UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1934
ZHONG QING OU,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: March 27, 2012 Decided: May 9, 2012
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Wendy Tso, LAW OFFICE OF WENDY TSO, P.C., New York, New York,
for Petitioner. Tony West, Assistant Attorney General, Ada E.
Bosque, Senior Litigation Counsel, Jonathan Robbins, Trial
Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Washington, DC, for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Zhong Qing Ou, a native and citizen of the People’s
Republic of China, petitions for review of an order of the Board
of Immigration Appeals (“Board”) sustaining the Government’s
appeal, vacating the Immigration Judge's (“IJ”) order granting
asylum, and ordering Ou be removed to China. Ou contends
substantial evidence supported the IJ’s finding that he
established a well-founded fear of persecution based on China’s
coercive family planning policy. He also contends the Board
used the wrong legal standard in arriving at its conclusion. We
deny the petition for review.
Ou’s testimony, which was found credible, established
that he and his wife had one male child, that his wife underwent
a forced abortion after becoming pregnant with their second
child, that he expressed his anger to government officials and
demanded he and his wife receive permission to have a second
child, and that officials physically assaulted him after he
would not leave the government office. Ou left the country
because he feared government officials were coming after him.
With only one child, Ou and his wife were not in violation of
China’s family planning policy. However, Ou testified that he
and his wife would like to have more children.
The IJ found that Ou’s asylum application was timely,
that he did not suffer past persecution, but that he did have a
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well-founded fear of persecution because his wife underwent a
forced abortion, authorities knew he had protested the family
planning policy and it was his intention to have more children. ∗
The Board vacated the order granting asylum finding that the
IJ’s factual findings were clearly erroneous because the
findings were based on speculation.
The Immigration and Nationality Act (INA) authorizes
the Attorney General to confer asylum on any refugee. 8 U.S.C.
§ 1158(a) (2006). The INA defines a refugee as a person
unwilling or unable to return to his or her native 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.” 8 U.S.C.
§ 1101(a)(42)(A) (2006). “Persecution involves the infliction
or threat of death, torture, or injury to one’s person or
freedom, on account of one of the enumerated grounds. . . .”
Qiao Hua Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005)
(internal quotation marks and citations omitted).
An alien “bear[s] the burden of proving eligibility
for asylum,” Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir.
2006); see 8 C.F.R. § 1208.13(a) (2011), and can establish
∗
Because Ou was granted asylum, the IJ did not resolve his
applications for withholding from removal or withholding under
the Convention Against Torture.
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refugee status based on past persecution in his native country
on account of a protected ground. 8 C.F.R. § 1208.13(b)(1)
(2011). “An applicant who demonstrates that he was the subject
of past persecution is presumed to have a well-founded fear of
persecution.” Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.
2004).
Because Ou did not establish past persecution, the
burden was on him to show that he had a well-founded fear of
persecution based on a protected ground. Id. at 187. The well-
founded fear standard contains both a subjective and an
objective component. The objective element requires a showing
of specific, concrete facts that would lead a reasonable person
in like circumstances to fear persecution. Gandziami-Mickhou v.
Gonzales, 445 F.3d 351, 353 (4th Cir. 2006). “The subjective
component can be met through the presentation of candid,
credible, and sincere testimony demonstrating a genuine fear of
persecution . . . . [It] must have some basis in the reality of
the circumstances and be validated with specific, concrete facts
. . . and it cannot be mere irrational apprehension.” Qiao Hua
Li, 405 F.3d at 176 (internal quotation marks and citations
omitted). Ou does not have to prove that he is more likely than
not to face persecution. He only needs to show a reasonable
possibility – “as low as a ten percent chance – of persecution.”
Crespin-Valladares v. Holder, 632 F.3d 117, 126 (4th Cir. 2011).
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We will affirm the Board’s determination regarding
eligibility for asylum if it is supported by substantial
evidence on the record considered as a whole. INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). Administrative
findings of fact are conclusive unless any reasonable
adjudicator would be compelled to decide to the contrary. 8
U.S.C. § 1252(b)(4)(B) (2006). Legal issues are reviewed de
novo, “affording appropriate deference to the BIA’s
interpretation of the INA and any attendant regulations.” Li
Fang Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008). This
Court will reverse the Board only if “the evidence . . .
presented was so compelling that no reasonable factfinder could
fail to find the requisite fear of persecution.”
Elias-Zacarias, 502 U.S. at 483-84; see Rusu v. INS, 296 F.3d
316, 325 n.14 (4th Cir. 2002).
The Board reviews the IJ’s factual findings for clear
error and the legal conclusions de novo. See 8 C.F.R.
§ 1003.1(d)(3)(i), (ii), (iv) (2011). Factual findings include
what happened to the individual, Massis v. Mukasey, 549 F.3d
631, 636 n.6 (4th Cir. 2008), determinations regarding an
oppressor’s motivation, intentions and opinions, Crespin-
Valladares, 632 F.3d at 127-28, and expressions of the
likelihood of future events based on the evidence. Id., 632
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F.3d at 128-29 (citing Kaplun v. Attorney Gen., 602 F.3d 260,
270 (3d Cir. 2010)).
In Turkson v. Holder, 667 F.3d 523, 527-28 (4th Cir.
2012), this Court held that an IJ’s finding of what will happen
to the alien in the future, such as the chance that the alien
will be persecuted, is a factual finding subject to clear error
review.
We conclude that substantial evidence supports the
Board’s determination that the IJ’s finding regarding Ou’s
prospects for having more children, and the possibility that he
would be persecuted if he is removed to China are speculative.
As this Court noted in Yi Ni v. Holder, 613 F.3d 415, 428-29
(4th Cir. 2010), the Petitioner’s plan to have more children was
speculative because it relied upon factors beyond the
Petitioner’s control. We also conclude that the Board used the
correct legal standard reviewing the IJ’s findings. The Board
acknowledged that its review of the IJ’s findings was for clear
error and held that the IJ clearly erred by relying upon
speculation in reaching his decision.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
Court and argument would not aid the decisional process.
PETITION DENIED
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