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w . v i l l a no va . e du/thir dc ir c uit_2004/816NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

____________ No. 03-1904

____________ XUE- JI E CHEN, Petitioner
v. JOHN ASHCROFT, ATTOR NEY G ENERA L OF THE U NITED STATES,

Respondent

____________ On Petiti on for Review from an Order of t he Bo ard o f Imm igration Ap peals (Board No. A73-600-633)

____________ Submitte d Under Third Circ uit LAR 34.1(a)

March 29, 2004 Be for e: A LIT O, F ISH ER and AL DI SE RT , Circu it Judges
.

(Fil ed: April19, 2004)
OPINI ON OF THE COURT
FIS HE R, Circu it Judge
. Xue Jie Chen (“Chen”), a cit izen of t he Peoples Republ ic of China, applie d for asylum a nd w ithhold ing o f rem oval o n gro und s that he wa s perse cuted on ac coun t of his1 Chen was charged with and conce ded removabil ity for ente ring t

he United States on November 7, 1996 without being admit

ted or paroled aft er ins pecti on by an i mmigrati on officer in viol ation of

secti on 212(a)( 6)(A)(i ) of the I mmigrati on and National ity Act (“Act”), 8 U .S.C. § 118 2(a)(6)(A)(i). 2 politicalopinion gi ven his wife’ s forced s teri lization and t he threat of his ster ili zati on by Chinese authorities. 1 He seeks revi ew of a final or der of removalissued by the Board of Immigrat ion Appeals ( “BIA”). The BIA affirmed wit hout opini on the Immigr ation Judge’s ( “IJ”) denialof Chen’s appli cati on for asylum and withhol ding of removal . Chen ques tions th e IJ’s fin ding that he wa s ineligib le for a sylum b ecau se he wa s a pe rsecu tor in violation of section 208(b) (2)(A)( i) of t he Act (8 U.S.C. § 1158(b)(2) (A)(i) ) for administering anesthesi a to a woman undergoing a forced late-term abortion. He also questi ons the I J’s adver se credibili ty finding r egarding hi s clai m for asy lum based upon his w ife’ s inv olu ntar y steriliz ation
. We have no juris dicti on to revi ew whether Chen assis ted or ot herwise par

ticipated in pers ecutory

acti vity given Chen’s fa ilur e to appealthat i ssue to t he BIA. Because that unreviewabl e issue provides an independent basis f or the I J’s deni al of Chen’s a pplication for asylum and withho lding of rem oval, we need n ot address h is challenge to the IJ’s adverse cr edibil ity

determi nation whic h was raise d in his BIA appeal. The pet iti on for review willbe dismis sed. A bri ef reci tati on of the fact s infor ms our juri sdict ional analysi s.3

Chengr adu at ed f

ro m a Chines e med ic al pr ofe ss io nalsc hoo l i n 19 91 and b ecame employe d as an anest

hesiol ogist

at a st ate hospi tal s hortl y t hereaft er. Chen i s marri ed and has two chil dren. I n June 1996, bi rth cont rol offi cial s lear

ned that Chen violat ed the onechild pol icy . At that ti me, Chen’s wife was t aken to the hospit al for s teri lization but was unable t o undergo that

procedure given that

she recently

had a cesar ean operat ion. She ulti mately

was steri lize d in August 1997 and a fine was levie d against them for vi olating the o ne- child pol icy. On June 27, 1996, Chen was enl ist ed to provi de anesthe sia t o the mother in a lateterm abortion where the baby was not appropri atel y positioned. The fetus was del ivered alive. Chen refused to inject a death-inducing anesthesia int o the fetus as it was against his medica l morals to take a lif e. But i t was not against Chen’s mora ls t o administ er anesthes ia to a

mother undergoing an involuntary late -ter m abortion. The next day , Chen receiv ed no tice that h e w as to b e sterilized with in three (3) da ys or the p roced ure w ould be pe rf ormedby

fo rc e. To avoi d s te ri li za ti on C he n l ef t C hi na inea rlyJu ly

199 6. He arri ved in New York City in November 1996. The IJ is sued an oraldecisi on on October 27, 1999. The IJ dete rmined that Chen was ineli gible f

or asy lum and withhol ding of removalfor having a ssis ted or par ticipated in the pe rsecut ion of another for her politicalopinion bec ause Chen admitt ed to havi ng assisted in the Ju ne 27 , 1996 force d abo rtion pr oced ure. T he IJ a lso “p arenth etically note[ d]” tha t he w as “n ot satisfie d that th e resp ond ent ha s testified credib ly in this4

proceedi ng about othe r aspect s of the ca se.” ( A.R. 401). After noting various incon sistenc ies in the evide nce p resen ted by C hen ( A.R . 401- 404 ), the IJ alte rnative ly found that

Chen had not credibly

establ ished t

hat his wife was forcibly st eril ized, or that he would face involuntary ster ili zati on if he re turned t o China. ( A.R. 405). The IJ denie d Chen’s appli cati on for asylum and withhol ding of removalto the Peopl es Republic of China. On Novem ber 12, 1999, Chen appealed the IJ’s decisi on to the BIA. The governing r egulat ions provi de the re quirement s for al l appeal s to the BIA. 8 C.F.R. §§ 3.1 - 3. 8. Sect ion 3.3 pe rtains to Noti ces of Appeal. That sect ion requires that “[t ]he party taking t he appeal must

identi fy t

he reasons for the a

ppeal i n the Notic e of Appeal (Form EOIR-26... ) or i n any at tachments thereto, in order to avoi d summary di smissal
... .” 8 C .F.R. § 3.3 (b ). It furthe r states th at:

