Wang v. Atty Gen USA

Court Case Details
Court Case Opinion

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-2656

NENG LONG WANG,

Petitioner

v.

ALBERTO GONZALES, Attorney General

of the United States;

MICHAEL CHERTOFF, SECRETARY OF DEPARTMENT

OF HOMELAND SECURITY,

Respondents

On Petition for Review of a decision and

order of the Board of Immigration Appeals

(BIA No. A77-935-836)

Argued March 7, 2005

BEFORE: SCIRICA, Chief Judge, and ROTH and

GREENBERG, Circuit Judges

(Filed: April 27, 2005 )

Cherylle C. Corpuz (argued)
400 Market Street
Suite 450
Philadelphia, PA 19106

Joseph C. Hohenstein
NATIONALITIES SERVICE CENTER
1300 Spruce Street
Philadelphia, PA 19107

Attorneys for Petitioner

Peter D. Keisler
Assistant Attorney General
Civil Division
Emily Anne Radford
Assistant Director
Keith I. Bernstein (argued)
Attorney
Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044

Attorneys for Respondents

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. FACTUAL AND PROCEDURAL HISTORY

This matter comes on before this court on a petition for review

of a decision and order of the Board of Immigration Appeals (“BIA”)
dated May 11, 2004, denying petitioner Neng Long Wang (“Wang”)
asylum and withholding of removal and ordering his removal to
China. We set forth the background of the case in some detail.

1

Wang, who was born in China on October 1, 1985, is the older

of two children. His sister was born in February 1988. Before his
sister was born, Wang’s parents worked and earned approximately
200-400 yuan per month. At that time the family lived in a house
with a bathroom, living room, dining room and kitchen. Wang’s

1

Inasmuch as the immigration judge found Wang to be credible,

the BIA did not question Wang’s credibility, and the government is not
challenging Wang’s credibility in these proceedings, we will state the
facts according to his testimony during his administrative hearing at
which he was the only witness.

2

parents lack formal education and do not speak Mandarin Chinese, the
language apparently used in governmental matters.

Though China has a one-child per family policy to control the

size of its population, Wang’s parents were unaware of the policy
until after his sister was born, an event leading the Chinese
government to fine the family for having a second child. The local
government authority sent a notice to Wang’s parents informing them
of the imposition of a 20,000 yuan fine against them (approximately
$2,400.00 as of 2005 exchange rates; 100 times their lowest estimated
monthly salary) by reason of the birth of their second child. Wang,
however, does not claim that the government imposed the fine on him
or that he was responsible for its payment. Wang’s parents could not
afford to pay the fine and thus decided to flee. At that time the family
left their village and split up, Wang going to live with his
grandmother in one village while the remaining members relocated to
another. The family, however, subsequently reunited and returned to
its home.

Wang’s father obtained permission to pay the fine by 1996 on

an installment basis. Nevertheless, the government repeatedly
subjected the Wang family household to property destruction and
harassment because the fine remained unpaid. Thus, from the time of
his sister’s birth in February 1988 until the date of Wang’s
administrative hearing in these proceedings on October 31, 2000,
governmental authorities made between ten and sixteen visits seeking
payment of the fine. Wang testified, “every time they show up they
always keep on asking us why don’t we pay up the remaining balance
and they start destroying, smashing our chairs and furnitures [sic].”
AR at 174-75. Yet the authorities’ intrusions into the family’s life

2

had their limitations as neither Wang nor his sister had any trouble
attending school, and the authorities never arrested, detained or fined
Wang. Accordingly, it is clear that the authorities did not direct their
actions at Wang.

Wang’s father left China in 1992 to earn enough money to pay

the fine. For three years, he worked in Argentina and sent money
back to China to support his family and to pay the fine incrementally.
Nevertheless Chinese government officials continued to visit the
house, causing destruction and continuing to harass the family while
Wang’s father worked in Argentina. While Wang’s father was in

2

AR refers to the administrative record.

