IMG-032 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-4560
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TIANDI JIANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
__________________________________
Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A071-961-011)
Immigration Judge: Margaret Reichenberg
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 11, 2011
Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: January 12, 2011)
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OPINION OF THE COURT
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PER CURIAM
Tiandi Jiang (“Jiang”) petitions for review of the Board of Immigration Appeals’
final order of removal. For the reasons that follow, we will deny the petition for review.
Jiang, a native and citizen of China, entered the United States on August 14, 1991,
presenting a fraudulent Japanese passport and requesting admission under the Visa
Waiver Program (“VWP”) pursuant to Immigration & Naturalization Act (“INA”) §
217(a)(2), 8 U.S.C. § 1187(a)(2).1 He was paroled into the United States, and, on August
26, 1991, filed an application for asylum, withholding of removal, and for protection
under the Convention Against Torture. The Department of Homeland Security referred
the asylum application to an Immigration Judge, and Jiang then filed a supplemental
application, in which he claimed that he feared persecution in China because of his
opposition to China’s population control policies.
A merits hearing was held on June 17, 2008. Jiang and his ex-wife Jinju testified.2
They were married in 1981, and, on December 24, 1982, she gave birth to their first
child. On April 14, 1986, Jinju gave birth to their second child. Soon thereafter, Jinju
was sterilized involuntarily. Later when the couple registered their second child, they
were fined for the “illegal birth.” Jiang came to the United States 5 years later.
Numerous articles and items concerning population control activities in Fujian Province
were admitted into evidence, as well as medical records documenting that Jinju had
undergone a complete bilateral tubal ligation.
On June 25, 2008, the IJ denied relief. She found Jiang credible but concluded
that he could not base his claim for asylum on his wife’s involuntary sterilization. Jiang
1
The VWP authorizes the Attorney General to waive the entry document
requirements for qualifying nationals of certain countries who are seeking temporary
admission to the United States as nonimmigrant visitors. See INA § 217(a), 8 U.S.C. §
1187(a); 8 C.F.R. §§ 217.1 et seq.
2
The date the couple divorced is not clear from the record. Jinju is now a lawful
permanent resident of the United States. A.R. 229.
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had to demonstrate a well-founded fear of persecution based on his own fear of being
persecuted, and there was no evidence showing that he suffered persecution in the past on
account of resistance to China’s population control policies. The IJ emphasized that
Jiang did not protest or resist his wife’s sterilization or the fine he received after he
registered his youngest child in their household registry, and he complied with all of the
Family Planning Office’s penalties. In addition, there was no evidence that he would be
persecuted in the future. Having determined that Jiang failed to satisfy the lower burden
of proof for asylum, the IJ further determined that he failed to qualify for withholding of
removal. Jiang also failed to demonstrate that it was more likely than not that he would
be tortured in China. The IJ ordered Jiang’s removal to China.
Jiang appealed to the Board of Immigration Appeals and also filed a motion to
remand so that he might pursue adjustment of status based on a relative petition (Form I-
130) filed by his United States citizen daughter. In a decision dated November 19, 2009,
the Board dismissed the appeal and denied a remand. In pertinent part, the Board
determined that the IJ correctly denied Jiang’s claim for asylum because he failed to
establish that he was persecuted for resisting China’s coercive population control policy.
The Board further held that Jiang did not establish that his fine was an onerous amount or
sufficient to constitute economic persecution. Jiang also failed to establish that the fine
resulted from his resistance to China’s family planning policies. The Board affirmed the
IJ’s decision denying withholding of removal and CAT protection. With respect to
denying the motion to remand, the Board reasoned that, because Jiang requested
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admission into the United States through the Visa Waiver Program with a fraudulent
passport, he was ineligible for adjustment of status.3
Jiang has petitioned for review of this decision. In his brief he contends that he
sufficiently demonstrated his resistance to China’s population control policies, and the
Board erred in determining that he failed to establish that he was persecuted on account
of his resistance. Moreover, the Board erred in concluding that he failed to establish a
well-founded fear of future persecution. Jiang also contends that the Board erred in
denying his motion to remand.
We will deny the petition for review. We have jurisdiction under 8 U.S.C. §
1252(a)(1), (b)(1). To qualify for asylum or withholding of removal, an applicant must
establish that he has a well-founded fear that he will be persecuted if removed to his
home country on account of race, religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b), 1231(b)(3). “[A] person
who has a well founded fear that he or she will be forced to [abort a pregnancy or
undergo involuntary sterilization] or [is] subject to persecution for [failure, refusal, or
resistance to undergo such a procedure] shall be deemed to have a well founded fear of
persecution on account of political opinion.” 8 U.S.C. § 1101(a)(42)(B).
Spouses do not automatically qualify as refugees under the Attorney General’s
decision in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) (spouse of person forced to
undergo abortion or sterilization is not automatically a refugee under INA § 101(a)(42)).
3
The government has represented that, on April 8, 2010, Jiang’s request for
admission under the Visa Waiver Program was “formally refus[ed].” See Respondent’s
Brief, 6 n.4.
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Matter of J-S- overruled Matter of S-L-L-, 24 I. & N. Dec. 1 (BIA 2006), and Matter of
C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997). We independently reached the same
conclusion in Lin-Zheng v. Att’y Gen. of U.S., 557 F.3d 147 (3d Cir. 2009) (en banc)
(overruling Sun Wen Chen v. Att’y Gen. of U.S., 491 F.3d 100, 107-108 (3d Cir. 2007).
