NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4398
___________
HONGLI LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A098-975-464)
Immigration Judge: Henry S. Dogin
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
June 1, 2010
Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges
(Opinion filed: June 2, 2010)
_________
OPINION
_________
PER CURIAM
Hongli Lin petitions for review of a final order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”). We
will deny the petition for review.
I.
Hongli Lin, a native and citizen of the People’s Republic of China, entered the
United States without inspection in 2004. He was placed in removal proceedings, during
which he conceded that he was removable as charged. Lin applied for asylum,
withholding of removal, and CAT protection, claiming that he had been persecuted for
resisting China’s family planning policy. Lin’s wife became pregnant with their second
child and she hid at an aunt’s house and did not report for her required gynecological
exams. Officials began looking for her and ultimately took Lin into custody because of
his wife’s failure to report for exams. Lin testified that he was detained by officials
overnight without food, water, or access to a bathroom, but he was not questioned or
struck. Apparently because she found out about her husband’s detention, Lin’s wife
turned herself in and a forced abortion was performed. A few months later, Lin fled
China. Lin also claimed that he fears returning to China because he wants another child
and believes that another pregnancy will be aborted or that he or his wife will be
sterilized.
The IJ denied relief and ordered Lin removed to China, concluding that he had not
suffered past persecution. The IJ concluded that, as a matter of law, Lin could not
maintain a claim for asylum based on his wife’s forced abortion. He further concluded
2
that Lin had not established an independent basis for asylum because his overnight
detention did not rise to the level of persecution and his fear of a future pregnancy ending
in abortion and/or sterilization was too speculative to constitute a well-founded fear of
future persecution. The BIA affirmed the IJ’s decision and Lin thereafter filed a timely
petition for review.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252 to review final orders of
removal. In this case, the BIA affirmed the decision of the IJ and discussed some of the
bases for the IJ’s decision, so we therefore review the decisions of both the IJ and BIA.
See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). In doing so, we review factual
findings for substantial evidence and may not disturb them “‘unless any reasonable
adjudicator would be compelled to conclude to the contrary.’” Sandie v. Att’y Gen., 562
F.3d 246, 251 (3d Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). We exercise plenary
review over conclusions of law, subject to the established principles of deference
accorded agency decision-making. See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 231
(3d Cir. 2008).
Under the Immigration and Nationality Act (“INA”), an applicant may demonstrate
eligibility for asylum by showing either past persecution or a well-founded fear of future
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). The INA further states that “a
3
person who has been forced to abort a pregnancy or to undergo involuntary sterilization . .
. shall be deemed to have been persecuted on account of political opinion.” 8 U.S.C.
§ 1101(a)(42)(B). We recently held, however, that there is no automatic refugee status
for spouses of individuals subjected to coercive population control policies. Lin-Zheng v.
Att’y Gen., 557 F.3d 147, 157 (3d Cir. 2009) (en banc). Thus, the IJ and the BIA
properly held that Lin was not entitled to asylum based on his wife’s forced abortion.
But spouses remain eligible for relief if they can establish that they personally
were persecuted for resisting a coercive family planning policy, or that they have a well-
founded fear of future persecution for that resistance. See 8 U.S.C. § 1101(a)(42). We
agree with the IJ and BIA that Lin has not made such a showing. Lin contends that his
overnight detention without food, water, or bathroom access constitutes past persecution.
But “persecution connotes extreme behavior, including ‘threats to life, confinement,
torture, and economic restrictions so severe that they constitute a threat to life or
freedom’.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003). Although unfair or
even offensive, Lin’s brief detention and its attendant circumstances do not rise to the
level of the extreme behavior that is persecution, as the IJ and BIA correctly concluded.
See, e.g., Kibinda v. Att’y Gen., 477 F.3d 113, 119-20 (3d Cir. 2007) (holding that a five-
day detention and a minor injury from maltreatment was insufficient to constitute
persecution).
The IJ and the BIA also correctly concluded that Lin did not establish a well-
4
founded fear of future persecution with his testimony that he feared a future abortion or
that he or his wife would be forcibly sterilized if he returned to China. First, Lin cannot
make a legally cognizable claim for asylum based on actions taken against his wife (either
a future sterilization or another forced abortion) See Lin-Zheng, 557 F.3d at 156.
Second, his fear that he himself might be sterilized if his wife becomes pregnant again is
too speculative to establish the objective reasonableness of his fear of future persecution.
See S-Cheng v. Ashcroft, 380 F.3d 320, 323 (8th Cir. 2004) (alien’s “general plans to
have more children” were too speculative to support a well-founded fear of future
persecution).
Because the threshold for asylum is lower than the threshold for withholding of
removal, Lin’s inability to establish his eligibility for asylum necessarily undermines his
eligibility for withholding of removal.1 Accordingly, we will deny the petition for review.
1
Lin did not appeal the IJ’s denial of CAT protection to the BIA. Because Lin did
not exhaust his administrative remedies as to the claim, we are without jurisdiction to
consider it. See Bejar v. Ashcroft, 324 F.3d 127, 132 (3d Cir. 2003).
5