3

Argentina he was kidnapped, in response to which Wang’s mother
borrowed $10,000 from a bank, using the family home as collateral, to
pay a ransom. Wang’s father returned to China in 1995 but was not
arrested or detained on his return. After Wang’s father’s return, the
government continued to harass the family.

In 1996 government authorities presented the family with

another notice reflecting the 20,000 yuan fine. This notice did not
credit the family with payments already made on the fine. In that
same year government officials sterilized Wang’s mother and “totally
destroyed” the family home. Id. at 179. The family, however, was
able to recover blankets from the home and subsequently relocated,
first to Wang’s grandmother’s house and then to a one-room home.
The Wangs’ previous residence was comprised of two stories and
several rooms.

Wang’s father later unsuccessfully attempted to leave China a

second time in search of work. The family began to rely on an uncle’s
generosity to survive, but the uncle could not provide the family with
enough money to continue to pay the fine. Eventually Wang’s parents
opened a snack bar business, but government authorities destroyed the
equipment of the business late in 1998 and “started laughing on the
way out.” Id. at 183, 185-86.

Subsequently, with the help of smugglers, Wang physically

arrived in the United States on December 3, 1999, at JFK
International Airport where he was detained. Upon his arrival Wang
applied for admission to the United States, but the immigration
service denied that application and instead instituted administrative
removal proceedings against him. The notice to appear served on him
charged that he was not in possession of valid entry documents and
that it was likely he would become a public charge if admitted. Wang
admitted that the entry document charge was valid, but in an effort to
prevent removal he applied for asylum, withholding of removal, and
protection under the Convention Against Torture.

Wang fears that if he returns to China, the Chinese authorities

will arrest him because he left the country illegally and the arrest
could lead to the imposition of another 20,000 yuan fine. Because
Wang’s family lacks the ability to pay this amount, Wang fears that he
will remain in custody if he returns to China. Wang’s family hopes
that he will be able to live safely in the United States and earn enough
money so that the family can pay its debts.

4

An immigration judge held a hearing on Wang’s application

following which the judge issued a written decision and order dated
November 7, 2000, denying Wang’s application for asylum but
granting his application for withholding of removal. The government
appealed the decision and order of the immigration judge to the BIA
to the extent it granted Wang’s request for withholding of removal
and Wang cross-appealed to the extent it denied him asylum. The
BIA sustained the government’s appeal and ordered Wang removed to
China on June 6, 2003.

Wang timely filed a petition for review of the BIA’s decision

with this court and simultaneously filed a motion with the BIA for
reconsideration of its June 6, 2003 decision, arguing that it failed to
address his cross-appeal. The BIA granted Wang’s motion for
reconsideration and vacated its June 6, 2003 decision on May 11,
2004. However, in the same decision, the BIA sustained the

3

government’s appeal for a second time, dismissed Wang’s cross-
appeal, and ordered his removal.

Wang filed a timely petition for review of the BIA’s May 11,

2004 decision on June 10, 2004, with this court. He then moved to
withdraw his original petition for review and on July 26, 2004, we
granted that motion. At that time we also stayed his removal pending
the disposition of these proceedings.

II. JURISDICTION AND STANDARD OF REVIEW

The BIA had jurisdiction in this matter under 8 C.F.R. §

1003.1(b)(3), and we have jurisdiction to review the final order of
removal under section 242(a)(1) of the Immigration and Nationality
Act ("INA"), 8 U.S.C. § 1252(a)(1). See Chen v. Ashcroft, 376 F.3d
215, 221-22 (3d Cir. 2004).

Congress has directed us to treat the BIA’s findings of fact as

conclusive “unless any reasonable adjudicator would be compelled to
conclude to the contrary.” INA § 242(b)(4)(B); 8 U.S.C. §
1252(b)(4)(B); see INS v. Elias-Zacarias, 502 U.S. 478, 481, 112

3

We observe that the government does not suggest that by filing

his initial petition with this court Wang deprived the BIA of jurisdiction
to entertain the motion for reconsideration.

