Zhuangkao Hao v. Attorney General of the United States

363 F. App'x 857
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 3, 2010
DocketNo. 09-4341
StatusPublished

This text of 363 F. App'x 857 (Zhuangkao Hao 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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Zhuangkao Hao v. Attorney General of the United States, 363 F. App'x 857 (3d Cir. 2010).

Opinion

OPINION

PER CURIAM.

Zhuangkao Hao, a native and citizen of the People’s Republic of China, petitions for review of a final order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We will grant the government’s motion for summary affirmance and deny Hao’s petition for review because it presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.

I.

Hao was admitted to the United States in 2004 as a visitor, but remained longer than permitted. He was placed in removal proceedings, during which he conceded his removability. Hao applied for asylum, withholding of removal, and CAT protection, claiming that he had been persecuted in China because he and his wife violated [858]*858the family planning policy by having a second son.

In January 2009, Hao had a hearing on his application. He testified that when his wife became pregnant with their second child in 1989, she hid at a relative’s house. Hao was apparently at work elsewhere when officials demanded that his wife have an abortion and took 1,500 RMB from his parents to secure her return for the procedure. He testified that officials also broke into his house and took a sewing machine, television, and clothes closet and that they removed the roof from one of the rooms. His wife did not undergo an abortion and bore a second son in late 1989.

In late 1992, according to Hao, a village official invited him to a meeting regarding the registration of his children and the receipt of land. Once at the office, Hao saw that the only attendees were people who had had two children. The official told them they had violated the family planning policy and gave them contracts for sterilization. Hao refused and tried to flee, but was stopped and held overnight. The next day his wife came and told him that she had signed a sterilization contract so that he would be freed to work. Later that morning, Hao’s wife was sterilized and Hao was released and allowed to take her home. He testified that officials did not trouble his family after the sterilization and that he was given a small plot of land and was permitted to register his second son. About twelve years later, in 2004, Hao left China.

Hao told the IJ that he feared returning to China because he had been here for many years and fellow villagers in the United States may have called home and reported that he applied for asylum. He feared the Chinese government would “take revenge” on him by publicly criticizing him, destroying his home, and seizing his land. But Hao also testified that no one had contacted his wife about him since he left China and that nothing had been done to his family since his departure.

The IJ denied relief and ordered Hao removed to China, concluding that he had not suffered past persecution. The IJ first noted that, as a matter of law, Hao could not maintain a claim for asylum based on his wife’s coerced sterilization. The IJ then considered Hao’s testimony regarding his overnight detention, the fine paid by his parents, the seizure of property, and the partial destruction of his roof, and concluded that the actions did not rise to the level of persecution. In support of this conclusion, the IJ noted that Hao was detained only overnight and was not harmed, that the fine was levied against Hao’s parents, not him, and that there was no evidence that they found it onerous, and that while the partial removal of his roof was “serious,” it was offset by the government’s award of land and registration for the second child. Finally, the IJ rejected Hao’s claims that he will face future persecution in China, noting that it was unreasonable to think that birth control officials would harm him when nothing had been done to him or his family in the sixteen years since his wife’s sterilization, and that his fears of revenge for seeking asylum were unsubstantiated and inconsistent with country conditions as reflected in the evidence of record. On appeal, the BIA affirmed without opinion, noting that the IJ’s decision is the final agency determination in this matter.

Hao timely filed a petition for review and moved for a stay of removal pending this Court’s review. The government opposes a stay and has moved for a summary disposition on the merits of the petition. Hao, who is represented by counsel, opposes summary disposition.

[859]*859II.

We have jurisdiction pursuant to 8 U.S.C. § 1252 to review final orders of removal. In this case, the BIA affirmed the IJ’s decision without opinion and expressly stated that the IJ’s decision was the “final agency determination.” We therefore review the IJ’s decision. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). In doing so, we review factual findings for substantial evidence and may not disturb them “ ‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir.2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). We exercise plenary review over conclusions of law, subject to the established principles of deference accorded agency decision-making. See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 231 (3d Cir.2008).

Under the Immigration and Nationality Act (“INA”), an applicant may demonstrate eligibility for asylum by showing either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). The INA further states that “a person who has been forced to abort a pregnancy or to undergo involuntary stei’ilization ... shall be deemed to have been persecuted on account of political opinion.” 8 U.S.C. § 1101(a)(42)(B). We recently held, however, that there is no automatic refugee status for spouses of individuals subjected to coercive population control policies. Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir.2009) (en banc). Thus, to the extent that Hao relies on his wife’s sterilization to support his application for asylum, our decision in Lin-Zheng precludes the claim.1

Despite our holding in Lin-Zheng, spouses remain eligible for relief if they can establish their own persecution for resisting China’s coercive family planning policy or a well-founded fear of future persecution for that resistance. See 8 U.S.C. § 1101(a)(42).

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