Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-4-2008
Wu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4946
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4946
MEI XIU WU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A95-846-183
Immigration Judge: Rosalind K. Malloy
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 1, 2008
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed August 4, 2008)
___________
OPINION
___________
PER CURIAM
Petitioner Mei Xiu Wu, a married native and citizen of the People’s Republic of
China, was admitted into the United States on or about December 26, 1996. Wu married
in New York City on November 18, 1999. On or about August 23, 2002, after the birth of
her second United States citizen child, she applied for asylum under Immigration and
Nationality Act (“INA”) § 208(a), 8 U.S.C. § 1158(a), and withholding of removal under
INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and the Convention Against Torture, 8 C.F.R. §§
1208.16(c), 1208.18, claiming that she fears persecution in the future in the People’s
Republic of China if she returns because of her opposition to the Chinese government’s
coercive birth control policies. Wu’s asylum application was referred to an Immigration
Judge, and, on November 15, 2002, she was served with a Notice to Appear, alleging that
she was removable under INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), as an alien who
at the time of entry was inadmissible for lack of a valid entry document. Wu conceded
that she was removable as charged.
In her asylum application, Wu explained that she had no need for asylum until
after her second child was born on September 11, 2001 in Philadelphia, where she and her
family reside. Unlike before, she now is in violation of China’s birth control policies,
having had a daughter after the birth of a son. In a statement attached to her asylum
application, Wu stated that the family planning authorities in Fujian province will force
her to get sterilized, and she will be fined. Her children will not be permitted to register
and she will have to pay their school tuition with U.S. dollars. Wu also claimed that, if
she gets pregnant again, she will be forced to undergo an abortion. Finally, she contended
that, because she left the country illegally, she will be sentenced to jail for 6 months to 2
years.
At her removal hearing on May 26, 2005 in Philadelphia Immigration Court, Wu
testified that her mother and aunt suffered persecution at the hands of the family planning
2
authorities in Fujian province, and she was sent to the United States at the age of eighteen
so that she would not have a similar experience. If she returns to China, she will bring
her children with her. Her husband owns a restaurant in Philadelphia and is employed
there, but he could not care for the children himself, and he too is under an order of
removal in any event.
The Immigration Judge denied Wu’s application. She concluded that the asylum
application was untimely and that no exceptions applied for the late filing. With respect
to the application for withholding of removal under the INA, the IJ noted the absence of
any evidentiary support for Wu’s assertion that an individual who gave birth to two
children in the United States would be persecuted upon her return to China. The IJ
reviewed the only probative documentary evidence offered, the State Department’s
analysis of family planning enforcement in Fujian province in its 2004 Profile of Asylum
Claims and Country Conditions, and she noted that the provincial government indeed
vigorously defends its population policies. However, this 2004 Asylum Report showed
no clear evidence of forced sterilizations or abortions in the preceding 10 years. Local
physicians in contact with the U.S. Consulate General in Guangzhou reported that they
had not seen signs of forced abortions or sterilizations among their patients from Fujian
province. Consulate General officials visiting Fujian found that coercion through public
pressure has been used, but they found no evidence of forced abortion or property
confiscation. United States diplomats in China were not aware of any cases in which
returnees from the United States were forced to undergo sterilization upon their return.
3
On the other hand, economic sanctions are likely. Couples with unauthorized
children cannot hold government jobs, and families with unauthorized children must pay
“social compensation fees” upon their return from abroad. American children traveling
on American passports are not eligible for free public education. The IJ concluded,
nevertheless, that these economic sanctions do not rise to the level of persecution. In
addition, the Chinese government could legitimately punish Wu if she violated any laws
in leaving illegally. In any event, there was no evidence that she would be jailed upon her
return. The IJ further concluded that Wu failed to establish that she would be tortured for
any reason upon her return to China. Wu’s application for voluntary departure was
granted, but an order of removal to the People’s Republic of China would take effect
should she fail to depart within the required time.
Wu appealed to the Board of Immigration Appeals, contending, in pertinent part,
that Section D of the 2004 Profile of Asylum Claims and Country Conditions specifically
states that, in Fujian province, a family in which both parents are Chinese citizens would
be expected to conform to the restrictions in Chinese law on future offspring. This
statement could be construed to mean that Wu would be subjected to involuntary
sterilization or forced abortion should she become pregnant again. Also, her U.S. citizen
children would be deprived of a proper education. Wu urged the Board to consider that
she had demonstrated her “other resistance” to the Chinese government’s birth control
policies within the meaning of the expanded definition of “refugee” in INA § 101(a)(42).
In a decision dated October 31, 2006, the Board agreed with the IJ that Wu failed
4
to establish extraordinary circumstances for her failure to file an asylum application
within one year of her arrival, see generally Matter of Y-C-, 23 I. & N. Dec. 286 (BIA
2002). The Board further noted that it did not consider the fact of having had two
children in the United States sufficient to constitute “other resistance” to China’s birth
control policies in and of itself, and found Wu’s evidence insufficient to show that, as a
returning emigrant, she will be involuntarily sterilized or subjected to forced abortions of
any future pregnancies. Therefore, she had failed to prove a clear probability of
persecution. The Board further agreed with the IJ that prosecution for illegally departing
a country generally is not persecution.1 Because Wu could not meet the lower burden of
proof required for asylum, she necessarily did not qualify for withholding of removal.
