NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-1686
___________
JIAN HUA WENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-380-418)
Immigration Judge: Honorable Annie Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 7, 2010
Before: SCIRICA, SMITH and VANASKIE, Circuit Judges
(Filed: December 9, 2010)
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OPINION OF THE COURT
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PER CURIAM.
Jian Hua Weng, a native and citizen of the People’s Republic of China, entered the
United States in 2007 without inspection or parole. The Government charged him with
removability, which he conceded. Weng sought asylum, withholding, and relief under
the Convention Against Torture (“CAT”) related to his wife’s sterilization and his
resistance to Chinese population control policies. The Immigration Judge (“IJ”) denied
his applications, and the Board of Immigration Appeals (“BIA”) dismissed Weng’s
subsequent appeal on July 24, 2009. Weng filed a motion for reconsideration on August
13, 2009, arguing that the BIA should have better considered his argument that he
showed other resistance to China’s family planning policy and that he had a valid CAT
claim which was not considered by the IJ below. The BIA denied his motion on
February 18, 2010.
On March 13, 2010, Weng filed a petition for review. In the petition itself, he
states that he is seeking review of the February 18, 2010 order denying his motion for
reconsideration. In his appellate brief, however, he only mentions the February order,
stating instead that he appeals from the BIA order dismissing his appeal. He argues that
the BIA erred in concluding that he had not suffered past persecution on account of other
resistance and that he did not have a well-founded fear of future persecution, and also in
ruling that he was not entitled to asylum, withholding, and CAT relief. (We note that the
initial list of arguments in Weng’s pro se brief includes a challenge to an adverse
credibility finding. The Government cites the initial list and states that the brief
exclusively addresses those issues; we note, however, that the credibility issue was not
addressed. That it was not discussed further is unsurprising, as the IJ made no specific
credibility finding, and the BIA considered Weng to have testified credibly.)
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First, we consider the scope of our review. The arguments Weng raises in his
brief largely relate to the BIA’s order dismissing his administrative appeal. However,
that order was final on July 24, 2009, and Weng did not file a petition for review from it
within the 30 days permitted by statute, see 8 U.S.C. § 1252(b)(1). Because the time
limit is mandatory and jurisdictional, we cannot review the July order. See McAllister v.
Attorney Gen. of the United States, 444 F. 3d 178, 185 (3d Cir. 2006). Weng’s later
petition for review from the order denying the motion for reconsideration cannot serve as
a challenge to the earlier order. See Stone v. INS, 514 U.S. 386, 405 (1995); Nocon v.
INS, 789 F. 2d 1028, 1033 (3d Cir. 1986). Accordingly, we must dismiss the petition for
review to the extent that Weng is seeking to challenge the July order.
The question then is whether Weng presents in his brief a challenge to the order
denying the motion for reconsideration that we can review under 8 U.S.C. § 1252(a).
The Government argues that Weng abandoned any such challenge by failing to include
an argument relating to the relevant BIA decision (and alternatively urges us to reject
Weng’s petition on the merits). Although the matter is not entirely free from doubt, in
light of Weng’s pro se status, as well as his statement that “the main issue on appeal” is
whether his activities constituted other resistance and his argument that the agency did
not consider his CAT claim – the very issues he raised in his motion for reconsideration –
we conclude that he presents a challenge to the February order.
We review an order denying a motion for reconsideration under a highly
deferential abuse of discretion standard. See Nocon, 789 F.2d at 1033. We do not
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disturb the BIA’s discretionary decision unless it is arbitrary, irrational or contrary to law.
See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).
Upon review, we conclude that the BIA did not err in denying Weng’s motion for
reconsideration because Weng did not raise an error of law or fact. The IJ and the BIA
had considered his CAT claim (and rejected it because it was not more likely than not
that he would be tortured on return to China, see Tarrawally v. Ashcroft, 338 F.3d 180,
186 (3d Cir. 2003), a conclusion supported by the record).
Also, Weng’s argument relating to “other resistance” did not entitle him to relief.
The spouse of someone who was sterilized can claim refugee status if he or she can
demonstrate actual persecution for resisting a country’s coercive family planning policy,
or a well founded fear of future persecution for doing so. See Lin Zheng v. Attorney
Gen. of the United States, 557 F.3d 147, 157 (3d Cir. 2009) (en banc). Without repeating
all the details in the record (which we have reviewed), we summarize that Weng arrived
at a hospital hoping to stop the forced sterilization of his wife.
Whether or not his actions constituted resistance, Weng cannot show that he was
persecuted for his actions or that he has a well-founded fear of future persecution because
of them. He did suffer mistreatment at the hands of the hospital guards, but being pushed
and kicked and locked in a room for two hours does not rise to the level of persecution.
An isolated incident that does not result in serious injury is not considered persecution.
See Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005); see also Kibinda v. Attorney
Gen. of the United States, 477 F.3d 113, 117 (3d Cir. 2007) (holding that a five day
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detention, during which a guard threw a heavy object at the petitioner, causing an injury
requiring seven stitches, did not constitute persecution). As the IJ noted, Weng did not
present any evidence about anything that happened after the sterilization to suggest that
he would be subject to future persecution (as the IJ put it, there was no evidence that the
Chinese government even noticed Weng’s actions). For these reasons, to the extent that
Weng challenges the order denying his motion for reconsideration, we must deny the
petition for review.
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