Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-4-2004
Chen v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3185
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"Chen v. Atty Gen USA" (2004). 2004 Decisions. Paper 418.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-3185
____________
YONG ZHEN CHEN,
Petitioner
v.
JOHN ASHCROFT,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A77-322-686)
____________
Argued July 13, 2004
Before: RENDELL, BARRY and FISHER, Circuit Judges.
(Filed: August 4, 2004)
Marco Pignone, III (Argued)
Wilson & Pignone
117 South 17th Street, Suite 908
Philadelphia, PA 19103
Attorney for Petitioner
Matthew L. Zabel (Argued)
United States Department of Justice
Appellate Section
950 Pennsylvania Avenue, N.W., Room 4632
Washington, DC 20530
Douglas E. Ginsburg
John D. Williams
Terri J. Scadron
Robbin K. Blaya
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Petitioner Yong Zhen Chen appeals the order of the Board of Immigration Appeals
(“BIA”) denying his applications for asylum, withholding of deportation, and relief under
the Convention Against Torture. Because the BIA’s order was supported by substantial
evidence, we will dismiss the petition for review.
Chen was engaged and the woman became pregnant. The couple had not
undergone a traditional Chinese wedding ceremony, and even if they had, could not
register a traditional marriage because the woman was underage under China’s birth
control policy. She was subsequently ordered to have an abortion by Chinese birth-
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control officials. When officials arrived to escort the woman to the abortion, Chen tried
to prevent them from entering their home. He was surrounded and beaten while his
fiancee was dragged from the bedroom and kicked. She bled and suffered a miscarriage.
The next day, Chen complained to officials that they had killed his baby. He was
detained at the police station, handcuffed to a window frame, slapped, and knocked
unconscious. Two days later, he was released on bail. Officials threatened to order Chen
to return to the station at any time, and that he would have to pay a fine. Officials came
to Chen’s home “many times” and said his “wife” could not live with him. Chen could
not pay a fine and officials removed property from his home when he tried to leave China.
The immigration judge denied Chen’s applications for asylum, withholding of
deportation, and relief under the Convention Against Torture. The BIA affirmed, finding
that Chen “failed to show that he or his spouse has been forced to abort a pregnancy,
forced to undergo involuntary sterilization, or persecuted for resistance to a coercive
population control program.” Chen filed a timely petition for review.
To obtain reversal, Chen “must show that the evidence he presented was so
compelling that no reasonable factfinder could fail to find the requisite fear of
persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). Although we
sympathize with Chen and do not condone his treatment at the hands of the birth-control
officials, the BIA’s finding that Chen did not warrant asylum is supported by substantial
evidence. See Prasad v. INS, 47 F.3d 336 (9th Cir. 1995) (no past persecution despite
3
custodial beating); Kapcia v. INS, 944 F.2d 702 (10th Cir. 1991) (asylum denied despite
repeated two-day detentions where petitioner was interrogated and beaten).
Alternatively, Chen argues that he may bootstrap his asylum application through
the nature of his relationship with his fiancee. As support, he cites to the BIA’s decision
of In re C-Y-Z, 21 I. & N. Dec. 915 (BIA 1997), where the BIA held that the spouse of a
woman who underwent an involuntary sterilization merited asylum. Chen asks that C-Y-
Z be extended to non-married adults who were legally prohibited from officially marrying
due to the minimum age requirements of China’s birth control policy. We decline to
extend C-Y-Z, because the plain language of the definition of “refugee” requires an
individualized analysis of the alleged persecution. 8 U.S.C. § 1101(a)(42). To the extent
that C-Y-Z takes a categorical approach regarding spouses, that approach should not be
extended to the current context, and the BIA does not urge us to hold otherwise. As the
BIA’s conclusions regarding Chen’s experiences were supported by substantial evidence,
we may not substitute our view for that of the BIA.1
We have considered Chen’s remaining arguments and find them to be without
merit. Accordingly, the petition for review will be DENIED.
1
Nor is petitioner aided by the Ninth Circuit’s recent decision in Ma v. Ashcroft, where
the Court overturned a BIA order denying asylum to a man whose traditional marriage
could not be officially registered. 361 F.3d 553 (9th Cir. 2004). That decision is
inapposite as Chen was unmarried, either officially or traditionally.
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