2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-19-2010

Bin Ou v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3956

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3956

___________

BIN WEI OU; JIAN ZOU,

 Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the 

Board of Immigration Appeals 

(Agency Nos. A099-592-455 and A099-592-456)

Immigration Judge: Honorable Mirlande Tadal

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 14, 2010

Before: SCIRICA, SMITH and WEIS, Circuit Judges

(Opinion filed: July 19, 2010)

___________

OPINION

___________

PER CURIAM.

Bin Wei Ou and Jian Zou (“petitioners”) seek review of a final removal

order entered by the Board of Immigration Appeals (“BIA”). For the reasons that follow,
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we will deny the petition for review.

Petitioners are citizens of China from Fujian Province. After entering the

United States in 1998 without inspection, they married here in 2004 and have had two

children: a boy, born in 2004, and a girl, in 2006. Petitioners applied for asylum in 2006

based on a fear of future persecution, in the form of forced sterilization, for violating

China’s family-planning policies. Petitioners conceded their removability before the

Immigration Judge (“IJ”). They testified at a hearing and submitted numerous documents

in support of their contention that they have a well-founded fear that either or both of

them will be forcibly sterilized in China.

The IJ denied relief. While finding that petitioners’ testimony was credible

and that their subjective fear of returning to China is genuine, the IJ held that petitioners

did not prove an objectively reasonable fear of future persecution. In particular, the IJ

found that petitioners failed to show that China maintains an official policy of sterilizing

citizens who return with “out of plan” children, and they failed to show either that they

would be singled out for persecution or that there is a pattern or practice of persecuting

individuals similarly situated to them. The IJ also denied withholding of removal and

Convention Against Torture (“CAT”) relief. 

Petitioners appealed to the BIA and challenged the IJ’s finding regarding

their failure to show an objective fear of future persecution. Petitioners filed a brief with

the BIA, and they attached to the brief several “additional documents,” which they asked
 Petitioners stated in their brief that they were submitting the additional documents as 1

“rebuttal to the most recent State Department Report.” A.R. at 26, 43. Petitioners,

however, never identified this “most recent State Department Report” nor explained how

their additional documents served to “rebut” that unidentified report.

 In Shao, the Second Circuit Court of Appeals denied a petition for review filed by 2

the alien in Matter of J-W-S-. Among other things, the court of appeals held that

substantial evidence supported the BIA’s determination that the alien, the father of two

sons born in the United States, had failed to show a reasonable possibility that he faced

forced sterilization upon return to China. See Shao, 546 F.3d at 162-66.

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the BIA to “review [as] background material which overwhelmingly establishes the

objective prong.” A.R. at 40. 

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The BIA dismissed petitioners’ appeal. It noted that, in finding that

petitioners had failed to establish a well-founded fear of persecution, the IJ relied on

Matter of J-W-S-, 24 I & N Dec. 185 (BIA 2007), where the BIA had held that the

evidence did not show that the Chinese government has a national policy of requiring

forced sterilization of a parent who returns with children born in the United States. The

BIA rejected petitioners’ argument that Matter of J-W-S- was wrongly decided. See A.R.

at 4 (citing Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008)). The BIA also agreed with 2

the IJ that petitioners’ evidence fails to provide an objective basis for concluding that they

will be sterilized. The BIA observed, as it did in Matter of J-W-S-, that if a returning

national is penalized at all, he or she will be sanctioned through fines or other economic

penalties, which do not rise to the level of persecution or torture. Finally, the BIA found

no basis to remand the matter for consideration of the additional documents submitted on

appeal, noting that petitioners had failed to show that any “new” evidence was previously
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unavailable or would change the outcome in their case.

Petitioners timely filed a petition for review in this Court after the BIA

reissued the final order of removal to correct a defect in service. We have jurisdiction

under 8 U.S.C. § 1252(a)(1). Where, as here, “the BIA both adopts the findings of the IJ

and discusses some of the bases for the IJ’s decision, we have authority to review the

decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.

2004). “We review factual findings, including findings of persecution and fear of

persecution, under the substantial evidence standard.” Sandie v. Att’y Gen., 562 F.3d

246, 251 (3d Cir. 2009). “Under this deferential standard, findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id.

(quotation marks omitted).

Petitioners contend that they proved a well-founded fear of future

persecution through credible testimony and the documents they presented to the IJ. They

argue that the evidence shows that their children will return with them to China, that the

children will be considered Chinese citizens, and that their fear of forced sterilization for

having violated the one-child policy is well-founded.

