NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3901
___________
BEN ZE ZHU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A079-216-217)
Immigration Judge: Honorable Miriam K. Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 23, 2012
Before: RENDELL, FUENTES and WEIS, Circuit Judges
(Opinion filed: August 28, 2012)
___________
OPINION
___________
PER CURIAM.
1
Ben Ze Zhu, a citizen of the People’s Republic of China, petitions for review of
the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that
follow, we will deny the petition for review.
Zhu entered the United States without inspection in April 2001, and was charged
with removability pursuant to Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i)
[8 U.S.C. § 1182(a)(6)(A)(i)] (present without being admitted or paroled). An
Immigration Judge (“IJ”) found that Zhu was removable as charged. Zhu applied for
asylum, withholding of removal, and protection under the United Nations Convention
Against Torture (“CAT”), based on persecution under China’s coercive population
control policies. In particular, Zhu alleged that his wife was forced to have an abortion in
1992 and was forcibly sterilized in 1996. He also claimed that he was beaten by family
planning officials, detained for two days, publicly shamed, fired from his job, and
required to pay a large fine following the birth of his second child.
The IJ denied relief on March 10, 2003, noting that Zhu had voluntarily returned
to China after trips to Thailand (in 2000) and Korea (in 2001). By order dated July 7,
2004, the BIA affirmed, holding that “even if [Zhu] had shown past persecution, [his
voluntary return to China from two trips abroad] totally undermine[s] his claim, including
a claim of a well-founded fear of persecution.” Zhu filed a motion to reopen, which the
BIA denied on December 1, 2004.
In 2006, Zhu filed a second motion to reopen, which the BIA denied as time- and
number-barred. Nevertheless, the Board exercised its authority to reopen the proceedings
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sua sponte. The BIA concluded that Zhu “has established eligibility for withholding of
removal,” noting that his “testimony of his wife’s forced abortion and involuntary
sterilization is consistent and credible, and supported by corroborative evidence.” The
Board stated, however, that it could not “yet find [Zhu] eligible for asylum due to the
unresolved issue of the timeliness of [Zhu’s] asylum application.” The BIA remanded
the matter to the IJ.
The IJ held hearings, at which Zhu testified about his experiences in China and the
date that he arrived in the United States. In a written decision, the IJ stated that “[w]hile
this Court concludes that [Zhu’s] asylum application was timely filed, it cannot conclude
that [he] is eligible for asylum on the basis of his wife’s forced abortion and involuntary
sterilization in light of precedential decisions issued after the BIA’s July 25, 2006
decision in this case.” In particular, the IJ relied on In re J-S-, 24 I. & N. Dec. 520 (AG
2008), in which the Attorney General held that the spouse of a person forced to undergo
an abortion or sterilization is not automatically a refugee under INA § 101(a)(42) [8
U.S.C. § 1101(a)(42)]. With respect to Zhu’s allegations of “other resistance to a
coercive population control program,” Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d
Cir. 2009), the IJ held that the fine, detention, beating, job loss, and public
embarrassment did not rise to the level of persecution. The IJ also concluded that Zhu
had not demonstrated that he had a well-found fear of persecution based on leaving China
illegally and applying for asylum in the United States. Accordingly, the IJ denied Zhu’s
application for asylum, concluded that he necessarily failed to satisfy the withholding of
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removal standard, and held that he failed to demonstrate that he warranted protection
under the CAT.
The BIA dismissed Zhu’s appeal, noting that he could not establish eligibility for
asylum and withholding of removal based on his wife’s forced abortion and sterilization.
In addition, the BIA agreed that Zhu’s experiences were not sufficiently severe to
constitute past persecution. The Board also concluded that Zhu “does not face a
reasonable possibility of being targeted for persecution for having left China illegally and
for having sought asylum in the United States.” Finally, the BIA stated that Zhu “has not
demonstrated that it is more likely than not that he would be tortured for any reason if
removed to China.” Zhu filed a timely pro se petition for review of the BIA’s decision.
We have jurisdiction under INA § 242 [8 U.S.C. § 1252]. Because the BIA
adopted the findings of the IJ and also commented on the sufficiency of the IJ’s
determinations, we review the decisions of both the BIA and the IJ. Kaita v. Att’y Gen.,
522 F.3d 288, 296 (3d Cir. 2008). Review of these decisions is for substantial evidence,
considering whether they are “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157,
161 (3d Cir. 1998) (citations omitted). The decisions must be affirmed “unless the
evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft,
333 F.3d 463, 471 (3d Cir. 2003) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d
Cir. 2001)).
