Jian Hua Chen v. Attorney General of the United States

DLD-052 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2385
___________
JIAN HUA CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A094-925-440)
Immigration Judge: Honorable Frederic G. Leeds
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
November 19, 2009
Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges
(Opinion filed: December 14, 2009)
_________
OPINION
_________
PER CURIAM
Jian Chen petitions for review of the Board of Immigration Appeals’ (“BIA”) final
order of removal. The Government has moved to summarily affirm the BIA’s decision.

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For the reasons that follow, we will grant the motion and deny Chen’s petition.
I.
In May 2007, Chen, a native and citizen of the People’s Republic of China, entered
the United States without inspection or valid entry documents. The Department of
Homeland Security subsequently initiated removal proceedings against him, and he
applied for asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). In support of his application, he claimed that family planning officials
in China had forced his wife to have an IUD inserted and undergo an abortion, and that he
feared returning to China because he had left the country illegally.
In July 2008, after a hearing on the merits, the Immigration Judge (“IJ”) denied
Chen’s application. Although finding Chen’s testimony credible, the IJ concluded that
the alleged persecution against Chen’s wife – who still lived in China – was insufficient
to establish a claim for Chen himself. The IJ also rejected Chen’s claim that he would be
persecuted for departing China illegally, concluding that “[t]here was no corroborating
documents to document these types of problems in the record.” (IJ Opinion at 4.)
Finally, the IJ concluded that Chen failed to show that he was entitled to CAT relief.
On appeal, the BIA held that Chen “cannot establish eligibility for asylum or
withholding of removal due to the claimed treatment of his spouse in connection with
violation of the family planning policy law in China,” nor had he “submitted any evidence
regarding ‘other resistance’ to a coercive population control program” or otherwise

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Although the Government appears to suggest otherwise, Chen has not waived his1
right to challenge the denial of his claim concerning his wife’s forced IUD insertion and
abortion.
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demonstrated a well-founded fear of future persecution. (BIA Opinion at 1.) The BIA
further held that Chen had failed to establish a claim for relief under the CAT.
Chen timely petitioned this Court to review the BIA’s decision. He also filed a
motion for a stay of removal, which we denied because he did not show a likelihood of
success on the merits of his petition. The Government has since moved to summarily
affirm the BIA’s decision.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We review the BIA’s
denial of asylum, withholding of removal, and CAT relief for substantial evidence. See1
Ahmed v. Ashcroft, 341 F.3d 214, 216 (3d Cir. 2003); Zubeda v. Ashcroft, 333 F.3d 463,
471 (3d Cir. 2003). Under this deferential standard of review, we must uphold the BIA’s
findings “unless the evidence not only supports a contrary conclusion, but compels it.”
Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
As noted by the BIA, the spouses of individuals subjected to coercive population
control policies are not automatically eligible for asylum or withholding of removal. See
Lin-Zheng v. Att’y Gen. of the U.S., 557 F.3d 147, 148-49 (3d Cir. 2009) (en banc).
Although spouses remain eligible for such relief if they can establish their own
persecution – for instance, by showing that they have been persecuted because they have

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The U.S. State Department’s 2007 Profile of Asylum Claims and Country2
Conditions (“Profile”), which is part of the record in this case, states that:
The Chinese government accepts the repatriation of citizens
who have entered other countries or territories illegally. In
the past several years, hundreds of Chinese illegal immigrants
have been returned from the United States, and U.S. Embassy
officials have been in contact with scores of them. In most
cases, returnees are detained long enough once reaching
China for relatives to arrange their travel home. Fines are
rare. U.S. officials in China have not confirmed any cases of
abuse of persons returned to China from the United States for
illegal entry.
(Profile at 31.)
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resisted a coercive population control policy, id. at 157 – the evidence in this case does
not compel such a finding. Nor does the record here suggest, let alone compel, a finding
that Chen would be persecuted for having left China illegally. His CAT claims lack2
merit as well.
Because Chen’s petition for review does not raise a substantial question, we will
grant the Government’s motion for summary affirmance and deny Chen’s petition. See
3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.

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