Wei-Chai Wang v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-2293
WEI-CHAI WANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A79-641-633)
Immigration Judge: Hon. Charles M. Honeyman
Submitted Under Third Circuit LAR 34.1(a)
October 22, 2007
Before: SLOVITER, CHAGARES, and HARDIMAN, Circuit Judges
(Filed: October 24, 2007)
_______
OPINION
_______

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SLOVITER, Circuit Judge.
Wei Chai Wang (“Wang”) petitions for review of an order of the Board of
Immigration Appeals (“BIA”) adopting and affirming the denial of Wang’s applications
for asylum and withholding of removal. A citizen of the People’s Republic of China
(“China”), Wang argues that the decisions of the Immigration Judge (“IJ”) and the BIA
are not supported by substantial evidence and law. We will deny the petition for review.
I.
Wang entered the United States on June 12, 2003, using the identification
documents of another Chinese national. While passing through immigration, Wang was
detected and placed in custody pending a credible fear interview.
At that interview, Wang stated that he was single, that he was responsible for the
pregnancy of his girlfriend, later identified as Hui Li (“Li”), and that Li had been forced
to undergo an abortion. He also asserted that the Family Planning Office had scheduled
sterilization procedures for both him and Li, leading them to flee their homes and live on
the streets. Wang said that his parents were told that they would be fined if Wang did not
return for his sterilization. Although Wang stated that he feared being beaten if he
returned to China, he also stated he had no other reason to fear harm. Based on the
interview, the asylum officer concluded that there was a significant possibility that
Wang’s claims of persecution could be found credible in a full asylum or withholding of
removal hearing.

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Wang later asserted that he and Li were married in a1
traditional ceremony, but were refused a marriage certificate
because of their age. At the time, Wang was 19 years old and Li
was 18. According to the Department of State’s profile of China
at the time of Wang’s asylum hearing, the minimum age for
marriage in China was 22 for males and 20 for females. See
Bureau of Democracy, Human Rights and Labor, China: Profile of
Asylum Claims and Country Conditions 22 (June 2004). App. at
109, 130.
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Wang filed a formal application for asylum on February 11, 2004. Although he
stated that his marital status was single, he referred to Li as his wife in the affidavit
accompanying his application. There was no reference to sterilization in that affidavit1
but Wang stated that he was fined 3,000 yuan following Li’s abortion, and that she was
forced to undergo “periodic medical exams” in her weakened state. App. at 198. They
then traveled to Xiamen, a neighboring city, before Wang left for the United States.
According to Wang, thereafter the government threatened his family, sought information
about him, and seized his family’s fishing boat and barred his family from fishing after a
Taiwanese vessel helped them with mechanical difficulties while they were at sea.
In a second affidavit, Wang elaborated on the facts, including that he and his father
were accused of collaborating with Taiwan following the boat seizure. Following Li’s
abortion, Wang’s parents were arrested, jailed for a few days, received demands that they
pay the fine, and warned that Wang would be jailed if he were found.
At his removal proceedings on January 6, 2005, Wang testified further about the
boat seizure, the accusations of contact with the Taiwanese, the resulting threats of torture

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and the fine of 3,000 yuan for Li’s forced abortion, which he was unable to pay. Wang
testified that if he went back to China the government would still be looking for him and
would try to imprison him, either for failure to pay the fine or because they wanted
revenge against him.
Wang provided copies of his birth certificate and that of Li and letters from
Wang’s family and Li which substantially corroborate Wang’s testimony with respect to
the relationship with Li, her abortion, the 3,000 yuan fine, and the related jailing of
Wang’s parents.
In an oral decision after the hearing, the IJ issued a “mixed credibility finding”
with respect to Wang’s testimony. App. at 46. The IJ found that there was nothing
“inherently implausible” about the portion of Wang’s testimony regarding Li’s abortion,
as that testimony “was consistent throughout the written documentation and testimony,”
App. at 46, but the IJ questioned the credibility of Wang’s testimony regarding forced
sterilization, as those claims were never mentioned again after the credible threat hearing,
the boat seizure, which was not mentioned until Wang’s asylum application, and the
jailing of his parents, which was first included in Wang’s second affidavit. App. at 47.
Moreover, the IJ concluded that, even if Wang’s allegations were true, he had not
demonstrated past persecution or a well-founded fear of future persecution sufficient to
qualify him for asylum or related relief. Therefore, the IJ denied Wang’s applications for
asylum, withholding of removal, and protection under the Convention Against Torture

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Wang has waived his claim under the CAT by failing to2
raise the issue in his petition for review. See He Chun Chen v.
Ashcroft, 376 F.3d 215, 221 (3d Cir. 2004).
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(“CAT”).2
On Wang’s appeal to the BIA, the BIA adopted and affirmed the decision of the IJ.
The BIA briefly discussed the IJ’s decision, commenting that the IJ “concluded that the
respondent was not credible based on inconsistencies present in the record,” and
ultimately agreed with the IJ’s “conclusion that the respondent failed to demonstrate past
persecution on account of his violation of China’s birth control policies” and that “even if
true, [the boat seizure] incident was not of a level of harm amounting to persecution.”
App. at 2. Wang filed a timely petition for review
II.
We have jurisdiction to review final orders of the BIA under 8 U.S.C. §
1252(a)(5). Where, as here, the BIA adopts and affirms the decision of the IJ we must
review that decision. Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001).
However, because the BIA discussed the basis of the IJ’s decision, we also have
jurisdiction to review the decision of the BIA. Xie v. Ashcroft, 359 F.3d 239, 242 (3d
Cir. 2004). We will uphold those decisions as long as they are supported by substantial
evidence. Obale v. Attorney General, 453 F.3d 151, 161 (3d Cir. 2006); Guo v. Ashcroft,
386 F.3d 556, 561 (3d Cir. 2004).

