NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3265
___________
ZHAO MEI LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A095-369-049)
Immigration Judge: Honorable Rosalind K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 22, 2012
Before: SMITH, HARDIMAN and STAPLETON , Circuit Judges
(Opinion filed: February 24, 2012)
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OPINION
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PER CURIAM
Zhao Mei Lin petitions for review of the Board of Immigration Appeals‟s (“BIA”)
final order of removal. For the reasons that follow, we will deny the petition in part and
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dismiss it in part.
I.
Lin, a native and citizen of the People‟s Republic of China, entered the United
States on or about January 11, 2001. On January 3, 2002, he filed an affirmative
application for asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”), claiming that family planning officials in China had subjected his wife
to a forced abortion and, later, forced sterilization. Shortly after Lin filed that
application, the former Immigration and Naturalization Service initiated removal
proceedings against him, charging him with being removable for having entered the
United States without valid entry documents. At the initial hearing before Immigration
Judge (“IJ”) Jeffrey S. Chase in New York, New York, Lin conceded the charge of
removability.
Shortly after relocating to Philadelphia, Pennsylvania, in early 2008, Lin
successfully moved to transfer his removal proceedings to the immigration court in
Philadelphia. At the initial hearing before IJ Rosalind K. Malloy (hereinafter “the IJ”) in
Philadelphia, Lin changed the basis for his application,1 asserting that his claim was now
“based on his association with an underground church in China and the fact that he is a
1
At that hearing, Lin‟s counsel stated that Lin was no longer eligible for relief based on
his original claim, and alluded to Lin v. U.S. Dep‟t of Justice, 494 F.3d 296 (2d Cir.
2007) (en banc). In that case (which involved a different alien with the same name), the
United States Courts of Appeals for the Second Circuit held that the Immigration and
Nationality Act, as amended, “does not provide that a spouse . . . of someone who has
been forced to undergo, or is threatened with, an abortion or sterilization is automatically
eligible for „refugee‟ status.” Id. at 309. In February 2009, our Court, sitting en banc,
adopted the Second Circuit‟s analysis. See Lin-Zheng v. Att‟y Gen. of the U.S., 557 F.3d
147, 157 (3d Cir. 2009) (en banc).
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practicing Christian here in the United States.” (A.R. at 164.) In May 2009, the IJ held a
hearing on the merits of Lin‟s amended application. Lin testified that, after his wife was
sterilized in 2000, he began attending an “underground” Christian church in China.2
After Lin arrived in the United States, he began attending a Christian church in Brooklyn,
New York. He continued to attend that Brooklyn church even after relocating to
Philadelphia. Lin averred that if he were to return to China, he would again attend an
underground church and might also hand out flyers “to promote the love [of] Jesus Christ
. . . and to ask other people to join us.” (Id. at 200-01.)
Following Lin‟s testimony, the IJ denied his application. With respect to Lin‟s
asylum claim, the IJ found Lin‟s testimony lacking in credibility. The IJ also found that,
even if Lin‟s testimony were credible, there was “absolutely no evidence” that he was
persecuted in the past, and his claim of future harm was “purely speculative” and
“baseless.” (Id. at 126-27.) The IJ concluded that, because Lin had not met the standard
for asylum, he necessarily could not meet the standard for withholding of removal. As
for Lin‟s CAT claim, the IJ concluded that he had “failed to establish that anyone would
be interested in torturing him for any reason upon return to China.” (Id. at 128.)
Lin appealed the IJ‟s decision to the BIA. In July 2011, the BIA dismissed the
appeal. With respect to Lin‟s asylum claim, the BIA concluded that the IJ‟s adverse
credibility finding was not clearly erroneous, and that Lin “has not sufficiently
corroborated his claim that he is a practicing Christian or attended an underground church
2
Lin testified that the church‟s meetings took place in a co-worker‟s home.
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in China.” (Id. at 4.) The BIA also agreed with the IJ that Lin‟s fear of future
persecution was speculative:
Although [Lin] contends that he attended an
underground church in 2000 and will be persecuted because
of this, he has not submitted persuasive evidence that the
authorities are looking for him. He also contends that he will
resume going to an underground church upon returning to
China, and will be persecuted because of this. The State
Department‟s Country Reports on Human Rights Practices for
China, 2007 (Country Reports), and International Religious
Freedom Report for China, 2007 (Religious Report) show
detention and harassment of unregistered Protestant groups.
However, the Country Reports and Religious Report show
that the authorities handle “house churches” differently in
different regions. [Lin] has not adequately established that he
will be persecuted if he attends an underground church in his
region.
