2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-23-2011

Jhi Pai Chen-Zhu v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1014

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1014

___________

JHI PAI CHEN-ZHU,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A094 924 065)

Immigration Judge: Honorable Margaret R. Reichenberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 16, 2011

Before: FUENTES, VANASKIE and NYGAARD, Circuit Judges

(Opinion filed: February 23, 2011 )

___________

OPINION

___________

PER CURIAM

Jhi Pai Chen-Zhu, a native and citizen of China, petitions for review of an order of 

the Board of Immigration Appeals (“BIA”), which dismissed his appeal from an 

Immigration Judge’s (“IJ”) final order of removal, and denied his motion to remand. We 
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will deny the petition for review.

II.

Chen-Zhu entered the United States without inspection in March 2007. He

applied for asylum and related relief based on persecution related to China’s population 

policies. He first claimed eligibility for relief based on the July 3, 2007 forced 

sterilization of his wife following the birth of a non-allowed second child, but case law 

changed during the pendency of proceedings,1so he attempted to show he was eligible 

for relief because he would be fined and would be persecuted for leaving illegally. ChenZhu first testified that he had been threatened in January 2007 with a 26,000 RMB fine if 

his wife did not appear for a checkup (this was when his wife was pregnant with the 

second child), but when the IJ tried to clarify the issue, Chen-Zhu stated he had never 

actually been fined. A.R. 146-50. He later stated that he feared if he returned to China, 

he would have to pay a fine because he had prevented officials from collecting the 26,000 

RMB fine. A.R. 151. Chen-Zhu gave some conflicting testimony about whether he 

knew for a fact that the fine still existed. He stated that he had never received notice of a 

fine, nor had his wife. A.R. 158, 160-61. On the other hand, he testified that his wife 

told him that if the fine was not paid, the children would not get a certificate to attend 

 

1

See Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) (spouse of person subjected 

to forced sterilization procedure not per se entitled to refugee status). Soon thereafter, 

this Court similarly held that an alien is not eligible for asylum based on the persecution 

of his spouse, but “an applicant can claim refugee status if he/she can demonstrate actual 

persecution for resisting a country’s coercive family planning policy, or a well-founded 

fear of future persecution for doing so.” Lin-Zheng v. Attorney General, 557 F.3d 147, 

157 (3d Cir. 2009) (en banc).
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school when they were older. A.R. 171. He also testified that he feared being jailed for 

having left China illegally. A.R. 173. 

The IJ found Chen-Zhu’s testimony regarding the fine to be confusing, and noted 

that he “had a great difficulty testifying about the circumstances of that fine.” The IJ 

found Chen-Zhu was not “a credible and persuasive witness regarding whether a fine has 

indeed been assessed to him for violating the family policy, how that fine was assessed or 

the likely penalties that could be placed upon him for failing to pay it.” The IJ also found 

that Chen-Zhu had not established that he would be persecuted (as opposed to 

prosecuted) for leaving China illegally. The IJ also found no evidence that Chen-Zhu 

would be tortured in China.

In his notice of appeal to the BIA, Chen-Zhu stated that the IJ “abused her 

discretion in making a negative finding for the respondent despite the fact that the 

respondent presented internally consistent testimony during his merits hearing and that 

the respondent was credible, specific, and persuasive; the [IJ’s] negative credibility 

finding was not supported by the substantial evidence in the record.” A.R. 81 In his brief 

to the BIA, he argued that the IJ failed to consider that imposition of a substantial fine 

constituted persecution, and that the IJ erred by requiring him to produce evidence of the 

fine that was not available. A.R. 9-19. Chen-Zhu also sought a remand for consideration 

of additional evidence with regards to the fine.

The BIA found no clear error in the IJ’s adverse credibility finding with regard to 
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Chen-Zhu’s testimony about the fine.2 The BIA stated that although the adverse 

credibility finding would be dispositive, it would also address Chen-Zhu’s other 

arguments. The BIA noted that the IJ had indeed considered that a fine could constitute 

persecution, and had not unreasonably sought some corroborating evidence regarding the 

fine, specifically, a statement from Chen-Zhu’s wife. The BIA addressed Chen-Zhu’s 

motion for a remand, and noted that only three of the documents submitted were new. 

The BIA noted that one document, the statement from Chen-Zhu’s wife, post-dated the 

IJ’s decision, but that Chen-Zhu had not explained why he could not have obtained it 

earlier. The BIA also noted that Chen-Zhu did not explain why the notice of a fine could 

not have been obtained for the hearing below, and noted that a receipt showing the fine 

had been paid did not aid his case, as it appeared his “wife was able to pay the fine in full 

without difficulty within three days of receiving a notice to pay.” The BIA dismissed the 

appeal and denied the motion for a remand. Chen-Zhu filed a timely, counseled petition 

for review.

II.

