Tan Chen v. Attorney General of the United States , 439 F. App'x 186 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3735
___________
TAN CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A089-252-651)
Immigration Judge: Honorable Susan G. Roy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 21, 2011
Before: AMBRO, GREENAWAY, JR. and GREENBERG, Circuit Judges
(Opinion filed July 26, 2011 )
___________
OPINION
___________
PER CURIAM
Tan Chen seeks review of the Board of Immigration Appeals’ (“BIA” or “Board”)
final order of removal. In its order, the BIA affirmed the Immigration Judge’s (“IJ”)
decision to deny Chen’s application for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”). We will deny the petition.
I.
Chen, a native and citizen of China, was served with a Notice to Appear in
January 2008, charging him with removability pursuant to section 212(a)(6)(A) of the
Immigration and Nationality Act (“INA”), as an alien present in the United States without
being admitted or paroled. Chen conceded removability and applied for asylum,
withholding of removal, and CAT relief, claiming that he experienced past persecution
and fears future persecution by corrupt officials and subordinates in the village where he
lived.
At his administrative hearing, Chen testified before the IJ that he began to
experience problems in 2002 when his village chief came to his family’s home and
proposed an arranged marriage between his son and Chen’s younger sister. Chen
testified that the chief sought to benefit from Chen’s father’s ownership in a steel factory.
Chen claimed that after his father and sister rejected the proposal, village cadres returned
to their home and took his sister back to the village chief’s home, but that he and his
family helped her escape.1 Chen claimed that between 2002 and 2006, he and his family
members had occasional run-ins with the village chief, mostly related to the situation
with his sister.
However, Chen testified his problems became more severe in 2006. Apparently,
the government wanted to build a highway in the village that would pass through Chen’s
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family home. Although Chen’s family was told that they would be fairly compensated,
Chen claimed that the village chief refused to adequately compensate his father and their
neighbors. Chen testified that after his father filed two complaints against the village
chief, cadres came to their home to confront his father; when he attempted to protect his
father, he was pushed to the ground and hit on his torso and back. After that incident,
Chen’s parents told him to run away. Chen spent a brief time in another village with
relatives, but left the country soon after. Chen believes that the village chief will exact
revenge on him if he is returned to China.
The IJ denied Chen’s applications for asylum and related relief. She found that
although Chen testified credibly, he did not demonstrate that he suffered harm rising to
the level of persecution in China, or that he had a well-founded fear of future persecution
in China, on account of a protected ground.
First, although Chen had claimed membership in a particular social group, namely
“landowners deprived of their land without fair compensation,” the IJ concluded that, as a
matter of law, he was not a member of a social group.
The IJ also rejected Chen’s argument that he had been persecuted on account of
his political opinion. Chen had claimed that he experienced retaliation after his father
filed formal complaints against the village chief. The IJ noted that it was possible that
such activity, if it constituted “whistle-blower activity,” might form the basis of
persecution on account of political opinion. See Cao v. Att’y Gen., 407 F.3d 146, 153
1
Chen’s sister later immigrated to Argentina and was granted asylum.
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(3d Cir. 2005). The IJ, relying on Matter of C-A, 23 I. & N. Dec. 951 (BIA 2006), noted
that whistle-blower activity must be performed out of a sense of civic duty or moral
responsibility, not simply for compensation. The IJ determined that Chen and his family
sought legal action against the village chief for compensatory reasons, not out of civic
responsibility.
Moreover, even if Chen and his family had been targeted for fighting corruption,
the IJ found that Chen failed to establish that it was anything more than a tangential
reason. According to the IJ, the primary reason the village chief targeted Chen and his
family was to gain control of the steel mill, especially in light of the village chief’s
marriage proposal scheme.
In an alternative finding, the IJ found that, even if Chen established a nexus
between his claim of persecution and a protected ground, he did not suffer harm rising to
the level of persecution. The IJ cited the fact that Chen was subjected to an isolated
incident of physical abuse, which did not result in serious injury, stemming from his
attempt to stop village officials from arresting his father.
As to Chen’s claimed well-founded fear of future persecution, the IJ found that he
failed to establish an objectively reasonable fear of future persecution and noted that
internal relocation was a reasonable possibility. The IJ further reasoned that Chen failed
to present any documentation that would establish that individuals in China would be
interested in him upon his return to the country. Lastly, the IJ concluded that Chen failed
to demonstrate that he would likely be tortured if removed to China. Chen appealed and,
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in an August 2010 decision, the BIA dismissed the appeal. Chen filed a timely petition
for review.
II.
This Court has authority to review final orders of removal. See 8 U.S.C. '
1252(a). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the
bases for the IJ’s decision, we have authority to review the decisions of both the IJ and
the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We review a agency’s
factual determinations for substantial evidence, and will uphold such determinations
“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). Thus, if the
applicant “seeks to obtain judicial reversal of the [denial of asylum], he must show that
the evidence he presented was so compelling that no reasonable fact finder could fail to
find” the requisite likelihood of persecution. INS v. Elias-Zacarias, 502 U.S. 478, 483-84
(1992).