5

S.Ct. 812, 815 (1992). A determination of whether an asylum
applicant has suffered from “persecution” or whether that individual
has a “well-founded fear of persecution” is factual and thus is entitled
to deference. Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.
2001).

We review the BIA’s attempts to fill gaps in the INA under the

Supreme Court’s direction requiring us to “respect the interpretation
of the agency to which Congress has delegated the responsibility for
administering the statutory program,” but also under the direction that
the courts decide pure questions of statutory construction. INS v.
Cardoza-Fonseca, 480 U.S. 421, 446-48, 107 S.Ct. 1207, 1221
(1987); see Fatin v. INS, 12 F.3d 1233, 1239 (3d Cir. 1993) (quoting
the Court’s statement in Chevron U.S.A., Inc., v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782
(1984) that “if the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the statute”); Chang
v. INS, 119 F.3d 1055, 1060 (3d Cir. 1997) (quoting the Supreme
Court in Chevron, 467 U.S. at 844, 104 S.Ct. at 2782, to state that “we
will not substitute our own judgment for that of the BIA, but we must
also reject any interpretation by the BIA that is ‘arbitrary, capricious,
or manifestly contrary to the statute’”).

III. DISCUSSION

A.

Determination framework

Section 208(b) of the INA, 8 U.S.C. § 1158(b), provides the

Attorney General with discretion to grant asylum to a "refugee," with
certain exceptions. In general, a "refugee" is “any person who is
outside any country of such person’s nationality . . . who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion." INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A). An
applicant has the burden to establish that he fits within this definition
of refugee. 8 C.F.R. § 1208.13(a).

An applicant may establish his refugee status by showing

6

either that he has been subject to past persecution or has a well-
founded fear of future persecution. The persecution, however, must
be “on account of” one of the five statutory bases. 8 C.F.R. §
1208.13(b). It is presumed that an applicant who establishes that he
suffered past persecution has a well-founded fear of persecution. 8
C.F.R. § 1208.13(b)(1). The government may rebut this presumption,
however, by showing by a preponderance of evidence that “[t]here has
been a fundamental change in circumstances such that the applicant
no longer has a well-founded fear of persecution in the applicant’s
country of nationality” or that “the applicant could avoid future
persecution by relocating to another part of the applicant’s country of
nationality.” 8 C.F.R. § 1208.13(b)(1)(i)(A)-(B).

Congress has provided that "a person who has been forced to

abort a pregnancy or to undergo involuntary sterilization, or who has
been persecuted for failure or refusal to undergo such a procedure or
for other resistance to a coercive population control program" is
“deemed to have been persecuted on account of political opinion.”
INA § 101(a)(42)(B); 8 U.S.C. § 1101(a)(42)(B). Similarly, a person
who has a well-founded fear that he will be subject to such procedures
or will be subject to persecution for resisting such procedures is
“deemed to have a well founded fear of persecution on account of
political opinion.” INA § 101(a)(42)(B); 8 U.S.C. § 1101(a)(42)(B).

While the decision to grant or deny an applicant asylum is

discretionary even if he establishes that he meets the statutory
eligibility requirements, the government must grant withholding of
removal, with certain exceptions, to an applicant if he demonstrates a
"clear probability" that, upon return to his home country, his "life or
freedom would be threatened" on account of race, religion,
nationality, membership in a particular social group, or political
opinion. INA § 241(b)(3)(A); 8 U.S.C. § 1231(b)(3)(A); INS v.
Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 2501 (1984). In harmony
with the asylum regulations, the regulations governing withholding of
removal provide that an applicant bears the burden to establish
eligibility for withholding of removal and if the applicant establishes
that he suffered persecution in the past, “it shall be presumed that the
applicant’s life or freedom would be threatened in the future . . . .” 8
C.F.R. § 1208.16(b). As in cases involving applications for asylum,
the government may rebut this presumption by showing that a change
in circumstances has removed the basis for the applicant to have a
well-founded fear of persecution or by showing that the threat is not
country-wide. 8 C.F.R. §1208.16(b)(1).

