Ai Fang Chen v. Attorney General of the United States

359 F. App'x 318
CourtCourt of Appeals for the Third Circuit
DecidedDecember 30, 2009
DocketNo. 08-4079
StatusPublished

This text of 359 F. App'x 318 (Ai Fang Chen v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ai Fang Chen v. Attorney General of the United States, 359 F. App'x 318 (3d Cir. 2009).

Opinion

OPINION

PER CURIAM.

Petitioner Ai Fang Chen, a citizen of China, seeks review of a final order issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition for review.

This matter has an extended history. In February 2000, Chen entered the United States without being admitted or paroled. In December 2000, she filed an asylum application on the basis of her political opinion, alleging that she and her husband had been persecuted by the Chinese government because they had violated the family planning policy, having had two children in China. Chen was placed into removal proceedings as an alien present in the United States without being admitted or paroled. She conceded re-movability but pursued her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

In February 2002 and December 2008, Chen testified before the Immigration Judge (“IJ”) as to the following account of her claim. Chen was born in Fujian Province, and in 1989, she and her husband were married in a traditional ceremony. They did not register the marriage because they were not of legal age to marry. After their first child was born in 1990, family planning officials forced Chen to have an IUD inserted. Chen wanted to have more children, so she went to a private doctor to have the IUD removed. She became pregnant, and the family planning officials came to her home and ordered her to have an abortion and pay a fine. Instead, she and her husband went into hiding at her parents’ house, while their daughter stayed with her mother-in-law. When her husband went back to their town to visit their daughter, family planning officials confronted him and instructed him to bring Chen for an abortion. Her husband escaped and left China for the United States. Their second child was born in 1991, and Chen was arrested at home and was taken to the hospital for sterilization. However, the doctor refused to sterilize her because of a skin disease. Instead, another IUD was inserted and a fine levied for failure to have a marriage certificate and for lack of permission to have a child. The fine was paid, and Chen was released. She left China in 2000. The couple’s third child was born in the United States in 2001.

[320]*320Chen stated that she does not wish to return to China because she fears being forcibly sterilized. At the continued hearing, additional documents were submitted concerning Chen’s medical records and the asylum proceedings concerning Chen’s husband, whose claim had been denied. When asked why her medical records did not show a history of a skin disease, she stated that she thought it was an infection and the doctor was concerned about making an incision. When asked about the differences in several details of her husband’s version of their claim versus her own, she maintained her account of the events. Chen admitted that she did not have the IUD removed after she arrived in the United States and that it was still in place when she became pregnant with her third child. She explained that she owed much money and that she had never thought about having it removed.

On December 3, 2003, the IJ found that Chen had not shown that wearing her second IUD was involuntary because she had not had it removed during the years-long period after her husband left China or after she came to the United States. The IJ noted the inconsistencies between Chen’s testimony and her husband’s testimony in his own proceedings and further noted that Chen’s supporting documentation had not been authenticated. The IJ found that, even if Chen were credible, she had not shown past persecution on asylum grounds and that Chen had not met her burden of proof on her future persecution or CAT claims. Accordingly, the IJ denied Chen’s applications for relief and ordered her removal to China. Chen appealed to the BIA, arguing that she was credible and had met her burden of proof on her asylum and withholding claims. In April 2005, the BIA affirmed the IJ’s decision, without opinion.

Chen filed a timely motion to reopen based on new evidence concerning her fear of persecution by family planning officials in China in light of her having had a third child while in the United States. In October 2005, the BIA granted the motion to reopen, noting that Chen’s evidence suggested that couples returning to China after having given birth to unauthorized children may be subject to China’s coercive population control program.

On remand, Chen submitted additional evidence to the IJ and gave additional testimony at a November 28, 2006 hearing. She stated that she fears sterilization upon return to China as a violator of the family planning policy, based upon information provided by her attorney and others from where she lived. She later stated that she did not know anyone who had given birth in the United States and returned to China to her town. At the close of the hearing, the IJ again denied relief. The IJ found, among other things, that the evidence contained conflicting information, and that there was no evidence of any harm to couples returning to China with United States-born children. The IJ also noted that Chen’s third child was alive at the time of the prior hearing and already had been considered in the previous decision, and the new evidence did not persuade the IJ to alter the December 3, 2003 decision. The IJ again denied asylum, withholding, and CAT relief, but certified the ease to the BIA to address whether Chen was entitled to relief based on possible sterilization or forced abortion concerning a future child.

Chen appealed to the BIA and submitted additional evidence in support of her position. On September 5, 2008, the BIA dismissed the appeal, noting its agreement with the IJ’s conclusions that Chen had not met her burden of proof on her claims. The BIA found that to the extent that [321]*321Chen claimed fear of persecution because she will continue to have children in China, the claim was speculative. In addition, the BIA noted that it would not consider new evidence on appeal, citing 8 C.F.R. § 1003. l(d)(3)(iv). Further, to the extent that Chen requested a remand based on the new evidence, the BIA found that remanding the case was not warranted. In so finding, the BIA stated that Chen failed to show that the evidence would change her case’s outcome, and noted that one of the documents had not been authenticated.

Chen timely filed a petition for review in this Court. We have jurisdiction under 8 U.S.C. § 1252(a) regarding the final removal order. Though much of Chen’s brief focuses on the IJ’s decision, “[wjhere, as here, the BIA issues a decision on the merits and not simply a summary affirmance, we review the BIA’s, and not the IJ’s, decision.” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). Whether an applicant has demonstrated a well-founded fear of future persecution is a factual determination reviewed under the substantial evidence standard. Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir.2005). We must uphold the BIA’s findings “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft,

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359 F. App'x 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ai-fang-chen-v-attorney-general-of-the-united-states-ca3-2009.