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III.
Wang argues: (1) that he has demonstrated past persecution and a well-founded
fear of future persecution; (2) that the IJ failed to consider corroborating evidence
contained in the letters written by Wang’s parents and Li; and (3) that the BIA misstated
the IJ’s finding of facts by concluding that the IJ made a “negative credibility” finding,
rather than a “mixed credibility” finding. In addition, Wang refers to an interim decision
entered by the BIA after his hearing that concludes that an individual “claiming
persecution based on an unmarried partner’s abortion” may be able to qualify for asylum
if he is able to demonstrate “that he has suffered harm amounting to persecution on
account of . . . resistance” to a coercive population control program. In re S-L-L-, 24 I. &
N. Dec. 1, 10 (BIA 2006). On account of that decision, Wang briefly argues that he is
entitled to a rehearing so that the IJ may make findings regarding his “other resistance” to
China’s coercive population control policies. 8 U.S.C. § 1101(a)(42).
We will not discuss the applicable law regarding the proof needed to establish
eligibility for asylum as the parties are well aware of it. Suffice it to note that we have
held that “persecution does not encompass all treatment that our society regards as unfair,
unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.
1993).
The IJ recognized two components to Wang’s claim that he was persecuted on
account of China’s population control policies: the threat of forced sterilization and Li’s

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forced abortion. The IJ did not credit the claim of forced sterilization, noting that Wang
last mentioned that claim in his credible fear hearing and failed to raise it at his asylum
hearing. We also note that Wang did not raise the threat of forced sterilization in his
formal asylum application or in either of the affidavits supplementing that application.
Under the substantial evidence standard, an “adverse credibility determination must be
upheld on review unless ‘any reasonable adjudicator would be compelled to conclude to
the contrary.’” Xie, 359 F.3d at 243 (quoting Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.
2002)). Considering that Wang’s forced sterilization claims were made exclusively in his
earlier interviews, to which we have often afforded less weight, see Xie, 359 F.3d at 246,
and then completely ignored thereafter, we can not say that the IJ erred in finding that
claim untenable.
On the other hand, the IJ found “nothing inherently implausible” about Wang’s
forced abortion claim and noted that Wang’s story “was consistent throughout the written
documentation and testimony.” App. at 46. Thus, the IJ’s failure to explicitly discuss the
corroborating evidence contained in the letters written by Wang’s parents and girlfriend is
of no moment, as the facts attested to by those letters were found largely credible.
Assuming the truth of Wang’s allegations, then, the IJ concluded that Wang was
not entitled to refugee status with respect to his forced abortion claim. The IJ relied on
our decision in Cai Luan Chen v. Ashcroft, in which we declined to extend refugee status
to non-married individuals whose partners were forced to undergo an abortion or

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sterilization, even where such individuals “wanted and indeed tried to get married but
were prevented from doing so by a law that is an integral part of a program of
persecution.” 381 F.3d 221, 229 (3d Cir. 2004) (emphasis in original). On the facts
alleged, Wang’s claim of past persecution as a result of Li’s forced abortion must fail.
The IJ also concluded that Wang did not have a well-founded fear of future
persecution as a result of Li’s forced abortion, again citing Cai Luan Chen for its holding
that an unmarried person may not establish persecution on the basis of his partner’s
forced abortion.
The IJ issued a mixed credibility finding with respect to Wang’s boat seizure claim
and also concluded that Wang did not establish past persecution or a well-founded fear of
future persecution with respect to that incident. Substantial evidence does not compel a
contrary conclusion with respect to either finding. Even if taken as true, the actual
seizure of the boat did not constitute “severe economic disadvantage” as we have defined
it. Li v. Attorney General, 400 F.3d 157, 168 (3d Cir. 2005). Wang’s family continued to
be able to support itself with other jobs, including bicycle repair. Nor do the alleged
threats accompanying the seizure of the boat support a well-founded fear of harm, as the
officials did not take any action or make any contact regarding that incident in the twenty-
two months before Wang’s departure from China. See Li, 400 F.3d at 164 (“unfulfilled
threats must be of a highly imminent and menacing nature in order to constitute
persecution”).

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Wang does not allege that he engaged in any general3
opposition activities and in fact testified that he attempted to pay
his fine while he remained in China. Furthermore, Wang does not
claim that he has suffered any harm amounting to persecution
therefrom.
Because we have concluded that Wang has not established4
a claim for asylum, we need not separately analyze whether he is
entitled to withholding of removal. See Zubeda v. Ashcroft, 333
F.3d 463, 469-70 (3d Cir. 2003) (“[I]f an alien fails to establish the
well-founded fear of persecution required for a grant of asylum, he
or she will, by definition, have failed to establish the clear
probability of persecution required for withholding of
deportation.”).
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Because the IJ concluded that Wang had not established his entitlement to asylum,
even when taking his allegations as true, whether the BIA properly characterized the IJ’s
credibility finding as “negative” rather than “mixed” is immaterial on the record before
us. There is substantial evidence to support the IJ’s credibility findings to the extent that
they are negative and to support the IJ’s findings that Wang did not state a claim for
asylum even when taking Wang’s allegations as true.
Finally, we reject Wang’s argument that he is entitled to a rehearing for findings of
fact regarding his resistance to China’s population control policies. Wang rests on the
allegations now before the court, which do not support an inference that he engaged in
sufficient “other resistance,” or suffered harm therefrom, to merit asylum.3
IV.
For the above reasons, we conclude that the IJ's decision not to grant Wang asylum
or withholding of removal is supported by substantial evidence. We will deny the4
petition for review.

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