7

Under the Convention Against Torture, an applicant is entitled

to withholding of removal if he establishes that “it is more likely than
not that he or she would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 1208.16(c)(2). The regulation
defines torture as “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted” by a public official for
certain purposes. 8 C.F.R. § 1208.18(a)(1).

B. The Decisions of the Immigration Judge and the Board of

Immigration Appeals

The immigration judge recognized two potential bases for

Wang’s application for asylum. The first basis was that he and his
family had suffered past persecution resulting from his parents’
violation of China’s family planning policies. The second basis was
that Wang is a member of a particular social group consisting of “poor
and uneducated Chinese who are forced to pay a heavy fine far larger
than they can afford” for violating the family planning policies. The
heavy fine, the theory goes, forces members of this particular social
group to turn to international smuggling operations to search for work
in foreign lands and the Chinese government directly and indirectly
supports those smuggling organizations. The immigration judge
summarily dismissed the second basis due to a lack of evidence that
“official Chinese government policy is either to encourage alien
smuggling or to support such endeavors.” AR at 136. Accordingly,
the immigration judge focused on Wang’s first basis, past persecution
due to his parents’ violation of the family planning laws. Wang does
not pursue his second argument vigorously in these proceedings,
which we note, in any event, insofar as the record here reveals, could
not be substantial. Rather, he focuses on his first argument predicated
on China’s family planning policies.

The immigration judge found that the Chinese government’s

actions against Wang and his family amounted to persecution “where
the respondent’s mother was forcibly sterilized and where the family’s
home was completely destroyed when his parents were unable to pay
the family planning fine.” Id. The immigration judge acknowledged
that Wang’s parents were the government’s primary targets, but stated
that “[t]hese government-sanctioned actions against the respondent’
[sic] parents effectively extended to the respondent, who found
himself without a home.” Id. at 136. While the immigration judge
was “not prepared to rule that a child may legally take the place of a
spouse for all purposes,” the judge did conclude that “there is

8

sufficient evidence in this record to establish that this respondent was
directly affected by the Chinese government’s persecution of his
parents and can legally stand in their shoes as one who has been
persecuted.” Id.

Nevertheless the immigration judge did not grant asylum to

Wang because the judge concluded that “sufficient adverse factors”
weighed against a discretionary grant of asylum. Id. at 137. Those
factors included the circumstance that Wang was not fleeing direct
persecution, had attended school, the past persecution was not based
on physical harm, and he did not leave China to escape future physical
harm. Primarily, however, the immigration judge relied on the fact
that Wang’s family had hired smugglers to transport him to the United
States as the discretionary basis for denying his application for
asylum. The immigration judge determined that “[b]y granting
asylum to otherwise marginally asylum-eligible aliens, such as this
young respondent, such results accomplish little more than to reward
the smugglers and provide more incentive for other families to put
their children into harm’s way.” Id. at 138.

4

Even though the immigration judge’s reasoning led the judge

to deny a grant of asylum, the judge determined that Wang had met
the burden of proof for a grant of withholding of removal because he
had established a “clear probability” of persecution upon his return to
China. Inasmuch as a grant of withholding of removal is not
discretionary if the statutory requirements are met, the immigration
judge ordered that Wang’s removal be withheld. Wang also sought
relief under the Convention Against Torture, but the immigration
judge did not address this claim due to the grant of withholding of
removal.

