Guang Lin; Mou Zeng Chen v. Attorney General of the United States

NOT PRECEDENTIAL
IMG-310
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4453
___________
GUANG LIN; MOU ZENG CHEN,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A098-694-619 & A098-694-620)
Immigration Judge: Honorable Charles M. Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 13, 2010
Before: SCIRICA, SMITH AND WEIS, Circuit Judges
Opinion filed November 4, 2010
_________
OPINION
_________
PER CURIAM.
Lead petitioner Guang Lin and her husband, Mou Zeng Chen (hereinafter
collectively referred to as APetitioners@), petition for review of the Board of Immigration
Appeals= (ABIA@) final order of removal issued in their consolidated removal proceedings.
For the reasons that follow, we will deny the petition.

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I.
Petitioners are natives and citizens of the People=s Republic of China. Chen
entered the United States in 2000 and Lin followed suit the following year. Because
Chen entered without valid entry documents and Lin entered without being admitted or
paroled, they were ultimately placed in removal proceedings. They conceded their
removability and Lin filed an application for asylum, withholding of removal, and relief
under the Convention Against Torture (ACAT@), with Chen as a rider on that application.
In a June 2008 hearing before the Immigration Judge (AIJ@), Lin testified
that Asnakeheads@ helped her and Chen enter the United States, and that the couple paid
them $113,000 to do so. She further testified that since arriving in the United States, she
had given birth to three U.S. citizen children. She feared that, if she returned to China,
she would be forcibly sterilized for violating China=s family planning policies.
In addition to her testimony, Lin submitted voluminous documentary
evidence in support of her application. Among this evidence were two unauthenticated
notices purportedly issued by the local family planning offices from the respective
villages in China in which Lin=s mother and Chen=s father resided. Both of these notices
stated that a Chinese citizen who gave birth to multiple children while abroad would be
sterilized upon returning to China or otherwise face Alegal sanction.@ Accompanying
affidavits from Lin=s mother and Chen=s father averred that these local family planning
offices told them that Petitioners would also be fined, with the fine totaling either 78,000
RMB (which, today, translates to roughly $11,600) or 74,000 RMB (roughly $11,000).

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At the conclusion of the hearing, the IJ denied Lin=s application. In doing
so, the IJ found Lin=s testimony credible, but concluded that, in light of the BIA=s and our
relevant precedents, her evidence was Ato[o] speculative@ to establish that her fear of
future persecution was objectively reasonable. (See Admin. Rec. at 62-64.) Nonetheless,
the IJ found the family planning notices and accompanying affidavits Atroubling.@ (See
id. at 63.) As a result, the IJ certified the case to the BIA for review pursuant to 8 C.F.R.
'' 1003.1(c), 1003.7, and 1240.1(a)(2). Petitioners themselves also sought review of the
IJ=s decision.
On appeal, the BIA agreed with the IJ that Lin=s evidence failed to establish
that her fear of being sterilized was objectively reasonable. The BIA also concluded that
she had not shown that any economic sanction she might face rose to the level of
persecution. As a result, the BIA upheld the denial of her asylum claim. Because Lin=s
claims for withholding of removal and CAT relief relied on the same insufficient
evidence, the BIA upheld the denial of that relief as well. Petitioners now seek review of
the BIA=s decision.
II.
We have jurisdiction over this petition for review pursuant to 8 U.S.C.
' 1252(a)(1). We review the agency=s findings, including its conclusions regarding
evidence of a well-founded fear of future persecution, for substantial evidence. Chavarria
v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Under this deferential standard of review,
we must uphold the agency=s findings Aunless the evidence not only supports a contrary

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conclusion, but compels it.@ Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
An alien seeking asylum who does not allege past persecution must
establish that she has a well-founded fear of future persecution. See Chavarria, 446 F.3d
at 515-16 (citing 8 U.S.C. ' 1101(a)(42)). To make this showing, an alien must
demonstrate Aboth a subjectively genuine fear of persecution and an objectively
reasonable possibility of persecution.@ Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.
2003). Determining whether an alien=s fear is objectively reasonable Arequires
ascertaining whether a reasonable person in the alien=s circumstances would fear
persecution if returned to the country in question.@ Id.
In this case, Petitioners have not shown that the record compels a finding
that Lin has an objectively reasonable fear of future persecution. As the BIA noted,
much of the voluminous background evidence in the record is similar or identical to
evidence that the BIA has previously found insufficient in other cases, and Petitioners
have not identified any background evidence that distinguishes their case. The few
background documents they do highlight fail to show that any reasonable adjudicator
would be compelled to conclude that a Chinese citizen with U.S.-born children would be
forcibly sterilized or otherwise persecuted upon returning to China. As for Petitioners=
case-specific evidence, the BIA correctly observed that while both family planning
notices Aindicate that an individual returning from abroad with more than one child >must=
be sterilized, they further state that an unspecified >legal sanction will be imposed= if the
individual fails to undergo the procedure.@ (Admin. Rec. at 5.) These notices Ado not

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reveal that [Lin] will be subjected to sterilization by force, nor whether the alternative
>legal sanction= will be of the type or severity that would rise to the level of persecution.@
(Id.) Although Athe deliberate imposition of severe economic disadvantage which
threatens a petitioner=s life or freedom may constitute persecution,@ Li v. Att=y Gen. of the
U.S., 400 F.3d 157, 168 (3d Cir. 2005), the record here does not compel a finding that the
approximately $11,600 fine Lin allegedly faces rises to that level, especially given that
Petitioners were previously able to pay nearly ten times that amount to come to the
United States.
Because Petitioners cannot prevail on Lin=s asylum claim, they cannot meet
the higher standard for withholding of removal. See Lukwago v. Ashcroft, 329 F.3d 157,
182 (3d Cir. 2003). Additionally, they have waived their right to challenge the denial of
her CAT claim. See Laborers= Int=l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d
Cir. 1994) (AAn issue is waived unless a party raises it in its opening brief, and for those
purposes a passing reference to an issue will not suffice to bring that issue before this
court.@) (internal quotation marks and citation omitted). We have considered Petitioners=
remaining arguments and conclude that they lack merit.1
1 We note that one of Petitioners= arguments is that the IJ applied an incorrect
standard by requiring them to provide Asolid support@ to show that Lin=s fear of future
persecution was objectively reasonable. Although we do not necessarily agree that the
IJ=s use of the phrase Asolid support@ meant that he was applying some new, improper
standard B the BIA concluded that the IJ applied the correct standard B we need not reach
this issue here. In reviewing the IJ=s decision, the BIA exercised de novo review over the
issue of whether the possibility of sterilization and/or economic sanctions would cause a
reasonable person in Lin=s situation to fear persecution. See Huang v. Att=y Gen. of the
U.S., 2010 U.S. App. LEXIS 18749, at *28-29 (3d Cir. Sept. 8, 2010). Because the BIA

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In light of the above, we will deny the petition for review.
applied the proper standard in conducting that review and did not have to defer to the IJ
in reaching its conclusion, the BIA=s decision negated any alleged error made by the IJ.

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