NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1257
___________
JIAN QUN LI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A087-464-833)
Immigration Judge: Honorable Michael W. Straus
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 5, 2013
Before: SMITH, GREENAWAY, JR., SHWARTZ, Circuit Judges
(Opinion filed: June 6, 2013)
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OPINION
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PER CURIAM
Jian Qun Li, a native and citizen of the People’s Republic of China, petitions for review
of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that
follow, we will deny the petition for review.
I.
Li is from Wenzhou City in Zhejiang Province. She entered the United States without a
valid entry document on August 2, 2002. Li’s two children, a daughter born in 2005 and a son
born in 2009, were both born in New York. In January 2009, Li filed an application for
asylum, withholding of removal, and protection under the Convention Against Torture. Li
claimed a well-founded fear of persecution if removed to China due to the birth of her two
children in contravention of China’s family planning laws. After submitting her application, Li
was placed in asylum only proceedings. Li supplemented her asylum application to include a
claim of persecution on the basis of her Christian religion, which she began practicing in
February 2009.
In support of her claim of persecution based on violation of family planning policies, Li
submitted, inter alia, documentation of family planning policies in her hometown and the
hometown of her husband, a letter from a family planning office that stated Li should be
sterilized, evidence of individuals in Zhejiang Province who have been forcibly sterilized or
had witnessed forcible sterilization, and reports on family planning policies in China. In
support of her claim of persecution based on her Christian religion, Li submitted evidence that
she attended a Christian church and a letter in which Li’s friend described her own arrest due
to membership in a house church. Li also testified that if she was removed to China, she would
continue to practice Christianity in an unsanctioned house church as opposed to a government-
approved church.
The Immigration Judge (“IJ”) considered the aforementioned evidence and several
2
United States Department of State documents, including “2010 Country Reports on Human
Rights Practices” and “International Religious Freedom Report 2010.” The IJ denied Li’s
application in July 2011 after finding that Li failed to establish a well-founded fear of
persecution. The BIA dismissed Li’s appeal, and Li timely filed a petition for review.
II.
This Court has jurisdiction to review a final order of removal under 8 U.S.C.
§ 1252(a)(1). In this instance, because the BIA issued its own opinion on the merits, we
review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.
2005). However, to the extent that the BIA deferred to or adopted the IJ’s reasoning, we also
look to and consider the decision of the IJ on those points. See Chavarria v. Gonzalez, 446
F.3d 508, 515 (3d Cir. 2006).
Conclusions regarding whether a petitioner has a well-founded fear of persecution are
findings of fact. Id. We review factual findings under the substantial evidence standard, see
id., and uphold them “unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). Under this deferential standard of review, we will not
disturb the BIA’s disposition “[s]o long as the BIA’s decision is supported by ‘reasonable,
substantial, and probative evidence on the record considered as a whole.’” Chavarria, 446 F.3d
at 515 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).1
1
Because Li does not argue in her brief that the BIA erred in denying her Convention Against
Torture claim, that issue is waived. See Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d Cir.
2011). Our review is limited to Li’s asylum and withholding of removal claims.
3
III.
Li did not claim to have suffered persecution in the past, and applied for asylum on the
basis of a well-founded fear of persecution if she were removed to China. See Dong v. Att’y
Gen., 638 F.3d 223, 228 (3d Cir. 2011). In order to make this showing, Li “must demonstrate
‘a subjective fear . . . that is supported by objective evidence that persecution is a reasonable
possibility.’” Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir. 2008) (omission in original)
(quoting Balasubramanrim v. INS, 143 F.3d 157, 165 (3d Cir. 1998)). While abhorrent, not all
“harassment and discrimination” necessarily rises to the level of persecution contemplated by
the asylum statute. Wong v. Att’y Gen., 539 F.3d 225, 236 (3d Cir. 2008), abrogated on other
grounds by, Nbaye v. Att’y Gen., 665 F.3d 57 (3d Cir. 2011).
Regarding her family planning claim, Li argues that the BIA erred in determining that
she failed to satisfy the three-prong test outlined in In re J-H-S-, 24 I. & N. Dec. 196 (BIA
2007), used to determine whether Chinese nationals have demonstrated a well-founded fear of
persecution due to violation of family planning policies. In Li’s case, the IJ and BIA focused
on the third prong, “evidence that local enforcement efforts” against a violation of local family
planning policies “will rise to the level of persecution,” and found the evidence insufficient to
conclude that Li would be persecuted. Id. at 201.
