Wu v. Atty Gen USA

Opinion

Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit

6-18-2009

Wu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2474

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 08-2474

DAN HUA WU, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent

On Petition for Review of an Order of the Board of Immigration Appeals BIA No. A97-814-815 (U.S. Immigration Judge: Honorable Daniel Meisner)

Submitted Pursuant to Third Circuit LAR 34.1(a) June 11, 2009

Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges

(Filed: June 18, 2009)

PER CURIAM.

Dan Hua Wu, a citizen of the People’s Republic of China, seeks review of a final

order of the Board of Immigration Appeals (“BIA”) affirming a decision of the

Immigration Judge (“IJ”) that denied his applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). For the

following reasons, we will deny Wu’s petition for review.

I.

Wu illegally entered the United States in March 2004. The Department of

Homeland Security issued a Notice to Appear on March 18, 2004, charging Wu as

removable under 8 U.S.C. § 1182(a)(6)(A)(i). Wu conceded his removability but filed an

application for asylum, withholding of removal, and CAT relief claiming past persecution

and a well-founded fear of future persecution based on his violation of China’s birth

control policy.

In his asylum application and at his merits hearing, Wu claimed that he and his

girlfriend, Yuan Lin, discovered that Lin was pregnant with Wu’s child at the end of

December 2003. Because the couple were too young to legally marry, they arranged to

marry “according to local custom” at a traditional ceremony which took place in January

2004. The wedding banquet was, however, interrupted by several family planning

officials who attempted to detain the couple for the illegal, out-of-wedlock, pregnancy.

Wu and Lin were somehow able to escape from the government officials and go into

hiding at the home of Wu’s aunt. Wu claimed that they stayed with his aunt until he

departed for the United States in February 2004. Lin remained with Wu’s aunt until June

2004, when she was discovered by family planning officials and forced to undergo an

abortion. Wu did not claim that his family was fined or harassed due to the illegal

pregnancy.

2 To support his testimony, Wu submitted letters from his aunt and from Lin, as well

as a hospital record indicating that Lin’s labor was induced when she was five-months

pregnant. The letters were not entirely helpful to Wu’s case. Lin’s letter contradicted

Wu’s testimony by stating that she found out that she was pregnant in February 2004 and

that she and Wu were thereafter married in a traditional ceremony. She also stated that

family planning officials fined Wu’s family. Further, Lin’s and Wu’s aunt’s letters

indicated that Lin stayed with Wu’s aunt only after Wu left for the United States. The

letters did not mention that Lin and Wu were in hiding with the aunt before Wu left for

the United States.

Wu’s application was denied following a hearing before an IJ in Newark, New

Jersey. The IJ first determined that, because Lu and Lin were not married, Wu’s claim for

asylum based on Lin’s forced abortion was foreclosed by Chen v. Ashcroft, 381 F.3d 221

(3d Cir. 2004), and that Wu could not establish that he was persecuted because he was

prevented from entering into a legal marriage due to an age restriction. At the hearing,

Wu had also suggested that he would be tortured or beaten following his return to China

because he left the country illegally. The IJ found no support for this claim.

The IJ also concluded that, even if Wu was eligible for relief based on Lin’s

experiences, he was not credible. In support of this finding, the IJ identified several

discrepancies between Wu’s testimony and the letters from Lin and Wu’s aunt. Among

other things, the IJ noted that Wu’s assertion that he and Lin discovered the pregnancy in

December 2003 conflicted with Lin’s statement that she found out about the pregnancy in

3 February 2004. The IJ also remarked that Wu’s testimony that his family was not

required to pay a fine for the illegal pregnancy was inconsistent with Lin’s assertion that

officials “forced [Wu’s] family to pay a fine.” In addition, the IJ found that Wu’s

statement that he and Lin escaped together to his aunt’s house conflicted with Lin’s claim

that she hid herself in the aunt’s house after Wu left for the United States.

Thereafter, on December 10, 2007, the BIA adopted and affirmed the IJ’s decision

pursuant to Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). The BIA briefly

explained that if found no clear error in the IJ’s finding of fact, including the adverse

credibility determination.

Wu now petitions for review of the BIA’s final order of removal.

II.

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. §

1252(a)(1). In this case, because the BIA stated that the IJ’s adverse credibility

determination was not clearly erroneous and adopted and affirmed all bases for the IJ’s

decision, we review the IJ’s decision, including those portions not discussed by the BIA.

See Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009) (citing Guan v. Gonzales, 432

F.3d 391, 394 (2d Cir. 2005). We review factual findings under the “substantial

evidence” standard. Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir. 2009). A

factual determination will thus be upheld if it is supported by “reasonable, substantial,

and probative evidence on the record considered as a whole.” Id. (internal citation

omitted). Our review of the agency’s legal conclusions is de novo, and we apply the

4 principles of deference set forth in Chevron U.S.A., Inc. v Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). Id.

The government argues that we lack jurisdiction to hear this appeal. Our

jurisdiction is limited to claims where a petitioner “has exhausted all administrative

remedies available . . . as of right.” 8 U.S.C. § 1252(d)(1). “A petitioner is deemed to

have ‘exhausted all administrative remedies’ . . . and thereby ‘preserves the right of

judicial review,’ . . . if he or she raises all issues before the BIA.” Lin v. Att’y Gen., 543

F.3d 114, 120-21 (3d Cir. 2008) (internal citations omitted). In Lin, we continued by

reiterating that “[w]e do not, however, apply this principle in a draconian fashion,” and

that “so long as a[] . . . petitioner makes some effort, however insignificant, to place the

[BIA] on notice of a straightforward issue being raised on appeal, a petitioner is deemed

to have exhausted her administrative remedies.” Id. at 121 (internal quotations and

citations omitted).

The government correctly argues that Wu did not administratively exhaust the

claim that he was persecuted for “other resistance” to China’s coercive population control

program by hiding Lin from the authorities. Wu did not raise this claim before the IJ or

the BIA, and accordingly, we lack jurisdiction to consider it. See Abdulrahman v.

Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (stating that a petitioner “is required to

raise and exhaust his or her remedies as to each claim or ground for relief if he or she is to

preserve the right of judicial review of that claim”).

Despite the government’s assertion to the contrary, Wu did preserve the right of

5 review of his argument that he is eligible for relief based on Lin’s experiences. The final

paragraph of Wu’s brief to BIA stated that he qualifies as a refugee because he was

married to Lin in a traditional marriage ceremony. In support of this assertion, Wu cited

to a Ninth Circuit decision holding that statutory asylum afforded to wives who

underwent forced abortions applied to husbands whose marriages would be recognized

but for the coercive family planning laws. Ma v. Ashcroft, 361 F.3d 553, 560-61 (9th Cir.

2004). The BIA, therefore, was put on notice that Wu was challenging the IJ’s

determination that he was statutorily ineligible for asylum based on Lin’s forced abortion.

We thus reject the government’s argument that we are without jurisdiction to hear this

appeal.

Nevertheless, substantial evidence supports the IJ’s conclusion that Wu was

statutorily ineligible for asylum based on Lin’s experiences. The IJ properly rejected

Wu’s argument that asylum protection extends to unmarried partners of women who have

been persecuted under China’s family planning laws. See Chen v. Ashcroft, 381 F.3d

221, 228-29 (3d Cir. 2004). Further, we note that Wu would not meet the definition of a

refugee even if his traditional marriage was recognized by the Chinese government, as we

recently held that the Immigration and Nationality Act does not extend automatic refugee

status to spouses or unmarried partners of individuals who have been forcibly subjected to

family planning measures. See Lin-Zheng, 557 F.3d at 156 (“[T]here is no room for us to

conclude that Congress intended to extend refugee status to anyone other than the

individual who has either been forced to submit to an involuntary abortion or sterilization,

6 has been persecuted for failure or refusal to undergo such a procedure, or has a well-

founded fear of that occurring in the future.”) (emphasis omitted). Therefore, as a matter

of law, Lin’s experiences cannot establish Wu’s eligibility for asylum.

Because Wu’s asylum claim is predicated on his relationship to Lin, and because

he cannot establish eligibility for asylum on this basis, we need not determine whether the

IJ’s adverse credibility finding was supported by substantial evidence.1 Additionally, to

the extent that Wu did not waive review of his application for withholding of removal or

CAT relief, the IJ properly rejected those claims.

Accordingly, after a careful review of the record, we will deny the petition

for review.

1 Wu’s brief to this Court mentions that when they could not locate him or Lin, the family planning officials destroyed his furniture and imposed a fine. He asserts that this economic loss, combined with Lin’s abortion, rises to the level of persecution. Wu failed to make a claim for asylum based on economic loss to either the IJ or to the BIA. He has thus waived this argument for relief, and we lack jurisdiction to consider it. Abdulrahman, 330 F.3d at 594-95.