NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4457
___________
CHUAN MING YANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A077-052-428 )
Immigration Judge: Honorable Frederic G. Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 13, 2011
Before: FUENTES, VANASKIE and NYGAARD, Circuit Judges
(filed: April 20, 2011 )
___________
OPINION
___________
PER CURIAM
Petitioner Chuan Ming Yang seeks review of the Board of Immigration
Appeals‟ (“BIA”) final order of removal. For the following reasons, we will deny the
petition for review.
Chuan Ming Yang is a native and citizen of the People‟s Republic of China. He
arrived in the United States in September 1999, with the assistance of smugglers and was
paroled into this country the following month. In 2000, pursuant to a subpoena, Yang
provided testimony in criminal proceedings against the smugglers. Yang married in
November 2006, and now has two United States citizen children. Yang, as an alien who,
at the time of application for admission, lacked a valid entry document, was subject to
removal pursuant to section 212(a)(7)(A)(i) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1182(a)(7)(A)(i). He applied for asylum in August 2000, based upon
religious persecution (he is a Christian) and because of his illegal departure from China.
However, in removal hearings before the Immigration Judge (“IJ”) in 2007 and 2008,
Yang stated that he no longer wished to pursue his original asylum claims. He submitted
an amended asylum application in June 2008, claiming a fear of forcible sterilization on
account of the births of his two United States citizen children. In addition, during a July
2008 hearing, Yang added claims that he fears economic persecution due to his violation
of China‟s family planning laws and that he fears persecution for having testified against
the smugglers in 2000.
The IJ denied Yang‟s applications for relief in an oral decision issued on July 29,
2008. The IJ found that Yang lacked credibility, failed to corroborate certain aspects of
his claims, and failed to satisfy his burden of proof. Yang appealed. The BIA dismissed
Yang‟s appeal on November 6, 2009.
In a detailed opinion, the BIA concluded that Yang failed to meet his burden of
establishing an eligibility for asylum on the basis of his having violated China‟s family
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planning policies. After noting that the record documentary evidence regarding the
conditions in China and Yang‟s locality in particular (e.g., Fujian Province) is the same,
or contained the same information, as the evidence the BIA and this Court have
previously considered, the BIA concluded that such evidence does not establish that
Yang‟s fear of forcible sterilization is an objectively reasonable one. See BIA‟s Decision
of 11/6/09 at 2 (citing In re J-W-S-, 24 I. & N. Dec. 185 (BIA 2007); In re S-Y-G-, 24 I.
& N. Dec. 247 (BIA 2007); In re C-C-, 23 I. & N. Dec. 899 (BIA 2006); Yu v. Att‟y
Gen., 513 F.3d 346 (3d Cir. 2008)).
The BIA rejected Yang‟s contention that his case was distinguishable, and that a
statement from his sister and a letter from his local Village Committee constituted
adequate objective evidence to show that his fear of being forcibly sterilized was well-
founded. In addition to finding that the statement from Yang‟s sister lacked sufficient
details under In re T-Z-, 24 I. & N. Dec. 163 (BIA 2007), to establish that her
sterilization procedure was done by “force,” the BIA found that Yang‟s sister and the
other individuals Yang knew to be sterilized were not similarly situated to him insofar as
they were not individuals who returned to China with two foreign born children. The
BIA found no other reliable objective evidence included in the record to show that others
like Yang, who have more than one U.S. born child, have been forced to undergo
sterilization upon their return to China. The BIA likewise found that the IJ reasonably
gave little weight to the Village Committee‟s letter given that it was not authenticated, it
was not the original, and the author was not identified.
Recounting its determination in In re J-W-S-, 24 I. & N. Dec. at 191, that the
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sanctions imposed upon a returnee in Yang‟s position “would be fines or other economic
penalties,” see BIA‟s Decision at 3, the BIA concluded that Yang‟s failure to mention his
inability to pay a $7,000-$8,000 fine in either his amended asylum application or in any
of the statements from his wife or other family members rendered suspect his belatedly
raised claim that he has a genuine subjective fear of economic persecution. The BIA
further found that Yang failed to provide any reasonably available objective evidence to
aid in evaluating his personal financial circumstances in relation to the fines he believed
he would face upon his return to China should he decide to enter his children into the
household registration so that they would be entitled to receive government benefits.
Given Yang‟s failure to meet his burden of showing a subjective and objective fear of
economic harm that would amount to persecution, the BIA affirmed the IJ‟s
determination that Yang did not establish a well-founded fear of economic persecution on
account of a protected ground.
Yang‟s contention that he is eligible for asylum as a member of a particular social
group, i.e., those who have testified against smugglers in criminal proceedings, fared no
better. Once again, the BIA emphasized Yang‟s failure to specifically indicate his
alleged fear of the smugglers in his amended asylum application and in the statements of
his family members. Aside from its concern with these omissions, the BIA placed special
emphasis on the fact that Yang did not dispute on appeal the IJ‟s determination that he
provided no evidence whatsoever “establishing that the Chinese government would be
unable or unwilling to control, or to protect him from these smugglers.” Id. At 4.
