NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2616
___________
CUI LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A079-472-237)
Immigration Judge: Honorable Frederic Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 23, 2013
Before: FISHER, VANASKIE and ALDISERT, Circuit Judges
(Opinion filed: October 24, 2013)
___________
OPINION
___________
PER CURIAM
Cui Lin (“Lin”) petitions for review of the Board of Immigration Appeals’ (“BIA”
or “Board”) dismissal of her appeal. For the following reasons, we will deny the petition
for review.
I.
Lin is a Chinese citizen from Fujian Province who entered the United States
without inspection. In 2010, she filed applications for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). Lin claimed a fear of
persecution if removed to China based upon her violation of China’s family planning
laws due to the birth of her two children in the United States and her practice of
Christianity. Following a hearing, the Immigration Judge (“IJ”) denied relief.
Specifically, the IJ rendered an adverse credibility finding and determined that, in any
event, Lin did not have an objectively reasonable fear that she would be forced to
undergo sterilization if she returned to China and failed to demonstrate that she would be
persecuted because of her participation in an underground Christian church. In May
2013, the BIA dismissed Lin’s appeal. It did not address the adverse credibility finding,
but agreed with the IJ that Lin “did not meet her burden of establishing that she has a
well-founded fear of persecution in China.” This petition for review followed.1
II.
We review the BIA’s order of removal but may look to the IJ’s decision to the
extent that the BIA affirmed his conclusions. See Sandie v. Att’y Gen., 562 F.3d 246,
250 (3d Cir. 2009). We review factual findings for substantial evidence. See Chavarria
v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Under this standard, we must uphold
1
We have jurisdiction to review the BIA’s final order of removal pursuant to 8 U.S.C.
§ 1252(a)(1).
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those findings “unless the evidence not only supports a contrary conclusion, but compels
it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
III.
If an alien cannot establish past persecution, she must demonstrate a well-founded
fear of future persecution to obtain asylum. See Chavarria, 446 F.3d at 515-16 (citing 8
U.S.C. § 1101(a)(42)). To make this showing, an alien must “demonstrate a subjective
fear that is supported by objective evidence that persecution is a reasonable possibility.”
Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir. 2008) (internal quotation marks and citation
omitted). Lin attempted to meet this burden by proving that she would be individually
singled out for persecution. See Wong v. Att’y Gen., 539 F.3d 225, 232 (3d Cir. 2008).
In her brief, Lin first alleges that the BIA erred in failing to find the IJ’s adverse
credibility finding to be clearly erroneous. However, the BIA passed no judgment on the
IJ’s credibility findings and instead assumed that Lin testified credibly. Accordingly,
because the BIA did not address the IJ’s adverse credibility finding in its holding, that
issue is not properly before this Court. See Jarbough v. Att’y Gen., 483 F.3d 184, 191
(3d Cir. 2007).
Lin asserts that the BIA should have given greater weight to her evidence
concerning forced sterilizations performed on her family members and other women who
returned to China after having children abroad. The Board plausibly discounted the
letters from Lin’s female relatives regarding their sterilizations because the women were
not similarly situated to her; their children, unlike Lin’s, were not United States citizens.
See Lin v. Holder, 620 F.3d 807, 810 (7th Cir. 2010). Lin also submitted evidence from
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a man who claimed to have been forcibly sterilized after returning to China with children
born in Japan; however, this man was also not similarly situated to Lin. Indeed, Lin
conceded in her testimony that she did not personally know any women or men who were
forcibly sterilized after returning to China with children born in the United States.
Lin also alleges that the Board erred by assigning minimal weight to documents
from two village committees stating that an individual like her would be sterilized upon
return to China. The BIA questioned these documents because they were photocopies
that did not specifically reference Lin or identify the authors, were not authenticated, and
were obtained for purposes of the hearing. Lin asserts that she laid a foundation for these
certificates through the letters from her father and father-in-law indicating that they
obtained them for her. However, these letters were unsworn, and her father and father-in-
law were not subject to cross-examination. In these circumstances, it was permissible for
the BIA to give the documents relatively little weight. See Chen v. Att’y Gen., 676 F.3d
112, 117 (3d Cir. 2011); see also Lin v. Att’y Gen., 700 F.3d 683, 686-88 (3d Cir. 2012).