The government appealed and in a June 6, 2003 decision, the

BIA sustained the government’s appeal. The BIA concluded that
Wang failed to establish either past persecution or a well-founded fear
of future persecution based on any one of the five statutory grounds
for granting asylum. Id. at 64. The BIA dismissed Wang’s argument
regarding his fear of imprisonment upon return to China predicated on

4

The immigration judge indicated that “Wang testified that he

was not aware of how much money his parents borrowed to pay the
smugglers” but that “the court has adjudicated a great many Chinese
asylum cases, including numerous Chinese juveniles, where the
smuggling fees range anywhere for $30,000 to $40,000.” AR at 137.

9

his action in leaving the country illegally because he did not prove
that “the exit policy in China constitutes punishment for invidious
reasons rather than being a law of general applicability.” Id. at 65.
The BIA found that the harm that Wang claimed from past
persecution stemming from his parents’ violation of the family
planning policies was “too indirect to establish past persecution.” Id.
Because the Board found the connection to be too tenuous, it agreed
with the government that Wang did not prove his eligibility for
asylum protection. Without further discussion, the Board also
determined Wang to be ineligible for protection under the Convention
Against Torture and for withholding of removal.

Wang moved for reconsideration on the basis that the BIA

failed to address his cross-appeal in its June 6, 2003 decision. The
Board granted Wang’s motion for reconsideration, vacated its June 6,
2003 decision and order, and entered a new decision and order dated
May 11, 2004. Wang’s petition for review addresses the May 11,
2004 decision and order.

In this second decision and order dated May 11, 2004, the BIA

again concluded that Wang failed to establish either past persecution
or a well-founded fear of future persecution on the basis of any of the
five statutory grounds for asylum. The BIA stated that Wang could
not stand in his parents’ shoes and rely on the persecution they
experienced to support his own asylum claim. According to the BIA,
“[w]hile the respondent might be eligible as a derivative of a
successful asylum application filed by either of his parents arising
from their violation of the family planning policies, we do not find
that the respondent can demonstrate persecution in his own right on
account of the violation or resistence [sic] to family planning
policies.” AR Supp. at 6. The BIA also repeated its earlier finding

5

that Wang did not prove that China’s exit control program
“constitutes punishment for invidious reasons.” Id. at 6.

In addition to its conclusion that Wang could not stand in the

shoes of his parents for asylum purposes, the BIA concluded that
“[o]n the record before us, we do not find that [Wang] has adequately
established that the past harm he experienced rose to the level of
persecution.” Id. The BIA pointed out that Wang was not arrested,
detained or fined, and that he had no trouble attending school. Rather,

5

AR Supp. refers to the supplemental appendix Wang’s attorneys

submitted.

10

the BIA indicated that, “[p]erhaps the worst effect on him of the
actions against his parents was the destruction of their home, but he
testified the family was able to live in a different home that was not as
good.” Id. Finally, the BIA denied Wang’s application for
withholding of removal and relief under the Convention Against
Torture as it concluded that the record did not establish that if Wang
returned to China it is more likely than not that he would be subject to
persecution on account of a statutory basis for granting asylum or
would be tortured.

C. Asylum Eligibility

The crux of an asylum determination is whether an applicant

has established that he has suffered from past persecution or has a
well-founded fear of future persecution on account of one of the five
statutory bases: race; religion; nationality; membership in a particular
social group; or political opinion. Here, Wang is seeking asylum
based on past persecution on account of political opinion or on
account of his membership in a particular social group. While he also
contends that he qualifies for asylum by reason of his well-founded
fear of persecution based on his violation of China’s exit-control
policy, the evidence in the record does not compel, or even permit, us
to disturb the BIA’s finding rejecting this contention. Thus, we do not
address this point further.

According to Wang he was persecuted because the Chinese

government: (1) imposed a fine grossly disproportionate to their
income on his parents for violating the family planning policies; (2)
engaged in a lengthy pattern of destruction of the Wang family’s
property, including total destruction of the family home; (3) destroyed
equipment necessary to the family business; (4) left the family with no
choice but to leave their home temporarily to run from the
government; (5) caused family separation at several points in time;
and (6) refused to acknowledge the payments the family made towards
the family planning fine. We will assume without deciding that these
acts amounted to persecution of Wang’s parents.

