Xue Lin Zheng v. Attorney General of the United States

363 F. App'x 946
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 3, 2010
DocketNo. 09-2936
StatusPublished

This text of 363 F. App'x 946 (Xue Lin Zheng 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.

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Xue Lin Zheng v. Attorney General of the United States, 363 F. App'x 946 (3d Cir. 2010).

Opinion

OPINION OF THE COURT

PER CURIAM.

Pro se petitioners, wife and husband Xue Lin Zheng and Ming Wu, petition for review of an order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the reasons that follow, we will deny their petition for review.

Petitioners are natives and citizens of China. Zheng, the lead respondent, arrived in the United States in November 2001 without a valid entry document. Wu entered without inspection in November 1999. Both petitioners were charged with removability pursuant to INA § 212(a)(6)(A)® on March 29, 2006. In response, Zheng applied for asylum, withholding of removal, protection under the Convention Against Torture (“CAT”) and voluntary departure, with her husband as a rider on her petition. Based on the testimony and evidence in the record, the IJ concluded that Zheng had failed to demonstrate a likelihood of future persecution on the basis of having had two American-born children and, accordingly, denied relief. Petitioners appealed to the BIA and also requested that them proceedings be remanded to the IJ to consider additional information regarding family planning in China. The BIA denied the motion to remand, affirmed the opinion of the IJ, and dismissed the appeal on April 2, 2008.

Petitioners were initially represented by counsel, who failed to timely file a petition for review in this Court. Counsel then filed a motion before the BIA requesting that it re-issue its decision so that petitioners could timely file a petition for review. On December 3, 2008, the BIA denied the motion. On February 17, 2009, petitioners, then proceeding pro se, filed a second motion requesting that the BIA re-issue its decision, arguing that they should not be prejudiced by the failure of their attorney to timely file a petition for review. By order dated June 16, 2009, the BIA agreed and re-issued its order of April 2, 2008 dismissing their appeal. Petitioners time[948]*948ly filed a petition for review from that order.

We have jurisdiction over this petition for review under 8 U.S.C. § 1252. The IJ denied relief because he found that Zheng had not met her burden of demonstrating a well-founded fear of persecution. This is a factual finding subject to review under the substantial evidence standard, pursuant to which we will uphold the findings of the BIA or IJ “unless the evidence not only supports a contrary conclusion but compels it.” See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001).

■ To qualify for asylum, Zheng must show that she is “unable or unwilling to return to [China] ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158. To establish eligibility for withholding of removal, she must demonstrate “a clear probability of persecution.” See Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir.1993). “[P]ersecution connotes extreme behavior, including ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.’ ” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (quoting Fatin, 12 F.3d at 1240). The well-founded fear of persecution standard involves both a subjectively genuine fear of persecution and an objectively reasonable possibility of persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). For relief under the CAT, Zheng must demonstrate that it is more likely than not that she would be tortured if removed to China. 8 C.F.R. § 208.16(c)(2).

Petitioners were married in a traditional ceremony in November 2004 and their marriage was registered in New York City in January 2006. They had two children together while in the United States. Zheng testified that she was concerned that she would be sterilized upon her return to China, although she was unaware of whether China’s family planning policy applied to people who give birth to children outside of the country. (A.R.310-12.) She also expressed fear that she would be jailed or fined upon her return for having been smuggled out of the country. (Id.) She conceded to the IJ that she had not experienced any persecution in the past. (Id.) The only other evidence submitted in support of their claim was a letter from •Zheng’s father-in-law enclosing a copy of their village’s local family planning policy. (A.R.329.) While the document, entitled “Combine Our Efforts in Thorough Implementation of Family Planning,” does acknowledge the use of abortions and sterilization to control childbirth rates, it is largely concerned with out-of-wedlock pregnancies and does not address petitioners’ situation. (A.R.325.)

Relying on the country reports, the IJ concluded that Zheng’s belief that she might be sterilized upon her return to China was not objectively reasonable, as there was no evidence in the country reports indicating that a Chinese citizen who gave birth overseas before returning to China would be subject to China’s family planning policies. The IJ noted that petitioners did not offer any evidence to contradict or rebut the country reports. The IJ further explained that the only restraint on petitioners upon their return might be a fine and the payment of an additional tuition fee for their second child, which the IJ found would not amount to persecution. Based on the foregoing, the IJ concluded that Zheng had failed to demonstrate a likelihood of persecution on the basis of having had two American-born children. Because she had not met the asylum stan[949]*949dard, the IJ concluded that she could not meet the higher withholding of removal or CAT standards either.

On appeal to the BIA, Zheng argued that her right to due process was violated by the IJ’s acceptance of country reports into evidence less than ten days before the merits hearing, and reliance on them in concluding that women who gave birth overseas are not subject to China’s family planning policies. The BIA noted that Zheng’s counsel failed to object to the admission of the country reports during the hearing, or to request a continuance or extension of time in which to submit rebuttal evidence, and held that petitioners had therefore waived any objection to the IJ’s admission of or reliance on this evidence. Next, Zheng argued that the IJ erred in concluding that she had not satisfied her burden of demonstrating a well-founded fear of persecution upon her return to China. However, as the BIA observed, Zheng made nothing more than generalized arguments to the contrary and did not point to any supporting evidence in the record.1

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