 U .S.C . § 125 2(b)(4 )(B); see Ab dille , 242 F.3d at 483. Additi onally , becauseCongress del egated subs tantial au thority und er the IN A to the A ttorney G enera l, who then v ested h is autho rity in the BIA, the BIA’s re asonable s tatutory inter pretat ions ar e enti tled to deference as establ ished i n Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842- 43 ( 198 4). Abdulrahman v. Ashcroft , 330 F.3d 587, 591 (3d Cir. 200 3). II I. DIS CUSSI ON4 1. Adverse Credibili ty Determination Pe t i t i on er

cl ai ms t ha t t he I J e r r edi n d etermi ni ng t ha t he wa s n ot cred i bl e. We subject the IJ ’s adver se credibili ty finding to substant ial e vidence r eview which requi res us to “ uph old the credib ility determin ation o f the B IA o r IJ unle ss ‘any rea sona ble adjudic ator would be c ompelled t o conclude t o the contrary .’” Chen v. Ashcroft , 376 F.3d 215, 222 (3d Cir. 200 4). The IJ ba sed his finding s on discrep ancies betw een Pe titioner’s oral testi mony and documentar y evi dence. Most not ably , Peti tioner testifie d that following the birth of his son , he and h is wife fled to the Gu anxi prov ince in 199 5 wh ere they h ad a not her child and wh ere h e rem aine d un til flee ing to th e U nited Sta tes in 200 0. In a se parate affid avit, Pe titioner sta ted tha t he an d his w ife ran aw ay from their ho me in 200 0 an d th at he we nt to the G uan xi p rov ince but did not kno w w her e his wif e w ent. Petitioner al so test

ifie d that hi s second chi ld was born i n the Guanxi provi nce, but on other document ation s tate d that hewas born in the Fuzhou province . Peti tioner was confronted with these discrepancies at hi s hearing, but was unable to explain them. These discre panc ies invo lve m ore tha n insig nifica nt deta ils; the un derlying f acts are centra l to Petitioner’ s clai m that he fl ed China because of t he country ’s population cont rol l aws, and raises questi ons about when and how the government responded to his violations of those laws . For th is reaso n, w e find that the IJ’s cred ibility determ ination is reaso nably gro und ed in the r eco rd, a nd t her efo re w e up hol d hi s fin din gs.

2. Eli gibil ity

for Asylum and Withholding of Removal5

Eve n if P etitioner wa s fou nd to be cre dible, w e agre e w ith the IJ th at he is ineli gible f

or asy lum and withhol ding of removal . To be eli gible f or asy lum, Petiti oner has the b urd en o f es tabli shin g th at he me ets th e sta tuto ry requ irem ents of r efu gee statu s. Ab dille , 242 F .3d at 4 82. A refug ee is de fined as on e w ho ca nno t or w ill not retu rn to h is or her count

ry “because of per secuti on or a well- founded fear of per secuti on on account of race, reli gion, national ity , membershi p in a part icular soci al group, or poli tica l opinion. ” 8 U.S.C. § 1101( a)(42) (A). A person i s deemed persec uted on account of political opinion i f he or she “has been forced t o abort a pregnancy or to under go involunt ary sterili zati on, or who has been per secuted f or failure or r efusal to undergo such a procedure or for other res ist ance to a coe rcive pop ulati on c ont rol p rog ram .” 8 U .S.C . § 110 1(a)(4 2)(B ). Ad ditiona lly, “a perso n w ho h as a w ell fou nded fear th at he o r she w ill be fo rced to und ergo such a pro cedu re or su bject to perse cution for su ch fa ilure, ref usal, or resi stance s hall bedeemed to have a wellfounded fear of per secuti on on account of political opinion. ” Id . Petitioner himse lf was n ot forced to a bort a pregn ancy or unde rgo involun tary sterili zati on, and the IJ found that even i f he was credibl e, he di d not demonstr ate that he faced p ersecution. N or did Petitioner ha ve a fear o f persecu tion as he an d his fam ily were able to live in th e G uanx i prov ince f ree fro m g over nm ent ha rassm ent, de spite ref using to report for st eril ization or paythe ass essed fi ne. Whether Pet iti oner faced “per secuti on” or a “fear of per secuti on” is a ques tion of f act, which is r eviewed under the substantial6

evid enc e sta nda rd, a nd m ay on ly be re ver sed upo n co mp ellin g ev iden ce. Ab dille , 242 F.3d at 483. We find nothing on t he record t