Our assumption that the government authorities’ behavior

amounted to persecution of Wang’s parents does not end our inquiry.
To satisfy the statute, Wang must have suffered from the persecution
and the persecution must have been “on account of” one of the five
statutory bases for granting relief. The BIA believed that “the
statutory ground on which the Immigration Judge found the

11

respondent to have been persecuted is not entirely clear.” Id. at 5.
The BIA explained that “it is not certain whether the Immigration
Judge concluded that [Wang] was a victim of past persecution as a
member of a particular social group or whether he concluded that
[Wang] qualified for asylum and withholding under the laws designed
to protect those who violate or resist the family planning as one
‘standing in the shoes’ of such person or persons.” Id. But it then
went on to explain that it did not find “the ultimate result in this case
[would be] different on either reading of the Immigration Judge’s
decision.” Id.

The BIA concluded that Wang could not stand in the shoes of

his parents “where the persecution is claimed to have been
experienced by his parents as the result of the family planning
policies,” and thus he could not show persecution on account of
political opinion. Id. The BIA reached this conclusion by reasoning
that the statutory definition of “refugee” on account of a violation of
the family planning policies includes only “those who violate or resist
the family planning policies (the respondent’s parents in this
particular case),” and not the child of such a person. Id. The BIA
acknowledged that it has interpreted the statutory definition of refugee
to include the spouse of such a person. See In re C-Y-Z, 21 I & N
Dec. 915, 918 (BIA 1997). The BIA, however would not interpret the
statute to include the child of a person deemed to have suffered
persecution on account of political opinion.

It is obvious that the facts here are distinguishable from those

in C-Y-Z. In C-Y-Z, the applicant sought asylum based on the
involuntary insertion of an intrauterine device (IUD) into his wife and
on the basis of his wife’s eventual involuntary sterilization. As the
BIA explained, the issue in C-Y-Z was “whether the applicant in this
case can establish past political persecution based upon his wife’s
sterilization.” Id. at 917 (emphasis added). The BIA answered this
question affirmatively as it held that “the applicant in this case has
established eligibility for asylum by virtue of his wife’s forced
sterilization.” Id. at 918 (emphasis added).

A child, however, is not a spouse. It should be obvious to

anyone that whereas a husband has a direct interest in whether his
wife can have additional children, a child is in a very different
position as the family planning policies as applied to his parents can
affect him only as a potential sibling and not as a parent. In Chen v.
Ashcroft, 381 F.3d 221, 225-27 (3d Cir. 2004), we discussed but did

12

not decide whether the BIA’s interpretation in C-Y-Z was permissible
and then went on to hold that the BIA’s interpretation of INA §
101(a)(42)(B) not to reach unmarried partners was reasonable. It

6

seems to us that in view of Chen we are dealing with an a fortiori case
insofar as this case implicates the principles in C-Y-Z. Surely if an
unmarried parent cannot obtain relief under C-Y-Z then a potential
sibling cannot either as his interest in the birth of a child to his parents
is more remote than that of a parent, married or not. Thus, we go on
to consider the balance of Wang’s asylum claim.

While Wang could not prove persecution on account of

political opinion, this failure would not mean that he could not
establish that he was persecuted on account of some other statutory
reason giving him a basis to seek relief. But in this regard we are
satisfied that we cannot disturb the BIA’s ultimate conclusion that
Wang has not established adequately “that the past harm he
experienced rose to the level of persecution.” AR Supp. at 6. As the
BIA pointed out, Wang “was not arrested, detained, or fined in China,
and testified that neither he nor his sister had any trouble attending
school.” Id. Thus, the BIA observed that the worst effect on him of
the actions against his parents was the destruction of their home, but
“he testified the family was able to live in a different home that was
not as good.” Id.

