Jia Chen v. Eric Holder, Jr., No. 10-1622 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1622 JIA ZHANG CHEN; DAN FENG GAO, Petitioners, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of Orders of the Board of Immigration Appeals. Submitted: October 20, 2010 Decided: November 18, 2010 Before WILKINSON, NIEMEYER, and KING, Circuit Judges. Petition denied by unpublished per curiam opinion. Jia Zhang Chen, Dan Feng Gao, Petitioners Pro Se. Robbin Kinmonth Blaya, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jia Zhang (collectively Chen and Petitioners ), his wife, natives and Dan Feng citizens of Gao the People s Republic of China, petition for review of two separate orders of the Board of Immigration Appeals ( Board ) dismissing their appeals requests for from the asylum, immigration withholding of judge s denial removal, and of their protection under the Convention Against Torture. The Petitioners first challenge the determination that they failed to establish eligibility for asylum. To obtain reversal of a determination denying eligibility for relief, an alien must show that the evidence he [or she] presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. 478, 483-84 (1992). alien is not INS v. Elias-Zacarias, 502 U.S. Furthermore, [t]he agency decision that an eligible for asylum is conclusive unless manifestly contrary to the law and an abuse of discretion. Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4)(D) (2006)). Based on our review of the record, we conclude that the Petitioners fail to demonstrate that the evidence in their case compels a contrary result. As found by the Board, the Petitioners have failed to demonstrate that the birth of their United States citizen children violated family planning policies 2 in the Fujian Province or that they will be subject to forced sterilization or other persecution if returned to China. See Matter of J-W-S-, 24 I. & N. Dec. 185 (B.I.A. 2007) (relying on State Department evidence failed requiring forced reports to and concluding demonstrate sterilization that of a that the alien s China has a policy parent who returns of with children born abroad or that any sanctions imposed in the Fujian Province would rise to the level of persecution). We therefore find that substantial evidence supports the denial of relief. Additionally, we uphold the denial of the Petitioners request for withholding of removal. Because the burden of proof for withholding of removal is higher than for asylum even though the facts that must be proved are the same an applicant who is ineligible for asylum is necessarily ineligible for withholding of removal under [8 U.S.C.] § 1231(b)(3). Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). Because the Petitioners failed to establish that they are eligible for asylum, they cannot meet the higher standard for withholding of removal. We also conclude that substantial evidence supports the finding that the Petitioners failed to meet the standard for relief under the Convention Against Torture. To obtain such relief, an applicant must establish that it is more likely than not that he or she would be tortured if removed to the proposed 3 country of removal. 8 C.F.R. § 1208.16(c)(2) (2010). Based on our review, we agree that the Petitioners failed to demonstrate that they will more likely than not be tortured due to any violation of China s family planning policies or for violating their country s illegal exit laws. See Xia Yue Chen v. Gonzales, 434 F.3d 212, 222 (3d Cir. 2005); Matter of J-W-S-, 24 I. & N. Dec. at 195. Accordingly, dispense with oral we deny argument the petition because the for facts review. and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED 4
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