You Chun Zheng v. Attorney General of the United States , 384 F. App'x 141 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3458
___________
YOU CHUN ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A099-938-777)
Immigration Judge: Honorable Susan G. Roy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 26, 2010
Before: MCKEE, Chief Judge, HARDIMAN and COWEN, Circuit Judges
(Opinion filed: June 11, 2010)
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OPINION
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PER CURIAM
You Chun Zheng (“Zheng”), a citizen of China, petitions for review of a Board of
Immigration Appeals (“BIA”) order dismissing his appeal from an Immigration Judge’s
(“IJ”) decision denying his requests for asylum, withholding of removal, and relief under
the Convention Against Torture (“CAT”). For the reasons that follow, we will deny the
petition for review.
I
Zheng entered the United States in 2006 with a visitor’s visa and stayed beyond the
authorized period. Before receiving a notice to appear, Zheng filed an application for
asylum, withholding of removal, and CAT protection. Before the IJ, Zheng conceded
removability, and sought relief on the basis of an assault he endured when he tried to stop
Chinese family planning authorities from taking his wife for a forced abortion.
Zheng testified that after his son was born in 1991, his wife was forcibly implanted
with an IUD. In 1994, during a routine checkup, family planning authorities discovered
that the device had failed and Zheng’s wife was pregnant. The authorities subjected her
to a forced abortion and fitted her with a new IUD. In 1996, Zheng and his wife paid a
private doctor to remove the IUD. His wife became pregnant soon after, and the couple
went into hiding with their son at the home of Zheng’s sister-in-law.
Zheng testified that a few months after he and his family went into hiding, officials
made an unannounced visit to the sister’s home to check the household register. They
realized that Zheng’s wife was pregnant in violation of China’s family planning policy,
and called family planning officials to the home. Several family planning officials
responded and insisted on taking Zheng’s wife to the hospital to terminate the pregnancy.
Zheng pleaded for them to stop and, when they went for his wife, he defended her. Zheng
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stated in his I-589 that the officials pushed him to the ground, but testified before the IJ
that he was beaten by several of the officials. His wife was taken and subjected to a
second forced abortion and IUD implantation. Zheng testified that his family did not face
any further problems with family planning officials after the second forced abortion.
The IJ denied relief, finding Zheng incredible based on several omissions and
inconsistencies in his testimony and asylum application. The IJ further reasoned that,
even if Zheng were credible, he failed to meet his burden of proof to qualify for asylum.
The BIA agreed and dismissed Zheng’s appeal. Zheng then filed a petition for review.
II
We have jurisdiction over the petition under 8 U.S.C. § 1252(a). Because the BIA
issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y
Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, we also look to the decision of the IJ
to the extent that the BIA deferred to or adopted the IJ’s reasoning. See Chavarria v.
Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We review agency factual determinations
for substantial evidence, and we will uphold a factual determination “unless the evidence
not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d
150, 155 (3d Cir. 2005) (internal citations omitted).
Because we agree that Zheng did not meet his burden of proof, even assuming his
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credibility, we need not address the propriety of the adverse credibility determination.1
To demonstrate eligibility for asylum, an applicant must demonstrate that he suffered past
persecution or that he has a well-founded fear of future persecution. See Abdulrahman v.
Ashcroft, 330 F.3d 587, 591-92 (3d Cir. 2003). The Board held that Zheng did not
demonstrate either requirement.
Zheng argued that he suffered persecution when Chinese officials beat him for
attempting to stop them from taking his wife for a second forced abortion. An individual
who suffers persecution for resistance to a coercive population control program is eligible
for refugee status. See Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir. 2009)
(quoting 8 U.S.C. § 1101(a)(42)). However, for conduct to amount to persecution, it must
be extreme. See Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993). Physical abuse at the
hands of officials which does not cause serious injury does not rise to the level of
persecution. See Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005). Here, Zheng
testified that he was hit in the face by one official and then punched and kicked by others
until he fell to the ground. He did not claim that the assault caused any serious injuries,
and he was able to rush to the hospital afterwards to be with his wife. His scuffle with the
authorities did not constitute persecution, so we agree that Zheng did not demonstrate his
1
Evaluating Zheng’s arguments against the adverse credibility determination may
have proved a challenge. Among other things, Zheng’s counsel requested that this Court
“use its expertise in Chinese Mandarin language to evaluate” one aspect of his argument.
Pet. Br. at 10.
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eligibility for asylum based on past persecution.
Nor has he shown a well-founded fear of future persecution based on his resistance
to China’s family planning policies. To demonstrate eligibility for asylum based on a fear
of future persecution, an applicant must demonstrate that he “has a genuine fear, and that
a reasonable person in [his] circumstances would fear persecution if returned to [his]
native country.” Abdulrahman, 330 F.3d at 592. To satisfy the objective prong, a
petitioner must show that he would be individually singled out for persecution or
demonstrate a pattern or practice of persecution of similarly situated individuals. Lie v.
Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005). Here, the IJ reasoned – and the BIA agreed –
that Zheng failed to demonstrate that Chinese officials had any interest in him. Indeed,
Zheng remained in China for nine years following his wife’s second forced abortion, yet
had no further problems with authorities. We are not compelled to disagree with the
Agency’s conclusion. Nor is there any basis in the record to conclude that a pattern or
practice of persecution against individuals like Zheng exists in China.
Because Zheng was ineligible for asylum, we also agree that he was unable to meet
the higher standard applicable to applications for withholding of removal. See Sioe Tjen
Wong v. Att’y Gen., 539 F.3d 225, 236-37 (3d Cir. 2008).2 Accordingly, we will deny the
2
The BIA reasoned that because Zheng did not contest the IJ’s determination
regarding his request for CAT relief, he waived that issue on appeal. We therefore lack
jurisdiction to review the claim in Zheng’s petition that he was entitled to such relief. See
Lin v. Att’y Gen., 543 F.3d 114, 120-21 (3d Cir. 114) (“a petitioner is deemed to have
‘exhausted all administrative remedies,’ . . . and thereby ‘preserves the right of judicial
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petition for review.
review,’ . . . if he or she raises all issues before the BIA”).
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