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An applicant for asylum has the burden of establishing that he is unable or
unwilling to return to his home country “because of [past] persecution or a well-founded
fear of future persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion[.]” INA § 101(a)(42)(A) [8 U.S.C. §
1101(a)(42)(A)]; see also Wang v. Gonzales, 405 F.3d 134, 138-39 (3d Cir. 2005).
Persecution “connotes extreme behavior, including threats to life, confinement, torture,
and economic restrictions so severe that they constitute a threat to life or freedom.”
Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003) (internal quotations and citation
omitted). It “does not include all treatment that our society regards as unfair, unjust, or
even unlawful or unconstitutional.” Id. (quotation omitted). To establish eligibility for
withholding of removal, an applicant must prove that his “life or freedom would be
threatened in that country because of [his] race, religion, nationality, membership in a
particular social group, or political opinion.” INA § 241(b)(3) [8 U.S.C. § 1231(b)(3)].
To be eligible for withholding of removal under the CAT, an applicant needs to
demonstrate that it is more likely than not that he would be tortured if removed. 8 C.F.R.
§ 1208.16(c)(2).
Zhu testified that, following the birth of his second child, population control
officials sought to destroy his home. Zhu intervened and stopped the destruction.
Nevertheless, the officials hit Zhu and pushed him to the ground. Notably, Zhu did not
allege that this assault resulted in serious harm or required medical attention. Voci v.
Gonzales, 409 F.3d 607, 615 (3d Cir. 2005) (holding that “isolated incidents that do not
5
result in serious injury do not rise to the level of persecution”); Chen v. Ashcroft, 381
F.3d 221, 234-35 (3d Cir. 2004) (holding that physical altercation with government
officials, not resulting in injuries that required medical treatment, did not constitute
persecution). The officials took Zhu to the local police station. Although Zhu was
detained for two days, he was not mistreated or harmed. Jarbough v. Att’y Gen., 483
F.3d 184, 191-92 (3d Cir. 2007) (holding that two brief detentions of petitioner by the
Syrian government, while “harassing and intimidating,” did not rise to the level of
persecution); Kibinda v. Att’y Gen., 477 F.3d 113, 120 (3d Cir. 2007) (holding that a
five-day detention and beating that required stitches and left a scar were not “severe
enough to constitute persecution under our stringent standard”). Zhu was released when
his family pooled their money and paid a fine of 18,000 RMB. Thereafter, Zhu was fired
from his construction job at the request of the birth control officials. The “deliberate
imposition of severe economic disadvantage which threatens a petitioner’s life or
freedom may constitute persecution.” Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir. 2005).
In this case, however, the fine and job loss did not amount to a severe economic
disadvantage. Although Zhu’s family had to combine their money to pay the fine, they
were able to produce 18,000 RMB within two days. In addition, Zhu testified that after
being fired from the construction job, he moved with his family to another town where he
was able to find work. Although that job was only part-time, Zhu was able to support his
family and send his older child to private school. Finally, the officials’ decision to
announce to the village that Zhu had violated the family planning law did not constitute
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persecution. Fatin v INS, 12 F.3d 1233, 1240 & n.10 (3d Cir. 1993) (persecution denotes
“extreme conduct,” including “threats to life, confinement, torture and economic
restrictions so severe that they constitute a threat to life or freedom.”). Thus, we agree
that Zhu’s experiences, even considered cumulatively, do not constitute persecution.
Furthermore, the record does not support Zhu’s claim that he will face future
persecution in China. Zhu alleged that if he returns to China he will assaulted, fined or,
jailed because he left China illegally and applied for asylum in the United States. The IJ
noted, however, that the State Department’s 2007 Asylum Profile for China states that
that country accepts repatriation of its citizens and that U.S. officials have not confirmed
any abuse of such persons. Zhu did not present any evidence that undermines this report.
Zhu also relied in part on a letter from his hometown’s village committee, addressed to
his wife, which “issued an official notice that you surrender the passport and all relevant
travel documents of your husband, and persuade him to give up the political asylum.”
The letter, however, does not contain any threats and, as noted by the BIA, did not
identify the author and was not authenticated. In addition, after Zhu and his family
moved from their hometown in 1996, they were not harassed by birth control officials.
Zhu testified that nothing has happened to his wife and children since he left China in
2001.
In sum, we conclude that a reasonable adjudicator would not be compelled to
conclude that the BIA incorrectly rejected Zhu’s asylum claim. Because Zhu cannot
satisfy the asylum standard, he cannot satisfy the more difficult withholding of removal
7
standard. Zubeda, 333 F.3d at 469-70. Additionally, Zhu presented no evidence that he
is likely to be tortured in China.
For the foregoing reasons, we will deny the petition for review.
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