[Lin] contends that he might start passing out flyers
praising Christianity upon returning to China, but this is an
equivocal statement. Further, he testified that he did not pass
out flyers when he was previously in China because he was
too busy working. Further, [he] did not provide evidence to
corroborate that passing out flyers, or similar activity,
objectively establishes a well-founded fear of persecution.
(Id. (footnote and citations omitted).) The BIA also agreed with the IJ‟s rejection of
Lin‟s claims for withholding of removal and CAT relief.
Lin now seeks review of the BIA‟s decision.
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.
§ 1252(a)(1). We review the agency‟s factual findings, which include its finding as to
whether an alien has demonstrated a well-founded fear of future persecution, for
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substantial evidence. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Under
this deferential standard of review, we may not disturb those findings “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B).
Where, as here, an alien seeking asylum does not allege past persecution, he must
establish that he has a well-founded fear of future persecution. See Chavarria, 446 F.3d
at 515-16 (citing 8 U.S.C. § 1101(a)(42)(A)). To make this showing, he must
“demonstrate a subjective fear that is supported by objective evidence that persecution is
a reasonable possibility.” Yu v. Att‟y Gen. of the U.S., 513 F.3d 346, 348 (3d Cir. 2008)
(internal quotation marks and citation omitted). The term “persecution” includes “threats
to life, confinement, torture, and economic restrictions so severe that they constitute a
threat to life or freedom,” but “does not encompass all treatment that our society regards
as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240
(3d Cir. 1993).
The substantial evidence in this case supports the agency‟s finding that Lin‟s fear
of future persecution was too speculative to be well-founded.3 The U.S. State
3
Since we conclude that the record does not compel a finding of a well-founded fear of
future persecution, we need not address the parties‟ arguments concerning the agency‟s
adverse credibility and lack of corroboration findings. We do note, however, that the
Government‟s claim that we are foreclosed from reviewing those issues is meritless.
Even if we were to agree with the Government that Lin failed to properly present those
issues to the BIA, we would nonetheless have jurisdiction to review them because the
BIA addressed them in its decision. See Lin v. Att‟y Gen. of the U.S., 543 F.3d 114,
122-24 (3d Cir. 2008) (concluding that, although the petitioner had failed to challenge the
IJ‟s adverse credibility determination in his appeal to the BIA, this Court nonetheless had
jurisdiction to review that issue because the BIA had considered the issue sua sponte).
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Department‟s 2007 International Religious Freedom Report for China, which was part of
the record and relied upon by the BIA, indicates that the treatment of unregistered
religious groups “varied significantly from region to region.” (A.R. at 496.) Although
Lin highlights the report‟s finding that the Chinese government closed churches in Fujian
Province — the province in which he was born — he has not pointed to any additional
evidence from that province, let alone shown that the record compels a finding that there
is a reasonable possibility that he would be singled out for persecution if he returned
there. Additionally, Lin has not indicated which underground church he would join if he
returned to China, and his testimony that “maybe one day I will start to give out these
flyers,” (id. at 201), is simply too speculative to bolster his claim. To the extent he
argues that (1) there is a pattern or practice of persecution in China against Christians,
and (2) “the IJ failed to consider whether the prospect of forced clandestine practice of
his faith would constitute persecution” (Pet‟r‟s Br. 29 (internal quotation marks and
citation omitted)), we lack jurisdiction to consider these arguments because he failed to
raise them on appeal to the BIA. See 8 U.S.C. § 1252(d)(1); Abdulrahman v. Ashcroft,
330 F.3d 587, 594-95 (3d Cir. 2003) (stating that “an alien is required to raise and
exhaust his or her remedies as to each claim or ground for relief if he or she is to preserve
the right of judicial review of that claim”).
Since Lin has not satisfied the standard for asylum, he cannot meet the higher
standard for withholding of removal. See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d
Cir. 2003). Nor is he entitled to relief on his CAT claim, for the record does not compel a
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finding that he would likely be tortured by, or with the acquiescence of, the Chinese
government if removed to China.4 See Shehu v. Att‟y Gen. of the U.S., 482 F.3d 652,
658 (3d Cir. 2007) (reciting standard for CAT relief).
In light of the above, Lin‟s petition will be denied in part and dismissed in part.
4
Given that a challenge to the denial of Lin‟s CAT claim clearly lacks merit, we need not
resolve the question of whether Lin sufficiently preserved such a challenge in his brief.
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