hat would compel us to make a diff erent find ing . Although Peti tioner

does not meet

the st atutor

y pr erequis ites to be consi dered a refugee, this Court has r ecognized, somewhat hesit antly , the BIA’s decisi on that e xtends refugee protecti on to an appl icant whose spouse suf fere d fo rced sterili zatio n. Chen , 376 F.3d at 223 & n.2 ( citi ng In Re C -Y-Z , 21 I. & N . Dec. 915 , 918 (BIA 1997)). A s the IJ demonstrated, however, Petitioner’ s wife never fa ced forced steril ization or an abor tion,
even five yea rs after s he w as giv en no tice to rep ort for sterilization . No r did h e and his wife face any persecution when she did not report for steri lizati on. The IJ and BIA chose not to extend refugee pr otection to a pe titioner whose spous e is st illlocat ed in thealle ged persecuting countr

y, has not y et been forced to abort a pregnancy or undergo st eril ization, and w ho m ay or ma y not hav e a fe ar that so med ay she w ill be fo rced to do so . The BIA is entitled to Chevron def eren ce w hen con strui ng t he s tatut e it ad min isters . INS v. AguirreAgu irre , 526 U .S. 415, 425 (1999). U nder Chevron , thi s Court must ask whether “t

he stat ute is sil ent or ambi guous with re spect to the speci fic i ssue” and i f so “whether t he age ncy’s ans we r is ba sed on a per mis sible con struc tion of th e sta tute.” 467 U.S . at 84 2. The statute does not

specifi call y menti on spousal protection and we find that the extensi on of the st atutemay rea sonablybe limi ted to a pplicants whose spouse s have alrea dy be en s ubj ecte d to pop ulati on c ont rol p roc edu res.7

Eve n if P etitioner had m et the sta tutory requ ireme nts, his a bility to avoid gov ernm ent inte rferen ce by m ovin g to an other p art of th e cou ntry wo uld h ave n ecess arily influenced the IJ’s dis cretionarydetermination. “[A]n immigration judge, i n the exercise of his or her dis creti on, shal l denythe asy lum appli cati on of an ali en found to be a refugee on the ba sis of past persec ution if . . . [t]he applicant cou ld avoid fu ture persecution by relocating to another part of t he appli cant' s country of nat ionali ty .” 8 C.F .R. § 2 08.13 (b)(1)(i). P etitioner ’s ability to settle p eace fully in an other p art of h is countrywould have compelle d the IJto refus e to exer cise hi s discretion i n favor of
as y lu m. The IJ als o found that

Petitioner di d not meet t he requirements for wit hholding of
remov al under the IN A. W ithholding of remov al has a similar, albeit stricter, statutory pr er eq ui sit e th at m ak es it a va ila bl e o nl y “if th e A tto rn ey G en er al d ec id es th at t he ali en 's life or freedom would be threate ned in that countr y because of the a lien' s race, reli gion, natio nalit y, mem ber ship in a p artic ular soc ial gr oup , or p olitic al op inio n.” 8 U.S .C. § 1231(b)(3)(A). An applicant who fails to meet the requirements warranting asy lum also fails to m eet th e sta nda rds f or w ithh old ing of r em ova l un der the I NA . Lukwago v. Ashcroft , 329 F.3d 157, 182 (3d Cir. 2003). BecausePetitioner di d not meet t he requirements for a sylum, we find that he is not eligible for wit

hholding of removal under th e I NA. 3. El ig ib il it y fo r Wi th hol di ng o f Re mov al und erth e CAT8

Th e Pe tition er fu rthe r clai ms that t he I J erre d in den ying h im re lief u nde r the CA T. “The burden of proof i s on the appl icant for withhol ding of removalunder thi s paragr aph to estab lish that it is m ore like ly than no t that he or she wo uld b e torture d if rem oved to the propos ed country

of removal. ” 8 C.F.R. § 208. 16(c)( 2). Petiti oner has offered no testimony whats oever that he would face tortur e upon his r eturn to China. Although Petitioner has suggeste d that hemay have t o pay a fi ne upon his r eturn, he has offere d no testimonialor documentary evi dence demonstr ating t hat it is more l ikely

than not t

hat he will be tortured u pon his return . We there fore sustain the f indings of the IJ in this regard
as w ell. For the foregoing rea sons we deny t he peti tion.