Shan Gui Chen v. Attorney General of the United States

360 F. App'x 387
CourtCourt of Appeals for the Third Circuit
DecidedJanuary 11, 2010
DocketNo. 08-4639
StatusPublished

This text of 360 F. App'x 387 (Shan Gui 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
Shan Gui Chen v. Attorney General of the United States, 360 F. App'x 387 (3d Cir. 2010).

Opinion

OPINION

PER CURIAM.

Petitioner Shan Gui Chen, a native and citizen of China, entered the United States in September of 2004 along the Texas border. App. 294. On June 13, 2005, he filed an application for asylum under Immigration & Nationality Act (“INA”) § 208(a), 8 U.S.C. § 1158(a), for withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and for protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming a fear of persecution on account of his opposition to China’s population control policies. In his asylum application, Shan Chen stated that his wife, Xi Yue Lin, gave birth to their second daughter, Chu Bing Chen, on June 27, 2000, following a Caesarean section at Liang Qi Hospital in Fu Zhou City (Fujian Province). App. 294. Without her knowledge, the doctor sterilized her at the time [389]*389of the delivery. On August 15, 2005, removal proceedings were initiated against Shan Chen when the Department of Homeland Security filed a Notice to Appear with the Immigration Court, charging that he was subject to removal pursuant to INA § 212(a)(6)(A)©, 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. Shan Chen admitted the allegations in the NTA and conceded remova-bility.

A hearing on the merits was held on December 12, 2006. At the hearing, Shan Chen testified that he and his wife, who has remained in China, were married in China on April 22, 1993. App. 70. They had two children together, both daughters. Id. at 71. Shan Chen testified that, following the birth of his second child on June 27, 2000, his wife was sterilized against her will following a Caesarean section procedure. Id. at 72-75. Neither he nor his wife knew that the sterilization procedure was going to be performed and they did not consent to it. Shan Chen remained in China for four more years until July 8, 2004. Id. at 77. He did not leave China immediately because his children were very young. Id. at 80. In support of his asylum application, Shan Chen submitted a letter from his wife, in which she stated that she was forcibly sterilized on June 27, 2000 following the birth of her second daughter by Caesarean section at Lang Qi Town Hospital. Id. at 227. The 2005 State Department Country Report on China also was made a part of the Administrative Record.

The Immigration Judge issued a decision at the end of the merits hearing, concluding that Shan Chen did not testify credibly and did not meet his burden of proof under the asylum statute. The IJ also denied withholding of removal, and found that Shan Chen failed to show that it was more likely than not that he would be tortured upon his return to China. The IJ doubted Shan Chen’s claim that his wife was forcibly sterilized,1 because this testimony was belied by the country conditions evidence of record, and, although Shan Chen submitted an affidavit from his wife, the statements contained in it were nearly identical to those in his personal statement, which rendered it less trustworthy than it might have been otherwise. App. 37. The IJ ordered Shan Chen’s removal to China.

Shan Chen appealed to the Board of Immigration Appeals, challenging the IJ’s adverse credibility determination and assessment of country conditions in China. On October 31, 2008, the Board dismissed the appeal, concluding that, even assuming that Shan Chen testified credibly, he did not establish eligibility for asylum. Under Matter ofJ-S- 24 I. & N. Dec. 520 (A.G. 2008), which overruled Matter of S-L-L-, 24 I. & N. Dec. 1 (BIA 2006), and Matter of C-Y-Z-, 211. & N. Dec. 915 (BIA 1997), a husband like Shan Chen, who has not claimed or shown that he was forcibly sterilized, experienced harm because he refused to undergo sterilization, or demonstrated other resistance to China’s population control policies, is no longer automatically entitled to refugee status based solely on the forced sterilization of his wife. Accordingly, Shan Chen did not establish past persecution in China that would give rise to a presumption of a well-founded fear of persecution on the same basis. Furthermore, although he testified that he would continue to be harmed by China’s policies, the contention was vague, and the fact remained that he stayed in China for four years after his wife allegedly was forcibly sterilized, and had no further en[390]*390counters with Chinese authorities. The IJ’s withholding of removal and CAT determinations also were upheld. Shan Chen has timely petitioned for review of the Board’s decision.

We will deny the petition for review. We have jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(1). Where the Board adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review both decisions. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). An applicant bears the burden of proving eligibility for asylum. Shardar v. Att’y Gen., 503 F.3d 308, 312 (3d Cir.2007). In the absence of evidence of past persecution, the applicant must demonstrate a subjective fear of persecution through credible testimony that his fear is genuine, Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003), and the applicant must show that a reasonable person in his circumstances would fear persecution if returned to the country in question, see id. The Board’s findings in this regard “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See also INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this deferential standard, Shan Chen must establish that the evidence does not just support a contrary conclusion but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002).

The more exacting withholding of removal standard requires an alien to show by a “clear probability” that his life or freedom would be threatened on account of a protected ground in the proposed country of removal. INS v. Stevie, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). See also INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct.

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Related

Immigration & Naturalization Service v. Stevic
467 U.S. 407 (Supreme Court, 1984)
Shardar v. Attorney General of the United States
503 F.3d 308 (Third Circuit, 2007)
J-S
24 I. & N. Dec. 520 (Board of Immigration Appeals, 2008)
S-L-L
24 I. & N. Dec. 1 (Board of Immigration Appeals, 2006)
C-Y-Z
21 I. & N. Dec. 915 (Board of Immigration Appeals, 1997)

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360 F. App'x 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shan-gui-chen-v-attorney-general-of-the-united-states-ca3-2010.