[t]he s tatem ent m ust spe cifically iden tify the find ings o f fac t, the conclusions of l aw, or both, that are being c halle nged. If a questi on of law is pr esented, supporting authori ty must be cited. If th e disp ute is ov er find ings o f fac t, the spe cific fa cts contest ed must be ide ntifi ed. Id. The face of the Noti ce of Appeal Form EOIR-26 also cont emplates that an applic ant
ma y desir e to f

urth er re fine the is sue s pre sen ted for th e B IA ’s rev iew by filin g a b rief
. Specifi call y, the Form EOIR-26 permits a party to check t

he appropri ate box – “I will” or “I w ill not” – “fil e a separate writ ten bri ef or st atement in additi on to the ‘ Reason(s) f or App eal’ written abo ve or acco mpan ying this form.” (A .R. 33).2 Lik ew ise a per sec uto r is no t elig ible for w ithh old ing of r em ova l. 8 U .S.C . §

241(b)(3)(B )(i). 5 In his Noti ce of Appeal (Form EOIR-26), Chen set fort h the fol lowing bases for hi s appe al to th e BI A:

The Immigrati on Judge err ed in deci ding that I did not establ ish a well -founded fear of persecution. Itest ifie d consist ently

and credi bly

and in sustaim [sic ] my bur den of proo f that I w as pe rsecu ted in C hina b ased upo n m y choice to have childre n and activities o f bein g [sic] violatin g birth con tr ol pol ic y . Th e I mmig ra ti on Judg e’ s ba si s of deny in g my asylum c laim w as on ly focuse d on mino r incon sistenc ies in my tes timony

at the merit he aring and my stat ement submitted with my I -589. There fore, t he Immigrat ion Judge’ s decis ion should be r eversed. (A.R. 32). Although Chen indi cated by checking off af

firmat ively

that he would file a separat e writt en brief

in addition to t

he reasons for the a

ppeal set forth on t

he Notice of App eal Form , no such b rief was e ver filed. (A.R . 33). Chen waived his ri ght to s eek judi cialreview of the IJ’s finding t hat he was ineli gible f

or asy lum based upon his parti cipat ion in per secuti on (the forced abort ion pro ced ure ) in v iolat ion of s ectio n 20 8(b )(2)( A) (i) of the A ct. 8 U .S.C . § 1158(b )(2)(A)(i). 2 Section 242 ( d)(1) of the Act provi des that

a court may

review a fi nal orde r of re mo val on ly if the “alien has e xhau sted all a dm inistrative reme dies av ailable to the al ien as of right. ” 8 U.S.C. § 1252( d)(1)( 1999). An ali en is r equired to rais e and exhaust hi s remedies as to eac h ground for r elie f in order to pres erve the right

to judi cial
rev iew
. Abd ulrah ma n v. A shcro ft , 330 F.3d 587, 594 -95 (3d C ir. 2003). Thu s, we are3 The Ac t vests th e A ttorney G enera l with d iscretion to gran t asylum to a dep ortable

alien w ho is a “refu gee” , wh ich is de fined as on e w ho is u nable or un willing to return to their country of origi n due to a well -founded fear of persecution on account of race, relig ion , 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 . §§ 1101 (a)(42)(a) and 1 158(b)(1). 6 bar red fro m c ons ider ing que stion s no t raise d on app eal to the B IA
. All eyn e v. INS , 879 F.2 d 11 77, 1 182 (3d Cir . 198 9). Even the broade st reading of C hen’s N otice of A ppeal can not overco me his fa ilure to appealthe fi nding that he was not entitled to asy lum because he par ticipated i n the persecution of another by providi ng anesthes ia during a forced l ate-t erm aborti on. Chen cha lleng ed o nly the find ing that h e “d id n ot es tabli sh a we ll-fo und ed fear o f pe rsec utio n.” (A.R. 32 ). Well-foun ded fea r of persecu tion bears no relationship to the IJ’s determi nation of

Chen’s inel igibi lit

y for asy lum as a pers ecutor pur suant t o secti on 208(b)(2) (A)(i) of the Act. 8 U.S.C. §1158(b) (2)(A)( i). Rather, well-founde d fear of persecution rel ates t o whether Chen est ablis hed “refugee” s tatus to obtain asy lum based upo n hi s w ife’ s ster ilizati on a nd t he th reat o f his sterili zatio n sh oul d he retu rn to Ch ina. 8 U.S.C . § 1101(a )(42)(A) an d (B). 3 Although Chen properly appea led the IJ’s adverse cr edibil ity determi nation regardi ng his “r efugee” st atus t o the BIA, we need not r each the merits of t hat is sue. The alte rnate f

inding t hat Chen assi sted or

otherwis e parti cipat ed in the persecution of another per son on a cco unt of p olitic al op inio n in dep end ently su ppo rts th e fin al or der of r em ova l.7

W e h av e n o j ur isd ict io n t o r ev iew th at b as is for th e f in al o rd er of

re m ov al. C on se qu en tly, the Petition for

Review is dis missed.

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