2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-2-2010

Qi Lin v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4045

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Recommended Citation

"Qi Lin v. Atty Gen USA" (2010). 2010 Decisions. Paper 1214.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4045

___________

QI LIN

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A99 023 507)

Immigration Judge: Honorable Annie S. Garcy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 26, 2010

Before: BARRY, STAPLETON and NYGAARD, Circuit Judges

(Opinion filed: June 2, 2010)

___________

OPINION

___________

PER CURIAM

Qi Lin, a citizen of China, arrived in the United States in October 2005. He

conceded that he was removable for entering without a valid entry document. See

Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I) [8 U.S.C.
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§ 1182(a)(7)(i)(I)]. Lin applied for asylum, withholding of removal, and for protection

under the Convention Against Torture, claiming that, as the spouse of a woman who had

been forced to have IUDs inserted and undergo an abortion, he qualified as a refugee

under the Act. Administrative Record (“A.R.”), 376-77. Lin’s wife submitted a written

statement, explaining that she became pregnant after the birth of her daughter in May of

2001. On September 2, 2003, family planning officials came to their house. During a

struggle to prevent Lin’s wife from leaving, one of the officials fell. A.R. 85, 377. Lin

was blamed for the incident, but he was not arrested or charged with any crime. A.R.

120. Lin’s wife was taken to the hospital, where an abortion was performed. A.R. 222.

Lin also claimed that he had to pay a 10,000 RMB fine, that the government refused to

permit him to have a second child, and that he fears persecution because he left China

illegally. A.R. 95, 97, 106. He also asserted that he was “trouble[d] and harass[ed]” by

the birth control officials. A.R. 377.

The Immigration Judge (“IJ”) denied relief, noting that spouses do not

automatically qualify as refugees under the Attorney General’s decision in Matter of J-S-,

24 I. & N. Dec. 520 (AG 2008) (spouse of person forced to undergo abortion or

sterilization is not automatically a refugee under INA § 101(a)(42)). With respect to

Lin’s other allegations, the IJ held that the 10,000 RMB fine did not constitute

persecution, that the evidence did not support Lin’s claim that the Chinese government

would deny a permit to have a second child, and that Lin did not depart China illegally.
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On appeal to the Board of Immigration Appeals (“BIA”), Lin conceded that his

wife’s experiences no longer automatically qualify him for asylum. A.R. 16-17. Instead,

he requested that the Board remand the matter so he could demonstrate that he will be

persecuted based on “other resistance” to China’s family planning policies. A.R. 12. In

particular, he alleged that the 10,000 RMB fine and the government’s refusal to issue a

birth permit constituted persecution. A.R. 13-17. The BIA dismissed the appeal,

concluding that Lin failed to present any new evidence that the fine amounted to

economic persecution or that the Chinese government will prevent him from having a

second child. Lin filed a timely petition for review. 

We have jurisdiction pursuant to INA § 242 [8 U.S.C. § 1252]. “[W]hen the BIA

both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision,

[this Court has] authority to review the decisions of both the IJ and the BIA.” Chen v.

Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). This Court ultimately will review the BIA’s

and IJ’s factual findings for substantial evidence. See Briseno-Flores v. Att’y Gen., 492

F.3d 226, 228 (3d Cir. 2007). “The [IJ’s and] BIA’s determination will not be disturbed

unless ‘any reasonable adjudicator would be compelled to conclude to the contrary.’” Yu

v. Att’y Gen., 513 F.3d 346, 348 (3d Cir. 2008) (quotation omitted). An applicant for

asylum has the burden of establishing that he is unable or unwilling to return to his home

country “because of [past] persecution or a well-founded fear of future persecution on

account of race, religion, nationality, membership in a particular social group, or political
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opinion[.]” INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A)]. Persecution “connotes

extreme behavior, including threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft,

341 F.3d 214, 217 (3d Cir. 2003) (internal quotations omitted). 

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

policies are not automatically eligible for asylum. See Lin-Zheng v. Att'y Gen., 557 F.3d

147, 156 (3d Cir. 2009) (en banc). Based on the statutory definition of “refugee” in INA

§ 101(a)(42) [8 U.S.C. § 1101(a)(42)], we concluded in Lin-Zheng that refugee status

extends only to the individual who had been subjected to an involuntary abortion or

sterilization procedure, had been persecuted for failing or refusing to undergo such a

procedure, or had a well-founded fear of such persecution in the future. See id. Lin

recognizes this, but argues that he established past persecution based on his opposition to

his wife’s abortion. See id. at 157 (noting that spouses remain eligible for relief if they

qualify as a refugee under § 101(a)(42) [8 U.S.C. § 1101(a)(42)] based upon their own

persecution, or well-founded fear of persecution, for “other resistance” to a coercive

population control program). In his brief, Lin claims that he was beaten, but the record

contains no testimony or statement supporting his allegation. He testified that he

struggled with a birth control official who had come to take his wife to the hospital, and

that the official “trouble[d] and harass[ed]” him. These incidents simply do rise to the

level of persecution. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005). 
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In addition, Lin has failed to demonstrate that the 10,000 RMB fine and the

government’s refusal to issue a birth permit constitute persecution, nor did he show that a

remand was necessary to develop such evidence. Lin testified that the fine was imposed

verbally and that he did not take it seriously. A.R. 115; see also Yu v. Att’y Gen., 568

F.3d 1328, 1334 (11th Cir. 2009) (concluding that petitioner who hid from authorities

with his wife to avoid her sterilization did not show “other resistance” and that fine was

insufficient to establish past persecution). With respect to the birth permit, Lin explained

that the local birth control policy allows a couple to have a second child four years after a

girl is born. A.R. 81. Lin testified that he applied for such a permit, but explained that

village officials denied his application and “kept putting things off.” A.R. 95. But Lin

suggested that he could apply again, noting that the village officials “gave us [a]

warning,” that “it will be difficult to get things done when I go to them in the future” and

that “sometimes they will not issue certificates.” A.R. 95. Given this testimony, a

reasonable adjudicator would not be compelled to conclude that the BIA incorrectly

determined that “it is speculative that the government of the PCR would deny [Lin] a

birth permit to have a second child.” 

In sum, substantial evidence supports the determination that Lin has not suffered

past persecution and does not have a reasonable fear of future persecution. Because Lin

cannot satisfy the asylum standard, he cannot satisfy the more difficult withholding of

removal standard. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003). 
Additionally, there is no evidence that Lin had been or would be tortured.

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

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