In fact Wang’s claim gets down to an assertion, accepted in

these proceedings, that the economic harm to his family by reason of
the government’s persecution of his parents caused him to be
separated from them for a period of time and later required him to live
in a house inferior to that in which he lived prior to the persecution.
In considering this harm, we are informed by our recent opinion in Li
v. Attorney General, 400 F.3d 157 (3d Cir. 2005). After an extensive
review of the cases, we held in Li that “the deliberate imposition of
severe economic disadvantage which threatens a petitioner’s life or
freedom may constitute persecution.” Id. at 168. As we have
indicated we are assuming without deciding that as to Wang’s parents
the authorities’ action did constitute persecution and thus meet the Li
test. We also are assuming without deciding that in an appropriate

6

In Chen v. Ashcroft, 376 F.3d at 223 n.2, we pointed out that C-

Y-Z could be contributing to the destruction of family units and
suggested that “it would be useful to study the actual impact of C-Y-Z
on family structures.” We do not know whether this study has been or
will be done.

13

case persecution of parents can be persecution of a child even though
the effect on the child is only a collateral consequence of his parents’
persecution.

7

Nevertheless for the child to be persecuted he must show that

the persecution threatened his “life or freedom” and in this case Wang
has not come close to meeting that standard. Indeed, even the
immigration judge who granted Wang relief regarded this case as only
marginal. Thus, we need not consider whether the Chinese
authorities’ treatment of Wang could be attributed to one of the five
statutory bases for granting asylum because he was not persecuted on
any basis. Moreover, inasmuch as we have no reason to disturb the
BIA’s finding that Wang was not eligible for asylum his contention
that the BIA erred in upholding the immigration judge’s exercise of
discretion to deny asylum is moot.

We realize that our result has the disadvantage of being

uncertain in its application as compared to a bright-line rule that
persecution only of parents never can be regarded as persecution of a
minor child who is a member of the parents’ household or always
should be so regarded. Thus, application of the principles here will
require that immigration judges and the BIA decide cases on an
individual basis. Yet as Judge Becker said in his concurring opinion
in United States v. Balascsak, 873 F.2d 673, 684, 685 (3d Cir. 1989),
“drawing lines depending on the facts is the stuff of judging.”
Moreover, in this case the BIA, in what we regard as an unassailable
decision, actually drew lines. Furthermore, a determination of
whether an adverse act rises to the level of persecution even with
respect to the person against whom it is directed requires the drawing
of lines. Thus, we are comfortable with our result.

D. Withholding of Removal and Convention Against Torture

7

For example, a child might suffer from mental or physical

disabilities that makes him particularly dependent on his parents so that
persecution of them has a particularly pronounced impact on him. But
there is no indication in the record that Wang is disadvantaged in this
way and he does not claim in these proceedings to suffer from any
disability making him especially vulnerable. Indeed, we draw quite the
opposite inference as his parents were willing to send him to the United
States unaccompanied by any family member when he was only 14 years
old.

14

Inasmuch as Wang is not eligible for asylum, he cannot

demonstrate eligibility for withholding of removal. See Janusiak v.
INS, 947 F.2d 46, 47-48 (3d Cir. 1991). Thus, we need not discuss
that potential basis for granting Wang relief separately though we do
set forth our view that based on the record we see no reason to believe
that if he returns to China his life or freedom will be threatened on
account of race, religion, nationality, membership in a particular
social group, or political opinion or, indeed, as far as we are aware,
for any reason. See INA § 241(b)(3)(A); 8 U.S.C. § 1231(b)(3)(A).
Finally, we reject Wang’s claims under the Convention Against
Torture as we agree with the government that “[t]here is absolutely no
evidence in the record to compel the conclusion that there is a clear
probability that Wang will be tortured if returned to China.”
Respondent’s br. at 31.

IV. CONCLUSION

For the foregoing reasons we will deny the petition for review

and will vacate our order of July 26, 2004, staying Wang’s removal.

15