Spouses may still establish eligibility for asylum by showing “other resistance,” or
resistance in their own right. Lin-Zheng, 557 F.3d at 157; Matter of J-S-, 24 I. & N. Dec.
at 538. The phrase other resistance “covers a wide range of circumstances, including
expressions of general opposition, attempts to interfere with enforcement of government
policy in particular cases, and other overt forms of resistance to the requirements of the
family planning law,” see Matter of S-L-L-, 24 I. & N. Dec. at 10. See also Matter of M-
F-W- & L-G-, 24 I. & N. Dec. 633, 638 (BIA 2008) (removing IUD or failing to attend
mandatory gynecological appointment sufficient to show other resistance).
We must uphold the agency’s findings as long as they are “supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
“[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We conclude that
Jiang’s evidence does not compel the conclusion that he exercised resistance to China’s
population control policies sufficient to qualify him for refugee status. See id. During
the administrative proceedings, Jiang argued that a fine imposed by the Chinese
government when he registered his second child was onerous. A fine may rise to the
level of economic persecution. Li v. Att’y Gen. of U.S., 400 F.3d 157, 168 (3d Cir.
5
2005) (deliberate imposition of severe economic disadvantage which threatens person’s
life or freedom may constitute persecution). Jiang asserts that the government levied a
“huge” fine on him, A.R. 618, but he does not state the amount of the fine or indicate
how it threatened his life or freedom, see id. The Board thus correctly determined that
Jiang failed to establish that the fine was severe enough to constitute economic
persecution.
Further, the Board correctly determined that Jiang failed to establish that the fine
was on account of his resistance to China’s population control policies. The fine was
imposed as a result of the birth of his second child, and Jiang himself stated in his
affidavit in support of his asylum application that his ex-wife became pregnant when her
IUD accidentally became dislodged. A.R. 618. Similarly, Jujin stated in her affidavit
that the IUD “got loose.” A.R. 229. This unexpected event thus was not the result of
Jiang’s resistance to China’s population control policies.
Accordingly, substantial evidence supports the Board’s holding that Jiang failed to
establish past persecution. Jiang also failed in his burden to show a well-founded fear of
persecution. He paid the fine for the birth of his second child and his wife was sterilized
in 1986. There was no evidence that any more harm would befall him in China. See
Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003) (in absence of evidence of past
persecution alien must demonstrate subjective fear of persecution through credible
testimony that his fear is genuine and that a reasonable person in his circumstances would
fear persecution if returned to his home country). Because Jiang could not meet the
asylum standard, he necessarily cannot satisfy the withholding of removal standard. See
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Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407 (1984) (withholding of
removal standard requires alien to show by “clear probability” that his life or freedom
would be threatened on account of a protected ground in the proposed country of
removal). See also Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S.
421, 430 (1987) (“would be threatened” standard has no subjective component). In
addition, the record does not compel a conclusion that Jiang met his burden of
establishing that it is more likely than not that he will be tortured upon his return to
China. See 8 C.F.R. § 1208.16(c)(2).
Regarding the motion to remand, we review the Board’s decision for an abuse of
discretion. See McAllister v. Att’y Gen. of the U.S., 444 F.3d 178, 185 n.7 (3d Cir.
2006). We have jurisdiction to review this order. Bradley v. Att’y Gen. of the U.S., 603
F.3d 235, 237 n.1 (3d Cir. 2010), petition for cert. filed, 79 U.S.L.W. 3210 (September
20, 2010). Jiang contends in his brief that, although the VWP has a no-contest clause
limiting a VWP entrant to contesting removal only through an asylum application, see 8
U.S.C. § 1187(b)(2), those who enter the United States under the VWP nevertheless
remain eligible to adjust status through an immediate relative petition pursuant to the
Ninth Circuit Court of Appeals’ decision in Freeman v. Gonzales, 444 F.3d 1031, 1034
(9th Cir. 2006) (included in the class of non-immigrants who may petition for adjustment
of status are VWP entrants, but only those who seek adjustment pursuant to an immediate
relative petition). See Petitioner’s Brief, at 17. The government counters that the
Immigration & Naturalization Service refused admission to Jiang after finding him
inadmissible under INA § 212(a)(6)(c)(i), 8 U.S.C. § 1182(a)(6)(c)(i), as an alien who, by
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fraud or misrepresenting a material fact seeks to procure admission into the United States.
See Respondent’s Brief, at 19. Freeman thus does not apply to Jiang because it dealt with
an alien who was admitted under the VWP. See id.
We note that the Ninth Circuit subsequently narrowed Freeman to cover only
VWP entrants who petition to adjust their status during their lawful 90-day stay, see
Bradley, 603 F.3d at 241-42 (citing Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir.
2008)). In Bradley, we joined in this narrower view, holding that an alien was not
eligible to apply for adjustment of status after expiration of the 90-day VWP stay, and we
noted that this narrower view was shared by six of our other sister Courts of Appeals, see
id. at 242 n.7. Jiang’s application to adjust status was filed on June 3, 2009, A.R. 12,
almost 8 years after he was paroled into the United States. We thus are not persuaded by
his argument that the Board abused its discretion in denying his motion to remand.
For the foregoing reasons, we will deny the petition for review.
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