Having determined that Yang failed to establish past persecution or a well-
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founded fear of future persecution on account of a protected ground, the BIA concluded
that the IJ properly denied Yang‟s application for asylum. Because Yang failed to satisfy
the lower burden of proof for asylum, the BIA further concluded that he could not meet
the higher burden of proof for withholding of removal. Finally, the BIA agreed with the
IJ that Yang failed to show that he is likely to be tortured upon his return to China. Yang
filed a timely petition for review.
On review, Yang challenges both the IJ‟s adverse credibility determination and the
BIA‟s substantive rulings. We need not address the adverse credibility determination
because the substantive rulings are independently dispositive and Yang‟s challenges to
those rulings lack merit. We have jurisdiction under 8 U.S.C. § 1252(a)(1). Because the
BIA “issue[d] its own decision on the merits, rather than a summary affirmance, we
review its decision, not that of the IJ.” Catwell v. Att‟y Gen., 623 F.3d 199, 205 (3d Cir.
2010), citing Sheriff v. Att‟y Gen., 587 F.3d 584, 588 (3d Cir. 2009). “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).
Yang contends that the IJ and BIA erred in concluding that his claim based on
China‟s family planning policy is precluded by its previous decisions and relevant
precedent from this Court. Yang further asserts that the BIA failed to give sufficient
weight to his evidence regarding the enforcement of the family planning policy in his
hometown. We reject petitioner‟s contentions as meritless.
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We recently disposed of issues very similar to those raised by Yang in Chen v.
Att‟y Gen., -- F.3d --, 2011 WL 923353 (3d Cir. Mar. 18, 2011). Our decision in Chen
began with a recap of the BIA‟s “comprehensive discussion” in In re H-L-H & Z-Y-Z-,
25 I. & N. Dec. 209 (BIA 2010). The respondents in In re H-L-H & Z-Y-Z- were also
natives and citizens of China from the Fujian Province, who had two U.S. citizen children
and claimed a fear of forcible sterilization and significant fines in accordance with
China‟s family planning policies should they be returned to their native country. In
considering whether the female respondent had shown that she possessed a well-founded
fear of forcible sterilization or other sanctions rising to the level of persecution, the BIA
“noted that State Department reports on country conditions, including the Profiles of
Asylum Claims & Country Conditions, are „highly probative evidence and are usually the
best source of information on conditions in foreign nations.‟” Chen, 2011 WL 923353, at
*2, quoting In re H-L-H & Z-Y-Z-, 25 I. & N. Dec. at 213. Having considered the same
State Department report on country conditions contained in the instant record, e.g., the
May 2007 China: Profile of Asylum Claims and Country Conditions, the BIA concluded
the following:
[T]he evidence presented “indicates that physical coercion to achieve
compliance with family planning goals is uncommon and unsanctioned by
China‟s national laws and that the overall policy is much more heavily
reliant on incentives and economic penalties.” With regard to those
incentives and penalties, the BIA held that “the respondent has not shown
that her locality represents a current exception to the general rules in which
the Chinese Government relies on a variety of measures short of
persecution to enforce its population control policy.”
Id. At *3, quoting In re H-L-H & Z-Y-Z-, 25 I. & N. Dec. at 218.
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As in Chen, we discern no error on the part of the BIA in concluding that Yang
does not have a well-founded fear of future persecution, and find substantial evidence in
the record in the instant case to support the BIA‟s denial of Yang‟s asylum claim.
Although Yang is correct in his assertion that a citation to BIA precedent alone does not
support a “categorical rejection” of his asylum application, see Pet.‟s Br. At 10, quoting
Xiao Kui Lin v. Mukasey, 553 F.3d 217, 224 (2d Cir. 2009), such is not the case here.
While recognizing that Yang presented much of the same record documentary evidence
previously considered and found lacking by both this Court and the BIA, the BIA once
again specifically concluded that the record evidence fell short of establishing that
Yang‟s fear of forcible sterilization for having fathered two U.S. citizen children was
objectively reasonable. See BIA‟s Decision at 2.
Yang‟s contention that the IJ and BIA failed to give sufficient weight to evidence
he submitted regarding the enforcement of the family planning policy in his hometown is
meritless. Even aside from the BIA‟s finding regarding the sufficiency of Yang‟s sister‟s
statement, the BIA correctly noted that neither Yang‟s sister nor any one of the other
individuals known by Yang to have been sterilized was similarly-situated to him. None
had returned to China after having fathered two foreign-born children. See id. At 2,
citing Hr‟g. Tr. 34-46, Oct. 17, 2007 (A. R. at 142-44).1
1
We agree with respondent‟s contention that Yang failed to exhaust administrative
remedies with respect to any argument he wishes to advance regarding the letters
authored by Jin Fu Chen and Jiang Zhen Chen, and apparently submitted on behalf of
asylum applicants named Jin Tuan Chen and Nansheng Chen. These statements were
purportedly from individuals who claim to have had children outside China (specifically,
in Japan), and were forcibly sterilized upon returning to China. According to the BIA,
7
Additionally, the BIA agreed with the IJ‟s decision to give little weight to the
Village Committee letter, which is unauthenticated. While it is true that a failure to
authenticate a document under 8 C.F.R. § 287.6 does not warrant per se exclusion, and
that an applicant is permitted to prove authenticity in another manner, see Liu v.
