The opinion
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3956
___________
BIN WEI OU; JIAN ZOU,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A099-592-455 and A099-592-456)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 14, 2010
Before: SCIRICA, SMITH and WEIS, Circuit Judges
(Opinion filed: July 19, 2010)
___________
OPINION
___________
PER CURIAM.
Bin Wei Ou and Jian Zou (“petitioners”) seek review of a final removal
order entered by the Board of Immigration Appeals (“BIA”). For the reasons that follow,
1
we will deny the petition for review.
Petitioners are citizens of China from Fujian Province. After entering the
United States in 1998 without inspection, they married here in 2004 and have had two
children: a boy, born in 2004, and a girl, in 2006. Petitioners applied for asylum in 2006
based on a fear of future persecution, in the form of forced sterilization, for violating
China’s family-planning policies. Petitioners conceded their removability before the
Immigration Judge (“IJ”). They testified at a hearing and submitted numerous documents
in support of their contention that they have a well-founded fear that either or both of
them will be forcibly sterilized in China.
The IJ denied relief. While finding that petitioners’ testimony was credible
and that their subjective fear of returning to China is genuine, the IJ held that petitioners
did not prove an objectively reasonable fear of future persecution. In particular, the IJ
found that petitioners failed to show that China maintains an official policy of sterilizing
citizens who return with “out of plan” children, and they failed to show either that they
would be singled out for persecution or that there is a pattern or practice of persecuting
individuals similarly situated to them. The IJ also denied withholding of removal and
Convention Against Torture (“CAT”) relief.
Petitioners appealed to the BIA and challenged the IJ’s finding regarding
their failure to show an objective fear of future persecution. Petitioners filed a brief with
the BIA, and they attached to the brief several “additional documents,” which they asked
2
the BIA to “review [as] background material which overwhelmingly establishes the
objective prong.” 1 A.R. at 40.
The BIA dismissed petitioners’ appeal. It noted that, in finding that
petitioners had failed to establish a well-founded fear of persecution, the IJ relied on
Matter of J-W-S-, 24 I & N Dec. 185 (BIA 2007), where the BIA had held that the
evidence did not show that the Chinese government has a national policy of requiring
forced sterilization of a parent who returns with children born in the United States. The
BIA rejected petitioners’ argument that Matter of J-W-S- was wrongly decided. See A.R.
at 4 (citing Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008)).2 The BIA also agreed with
the IJ that petitioners’ evidence fails to provide an objective basis for concluding that they
will be sterilized. The BIA observed, as it did in Matter of J-W-S-, that if a returning
national is penalized at all, he or she will be sanctioned through fines or other economic
penalties, which do not rise to the level of persecution or torture. Finally, the BIA found
no basis to remand the matter for consideration of the additional documents submitted on
appeal, noting that petitioners had failed to show that any “new” evidence was previously
1
Petitioners stated in their brief that they were submitting the additional documents as
“rebuttal to the most recent State Department Report.” A.R. at 26, 43. Petitioners,
however, never identified this “most recent State Department Report” nor explained how
their additional documents served to “rebut” that unidentified report.
2
In Shao, the Second Circuit Court of Appeals denied a petition for review filed by
the alien in Matter of J-W-S-. Among other things, the court of appeals held that
substantial evidence supported the BIA’s determination that the alien, the father of two
sons born in the United States, had failed to show a reasonable possibility that he faced
forced sterilization upon return to China. See Shao, 546 F.3d at 162-66.
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unavailable or would change the outcome in their case.
Petitioners timely filed a petition for review in this Court after the BIA
reissued the final order of removal to correct a defect in service. We have jurisdiction
under 8 U.S.C. § 1252(a)(1). Where, as here, “the BIA both adopts the findings of the IJ
and discusses some of the bases for the IJ’s decision, we have authority to review the
decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.
2004). “We review factual findings, including findings of persecution and fear of
persecution, under the substantial evidence standard.” Sandie v. Att’y Gen., 562 F.3d
246, 251 (3d Cir. 2009). “Under this deferential standard, findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id.
(quotation marks omitted).
Petitioners contend that they proved a well-founded fear of future
persecution through credible testimony and the documents they presented to the IJ. They
argue that the evidence shows that their children will return with them to China, that the
children will be considered Chinese citizens, and that their fear of forced sterilization for
having violated the one-child policy is well-founded.
