2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-21-2010

Xueqieng Lin v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2135

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"Xueqieng Lin v. Atty Gen USA" (2010). 2010 Decisions. Paper 1473.

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IMG-177 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2135

___________

XUEQIENG 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. A099 670 340

Immigration Judge: Eugene Pugliese

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 21, 2010

Before: FUENTES, ROTH and VAN ANTWERPEN, Circuit Judges

(Opinion filed: April 21, 2010)

___________

OPINION

___________

PER CURIAM

Xueqieng Lin petitions for review of an order of the Board of Immigration Appeals

(“BIA”). For the reasons below, we will deny the petition for review.

Lin, a native of China, entered the United States in April 2006. He was charged as
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removable as an alien who entered without being admitted or paroled. See Immigration

and Nationality Act (“INA”) § 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i)]. He

conceded removability and applied for asylum, withholding of removal, and relief under

the United Nations Convention Against Torture (“CAT”). In his asylum application, he

stated that his wife had been forcibly sterilized, and that after he left for the United States,

his wife also had to pay a 30,000 RMB fine. 

After Lin filed his asylum application, but before his hearing before the 

Immigration Judge (“IJ”) took place, the Attorney General decided in Matter of J-S-, 24 I.

& N. Dec. 520 (A.G. 2008), holding that an alien whose spouse had experienced coercive

population measures would not automatically be eligible for asylum. However, such an

alien could still qualify for asylum if he showed he had been persecuted for his own

resistance to China’s population policy.

In a hearing before the IJ, Lin testified that when officials came to take his wife to

be sterilized, he tried to stop them. He testified that the officials kicked and punched him

and forced him to the ground for ten minutes. A.R. 105-06. After they took his wife

away, they let him go. He did not seek medical treatment afterwards. A.R. 108. 

The IJ denied Lin’s applications, concluding that he was not credible. The IJ noted

that Lin had not mentioned anything about his physical confrontation with population

officials in his asylum application, and when he was asked why he omitted it, he only

replied that he left it out because he had not sought medical treatment. On appeal, the BIA
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found no clear error in the IJ’s adverse credibility finding. The BIA also stated that even if

credible, Lin could not base his own asylum claim on the forced sterilization of his wife,

and that the harm Lin allegedly suffered as a result of other resistance to China’s family

planning policies was not so severe as to amount to persecution under the Act. The BIA

also rejected Lin’s claim for withholding and relief under the CAT. Lin filed a timely

petition for review.

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

independently assessed the record, we review only the BIA’s final order of removal. See

Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003). We use a substantial evidence

standard to review factual findings, Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.

2003), including findings concerning an applicant’s past persecution or “well-founded fear

of future persecution,” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Under the

substantial evidence standard, findings are upheld “unless the evidence not only supports a

contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.

2001). We review the BIA’s legal conclusions de novo. See Briseno-Flores v. Att’y Gen.,

492 F.3d 226, 228 (3d Cir. 2007). 

An applicant may demonstrate eligibility for asylum by showing either past

persecution or a well-founded fear of future persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion. See INA

§ 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A)]. Significantly, “persecution connotes
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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) (quotations omitted). It “does not include all treatment that our

society regards as unfair, unjust, or even unlawful or unconstitutional.” Id. (quotation

omitted).

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

policies are not automatically eligible for asylum. Lin-Zheng v. Att’y Gen., 557 F.3d 147

(3d Cir. 2009) (en banc) (holding that there is no automatic refugee status for spouses of

individuals subjected to coercive population control policies). Based on the statutory

definition of “refugee” under 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. at 156. Lin implicitly acknowledges this, but argues that he established past

persecution based on his own resistance to China’s family planning policy. See id. at 157

(noting that spouses remain eligible for relief if they qualify as a refugee under

§ 101(a)(42) based upon their own persecution, or well-founded fear of persecution, for

“other resistance” to a coercive population control program). As evidence of persecution,

Lin points to the fine, his beating, and psychological harm brought on by his wife’s

sterilization.
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We agree with the BIA that even if credible, Lin has not established eligibility for

asylum. While Lin’s attempt to stop population officials from taking his wife away likely

constitutes “other resistance,” the record does not compel a finding that his experiences

based on that resistance rise to the level of persecution. The beating Lin described was not

sufficiently severe to constitute persecution, particularly where he did not require medical

treatment. See Kibinda v. Att’y Gen., 477 F.3d 113, 119-20 (3d Cir. 2007) (holding that a

single detention and beating requiring a few stitches and leaving a scar was not “severe

enough to constitute persecution under our stringent standard.”). Lin claims his wife paid

a fine of 30,000 RMB after he left China. He alleges in his brief that the fine amounted

“to the deprivation of economic means to survival.” Petitioner’s Brief at 17. However, he

does not explain how the fine affected him personally, nor does he even explain any

problems his family experienced from paying the fine. See Li v. Att’y Gen., 400 F.3d 157,

168 (3d Cir. 2005) (in order for a fine to constitute persecution, it must be so onerous that

it threatens life or freedom). Lin also alleged that he was “devastated” as a result of his

wife’s forced sterilization. “[A] finding of past persecution might rest on a showing of

psychological harm.” Ouk v. Gonzales, 464 F.3d 108, 111 (1st Cir. 2006). But, even

assuming that a spouse’s emotional suffering remains a cognizable basis for asylum

following Lin-Zheng, 557 F.3d at 156, we conclude that the record here does not establish

that Lin suffered psychological harm rising to the level of persecution. See Jiang v.

Gonzales, 500 F.3d 137, 141-43 (2d Cir. 2007) (finding no past persecution where forced
 Lin has waived any challenge to his claim that he warrants protection under the CAT

1

as he did not raise any arguments regarding his CAT claim in his opening brief. Chen v.

Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004).

6

abortion resulted in illness and diminished health to petitioner’s mother, imposing

“anguish . . . and . . . economic loss” to him). 

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). For the above reasons, we will deny the petition for review. 1