Wenjun Tong v. Loretta E. Lynch , 650 F. App'x 429 ( 2016 )

FILED
NOT FOR PUBLICATION
MAY 20 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENJUN TONG, No. 12-74015
Petitioner, Agency No. A088-290-938
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 3, 2016**
Pasadena, California
Before: BYBEE and N.R. SMITH, Circuit Judges and STEIN,*** District Judge.
Petitioner Wenjun Tong, a Chinese citizen, seeks review of the Board of
Immigration Appeals’s (“BIA”) final order of removal affirming the immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
judge’s (“IJ”) denial of his request for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). On appeal, Tong
argues that the BIA erred in finding that Tong was not targeted on account of a
protected ground and did not suffer past persecution. We have jurisdiction under 8
U.S.C. § 1252, and we DENY the petition for review.
We note first that Tong does not appear to contest the BIA’s decision
regarding his withholding of removal and CAT claims. Because Tong failed to
raise any argument in his opening brief regarding either his withholding of removal
claim or his CAT claim, these claims have been waived and we do not address
them. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996)
(failure to raise an issue in an opening brief constitutes waiver).
Regarding Tong’s asylum claim, we review legal questions de novo, and the
BIA’s factual findings for substantial evidence. Khudaverdyan v. Holder, 778 F.3d
1101, 1105 (9th Cir. 2015). Substantial evidence supports the BIA’s conclusion
that Tong did not suffer past persecution on account of a protected ground.
First, Tong cannot demonstrate a nexus to a protected ground, because he
has not shown that he was targeted for arrest by Chinese police for expressing a
political opinion, rather than for legitimate law enforcement purposes. Police
conduct, even where heavy-handed, does not necessarily constitute “persecution” if
2
the police are engaged in legitimate investigative or peace-keeping activities. See,
e.g., Lin v. Holder, 610 F.3d 1093, 1097 (9th Cir. 2010) (finding no persecution
where the petitioner testified that Chinese authorities sought him because he
assisted a Falun Gong fugitive in violation of Chinese law, and where the petitioner
“did not provide any evidence that Chinese authorities would act in such an
‘extreme’ way as to rise to the level of persecution”); Donchev v. Mukasey, 553
F.3d 1206, 1214–15 (9th Cir. 2009) (finding no persecution where petitioner
encountered police “when they were investigating crimes or maintaining the
peace” and where “any escalation during these encounters were caused by [the
petitioner’s] friends challenging police authority”). Tong testified that the
protesters “fought back” when the police tried to disperse the crowd, and Tong
himself was not arrested until he physically interacted with an officer using his
protest sign. Once the protest turned violent, the police had legitimate
investigative and peace-keeping reasons for arresting and interrogating those
involved in the fight, including Tong. Tong has not shown that the police
attributed any particular opinion to him. Cf. Hu v. Holder, 652 F.3d 1011, 1014,
1017–18 (9th Cir. 2011) (finding nexus to a protected ground where the petitioner
was arrested for participating in a protest and accused of having political opinions
adverse to the Chinese government and the Communist Party).
3
Even assuming that Tong could establish a nexus to a protected ground, the
treatment he suffered does not rise to the level of persecution. Persecution is an
“extreme concept, ” Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2006), and
“does not include every sort of treatment our society regards as offensive,”
Wakkary v. Holder, 558 F.3d 1049, 1059 (9th Cir. 2009). Tong was detained for a
week and beaten twice, but did not sustain serious injury. Although Tong sought
medical treatment from a small local hospital after he was released from custody,
he required only minimal treatment: he was simply given antibiotic medication and
ointments. See, e.g., Gu 454 F.3d at 1020 (finding no persecution where petitioner
was detained and beaten on one occasion, interrogated for two hours, did not
require medical treatment, and did not suffer adverse employment consequences);
Prasad v. INS, 47 F.3d 336, 339–40 (9th Cir. 1995) (finding no persecution where
petitioner was arrested once, hit in the stomach and kicked, and interrogated for six
hours about his political allegiances).
Because Tong failed to establish past persecution, the BIA correctly found
that he is not entitled to a rebuttable presumption of future persecution. See 8
C.F.R. § 1208.13(b)(1). With regard to Tong’s fear that the police will come
looking for him if he returns to China, substantial evidence supports the BIA’s
4
finding that Tong failed to establish that the government’s interest in him would be
for anything other than legitimate law enforcement purposes.
The petition for review is DENIED.
5