According to Lin, the BIA failed to consider her background evidence regarding
the application of the family planning policy in Fujian Province. The Board discounted
this evidence after determining that it was similar to evidence addressed in In re J-W-S-,
24 I. & N. Dec. 185 (BIA 2007), and In re J-H-S-, 24 I. & N. Dec. 196 (BIA 2007). In
any event, the BIA reasonably determined that this evidence did not concern current
country conditions, did not relate to individuals similarly situated to Lin, or did not relate
to policies in Fujian Province. Notably, the Board reasonably concluded that the record
as a whole reflects that physical coercion is uncommon and unsanctioned.
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The 2007 United States Department of State Profile of Asylum Claims and
Country Conditions for China (“2007 Profile”) indicates that although China continues to
enforce its family planning regulations, it does not use measures such as forcible
sterilization on Chinese couples who return to China with two children born abroad. See
In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214 (BIA 2010). We have described H-L-
H- & Z-Y-Z- as “comprehensive” and “persuasive,” Chen, 676 F.3d at 114, and have
noted its conclusion that “physical coercion to achieve compliance with family planning
goals is uncommon and unsanctioned by China’s national laws and . . . the overall policy
is much more heavily reliant on incentives and economic penalties.” Id. at 115 (internal
quotation marks omitted). Indeed, much of the evidence Lin submitted indicates that
physical coercion is uncommon and that Fujian Province’s overall policy is more heavily
reliant on economic incentives and penalties. See Zubeda v. Ashcroft, 333 F.3d 463, 478
(3d Cir. 2003) (noting that State Department reports are "'the most appropriate and
perhaps the best resource'" regarding political situations (quoting Kazlauskas v. INS, 46
F.3d 902, 906 (9th Cir. 1995))). Although Lin argued that she would face an onerous fine
for violating family planning policies, the record supports the BIA’s determination that
Lin had not shown that she would be unable to pay the fine and that enforcement of such
fines in Fujian Province has been “lax” and “uneven.” Given all this, the evidence in the
record does not compel a conclusion that Lin has an objectively reasonable fear of
forcible sterilization.
Regarding Lin’s religious persecution claim, substantial evidence supports the
BIA’s determination that Lin failed to show a well-founded fear of future persecution.
5
Lin needed to show an objectively reasonable fear by showing either that she would be
individually selected for persecution or by demonstrating a “pattern or practice” of
persecution of Christians in China. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005)
(quoting 8 C.F.R. § 208.13(b)(2)(iii)(A)). The documentary evidence, including the 2007
International Religious Freedom Report and the 2007 Profile, indicates that there are
millions of Christians worshipping in unregistered house churches in China and that some
are persecuted. However, the frequency of persecution varies by region, and often only
church leaders and proselytizers are targeted. Lin did not allege that she is, or is likely to
become, a leader or proselytizer, nor has she shown that officials in China are aware of
her religious beliefs. Further, although Lin testified that her father was detained briefly
for his underground church activities, she also testified that he and other members of her
family were able to resume their activities. See, e.g., Ambartsoumian v. Ashcroft, 388
F.3d 85, 90 (3d Cir. 2004) (no well-founded fear of persecution shown when parents and
siblings remained in native country as practicing Baptists and no evidence that they were
persecuted was presented). Accordingly, the record before us does not compel a contrary
outcome to the BIA’s rejection of Lin’s claim. See Yu, 513 F.3d at 349 (“This Court has
repeatedly recognized that State Department reports may constitute substantial
evidence.”).
IV.
Based on a thorough review of the record, we conclude that the evidence in the
administrative record does not compel a conclusion contrary to that of the BIA. See
Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). Because Lin did not meet the
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standard for obtaining asylum, she also failed to satisfy the “higher burden of proof”
required for withholding of removal. Chen, 676 F.3d at 117. Furthermore, we lack
jurisdiction to consider any challenge to the denial of CAT relief, as Lin failed to exhaust
such a claim before the BIA. See 8 U.S.C. § 1252(d)(1); Castro v. Att’y Gen., 671 F.3d
356, 365 (3d Cir. 2012). For the foregoing reasons, we will deny the petition for review.
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