Ying Chen v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-2318
YING CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A77-341-063)
Immigration Judge: Hon. William VanWyke
Submitted Under Third Circuit LAR 34.1(a)
October 22, 2007
Before: SLOVITER, CHAGARES, and HARDIMAN, Circuit Judges
(Filed: October 26, 2007)
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OPINION

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1
The IJ denied Chen’s claims for asylum based on political
opinion or religion, but Chen did not appeal those claims to the
BIA, and the IJ’s decision with respect to these claims is therefore
not at issue.
2
SLOVITER, Circuit Judge.
Ying Chen (“Chen”), a Chinese citizen, petitions for review of an order of the
Board of Immigration Appeals (“BIA”) denying his application for asylum, withholding
of removal, and relief under the Convention Against Torture (“CAT”). The Immigration
Judge (“IJ”) found that Chen had established a well-founded fear of future persecution,
but the BIA reversed. Chen petitions for review.
I.
Chen was born in 1983 and raised in the Fujian Province of China in a family of
practicing Christians. He entered the United States at Los Angeles International Airport
on October 18, 2000 without valid entry documents. The Immigration and
Naturalization Service (“INS”) (now Department of Homeland Security) initiated
removal proceedings. Chen then applied for asylum, withholding of removal, and CAT
protection. At the conclusion of a merits hearing, the IJ issued an oral decision granting
Chen’s application for asylum because he possessed a reasonable fear of persecution
resulting from his illegal departure from China.1 The IJ found that the evidence
demonstrated a reasonable possibility that Chen would face fines and/or administrative
detention of specific significance because Chen was a juvenile. The IJ found that
administrative detention often includes “re-education,” which indicates a political

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2
We have jurisdiction to review final orders of the BIA
under 8 U.S.C. § 1252(a)(1).
3
element because “the [Chinese] government is politically motivated to make sure those
who have left the country . . . [are] made to be ‘politically correct’ in their views.” A.R.
at 91-92. However, the IJ denied Chen’s applications for withholding of removal and
CAT protection because the evidence did not clearly establish that it is “more likely than
not” that Chen would suffer future persecution or torture.
The BIA reversed the IJ’s decision and found that asylum was not warranted
based on any possible prosecution Chen might face for having departed China without
permission. Chen filed a timely petition for review.2
II.
When the BIA conducts a de novo review of the record, as it did here, we review
the BIA’s decision and not the decision of the IJ. Zubeda v. Ashcroft, 333 F.3d 463, 471
(3d Cir. 2003). We will sustain the BIA’s decision if there is substantial evidence in the
record to support it. Id.
To establish a well-founded fear of future persecution sufficient to qualify for
asylum, the applicant must demonstrate both a subjective fear of persecution and
objectively that a reasonable person would also fear persecution under the same
circumstances. Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005).
The IJ had determined that he could not rely on Chen’s testimony regarding his
subjective fear of persecution, “because he does not have much concrete information

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4
about people returning to China except that smugglers are apparently treated harshly.”
A.R. at 85. The IJ therefore focused primarily on the objective prong, as recommended
by the United Nations High Commissioner for Refugees Handbook when the claims of
unaccompanied minors are involved. The BIA also focused on objective considerations.
Here, Chen has not shown objectively that a reasonable person in his shoes would
fear persecution if returned to China. We have noted that, although fear of prosecution
for “‘fairly administered laws’ does not itself qualify one as a ‘refugee,’” fear of
prosecution under such laws of general applicability may sometimes provide the basis
for asylum “if the law itself is based on one of the enumerated factors and if the
punishment under that law is sufficiently extreme to constitute persecution.” Chang v.
I.N.S., 119 F.3d 1055, 1060-61 (3d Cir. 1997). However, “potential prosecution for
violating [China’s] illegal departure law on its face does not give rise to a fear of
persecution.” Si v. Slattery, 864 F. Supp. 397, 406 (S.D.N.Y. 1994) (cited in Chang, 119
F.3d at 1063); see also Li v. I.N.S., 92 F.3d 985, 988 (9th Cir. 1996) (“Criminal
prosecution for illegal departure is generally not considered to be persecution.”). There
is nothing in this record to suggest that Chen will be prosecuted for his illegal departure
while other violators will not.
The BIA did not find that Chen would face a reasonable possibility of
“disproportionately severe” punishment. A.R. at 4. Substantial evidence does not
compel a contrary conclusion with respect to that finding. Indeed, the BIA cited to a
report from the Canadian Refugee Board dated March 14, 2000, which specifically

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3 Four counties of metropolitan Fuzhou were studied in the
Report; Chen himself was born in Fuzhou City and still lived there
in 1999.
5
studied local3 implementation of Chinese government policies on a number of issues,
including treatment of individuals who return to China after illegal departure. According
to the Report:
There is evidence of wilful deception of foreign governments as to
sanctions against returned illegal migrants. Much touted policies of prison
sentences and extensive reeducation programs are apparently mostly not
implemented. Rather we have become aware of preferential economic
policies and business loans made available to returnees by local
governments. We are assured that children under 16 returned to China
would not be subject to incarceration under any circumstances.
A.R. at 184.
The Report further found that prison sentences or detention “are only applicable
to those illegal emigrants ‘who bring disgrace to the nation.’” A.R. at 188. Moreover,
the February 2000 U.S. Department of State Report, “1999 Country Reports on Human
Rights Practices,” noted, in discussing trafficking in persons, that “[t]rafficked persons
who are repatriated may face fines for illegal immigration upon their return; after a
second repatriation, persons may be sentenced to a term in a reeducation-through-labor
camp.” A.R. at 281 (emphasis added). This evidence therefore does not support a well-
founded fear of harm for someone in Chen’s position – a first-time illegal emigrant “with
no record of political opposition or other conflict with the authorities.” A.R. at 4. There
is substantial evidence to support the BIA’s conclusion that Chen could not demonstrate

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4
Because Chen failed to address the BIA’s denial of
withholding or CAT protection in his brief to this court, we do not
address them as they are deemed waived. Battle v. Pennsylvania,
629 F.2d 269, 271 n.1 (3d Cir. 1980).
6
that any punishment for his illegal departure would be a pretext to persecute him for his
political opinions or for any of the other statutory grounds for asylum.4
III.
For the above-stated reasons, we will deny Chen’s petition for review.
__________________

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