Not Precedential

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
___________
No. 11-3390
___________
XINGZHANG CHEN, a/k/a Xing Zhang Chen;
SHUYU LU, a/k/a Shu Yu Lu,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A89-908-498 and A77-845-636)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 4, 2012
Before: FISHER, WEIS and BARRY, Circuit Judges.
(Opinion filed: May 9, 2012)
___________
OPINION
___________
PER CURIAM.
Petitioners, Xingzhang Chen and his wife, Shuyu Lu, seek review of a decision by
the Board of Immigration Appeals dismissing their appeals from denial of asylum,
withholding of removal, and protection under the Convention Against Torture. For the
reasons that follow, we deny their petition for review.
I.
Xingzhang Chen and his wife, Shuyu Lu, (the Petitioners) are citizens of China
who have been in the United States since 1999 and 2000, respectively. They married
while in this country and now have two children who were born in the United States.
Each Petitioner conceded removability. Petitioner Chen applied for asylum,
withholding of removal, and protection under the Convention Against Torture (CAT),
sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 C.F.R. 1208.13,
1208.16 - .18, with his wife as an intended beneficiary under his application. Because
Petitioner Lus claims are derivative of her husbands, the success of her application
relies upon her husband establishing his entitlement to protection.
Petitioner Chens application is predicated upon his fear that, because of his
resistance to Chinas family planning policies, he will be persecuted if he is returned to
China; specifically, Chen fears that because he had two children while in the United
States, he or his wife will be forcibly sterilized and/or that he will be required to pay a
large fine upon returning to China with his family.
Petitioners applications were heard by an Immigration Judge (the IJ) who found
that although Chen was a credible witness, the record as a whole did not establish that
either he or his wife faces a reasonable possibility of being forcibly sterilized or
otherwise persecuted upon return to China. The IJ therefore denied both applications.
2
Petitioners timely appealed the IJs decision to the Board of Immigration Appeals
(the BIA). The BIA dismissed Petitioners appeals, holding in its own written opinion
that the record developed failed to establish Chens entitlement to asylum, failed to
satisfy the more stringent requirements for his withholding of removal, and failed to
demonstrate his eligibility for protection under the CAT. In addition, the BIA denied
what it construed to be Petitioners motion to reopen based upon new evidence,
determining Petitioners had failed to demonstrate that the new evidence would likely
change the result of the case. Petitioners timely sought review from this Court and
moved to stay the BIA ruling pending review. We previously denied the motion for stay
and now deny the petition for review.
II.
This Court has jurisdiction to review a final order of removal under 8 U.S.C.
1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). 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. Atty Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, to the
extent the BIA deferred to or adopted the IJs 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).
We review the factual findings under the substantial evidence standard, see
Briseno-Flores v. Atty Gen., 492 F.3d 226, 228 (3d Cir. 2007), upholding them unless
3
any reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C.

1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc).
Legal conclusions, including applications of law to undisputed facts of record, are
reviewed de novo. See Francois v. Gonzales, 448 F.3d 645, 648 (3d Cir. 2006).
In
summary, when reviewing decisions of the BIA, this Court applies a deferential standard
of review. So long as the BIAs decision is supported by reasonable, substantial, and
probative evidence on the record considered as a whole, we will not disturb the BIAs
disposition of the case. Chavarria, 446 F.3d at 515 (quoting INS v. Elias-Zacaris, 502
U.S. 478, 481(1992)). The BIAs denial of a motion to reopen is reviewed under the
abuse of discretion standard, see Vakker v. Atty Gen., 519 F.3d 143, 146 (3d Cir. 2008).
III.
The BIAs opinion reveals that it undertook a thorough review of Petitioners
claims and the evidence of record. The agencys resolution of the appeals is reasoned
and supported by substantial evidence. Even assuming Chen was a credible witness in
testifying to his genuine fear of persecution, and thereby satisfying the first, subjective
component of the well-founded fear of persecution test, see Yu v. Atty Gen., 513 F.3d
346, 348 (3d Cir. 2008), the facts of record do not establish the required second, objective
component of the test, namely that his fear of persecution is objectively reasonable, id.
Petitioners evidence of record, because of disparate infirmities (in some instances
lack of any authentication, in some instances relating to differing circumstances, in some
instances lacking indicia of trustworthiness etc.) may best be characterized as raising only
4
speculation of potential adverse actions, of undetermined severity, by the Chinese

