NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1987
___________
XIAN ZHANG LI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A093-397-254)
Immigration Judge: Honorable Roxanne C. Hladylowycz
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 3, 2011
Before: SCIRICA, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges
(Filed : November 04 , 2011)
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OPINION OF THE COURT
___________
PER CURIAM.
Petitioner Xian Zhang Li petitions for review of a final order of the Board of
Immigration Appeals (BIA) affirming the decision of the Immigration Judge (IJ) denying
asylum, withholding of removal, and relief under the Convention Against Torture (CAT).
We will deny the petition for review.
Li, a citizen of China, arrived in the United States in 2006. He was charged by the
Department of Homeland Security with being removable under section 212(a)(6)(A)(i) of
the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i), as an alien who was
present in the United States without being admitted.
Li conceded that he was removable as charged, but applied for asylum,
withholding of removal, and CAT relief. Li contended that he was entitled to relief
because the Chinese government had persecuted him for resisting its family-planning
policies. More specifically, he claimed that in 1997, when government officials arrived
at his house to take his wife to a hospital to implant an intrauterine device, he attempted
to bar their entry. The officials beat him up, arrested him, and detained him for a week.
Li did not seek any medical treatment after the incident. Then, in 2005, his wife
underwent a forced abortion. He testified that he feared that if he returned to China, he
would be sterilized.
The IJ denied all of Li’s claims. The IJ determined that his asylum application
was untimely, that he had failed to present credible testimony, and that he had advanced
no evidence to show that he would be tortured if he returned to China. Li appealed to the
BIA, which dismissed the appeal. The BIA concluded that it need not reach the IJ’s
adverse-credibility finding or its ruling that the asylum application was untimely because
another deficiency was apparent in the record: according to the BIA, Li failed to show
that he had suffered past persecution or had an objectively reasonable fear of future
persecution. Moreover, the BIA concluded that Li had not challenged the IJ’s disposition
of his withholding-of-removal and CAT claims, and had thus waived review of those
2
claims. Li filed a timely petition for review.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the BIA’s final order
of removal. Where, as here, the BIA renders its own decision and does not merely adopt
the opinion of the IJ, we review the BIA’s decision, not that of the IJ. Wong v. Att’y
Gen., 539 F.3d 225, 230 (3d Cir. 2008). We must uphold the agency’s factual findings,
including its findings as to whether Li demonstrated past persecution or a well-founded
fear of future persecution, if they are “supported by reasonable, substantial and probative
evidence on the record considered as a whole.” Kayembe v. Ashcroft, 334 F.3d 231, 234
(3d Cir. 2003). We will reverse a finding of fact only if “any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Li first argues that he is entitled to asylum because he suffered past persecution.
To be eligible for relief due to past persecution, aliens must show that they were victims
of “(1) an incident, or incidents, that rise to the level of persecution; (2) that is on account
of one of the statutorily-protected grounds; and (3) is committed by the government or
forces the government is either unable or unwilling to control.” Gao v. Ashcroft, 299
F.3d 266, 272 (3d Cir. 2002) (internal quotation marks omitted).
As the BIA observed, Li’s claim of past persecution was based entirely on two
related incidents — a beating that did not require medical treatment and a seven-day
detention. 1 However, we have previously upheld BIA decisions finding that similar
incidents were not sufficiently severe to amount to persecution. See Jarbough v. Att’y
1
Li is not entitled to asylum based on his wife’s forced abortion. See Lin-Zheng v. Att’y
Gen., 557 F.3d 147, 157 (3d Cir. 2009) (en banc).
3
Gen., 483 F.3d 184, 191-92 (3d Cir. 2007); Kibinda v. Att’y Gen., 477 F.3d 113, 119 (3d
Cir. 2007). Accordingly, we conclude that substantial evidence supports the BIA’s ruling
that Li failed to show past persecution.
Li also contends that he established that he possesses a well-founded fear of future
persecution. A future-persecution claim requires the applicant to demonstrate a
subjective fear of persecution and that the fear is objectively reasonable. See Lie v.
Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005). To satisfy the objective prong, the applicant
must show either that (1) he would be individually singled out for persecution or (2) there
is a pattern or practice in the home country of persecuting similarly situated people. Id.
In support of his claim of future persecution, Li did not present a pattern-or-
practice argument; therefore, he was required to show that he would singled out for
persecution in China. Id. Li claimed that, based on his “feud” with the government —
the incident in 1997 in which he was beaten and arrested — he believed that he would be
sterilized if he returned to China. However, he remained in China without being
sterilized until he left for the United States in 2006, which undercuts his claim that the
government wishes to harm him. See generally id. at 536-37. Ultimately, his testimony
about being sterilized is entirely speculative, and it was therefore permissible for the BIA
to reject it. See Chen v. Att’y Gen., -- F.3d --, No. 09-3459, 2011 WL 923353, at *4 (3d
Cir. Mar. 18, 2011); see also Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per
curiam) (holding that, absent “solid support in the record” for the petitioner’s assertion
that he would be subjected to persecution in China because of his desire to have more
children, his fear was “speculative at best”).
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Finally, we agree with the government that Li did not present any arguments to the
BIA concerning his withholding-of-removal and CAT claims. Li’s failure to present
these issues to the BIA constitutes a failure to exhaust, thus depriving us of jurisdiction to
consider the claims. Lin v. Att’y Gen., 543 F.3d 114, 119-20 (3d Cir. 2008).
Accordingly, we will deny the petition for review.
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Li v. Atty Gen USA
Combined Opinion