Li argues that the IJ did not properly explain why he did not favorably credit Li’s
individualized documentary evidence submitted in support of her claim of persecution. Li
incorrectly asserts that “[t]he documents have been authenticated through credible testimony,”
and provides a general citation to Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007), which is
4
not binding on this Court and does not establish that the documents were authenticated through
testimony.2 As noted by the BIA, letters Li submitted from residents in her region that claimed
they were sterilized were not directly applicable because the letters did not show that the
residents had children born in the United States or that their sterilization was forced. The BIA
also concluded that a letter obtained from a local family planning office that stated Li should
be sterilized was of limited use because it was obtained for litigation, was unsigned, had not
been authenticated, and dated from October 2008.
Li also contends that the IJ erred by placing greater reliance on Department of State
reports than her individualized documentary evidence. The BIA and the IJ concluded that the
evidence in support of Li’s claim that she would be forcibly sterilized was not enough to
overcome the BIA’s previous finding that “physical coercion to achieve compliance with
family planning goals” in China is rare, unsanctioned, and compliance is more likely to be
sought through economic measures. In re J-H-S-, 24 I. & N. at 203. After review of the
record, we find that substantial evidence supports the BIA’s dismissal of Li’s claim of fear of
forced sterilization. See Chen v. Att’y Gen., 676 F.3d 112, 114-15 (3d Cir. 2011) (finding
persuasive BIA’s conclusion that physical coercion is rare in China); Yu v. Att’y Gen., 513
F.3d 346, 349 (3d Cir. 2008) (“This Court has repeatedly recognized that State Department
reports may constitute substantial evidence.”).
2
The holding in Vatyan merely states that “the IJ must consider [a petitioner]’s testimony as
evidence that is relevant to the issue of the documents’ authenticity. After listening to the
testimony for this purpose, the IJ can assess the credibility of that testimony and determine
whether the balance of the evidence” indicates the documents are genuine. Vatyan, 508 F.3d at
1185.
5
Li also argues that the BIA failed to consider evidence that she would be fined so
severely that it would constitute persecution. Persecution for refusal to comply with coercive
population control policies is not limited to physical force; it may also take the form of
“deliberate imposition of severe economic disadvantage which threatens a petitioner’s life or
freedom.” Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir. 2005). The economic persecution
standard is stringent, but not insurmountable. See id. n.7 (“[T]he economic harm . . . must be
severe, [but] we do not require complete loss of all means of earning a livelihood, nor do we
require evidence of near-starvation, for economic restrictions to rise to the level of
persecution.”). The BIA agreed with the IJ’s conclusion that there was insufficient evidence to
support Li’s claim that she would be fined in a manner that amounted to persecution. Li
testified that she would likely be fined $40,000 RMB, an amount that correlates with a Fujian
Province fine schedule for violations of family planning policies; in her brief, Li relied on the
Fujian Province fine schedule and did not address fines in Zhejiang Province. When asked if
she could pay such a fine, Li said that she could but would not want to. 3 In light of her
testimony and the background evidence, the record does not compel a contrary outcome to the
BIA’s dismissal of Li’s claim that she would be economically persecuted.
Li next argues that the BIA erred by concluding that it was speculative to believe that
she would join a house church and be persecuted. Li contends that the BIA improperly
discounted her testimony that she would join a house church in China and that house church
members in her region had been persecuted. The BIA approved of the IJ’s greater reliance on
3
Li implies in her brief that a fine of $40,000 RMB would equal ten times her annual income.
This statement was not supported and there was no citation to the record.
6
background evidence describing religious persecution in China than a letter from Li’s friend
detailing persecution of house church members.4 The record before us, including Li’s current
church membership and the background evidence, does not compel a contrary outcome to the
BIA’s dismissal of this claim. See, e.g., Chen v. Gonzales, 470 F.3d 1131, 1137-38 (5th Cir.
2006) (discussing the 2003 Religious Freedom Report in the context of a similar claim); see
also Yu, 513 F.3d at 349.
III.
Based on review of the record, we conclude that Li failed to meet her burden of
demonstrating a well-founded fear of persecution based on her religion and an objectively
reasonable possibility of sterilization should she return to China; the evidence in the record
does not compel a conclusion contrary to that of the BIA. Because Li did not meet the
standard for obtaining asylum, she also failed to satisfy the “higher burden of proof” required
for withholding of removal. Chen, 676 F.3d at 117. For the foregoing reasons, we will deny
the petition for review.
4
Based on his review, the IJ concluded that although persecution of members of house
churches does occur, millions of Christians attend house churches in China, and pastors, not
members, are typically targeted.
7