We first consider the scope of our review. We have jurisdiction pursuant to 

section 242 of the Immigration and Nationality Act (“INA”) [8 U.S.C. § 1252]. Because 

the BIA independently assessed the record, we review only the BIA’s decision. See

Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003). An alien must “raise and 

 

2

 Although Chen-Zhu did not discuss the IJ’s adverse credibility finding in his 

brief to the BIA, the BIA generously noted that the issue had been raised in the notice of 

appeal, and addressed the issue.
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exhaust his or her remedies as to each claim or ground for relief if he or she is to preserve 

the right of judicial review of that claim.” Abdulrahman v. Ashcroft, 330 F.3d 587, 594-

95 (3d Cir. 2003); INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)]. However, where the alien’s 

notice of appeal to the BIA sets forth sufficient facts and law to inform the BIA of the 

basis of an issue on appeal, failure to address the issue in the alien’s brief on appeal to the 

BIA does not strip this Court of jurisdiction to review the claim. Hoxha v. Holder, 559 

F.3d 157, 163 (3d Cir. 2009). We may thus review the adverse credibility finding, 

despite Chen-Zhu’s failure to address the issue in his brief to the BIA. See also Lin v. 

Att’y Gen., 543 F.3d 114, 123 (3d Cir. 2008) (where BIA raises claim sua sponte, claim 

is considered exhausted for purposes of review in court of appeals).

We agree with the Government that Chen-Zhu has waived review of the BIA’s 

decision denying his motion to remand. Chen-Zhu’s sole mention of the remand issue is 

a passing reference at the beginning of his brief stating that he seeks to challenge the 

BIA’s denial of his motion to remand, and a mention at the very end of the brief asking 

the Court to reverse the BIA’s decision denying a remand. Petitioner’s Brief at 11, 39. 

Such passing references are not sufficient to bring the issue before this Court. Voci v. 

Gonzales, 409 F.3d 607, 610 n.1 (3d Cir. 2005); see also Vallejo Piedrahita v. Mukasey, 

524 F.3d 142, 144-45 (1st Cir. 2008) (“it is not enough merely to mention a possible 

argument in the most skeletal way, leaving the court to do counsel’s work, create the 

ossature for the argument, and put flesh on its bones”) (internal quotation and citation 

omitted). The Government similarly argues that Chen-Zhu has waived review of the 

BIA’s corroboration finding because he failed to present any meaningful arguments 
6

regarding the issue in his opening brief here. We need not reach the question of whether 

this argument is waived, because, as we explain, we find the adverse credibility finding 

dispositive of Chen-Zhu’s claims.3 

III.

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)]. The spouses of those who have been 

persecuted by coercive population control policies are not automatically eligible for 

asylum. Lin-Zheng, 557 F.3d at 157 (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. Chen-Zhu does not acknowledge this holding in 

his brief. Nevertheless, he could still establish 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 INA § 101(a)(42) based upon their 

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

 

3 Although Chen-Zhu argued to this Court in his motion for a stay of removal that 

he will be persecuted and fined for leaving China illegally, he did not raise the issue in 
7

population control program). Chen-Zhu could potentially establish that his refusal to pay 

a fine imposed for the illegal birth of his second child constituted “other resistance,” and 

could then prove that he was, or would be, persecuted as a result of that resistance. 

“Deliberate imposition of severe economic disadvantage which threatens a petitioner’s 

life or freedom may constitute persecution.” Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir. 

2005). However, as noted, the IJ found that Chen-Zhu’s testimony regarding a fine was 

not credible, and the BIA upheld that finding.

An adverse credibility finding is reviewed under the substantial evidence test, and 

must be upheld unless “any reasonable adjudicator would be compelled to conclude to 

the contrary.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (quoting 8 U.S.C. 

§ 1252(b)(4)(B)). To reverse an adverse credibility finding, the evidence of credibility 

must be so strong “that in a civil trial [the alien] would be entitled to judgment on the 

credibility issue as a matter of law.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). 

Chen-Zhu states throughout his brief that he provided “consistent” testimony, and states 

that he “did not ever contradict his own answers nor . . . become unresponsive in any of 

the line of questioning posed by the IJ or the Government’s attorney.” Petitioner’s Brief 

at 30. His statement is belied by the record. His testimony concerning the issue of 

whether a fine was imposed or threatened, when (if at all) it was imposed, and whether 

the Chinese government still expected him to pay it, was very confusing and 

contradictory. A.R. 146-71. We are not compelled to conclude that Chen-Zhu testified 

credibly. Because Chen-Zhu did not have corroborative evidence at the time of his 

 

his brief; the issue is thus waived. 
8

hearing, his failure to provide credible testimony regarding the fine is dispositive. 

Because Chen-Zhu 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). We further find no evidence in the record that he is likely to be tortured if 

he is returned to China. For the above reasons, we will deny the petition for review.