Ashcroft, 372 F.3d 529, 533 (3d Cir. 2004), Yang made little attempt to authenticate the
Village Committee letter (of which he only submitted a photocopy). Although the
statement submitted by Yang‟s father does indicate that he obtained the “notice” from the
local Village Committee, the BIA observed that it provides no information as to who
served as Yang‟s father‟s contact in the Village Committee or who authored the letter.
We thus find no fault with the BIA‟s conclusion that the IJ acted reasonably in giving
“little reliable and probative weight” to the Village Committee letter. See Chen, 2011
WL 923353, at *4. Moreover, as the BIA correctly noted, the Village Committee letter
does not state that Yang would be sterilized by force or specify the consequences if he
were to refuse sterilization. Thus, the BIA‟s finding that Yang does not have a well-
founded fear of forcible sterilization has substantial record support.
As for Yang‟s challenges to the BIA‟s findings that he failed to established that he
will be subjected to fines rising to the level of persecution or to persecution as a member
of a particular social group, we find his contentions to be meritless and dispose of them
the IJ did not rely upon these documents because they were unauthenticated and Yang
made no effort to identify who the individuals were or how he obtained their statements.
The BIA specifically noted that Yang did not challenge this aspect of the IJ‟s decision on
appeal. See BIA Decision at 2, n.5. Accordingly, Yang may not now be heard to
advance that argument here. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.
2005).
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with little discussion. Even putting aside the BIA‟s doubts regarding whether Yang‟s
belatedly raised claim of economic persecution was genuine, we do not hesitate to
conclude that substantial evidence supports the BIA‟s finding that Yang failed to provide
any “reasonably available objective evidence that would have aided in evaluating what
his personal financial circumstances are in relation to the fines” he believes he faces upon
his return to China. See BIA‟s Decision at 3. Substantial evidence likewise supports the
BIA‟s finding that Yang failed to meet his burden of demonstrating a subjective and
objective fear of economic harm so severe as to constitute persecution. See Chen, 2011
WL 923353, at *4 (noting that “the 2007 State Department Country Report on Human
Rights Practices for China … reflects a variation in the amount of social compensation
fees and the severity of hardship that the Chinese government imposes for a violation of
family planning policy.”). We cannot conclude that the record presented – which
contains no evidence of the personal financial circumstances of a petitioner who has been
in this country for over eleven years and has secured employment during that time –
compels a finding that Yang faces the prospect of fines and an ensuing economic
disadvantage so severe that his life or freedom is threatened. See Li v. Att‟y Gen., 400
F.3d 157, 168 (3d Cir. 2005).
The BIA found Yang‟s claim that he was eligible for asylum as a member of a
particular social group (e.g., those who has testified against smugglers in criminal
proceedings) deficient on numerous grounds. Dispositive of the claim on review,
however, is the fact that Yang failed to dispute on appeal to the BIA the IJ‟s
determination “that he provided no evidence establishing that the Chinese government
9
would be unable or unwilling to control, or to protect him from these smugglers.” BIA
Decision at 4, citing Lie v. Ashcroft¸ 396 F.3d 530, 537 (3d Cir. 2005)(noting that harm
perpetrated by civilians does not constitute persecution unless such acts are committed by
the government or forces the government is either unable or unwilling to control). Yang
cannot complain for the first time on review to this Court that the IJ did not afford him a
sufficient opportunity to provide evidence in support of this claim given that he did not
raise the claim as a basis for asylum until his 2008 hearing was underway, and this being
so despite his testimony that his family in China had been suffering harassment and
receiving threats for more than two years prior to his hearing. See Hr‟g. Tr. At 49 (A. R.
158).
Of course, having failed to establish his eligibility for asylum, the BIA correctly
concluded that Yang could not satisfy the higher burden required for withholding of
removal. Chen v. Ashcroft¸ 376 F.3d 215, 223 (3d Cir. 2004). Finally, Yang‟s failure to
demonstrate that he would more likely than not be forcibly sterilized if removed to China
is fatal to his CAT claim. See Berishaj v. Ashcroft, 378 F.3d 314, 332 (3d Cir. 2004).
We have fully considered Yang‟s other challenges – including his contention that the
BIA erred in distinguishing foreign-born children for purposes of China‟s family
planning policy – and find them to be lacking in merit. See Chen, 2011 WL 923353, at
*4. Accordingly, we dispose of them without further discussion.
For the foregoing reasons, we deny the petition for review.
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