“To establish the existence of a well-founded fear of persecution, an

applicant must prove an objectively reasonable possibility of statutorily cognizable

persecution, and that the applicant’s professed fear is genuine.” Sandie, 562 F.3d at

250-251 (3d Cir. 2009) (citation omitted). Here, the IJ and the BIA accepted that
 Respondent argues that petitioners failed before the BIA to exhaust the claim that 3

they would be singled out for persecution in China, and that the only issue properly before

this Court is petitioners’ pattern or practice argument. See Respondent’s Br. at 14. The

BIA clearly held, however, that the evidence fails to support any basis for finding an

objective fear of persecution – a finding that included adoption of the IJ’s decision to

reject the singling out argument. See A.R. at 4 (citing IJ’s Op. at 15-17). Thus, even

assuming petitioners failed to make a singling out argument in their brief, the BIA

addressed that issue sua sponte, and, accordingly, we retain jurisdiction to review it. See

Lin v. Att’y Gen., 543 F.3d 114, 123-24 (3d Cir. 2008).

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petitioners have a genuine subjective fear of persecution, and thus the sole question is

whether the evidence they presented compels the conclusion that they also proved the

requisite objective basis for that fear. Petitioners could meet their burden of showing an

objective fear by proving either that they would be individually singled out for

persecution, or that there is a pattern or practice in China of persecuting similarly situated

individuals. See Wong v. Att’y Gen., 539 F.3d 225, 232 (3d Cir. 2008). 

As mentioned, the IJ found that petitioners failed to prove either basis for

an objective fear. The BIA agreed, observing that “the documents submitted by

[petitioners] do not provide an objective basis for concluding that [they] will be sterilized

upon return to China.” A.R. at 4. In their brief before this Court, petitioners fail to point 3

to any specific evidence in the voluminous record before the IJ that would compel a

finding that their fear of forced sterilization is objectively reasonable, either because they

would be singled out or because of a pattern or practice. The few documents that

petitioners do highlight in their brief before this Court are insufficient. For example,

petitioners cite the following sentence from testimony given by T. Kumar in 2004 before
 In Matter of J-W-S-, the BIA addressed economic sanctions in Fujian Province and 4

found that, at most, an alien would face a “moderate economic impact” not amounting to

persecution. 24 I. & N. Dec. at 191.

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the House Committee on International Relations: “[c]ouples who have a child ‘out of

plan’ are subject to sanctions, including heavy fines.” A.R. at 2121. This statement,

however, is not inconsistent with the BIA’s holding in Matter of J-W-S-, upon which the

BIA expressly relied here, and petitioners cite no evidence of record that would require a

finding that the fines imposed rise to the level of persecution or torture. Petitioners seem 4

to suggest that their testimony alone was enough to establish a fear of future persecution,

see Petitioners’ Br. at 7-8, but clearly their testimony, even when viewed in connection

with the documentary evidence, does not compel the conclusion that they possess an

objectively reasonable fear. In short, after a careful review of the evidence that

petitioners presented to the IJ, we hold that substantial evidence supports the finding that

they lack an objective basis for their fear of future persecution.

Petitioners next contend that the BIA erred by failing to remand the matter

for the IJ to consider the “additional background” documents that they submitted on

appeal. This contention is without merit. As respondent notes, petitioners elected to

submit numerous documents on their appeal to the BIA without ever discussing those

documents in their appeal brief or explaining why the documents qualified as new or

material evidence. Petitioners now suggest that “[t]he BIA erred when it failed to address

the motion to remand,” Petitioners’ Br. at 10, but petitioners, in fact, never filed a
 Petitioners do not argue the CAT claim before this Court, and thus we deem that 5

claim waived and do not address it. 

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“motion to remand” with the BIA, and instead they merely asked the BIA itself to review

the additional documents as “background material.” A.R. at 40. Moreover, the record

amply supports the BIA’s decision not to remand the matter for consideration of

petitioners’ additional documents. As the BIA correctly noted, petitioners failed to

establish that the evidence was previously unavailable or could alter the outcome.

Because withholding of removal requires a higher showing than the

standard for asylum, petitioners’ inability to establish eligibility for asylum based on a

well-founded fear of future persecution necessarily undermines their eligibility for

withholding of removal. See Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004) (“An

alien who fails to establish that he or she has a well-founded fear of persecution, so as to

be eligible for a grant of asylum, necessarily will fail to establish the right to withholding

of removal.”). 

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For the foregoing reasons, we will deny the petition for review.