To be granted asylum as a refugee, an applicant must establish that he is unable to
return to his homeland “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.” See INA § 101(a)(42). An applicant who offers credible testimony regarding
past persecution is presumed to have a well-founded fear of future persecution. Berishaj
v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004) (citation omitted).
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III.
On petition for review, Chen argues that his testimony established eligibility for
asylum based on past persecution on account of his political opinion, as well as his
membership in a social group. See Petitioner’s Brief (“Pet. Br.”) at 12. He further argues
that his testimony and the evidence of record establish that he has a well-founded fear of
future persecution on account of his political opinion, as well as his membership in a
social group. Id.In his appeal to the BIA, Chen argued that the IJ erred in concluding that his
proposed social group of “landowners deprived of their land without fair compensation”
is not a congnizable social group. (See Administrative Record (“A.R.”) at 46-47.)
However, in his opening brief here, Chen abandons that argument and instead asserts that
the IJ and BIA both erred in classifying his articulated social group as “landowners
deprived of their land without fair compensation” rather than his “immediate family.”
See Pet. Br. at 15. Chen did not raise that argument on appeal to the BIA, however.
Therefore, because Chen failed to administratively exhaust the argument, we lack
jurisdiction to review it. See INA § 242(d)(1); Abdulrahman v. Ashcroft, 330 F.3d 587,
594-95 (3d Cir. 2003).
We also determine that Chen has waived review of the agency’s determination that
he was unable to establish that he was a member of a cognizable social group, namely
“landowners deprived of their land without fair compensation.” See Laborers’ Int’l
Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived
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unless a party raises it in its opening brief [. . .]”) (internal quotation marks and citation
omitted). Accordingly, his broader argument that the IJ and BIA erred in concluding that
he did not demonstrate past persecution, or a likelihood of future persecution, on account
of his membership in a social group, necessarily fails.
Next, Chen argues that he established before the IJ that he was persecuted in the
past, and would be persecuted in the future, on account of his political opinion.
Specifically, Chen argues that he and his father were retaliated against for their
opposition to the actions of the village chief, which the IJ and BIA interpreted as a
whistle-blower claim.2 Specifically, Chen claimed that after his father filed a second
formal complaint against the chief, village cadres came to the family home to arrest his
father. Chen claimed that, when he attempted to prevent his father’s arrest, he was
thrown to the ground by the cadres.
As mentioned, the IJ and BIA determined that Chen was unable to establish that
his activity constituted whistle-blowing. However, even assuming that it did, the IJ and
BIA concluded that Chen was unable to demonstrate that any treatment that he endured at
the hands of the village chief or his followers rose to the level of persecution, or that he
has a well-founded fear of future persecution.
Because substantial evidence supports the agency’s finding that Chen was unable
to demonstrate either past persecution or a well-founded fear of future persecution, we
2
Chen did not object to that characterization in his appeal to do the BIA, nor does
he here.
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need not review its additional whistle-blower determination.
Chen claimed to have suffered only one minor injury stemming from his coming
to his father’s defense when village cadres attempted to arrest his father. This Court has
held that a single alleged beating that does not result in any injuries requiring medical
attention does not constitute past persecution. See Chen v. Ashcroft, 381 F.3d 221, 235
(3d Cir. 2004).
Substantial evidence also supports the finding that Chen does not have a well-
founded fear of future persecution. See Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351
(3d Cir. 2006) (to establish a well-founded fear of future persecution, an applicant must
show both a subjectively genuine fear of persecution and an objectively reasonable
possibility of persecution). Although Chen testified that Chinese officials would be
aware of his return to the country, he did not present any evidence to demonstrate that
this is the case.
In a letter provided by Chen’s father in support of Chen’s application, Chen’s
father explained that after his son fled the country, he was detained and later released, but
that he suffered only a minor injury to his waist during that incident. Chen did not
provide any letters from neighbors describing any ongoing persecution that they have
suffered in the years since Chen fled China. As Chen’s claim is largely based on
incidents involving his family and neighbors, the fact that they remain in China without
apparent difficulty undermines his assertion that he fears persecution if removed to
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China. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (“We agree that when
family members remain in petitioner’s native country without meeting harm, and there is
no individualized showing that petitioner would be singled out for persecution, the
reasonableness of a petitioner’s well-founded fear of future persecution is diminished.”).
Moreover, as the IJ found, Chen’s claimed well-founded fear is also undermined
by the fact that he could safely relocate within China. See 8 C.F.R. § 1208.13(b)(2)(ii).
Chen has not presented any evidence or convincing arguments contradicting that finding.
Because Chen did not meet his burden of proof as to his asylum claim, his claim
for withholding of removal necessarily fails, as does his claim for protection under the
CAT. See Yu v. Att’y Gen., 513 F. 3d 346, 349 (3d Cir. 2008). Accordingly, we will
deny the petition for review.
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