Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-4-2009
Ming Zheng v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2244
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2244
___________
MING CHUN ZHENG,
Petitioner
vs.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A79-682-679)
Immigration Judge: Honorable Donald Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 2, 2009
Before: Chief Judge SCIRICA, CHAGARES and WEIS, Circuit Judges
(Opinion filed: February 4, 2009)
___________
OPINION
___________
PER CURIAM.
Ming Chun Zheng petitions for review of the decision by the Board of
Immigration Appeals (“BIA”) denying him asylum, withholding of removal and relief
under the United Nations Convention Against Torture (“CAT”), and ordering him
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removed to China. We will deny the petition.
We set forth the underlying facts in our earlier decision granting the petition
for review in this case and, thus, we summarize only the pertinent procedural history. On
June 25, 2007, we granted Zheng’s petition for review, holding that the Immigration
Judge’s (“IJ”) adverse credibility determinations were not supported by substantial
evidence. Zheng v. Attorney General, No. 06-2751, slip. op. at 7-12, 2007 WL 1805598,
at * 4 (3d Cir. Jun. 25, 2007). We remanded the matter to the BIA to determine whether
Zheng had shown that he suffered past persecution or had a well-founded fear of future
persecution if he was returned to China.
On remand, the BIA vacated the IJ’s adverse credibility and frivolous
application findings and dismissed the appeal. The BIA upheld the IJ’s alternate finding
that, assuming the credibility of his testimony, Zheng failed to demonstrate past
persecution or that he held a plausible fear of future persecution based on his participation
in 2001 in an underground, unregistered church in China.1 With regard to past
1
Specifically, the IJ found that “the arrest and detention of the respondent
for a few days does not, in the considered opinion of this Court, raise to the level of
persecution.” The IJ stated that “[t]he profile of asylum claims and country conditions
authored by the State Department reflects that unregistered religious groups in China
experience different degrees of official interference and harassment with the degree of
restriction varying significantly from one region to the other. From reading the State
Department reports and based on the respondent’s testimony as to what happened to him
when he was arrested by the cadres it does not appear that the harassment in the area
where the respondent lives with regard to the underground churches raises to the level of
persecution. And consequently, even if I found the respondent credible, I would not find
that he had a well-founded fear of persecution if he returned to China.”
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persecution, the BIA noted that the 2004 Country Report indicated that China’s human
rights record was poor with respect to participants in underground, unregistered churches.
The BIA stated, however, that Zheng’s arrest and being “hit a few times” by police during
his detainment for a few days, and his narrow escape from arrest upon his attendance at
an underground church session a short time later, “do not rise to the level of persecution”
but were “more in the nature of harassment, albeit heavy-handed harassment, in terms of
his treatment by police.” The BIA also concluded that even if Zheng’s subjective fear of
persecution based on his religious beliefs was genuine, “he has failed in his burden of
proving an objectively reasonable possibility of persecution [in the future].” Zheng filed
a timely petition for review.
We have jurisdiction to review final orders of the BIA under section
242(a)(1) of the INA, 8 U.S.C. § 1252(a)(1). Where, as here, the BIA expressly adopts
the IJ’s decision and discusses some of the IJ’s reasoning, we review the decisions of
both the IJ and the BIA. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Under the
deferential substantial evidence standard for review, the BIA’s findings must be upheld
unless the evidence not only supports a contrary conclusion, but compels it. Xie v.
Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004) (quoting INA § 242(b)(4)(B), 8 U.S.C. §
1252(b)(4)(B)).
In holding that Zheng’s experiences did not amount to past persecution, the
BIA cited our decision in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), where we defined
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persecution as “extreme conduct.” Id. at 1240 n.10. Zheng argues that his past
experiences show that his freedom to practice his religion was threatened and, thus, he
met his burden of showing past persecution sufficient to warrant asylum relief.
The question here is not simply whether Zheng’s freedom to practice his
religion in China was restricted in any manner. In Fatin, we noted that “the concept of
persecution does not encompass all treatment that our society regards as unfair, unjust or
even unlawful or unconstitutional.” Id. at 1240; see also Jarbough v. Attorney General,
483 F.3d 184, 191 (3d Cir. 2007) (noting that “[a]busive treatment and harassment, while
always deplorable, may not rise to the level of persecution”). Rather, the question is
whether the government’s conduct in restricting Zheng’s freedom to practice religion was
so severe or extreme that it amounted to persecution. Zheng mistakenly relies on
Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006), for the proposition that his
minor beating without injury constitutes persecution because it occurred in the context of
an arrest or detention. We do not recognize as persecution “isolated incidents that do not
result in serious injury.” See Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005). In
Chen v. Ashcroft, 381 F.3d 221, 234-35 (3d Cir. 2004), we held that the BIA reasonably
concluded that the respondent’s minor beating by Chinese authorities was not serious
enough to constitute persecution, noting that Chen never alleged that he suffered injuries
for which he received medical treatment.
Here, there is no record evidence that Zheng suffered persecution as he did
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not testify that he suffered any serious injuries from his abuse by Chinese authorities.
Notably, he did not testify that he sought medical treatment. He testified that the Chinese
police let him go from detention because they had no evidence of wrongdoing on his part.
While he was staying with relatives, the police visited his parents’ home once to urge him
to attend the government-sponsored church. He was not arrested by the police again,
even though he did not follow their instruction to attend the government-sponsored
church. There is no record evidence that the police looked for him at his parent’s house
or elsewhere after he fled, which suggests that the authorities did not specifically target
him for persecution. As a result, the BIA’s conclusion that Zheng failed to show past
persecution is amply supported by the record. We cannot say that any reasonable
adjudicator would be compelled to conclude to the contrary.2
Having failed to show past persecution, Zheng is not entitled to a rebuttable
presumption that he has a well-founded fear of future persecution. 8 C.F.R. §
1208.13(b)(1); Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir. 2003). In order to
establish a well-founded fear of future persecution, Zheng must show that his fear of
persecution upon his return to China is genuine and is objectively reasonable. See
Abdille v. Ashcroft, 242 F.3d 477, 496 (3d Cir. 2001). Assuming that Zheng’s fear was
2
Zheng’s claim that the BIA’s decision was not supported by substantial
evidence because the IJ did not consider past persecution, is meritless because the record
clearly indicates that the IJ did make a finding with respect to past persecution. See A.R.
at 62.
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genuine, the BIA concluded that his reasons for fearing persecution upon his return to
China were not plausible. The BIA essentially agreed with the IJ that while the 2004
Country Report indicated that the amount of government restriction and resort to
oppressive tactics to suppress underground churchgoing varied widely from region to
region, the climate in the region where Zheng resided was not generally oppressive.
There is little record evidence to support the conclusion that Zheng’s fears are plausible.
He did not testify that anyone else in his congregation continued to be arrested or detained
on account of their religion during the years that he was in the United States. He did not
testify or present other competent evidence that the local authorities are looking for him
currently or that they would seek to arrest him or harm him should he return to China.
Thus, we conclude that substantial record evidence supports the BIA’s determination that
Zheng failed to show that he had a well-founded fear of future persecution.
Relying on the 2007 Country Report, Zheng argues that the BIA erred in its
ruling on the objective reasonableness of his fears. As the Government correctly points
out, however, the 2007 Country Report is not part of the administrative record on appeal,
and, thus, we cannot consider it. The 2007 Country Report would have to be brought
before the BIA in the form of a motion to reopen alleging changed country circumstances.
We, of course, offer no appraisal of the merits of any such motion.
Accordingly, we will deny the petition for review.
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