NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3000
___________
AILIN JIANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A079-190-069)
Immigration Judge: Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 28, 2010
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed :April 28, 2010)
___________
OPINION
___________
PER CURIAM.
Ailin Jiang, a native and citizen of the People’s Republic of China, seeks review of
a final order of removal entered by Board of Immigration Appeals (“BIA”). We will deny
the petition for review.
I.
Jiang, currently age thirty-five, entered the United States in February 2005 without
being admitted or paroled. He was placed in removal proceedings shortly thereafter, at
which time he conceded removability under INA § 212(a)(6)(A)(i). He applied for
asylum, withholding of removal, and Convention Against Torture (“CAT”) relief. At a
hearing before the Immigration Judge (“IJ”) in 2006, Jiang testified that he married in
China and has one child (a son). Shortly after his son was born in 1997, his wife received
a forced IUD. In 2002, the couple hired a private doctor to remove the IUD so that they
could have more children. After the IUD was removed, the couple went into hiding at a
cousin’s home while Jiang worked nearby. In 2003, Jiang’s wife became pregnant and
tried to hide that fact by staying indoors. The pregnancy was discovered by family
planning officials, a forced abortion was performed at a hospital, and a new IUD was
inserted. Jiang’s home village family planning office fined him 8,000 yuan, which he
paid in full in two installments. Jiang left for the United States shortly thereafter, with his
family remaining in China.
On March 14, 2006, the IJ rejected Jiang’s credibility and denied relief. The BIA
sustained Jiang’s appeal and remanded the matter for further proceedings, holding that the
adverse credibility determination was “largely based on improper speculation” and failed
to comport with controlling precedent.
Upon remand, the IJ scheduled a new hearing. At that hearing, Jiang elected to
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“rest on the record” from the 2006 hearing and offered no additional testimony. The IJ
denied the applications for relief on the merits. Accepting Jiang’s credibility, the IJ held
that he failed to establish a claim for asylum based on “other resistance” to China’s
population control program. The IJ found that payment of the fine did not rise to the level
of persecution, that the act of hiding at the cousin’s home did not warrant relief, and that
Jiang personally faced no threat of sterilization or persecution in China.
The BIA dismissed Jiang’s appeal. It agreed with the IJ that payment of the fine
and the act of hiding from officials so that Jiang and his wife could have another child do
not rise to the level of past persecution, and do not establish a well-founded fear of future
persecution, particularly in the absence of evidence that authorities are seeking out Jiang.
The BIA thus denied asylum, and it affirmed the denials of withholding of removal and
CAT relief. Jiang timely filed a petition for review in this Court.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1).1 “[W]hen 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 agency factual findings regarding asylum and
1
Because Jiang makes only passing mention of the CAT claim in his opening
brief, and does not set forth argument on the issue, we deem the CAT claim waived. See
Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005). Accordingly, we limit our
analysis to asylum and withholding of removal.
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withholding of removal under the deferential substantial evidence standard, which asks
that those findings be supported by “reasonable, substantial, and probative evidence on
the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)
(citing 8 U.S.C. § 1105a(a)(4)); see Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005).
Such findings are deemed “‘conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.’” Chen, 376 F.3d at 222 (quoting 8 U.S.C.
§ 1252(b)(4)(B)).
To establish eligibility for asylum, Jiang must show past persecution or a well-
founded fear of future persecution on account of, inter alia, political opinion. See Vente
v. Gonzales, 415 F.3d 296, 300 (3d Cir. 2005). Here, the record does not compel a
finding of eligibility for asylum. Jiang cannot claim “other resistance” based on his
wife’s subjugation to family planning policy, see Lin-Zheng v. Att’y Gen., 557 F.3d 147,
156 (3d Cir. 2009) (en banc), and thus Jiang’s claim for relief turns, as the BIA
recognized, on the 8,000 yuan fine and the fact that he hid for a time at his cousin’s home.
While “deliberate imposition of severe economic disadvantage which threatens a
petitioner’s life or freedom may constitute persecution,” Li v. Att’y Gen., 400 F.3d 157,
168 (3d Cir. 2005), the 8,000 yuan fine imposed upon Jiang does not meet this standard.
Jiang paid the fine in two installments over a short period of time, and a review of the
record reveals no evidence at all that the fine imposed a severe economic disadvantage
amounting to persecution. See id. (“Such disadvantage might, for instance, involve the
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deprivation of liberty, food, housing, employment, and other essentials of life.”). Jiang
essentially concedes that he failed to show hardship resulting from the fine, but he argues
that it was the IJ who erred by failing to ask “more questions” of Jiang to create a record
on the issue. As the BIA correctly noted, however, Jiang’s counsel chose not to offer
additional testimony after the matter was remanded for further proceedings. Because
Jiang had ample opportunity to create a record regarding economic persecution, we
cannot fault the IJ for Jiang’s failure to do so. Finally, the record does not compel the
conclusion that Jiang’s act of hiding with his wife for a short time amounted to a form of
“other resistance” under 8 U.S.C. § 1101(a)(42)(B), or, in any event, that Jiang suffered
any harm rising to the level of persecution as a result of his hiding.
Where past persecution is not established, an alien can demonstrate a well-founded
fear of future persecution by showing that he has a “genuine fear,” and that a “reasonable
person in [his] circumstances would fear persecution if returned to [his] native country.”
Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003). The BIA correctly noted
that there is no evidence of record that Chinese authorities have an interest in Jiang, or
that Jiang has a well-founded fear based on his purported resistance to family planning
policies. We conclude that the asylum claim was properly denied.
“[A]n applicant who cannot meet the standard for asylum will necessarily be
unable to meet the standard for withholding of removal.” Gomez-Zuluaga v. Att’y Gen.,
527 F.3d 330, 348-49 (3d Cir. 2008). Because Jiang has not shown past persecution or a
5
well-founded fear of future persecution, he cannot meet the higher standard for
withholding of removal. See id.
III.
For the foregoing reasons, we will deny the petition for review.
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