Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-16-2005
Fei v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3407
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3407
________________
SHI FEI,
Petitioner
v.
*ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
*(Caption amended pursuant to Rule 43(c), Fed. R. App. P.)
____________________________________
On Review of a Decision of the
Board of Immigration Appeals
(Agency No. A77 121 721)
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
May 13, 2005
Before: ALITO, SMITH AND BECKER, CIRCUIT JUDGES
(Filed : May 16, 2005 )
_______________________
OPINION
_______________________
PER CURIAM
Shi Fei, a citizen of China, petitions for review of a final order of the Board of
Immigration Appeals (BIA). We will deny the petition for review.
I.
In 2001, Shi attempted to enter the United States without any valid documents.
When questioned, he asked for asylum. During subsequent proceedings before an
immigration judge (IJ), Shi conceded removability but sought asylum, withholding of
removal, and protection under the Convention Against Torture. Shi’s applications for
relief relied on two allegations: (i) that his girlfriend was forced by Chinese family
planning officials to have an abortion and (ii) that he feared he would be sent to jail, and
subjected to abuse there, on removal because this was the second time he had left China
illegally. The IJ denied relief, and the Board of Immigration Appeals (BIA) affirmed
without opinion. Shi timely petitioned for review.
II.
Because the BIA did not provide any independent analysis, we review the decision
of the IJ as if it were the BIA’s decision. Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d
Cir. 2001). Our standard of review is narrow. We must sustain the IJ’s removal order if
there is substantial evidence in the record to support it. Abdille v. Ashcroft, 242 F.3d
477, 483 (3d Cir. 2001). “Substantial evidence is more than a mere scintilla and is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998) (quotation omitted).
This is a deferential standard, and the IJ’s “finding must be upheld unless the evidence
2
not only supports a contrary conclusion, but compels it.” Abdille, 242 F.3d at 483-84
(citing INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992)).
To qualify for asylum, a petitioner must be unwilling to return to his country
“because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.” INA
§ 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A)]. The fear must be both subjective and
“supported by objective evidence that persecution is a reasonable possibility.” Lin v.
INS, 238 F.3d 239, 244 (3d Cir. 2001) (quotation omitted). To obtain withholding of
removal, an applicant must establish that his “life or freedom would be threatened” on the
basis of the categories listed in the asylum statute. INA § 241(b)(3)(A) [8 U.S.C.
§ 1231(b)(3)(A)]. To obtain protection under the Convention Against Torture, an
applicant must show it is more likely than not that he will be subjected to torture on
removal. Auguste v. Ridge, 395 F.3d 123, 149 (3d Cir. 2005).
III.
Shi contends the IJ should have awarded him relief because of the forced abortion
suffered by his girlfriend. See Petitioner’s Informal Brief ¶¶ 3, 7. A “person who has
been forced to abort a pregnancy or to undergo involuntary sterilization” is deemed, by
statute, to have been subjected to persecution. INA § 101(a)(42) [8 U.S.C.
§ 1101(a)(42)]. The BIA has extended this protection to the spouses of persons forced to
submit to coercive family planning policies, see Matter of C-Y-Z-, 21 I. & N. Dec. 915,
3
917, 919 (BIA 1997) (en banc), but it has declined to offer similar protection to
unmarried partners. See Chen v. Ashcroft, 381 F.3d 221, 227 (3d Cir. 2004). We
recently upheld the Board’s decision not to extend relief beyond spouses. See id. at 235.
That precedent controls here.
IV.
Shi’s remaining argument is that the IJ erroneously refused to award relief based
on the likelihood that he will be jailed on return to China as punishment for an illegal
departure. See Petitioner’s Informal Brief ¶¶ 3, 7. He stresses that when he previously
left China without permission, in 1999, he was detained for two weeks and forced to pay
a fine. Id. ¶ 3; A.R. 214-15.1 Upon review of the administrative record, and mindful of
the deferential standard of review, we cannot disturb the IJ’s decision.
“[F]ear of prosecution for violations of ‘fairly administered laws’ does not itself
qualify one as a ‘refugee’ or make one eligible for withholding of [removal].” Chang v.
INS, 119 F.3d 1055, 1060 (3d Cir. 1997). Only when it occurs “on account of” some
improper ground, such as political opinion, can prosecution under a generally applicable
law rise to the level of persecution. See id. at 1061-62. Here, the IJ found no reason to
suspect that Shi might be prosecuted as a means of persecuting him on the basis of some
1
In his brief, Shi states that he was “beaten up” in the Shanghai detention center where
he spent two weeks in 1999. Petitioner’s Informal Brief ¶ 3. He did not make this
allegation in the administrative proceedings, however. See A.R. 275 (asylum application,
214-15 (hearing testimony). Accordingly, we may not consider it here. See INA
§ 242(b)(4)(A) [8 U.S.C. § 1252(b)(4)(A)] (limiting our review to matters in the
administrative record).
4
status protected by the Immigration and Nationality Act (INA). A.R. 132. That
conclusion rests on substantial evidence. Indeed, we note that Shi’s prior arrest for illegal
departure occurred well before he had any encounters with family planning officials. See
A.R. 212-14. This fact suggests that prosecutions for illegal departure do occur routinely
(or, at least, that they occur in the absence of any motive that would be important under
the INA). Shi, moreover, provided the IJ with no tangible reason to think that any future
prosecution for illegal departure would be the result of, or made worse by, his girlfriend’s
pregnancy. See A.R. 214-15. In other words, Shi did not make out any case that he
reasonably fears a future prosecution that would be initiated “on account of” some
improper motive.2 INA § 101(a)(42)(A).
V.
For the foregoing reasons, we will deny the petition for review.
2
Because Shi did not meet his burden of making out an asylum claim, he necessarily
failed to allege facts sufficient to make the more demanding showing necessary for
withholding of removal. See, e.g., Etugh v. INS, 921 F.2d 36, 40 (3d Cir. 1990). As the
IJ concluded, see A.R. 133, nothing in the record suggests any likelihood that Shi will be
tortured.