“To establish the existence of a well-founded fear of persecution, an
applicant must prove an objectively reasonable possibility of statutorily cognizable
persecution, and that the applicant’s professed fear is genuine.” Sandie, 562 F.3d at
250-251 (3d Cir. 2009) (citation omitted). Here, the IJ and the BIA accepted that
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petitioners have a genuine subjective fear of persecution, and thus the sole question is
whether the evidence they presented compels the conclusion that they also proved the
requisite objective basis for that fear. Petitioners could meet their burden of showing an
objective fear by proving either that they would be individually singled out for
persecution, or that there is a pattern or practice in China of persecuting similarly situated
individuals. See Wong v. Att’y Gen., 539 F.3d 225, 232 (3d Cir. 2008).
As mentioned, the IJ found that petitioners failed to prove either basis for
an objective fear. The BIA agreed, observing that “the documents submitted by
[petitioners] do not provide an objective basis for concluding that [they] will be sterilized
upon return to China.” A.R. at 4.3 In their brief before this Court, petitioners fail to point
to any specific evidence in the voluminous record before the IJ that would compel a
finding that their fear of forced sterilization is objectively reasonable, either because they
would be singled out or because of a pattern or practice. The few documents that
petitioners do highlight in their brief before this Court are insufficient. For example,
petitioners cite the following sentence from testimony given by T. Kumar in 2004 before
3
Respondent argues that petitioners failed before the BIA to exhaust the claim that
they would be singled out for persecution in China, and that the only issue properly before
this Court is petitioners’ pattern or practice argument. See Respondent’s Br. at 14. The
BIA clearly held, however, that the evidence fails to support any basis for finding an
objective fear of persecution – a finding that included adoption of the IJ’s decision to
reject the singling out argument. See A.R. at 4 (citing IJ’s Op. at 15-17). Thus, even
assuming petitioners failed to make a singling out argument in their brief, the BIA
addressed that issue sua sponte, and, accordingly, we retain jurisdiction to review it. See
Lin v. Att’y Gen., 543 F.3d 114, 123-24 (3d Cir. 2008).
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the House Committee on International Relations: “[c]ouples who have a child ‘out of
plan’ are subject to sanctions, including heavy fines.” A.R. at 2121. This statement,
however, is not inconsistent with the BIA’s holding in Matter of J-W-S-, upon which the
BIA expressly relied here, and petitioners cite no evidence of record that would require a
finding that the fines imposed rise to the level of persecution or torture.4 Petitioners seem
to suggest that their testimony alone was enough to establish a fear of future persecution,
see Petitioners’ Br. at 7-8, but clearly their testimony, even when viewed in connection
with the documentary evidence, does not compel the conclusion that they possess an
objectively reasonable fear. In short, after a careful review of the evidence that
petitioners presented to the IJ, we hold that substantial evidence supports the finding that
they lack an objective basis for their fear of future persecution.
Petitioners next contend that the BIA erred by failing to remand the matter
for the IJ to consider the “additional background” documents that they submitted on
appeal. This contention is without merit. As respondent notes, petitioners elected to
submit numerous documents on their appeal to the BIA without ever discussing those
documents in their appeal brief or explaining why the documents qualified as new or
material evidence. Petitioners now suggest that “[t]he BIA erred when it failed to address
the motion to remand,” Petitioners’ Br. at 10, but petitioners, in fact, never filed a
4
In Matter of J-W-S-, the BIA addressed economic sanctions in Fujian Province and
found that, at most, an alien would face a “moderate economic impact” not amounting to
persecution. 24 I. & N. Dec. at 191.
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“motion to remand” with the BIA, and instead they merely asked the BIA itself to review
the additional documents as “background material.” A.R. at 40. Moreover, the record
amply supports the BIA’s decision not to remand the matter for consideration of
petitioners’ additional documents. As the BIA correctly noted, petitioners failed to
establish that the evidence was previously unavailable or could alter the outcome.
Because withholding of removal requires a higher showing than the
standard for asylum, petitioners’ inability to establish eligibility for asylum based on a
well-founded fear of future persecution necessarily undermines their eligibility for
withholding of removal. See Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004) (“An
alien who fails to establish that he or she has a well-founded fear of persecution, so as to
be eligible for a grant of asylum, necessarily will fail to establish the right to withholding
of removal.”).5
For the foregoing reasons, we will deny the petition for review.
5
Petitioners do not argue the CAT claim before this Court, and thus we deem that
claim waived and do not address it.
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