Miaowei Chen v. Atty Gen USA, 3rd Cir. (2010)

IMG-238
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4118
___________
MIAOWEI CHEN; ZHONGWU ZHANG,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A098-645-023 & A099-076-369)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)

June 17, 2010
Before: MCKEE, Chief Judge, HARDIMAN AND COWEN, Circuit Judges
(Opinion filed: October 19, 2010)
___________
OPINION
___________
PER CURIAM
Miaowei Chen and her husband, Zhongwu Zhang, petition for review of a decision
of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the
petition.
Chen and Zhang entered the United States in 1997. In 2005, Chen was charged as
removable as an alien without a valid immigrant visa, and Zhang was charged as
removable as an alien who entered without being admitted or paroled. Petitioners
conceded removability and applied for asylum, withholding of removal, and relief under
the Convention Against Torture (CAT). They argued that they had been and would be
persecuted in China pursuant to its family planning policy. They contended that the birth
of their second child in the United States constituted changed circumstances so as to
qualify them for an exception to the requirement that an asylum application be filed
within one year of arriving in the United States.
Assuming arguendo that the petitioners had shown changed circumstances, the IJ
denied the asylum applications on the ground that petitioners had not filed for asylum
within a reasonable time after the birth of their second child. The IJ found Chen not
credible based on several inconsistencies between her testimony and an application to
adjust status she had filed in 2004.1 The IJ determined that petitioners had not shown a
pattern or practice of forced sterilization for similarly situated individuals in China. Thus,
they had not shown a well-founded fear of persecution and were not eligible for asylum or
withholding of removal. The IJ also concluded that petitioners had not shown that it was
In an application to adjust her status, Chen listed her arrival date as June 10, 1999
and her marital status as single. She did not list any spouse or children. A.R. at 211.
2
more likely than not that they would be tortured if returned to China.
The BIA dismissed the appeal. The BIA agreed with the IJ that petitioners were
not eligible for asylum because they did not file within one year of their arrivals in the
United States or the birth of their second child. It also upheld the IJs finding that Chen
was not credible and her conclusion that petitioners had not established past persecution.
As for their claim of future persecution, the BIA concluded that their evidence was
general in nature and cumulative of evidence it had discussed in its published opinions
addressing the family planning policy in China. The BIA determined that petitioners had
not met the standard for withholding of removal or relief under the CAT. The BIA also
denied petitioners motion to remand to the IJ to consider the new evidence of the birth of
their third child. Petitioners filed a timely petition for review.
Timeliness of the asylum applications
Generally, we lack jurisdiction to review a decision that an asylum application is
untimely. 8 U.S.C. 1158(a)(3). We have jurisdiction to review constitutional claims
and questions of law but not factual or discretionary determinations related to the
timeliness of an asylum application. Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir.
2006). Petitioners argue that the BIA violated their due process rights in determining that
their asylum applications were untimely under 8 U.S.C. 1158(a)(2)(B). They contend
that the BIAs decision was not based on an individualized determination. They argue
that they claimed that conditions had changed in China in their asylum applications.
In their brief before the BIA, petitioners argued that the changed circumstances
were the births of their two children and asserted that the births of their children were not
in dispute. They contended that the requirement that they file within a reasonable time of
the changed circumstances was not applicable. They did not argue that their asylum
applications were timely based on any changed circumstances in China. Petitioners
cannot fail to make an argument before the BIA and then argue that the BIA failed to
address it.
Petitioners also argue that they filed their applications for asylum within a
reasonable time of their changed circumstances. They argue that Chen filed her
application within a year of the announcement of the new family planning law in China in
early 2004. However, again, petitioners did not present this argument to the BIA. Thus,
it is unexhausted, and we lack jurisdiction to consider it. Under 8 U.S.C. 1252(d)(1),
we may review a final order of removal only if the petitioner has exhausted all
administrative remedies.
Withholding of removal
We have jurisdiction over the denial of petitioners claims for withholding of
removal under 8 U.S.C. 1252. To establish eligibility for withholding of removal,
petitioners needed to demonstrate that it was more likely than not that their lives would be
threatened in China on account of the family planning policy. Tarrawally v. Ashcroft,
338 F.3d 180, 186 (3d Cir. 2003); 8 U.S.C. 1231(b)(3)(A). We review the BIAs
factual determinations under the substantial evidence standard. Dia v. Ashcroft, 353 F.3d
228, 249 (3d Cir. 2003) (en banc). The BIAs findings are considered conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C.
1252(b)(4)(B). We exercise de novo review over the BIAs legal decisions. Toussaint
v. Attorney General, 455 F.3d 409, 413 (3d Cir. 2006).
Past Persecution
Petitioners argue that the BIAs determination that Chen did not establish past
persecution is not supported by substantial evidence. They contend that the credibility
finding was based on facts unrelated to the asylum claim. That an applicant is willing to
lie in an application for immigration benefits is certainly relevant in determining
credibility with respect to another application for benefits.2 Petitioners also argue that the
IJ should not have required corroboration of Chens claim that she was forced to have an
abortion in 1996. Given the adverse credibility finding, the IJ did not err in expecting
corroboration of Chens claim. Moreover, under 8 U.S.C. 1252(b)(4), we may not
In upholding the adverse credibility determination, the BIA cited to a new provision
of the INA that allows adverse credibility determinations to be based on inconsistencies in
the aliens testimony that do not go[] to the heart of [the aliens] claim. 8 U.S.C.
1158(b)(1)(B)(iii). We have not yet addressed in a precedential opinion whether the
REAL ID Acts new standard for adverse credibility findings potentially violates due
process by allowing the IJ to rely on insubstantial and irrelevant inconsistencies. See
Wang v. Holder, 569 F.3d 531, 537-38 (5th Cir. 2009)(canvassing Circuit law on the
provision). We need not reach this issue because we believe that Chens misstatements
on her adjustment application are not insubstantial and irrelevant and the BIAs reliance
on them did not violate her rights to due process.
5
reverse a determination made with respect to the availability of corroborating evidence