She also did not establish that she was entitled to relief under the Torture Convention, 8
C.F.R. § 1208.18(a). Wu timely petitions for review.
We have jurisdiction generally to review final orders of removal pursuant to 8
U.S.C. § 1252(a)(1), and, here, to the extent that the Board deferred to the IJ’s reasoning
in part, we review the Board’s decision but consider the IJ’s as well as a matter of logic.
See Abdulrahman v. Ashcroft, 330 F.3d 587, 591 (3d Cir. 2003). The determination that
Wu delayed too long in applying for asylum, and that she did not show changed
circumstances which materially affected her eligibility for asylum or extraordinary
1
Wu did not brief this issue on appeal, and, accordingly, we deem it waived. See
Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 535 n.11 (3d Cir. 2007).
5
circumstances relating to the delay in filing the application,2 is unreviewable. 8 U.S.C. §
1158(a)(3); Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006). The existence
of these exceptions is a discretionary determination we are unable to review. See Chen v.
U.S. Attorney Gen., 491 F.3d 100, 105 (3d Cir. 2007).
The standard for withholding of removal under INA § 241(b)(3)(A), 8 U.S.C. §
1231(b)(3)(A), is: "the Attorney General may not remove an alien to a country if the
Attorney General decides that the alien's life or freedom would be threatened in that
country because of the alien's race, religion, nationality, membership in a particular social
group or political opinion." To qualify as a "refugee" under INA § 101 (a)(42), Wu had
to establish that she was persecuted for failing or refusing to undergo involuntary
sterilization or for “other resistance” to China’s population control policy, or
alternatively, that she has a well-founded fear of being persecuted for her resistance to the
population control policy were she to be sent back to China. 8 U.S.C. § 1101(a)(42); Li
v. U.S. Attorney. Gen., 400 F.3d 157, 163 (3d Cir. 2007). If so, she is deemed to have
been persecuted on account of a political opinion. Id.
The withholding of removal standard is more exacting than the asylum standard
and requires the alien to show by a “clear probability” that her life or freedom would be
threatened on account of a protected ground in the proposed country of removal.
2
If the alien can establish “either the existence of changed circumstances which
materially affect the applicant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing the application," failure to file the application within the one
year period may be excused. 8 U.S.C. § 1158(a)(2)(D).
6
Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407 (1984). See also
Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987)
(“would be threatened” standard has no subjective component). The Board’s findings of
fact in this regard “are conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See also Immigration &
Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under this deferential
standard, the petitioner must establish that the evidence does not just support a contrary
conclusion but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).
In order to prove the objective reasonableness of her claimed fear of involuntary
sterilization, Wu relied exclusively on her testimony and the 2004 Profile of Asylum
Claims and Country Conditions (Asylum Report). That report, however, on the page
referenced by Wu, page 26, was correctly summarized by the IJ. It states that United
States diplomats in China are not aware of any cases in which returnees from the United
States were forced to undergo sterilization upon their return. Visa applicants from Fujian
province stated that they had paid fines for violating the one-child policy, but none gave
evidence of forced abortion. The Profile also reports that the central government’s policy
prohibits the use of physical coercion to compel persons to submit to abortion or
sterilization and that, while there are reports that physical coercion occurs in some rural
areas, the frequency of such cases is declining. This evidence would not have compelled
any reasonable person to find a clear probability that Wu would be persecuted upon
returning to China. 8 U.S.C. § 1252(b)(4)(B). See generally Yu v. U.S. Attorney Gen.,
7
513 F.3d 346, 348 (3d Cir. 2008) (substantial evidence, including 2004 State Department
Country Report, supported finding that fear of involuntary sterilization based on
applicant’s having had second child while outside China was not reasonable); In re: C-C-,
23 I. & N. Dec. 899 (BIA 2006) (same). At most, the 2004 Profile contains the general
statement that returning Chinese citizens would be expected to conform to the restrictions
in Chinese law on future offspring, but this statement alone does not prove the objective
reasonableness of Wu’s claimed fear of involuntary sterilization or forced abortions.3 In
addition, the likely economic sanctions do not rise to the level of “severe economic
disadvantage which threatens a petitioner’s life or freedom,” Li v. U.S. Attorney General,
400 F.3d 157, 168 (3d Cir. 2005).
Finally, the Board concluded that Wu did not meet her burden of establishing that
it is more likely than not that she will be tortured in China, 8 C.F.R. § 1208.18. The
record does not compel a different conclusion.
For the foregoing reasons, we will deny the petition for review.
3
We note that Wu retains an opportunity to move to reopen proceedings before the
Board should she obtain new evidence that “is material and was not available and could
not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).
The time and numerical limitations do not bar a motion to reopen if it is “based on
changed circumstances arising in the country of nationality or in the country to which
deportation has been ordered.” Id. § 1003.2(c)(3).
8