authorities. Evidence presented in opposition to Petitioners applications, properly
considered and weighed by the BIA, magnifies the speculative nature of Petitioners own
case. Such a record does not satisfy Petitioners burdens on any of their claims.
In seeking review, Petitioners first argue that the BIA incorrectly reviewed their
evidence under a de novo standard instead of the clearly erroneous standard. However,
at the beginning of its opinion, the BIA stated that it reviewed findings of fact and
credibility under the clearly erroneous standard, and applied a de novo standard to
remaining issues, including whether the burden of proof is met and issues of discretion.
That is the correct approach and presents no error. See Kaplun v. Atty Gen., 602 F.3d
260, 268 (3d Cir. 2010); Yusupov v. Atty Gen., 650 F.3d 968 (3d Cir. 2011).
Petitioners next argue that the BIA considered evidence in the record in a
selective and arbitrary manner. They maintain that the BIA relied excessively on State
Department reports, see, e.g., Chen v. INS, 359 F.3d 121, 130 (2d Cir. 2004), and
discounted other evidence for arbitrary reasons. In a similar vein, Petitioners assert that
the BIA engaged in improper fact finding when reviewing the documentary evidence they
submitted. Petitioners arguments are not well founded.
The BIAs opinion in this instance, unlike that in Huang v. Atty Gen., 620 F.3d
372, 388-89 (3d Cir. 2010) relied upon by Petitioners (wherein this Court held the BIA
may not ignore evidence favorable to an alien and must do more than cherry-pick a few
pieces of evidence), indicates that the Board undertook a thorough review of the entire
5
record. The BIA properly considered and weighed State Department reports which
provided evidence contradicting Petitioners claim that their fear of persecution is
objectively reasonable, see Yu v. Atty Gen., 513 F.3d at 349 (State Department reports
may constitute substantial evidence), but the BIA also gave close consideration of the
evidence submitted by Petitioners. It considered the documents they submitted from
China (including, among others, an unsigned, unauthenticated notice from the Villagers
Committee regarding family planning policy and sanctions for violation of the policy
and letters from family members recounting their own forced sterilization and fines for
violations of the family planning policy). However, as the BIAs opinion explains in
detail, because the record reflects that such documents were either unauthenticated or
lacked minimal indicia of trustworthiness, detailed the circumstances of individuals not
similarly situated, and/or were from interested witnesses who were unavailable for crossexamination, the BIA gave them less weight in its consideration of Petitioners
applications.
While we have held that failure to authenticate under 8 C.F.R. 287.6 does not
warrant per se exclusion of documentary evidence, and a petitioner is permitted to prove
authenticity in another manner, the BIA correctly held that Petitioners failure to
authenticate certain of their evidence in any manner undermines its evidentiary value.
Chen v. Gonzales, 434 F.3d 212, 218 n.6 (3d Cir. 2005). Further, statements from other
family members in China regarding their own experiences after having children in China
were based on dissimilar circumstances from those of Petitioners. Accordingly, the
6
BIAs decision (like that of the IJ) to accord little weight to such evidence is reasonable
and presents no error.
Moreover, as the BIA correctly noted, although Petitioners raised the specter of
economic persecution by Chinese authorities, they failed to present evidence that Chen
faced economic sanctions so severe that they constitute a threat to life or freedom.
Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Petitioners did not, for instance, provide
any evidence other than Chens personal estimate as to any potential fine for an
individual in his circumstances.
Petitioners contend that BIA precedent does not preclude them from asylum
eligibility based on their United States-born children.
The BIA, however, did not hold
that Petitioners were precluded from establishing eligibility, but ruled rather that they had
failed to establish that there is a reasonable possibility Chen or his wife will be forcibly
sterilized or otherwise persecuted for having had children without permission while in the
United States.
As Petitioners failed to meet the burden of proof for entitlement to asylum, they
failed to meet the higher burden for withholding of removal under 8 U.S.C. 1231(b)(3).
See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). Likewise, the record does
not support their claim for CAT protection. See id. at 182-83.
IV.
Finally, Petitioners contend the BIA abused its discretion in denying their motion
for remand. The BIA properly interpreted Petitioners motion as a motion to reopen. See
7
Korytnyuk v. Ashcroft, 396 F.3d 272, 282 (3d Cir. 2005). As noted above, we review the
BIAs denial of the motion for abuse of discretion. Id.; see also Vakker v. Atty Gen., 519
F.3d 143, 146 (3d Cir. 2008).
In support of their motion, Petitioners submitted an unsworn statement from a
Chinese citizen who recounts that after being removed to China he was forcibly sterilized
as a sanction for having had two children while in the United States. Petitioners maintain
that the BIA erred in failing to reopen the proceedings for consideration of such new
evidence.
As noted by the BIA, the statement proffered by Petitioners was unsworn,
unnotarized, reflected facts particular to another individual which may not be
representative of Petitioners circumstances, and may have been made for the purposes of
litigation. Consequently, the BIA concluded that the Board could not be certain of the
declarants identity, much less the reliability of the substance contained in the
statement. On that basis, we find the BIA acted within its discretion in finding the
statement to be of insufficient evidentiary value to change the outcome of the case and in
denying Petitioners motion to reopen. See Guo v. Ashcroft, 386 F.3d 556, 563 & n.7
(3d Cir. 2004).

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

any reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C.

speculation of potential adverse actions, of undetermined severity, by the Chinese

The BIA, however, did not hold

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