unless a reasonable trier of fact would be compelled to conclude that such evidence is
available. Petitioners have not pointed to any evidence to compel such a finding.
Future Persecution
Petitioners argue that they have shown a clear probability of future persecution.
They contend that the BIA did not consider the individual evidence they presented. They
point to a letter from a Village Committee which informs them that they must undergo
the required Family Planning Procedures if they return to China. A.R. at 247. The BIA
did consider this document: it noted that Chen testified that her father inquired about the
implementation of the family planning policy in her hometown but rejected that testimony
based on the adverse credibility finding against Chen.3 While petitioners argue that this
letter is targeted at them, their names do not appear on the document.
Petitioners argue that they submitted dozens of background documents that the
BIA did not consider. In their brief before the BIA, petitioners cited to the 2006 Country
Report, the 2005 and 2004 Profiles of Asylum Claims, and two newspaper articles to
support their claim of future persecution. They made a general reference to the
documents submitted in Matter of S-Y-G-, and relied heavily on the Aird affidavit.
The BIA stated that much of petitioners evidence was general and cumulative of
In his affidavit, Chens father stated that he received the letter from the Village
Committee after consulting with them in person.
6
evidence addressed in their published opinions: Matter of J-H-S-, 24 I. & N. Dec. 196
(BIA 2007); Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007); Matter of J-W-S-, 24 I.
& N. Dec. 185 (BIA 2007); and Matter of C-C-, 23 I. & N. Dec. 899 (BIA 2006).4 It
concluded that petitioners had not shown that their claims were distinguishable from
those in the published opinions. In the opinions cited by the BIA, it considered the 2006
Country Report, the 2005 and 2004 Profiles, and the Aird affidavit. The documents
submitted in Matter of S-Y-G- and referenced by the Petitioners were considered by the
BIA in that published opinion and were found not to support reopening. In Yu v.
Attorney General, 513 F.3d 346, 348-49 (3d Cir. 2008), we concluded that the BIAs
explanation in Matter of C-C- for finding the State Department Reports more credible
than the Aird affidavit was well-reasoned and its denial of asylum was supported by
substantial evidence. We observed that we have repeatedly recognized that State
Department Reports may constitute substantial evidence. Id. at 349.
The BIA considered and addressed the evidence that petitioners cited as support
In Matter of J-W-S-, the BIA concluded that China did not have a policy of requiring
the forced sterilization of a parent who returns with a second child born outside of China.
In Matter of S-Y-G-, the BIA determined that the petitioner had not shown changed
country conditions. In Matter of J-H-S-, the BIA determined that enforcement of the
family planning policy was lax and uneven in the Fujian province and there was no
indication that the sterilizations were accomplished through force and not incentives. In
Matter of C-C-, the BIA found that the 2004 and 2005 State Department Country reports
were more persuasive than an affidavit from a retired demographer, Dr. John Aird, in
determining that an alien with U.S.-born children had not shown a prima facie showing
that she might suffer sterilization if returned to China.
7
for their claim of future persecution. The State Department Reports constitute substantial
evidence supporting the BIAs determination that petitioners had not shown that it was
more likely than not that they would be persecuted in China. Petitioners have not
demonstrated that any reasonable factfinder would be compelled to conclude to the
contrary.5
For the above reasons, we will deny the petition for review.6
We decline petitioners invitation to find evidence of forced sterilizations in recent

decisions by Courts of Appeals. We may decide the petition only on the administrative
record on which the order of removal was based. 8 U.S.C. 1252(b)(4)(A). Moreover,
the sterilizations alleged in the cases cited took place in 1985, 1987, and 2000.
6
We agree with the government that petitioners have waived their CAT claim by
failing to raise it in their brief.
8

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IMG-238

Submitted Pursuant to Third Circuit LAR 34.1(a)

reverse a determination made with respect to the availability of corroborating evidence

We decline petitioners invitation to find evidence of forced sterilizations in recent

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