IMG-287 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4308
___________
XIA CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A095-687-938)
Immigration Judge: Honorable Alberto J. Reifkohl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 25, 2010
Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: September 7, 2010)
___________
OPINION
___________
PER CURIAM.
Xia Chen, a citizen of China, seek review of a final removal order entered by the
Board of Immigration Appeals (“BIA”). We will deny the petition for review.
In January 2005, Chen sought to enter the United States at Los Angeles
International Airport without a valid entry document. She was interviewed and served
with a Notice to Appear charging inadmissibility under INA § 212(a)(7)(A)(i)(I).
Removal proceedings eventually were transferred to an Immigration Judge (“IJ”) in New
Jersey. Chen conceded the charge in the Notice to Appear and applied for asylum,
withholding of removal, and Convention Against Torture (“CAT”) relief. Chen claimed
to have suffered persecution in China as a Christian, and to fear future persecution for
having once harbored a friend who practices Falun Gong.
Chen testified that she became a Christian at age fourteen and was actively
involved in her church, which was not government sponsored. Chen and her family
practiced secretly, and their congregation met in Chen’s home once or twice a week. In
October 2004, when Chen was age twenty-two, the police raided the home while eleven
or twelve parishioners were present, and they arrested Chen and four others. Chen was
questioned at the station, mainly regarding the identity of her pastor, and she claims that
an officer slapped her face during the interrogation. Chen was detained for three days
and released when her mother paid a 3,000 RMB fine.
In December 2004, in an unrelated incident, Chen allowed a friend to stay in her
home for a week. Shortly after the stay, the friend’s mother told Chen that the friend had
been arrested for Falun Gong-related activities. Chen promptly left China because she
feared that she too might be arrested.
The IJ denied relief. First, the IJ found that Chen was not credible inasmuch as
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she had failed to mention her arrest and alleged religious persecution during the airport
interview. When asked at the airport why she was attempting to enter the United States,
Chen mentioned only the arrest of her friend. Second, and alternatively, the IJ denied
relief on the merits, finding no showing that Chen was persecuted through the two
unrelated incidents, or possessed a well-founded fear of future persecution, and he denied
withholding of removal and CAT relief.
The BIA dismissed Chen’s appeal. It held that, even if Chen was deemed credible,
she failed to satisfy the burden of proof for asylum. The BIA agreed, in particular, that
Chen did not show past harm that rises to the level of persecution or a well-founded fear
of future persecution. It observed that, while Chen was slapped during her three-day
detention, she did not require medical treatment after being released, she was never
charged with a crime, and she continued to worship at the family church. With regard to
Chen’s claim that she has a well-founded fear of persecution on account of her religion
given the poor treatment of Christians in China, the BIA noted that, while some
Christians, particularly those associated with unauthorized churches, have faced harm,
Chen failed to show that she would be unable to practice Christianity in China, or that she
would face persecution if she did so. The BIA rejected Chen’s claim for withholding of
removal under the higher standard that governs eligibility for that relief, and found no
evidence to establish that it is more likely than not that Chen would be tortured if returned
to China. Chen timely filed a petition for review in this Court.
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We have jurisdiction under 8 U.S.C. § 1252(a)(1). “We review factual findings,
including findings of persecution and fear of persecution, under the substantial evidence
standard.” Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir. 2009). “Under this
deferential standard, findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” Id. (quotation marks omitted).
We agree that Chen’s detention did not amount to “persecution,” which we have
explained “is an extreme concept that does not include every sort of treatment our society
regards as offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993). “Abusive
treatment and harassment, while always deplorable, may not rise to the level of
persecution.” Jarbough v. Att’y Gen., 483 F.3d 184, 191 (3d Cir. 2007). Chen’s three-
day detention was relatively brief, and although she was slapped in the face by a police
officer, she did not require medical treatment. Further, as the BIA noted, Chen was not
charged with a crime, and she continued to worship at the church after her release. This
record simply does not compel a finding of past persecution.1
Chen’s primary argument on this appeal is that the IJ erred in rejecting her
1
Cf. Jarbough, 483 F.3d at 191 (holding that record did not compel finding of past
persecution where alien testified that “Syrian intelligence officers seized him on two
occasions. The first time, the officers placed Jarbough in an interrogation room for four
hours. They threatened him with wires and electrical cables, screamed at him, and jabbed
his shoulder with their fists. The second time, the officers confined Jarbough for two
days. They cursed, threatened, kicked, shoved, and pushed him. As a result of this abuse,
Jarbough suffered bruising. He did not go to a doctor, however, as his injuries did not
‘require immediate medical intervention.’”).
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credibility, and she contends that the matter should be remanded for the BIA to consider
the adverse credibility finding. While the record shows that the IJ rejected Chen’s
credibility, the IJ also addressed the asylum claim on the merits and denied relief. On
appeal, the BIA acted within its authority in assuming Chen’s credibility and affirming
the IJ’s alternative merits determination. As a result, because “the BIA did not explicitly
adopt the IJ’s credibility findings, ... that portion of [the IJ’s] decision is not properly
before [this Court].” Jarbough, 483 F.3d at 191. Accordingly, we too will assume Chen’s
credibility, and, for the reasons discussed, must reject the asylum claim on the merits. See
id. This matter need not be remanded for the BIA to address the issue of credibility.
Chen also argues that the BIA erred by ignoring evidence that she received a
“death threat” while in custody, and that she heard one of her fellow church members
scream in pain due to a beating by the police.2 Assuming, arguendo, that the police did
make a “death threat” to Chen, we find no basis to hold that the BIA’s analysis of the
record was insufficient merely because it failed to make express reference to certain
aspects of Chen’s testimony, see Toussaint v. Att’y Gen., 455 F.3d 409, 414 (3d Cir.
2006), nor do we discern any basis to remand this matter for further consideration of the
alleged death threat. See Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir. 2005) (explaining
that “unfulfilled threats must be of a highly imminent and menacing nature in order to
2
Chen testified that the police “slap[ped] my face and they said, we got you. It’s not
worthwhile to sacrifice your life for this illegal church.” A.R. at 128.
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constitute persecution”).3
In short, we discern no error in the denial of asylum. Because withholding of
removal carries a higher burden of proof than asylum, Chen’s request for withholding was
properly denied, as well. See Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004).
Finally, Chen does not challenge the denial of CAT relief in her brief before this Court.
Accordingly, we deem that issue waived and do not address it. See Lie v. Ashcroft, 396
F.3d 530, 532 n.1 (3d Cir. 2005).
We have considered all of Chen’s arguments and find them without merit. For the
foregoing reasons, we will deny the petition for review.
3
Chen further argues that she established a well-founded fear of future persecution
because, inter alia, “although Ms. Chen was not a Falun Gong practitioner, she had a
well-founded fear in that her association with a Falun Gong member would implicate
her.” Petitioner’s Br. at 25. The record reflects that Chen failed to raise this claim in
either her notice of appeal or brief to the BIA. Chen’s failure to exhaust administrative
remedies leaves this Court without jurisdiction to consider this claim. See 8 U.S.C.
§ 1252(a)(2)(D); Hoxha v. Holder, 559 F.3d 157, 159-61 (3d Cir. 2009).
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