NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 17-1716
______________
WEI YE,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of a Decision
and Order of the Board of Immigration Appeals
(BIA-1 No. A 208-485-383)
Immigration Judge: Mirlande Tadal
______________
Submitted under Third Circuit L.A.R. 34.1(a)
October 26, 2017
BEFORE: GREENAWAY, JR., COWEN, Circuit Judges
and PADOVA, District Judge*
(Filed: December 15, 2017)
______________
OPINION**
______________
____________________
* The Honorable John R. Padova, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
COWEN, Circuit Judge.
Wei Ye petitions for review of a decision of the Board of Immigration Appeals
(“BIA”), which, in turn, dismissed his appeal from the order of the Immigration Judge
(“IJ”) denying his application for asylum and withholding of removal. We will deny the
petition.
I.
Ye, a native and citizen of the People’s Republic of China, entered the United
States without a valid entry document. Conceding removability, he applied, inter alia, for
asylum and withholding of removal. Ye claimed that he suffered past persecution—and
feared persecution in the future—on account of religion.
The IJ denied relief. Adopting the IJ’s decision and upholding her determination
that Ye had not met his burden of proof for asylum and withholding of removal, the BIA
dismissed his administrative appeal: “Even though the respondent described being
detained for 7 days and also ‘kicked and slapped,’ we agree with the [IJ] that this
mistreatment does not constitute past persecution within the meaning of the [Immigration
and Nationality] Act ([AR45-AR46, AR94-AR96, AR111-AR112]).” (AR3 (citing
Kibinda v. Attorney General, 477 F.3d 113, 119-20 (3d Cir. 2007)).) Furthermore, the
BIA explained that “[w]e agree with the [IJ] that the respondent has not met his burden to
demonstrate a well-founded fear of persecution based on his having attended an
underground church in China ([AR49-AR50]).” (AR4.)
II.
An asylum applicant must show an inability or unwillingness to return to the
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country to which he or she will be removed 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.1 See, e.g., Garcia v. Attorney General, 665
F.3d 496, 503 (3d Cir. 2011).
According to Ye, the BIA erred by finding that he had not suffered persecution in
the past. Noting that he was detained, interrogated, and beaten for seven days simply for
attending a church, he contends that “[t]his is an Extreme punishment for simply
following one own religious beliefs.” (Petitioner’s Brief at 10.) However, it is well
established that “the concept of persecution does not encompass all treatment that our
society regards as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. I.N.S.,
12 F.3d 1233, 1240 (3d Cir. 1993). The agency did not commit reversible error by
finding that, “while the mistreatment the respondent claims he suffered is regrettable and
repugnant, it does not qualify as ‘extreme’ and does not rise to the level of persecution.”
(AR3.) As the BIA noted, this Court determined in Kibinda that detention over the
period of five days, during which time the petitioner was hit in the head by an object
requiring seven stitches, did not rise to the level of persecution. Kibinda, 477 F.3d at
1
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii). Because the BIA
adopted the decision of the IJ, we review both rulings. See, e.g., Hanif v. Attorney
General, 694 F.3d 479, 483 (3d Cir. 2012); Voci v. Gonzales, 409 F.3d 607, 612-13 (3d
Cir. 2005). We review the agency’s factual findings under the substantial evidence
standard, and, under this deferential standard, we “can only reverse the [agency’s]
decision if ‘any reasonable adjudicator would be compelled to conclude to the contrary.’”
Valdiviezo-Galdamez v. Attorney General, 663 F.3d 582, 590 (3d Cir. 2011) (quoting 8
U.S.C. § 1252(b)(4)(B)).
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117, 119-20. Unlike Kibinda, Ye did not require medical treatment for his bruises.2
We likewise determine the agency properly rejected Ye’s claim of a well-founded
fear of persecution in the future. According to Ye, the IJ and the BIA ignored evidence
weighing in his favor. But, as the BIA recognized, “[t]he [Petitioner] testified about a
September 2015 incident where he went to a meeting where underground church
members were arrested, and he was able to escape ([AR50, AR97-AR98, AR115-
AR117]).” (AR4.) The BIA acknowledged his testimony that the police came to the
house looking for him immediately after this incident (and the IJ further noted that Ye
testified that the police told him after his prior detention that “he would suffer severe
punishment” (AR42) if he were arrested again, that his wife likewise said that the police
came to their home to arrest him, and that his friend Chen Jie, who introduced him to
Catholicism, “was arrested and sentenced by the authorities in China” (AR43)).3 In turn,
the BIA and the IJ observed that Ye stayed in China for several months after the
2
Ye attempts to distinguish Kibinda on the grounds that “[t]he court was even
unsure in this case if the item thrown was even intended for Kibinda” and the IJ “did not
find Kibinda was persecuted because of Kibinda’s record of promotion and that he was
trusted and valued by the army.” (Petitioner’s Brief at 8.) However, the agency
disposed of Ye’s claim of past persecution because his mistreatment was not sufficiently
severe to rise to the level of persecution—and not because it determined that he failed to
establish that this mistreatment occurred on account of religion or some other protected
ground. Kibinda, 477 F.3d at 119-20. In turn, Kibinda considered this “protected
ground” issue after ruling against the petitioner on the issue of severity. See id. at 120
(“Furthermore, even assuming that the injury was severe enough to constitute
persecution, Kibinda has failed to establish that this maltreatment was on account of a
statutorily protected ground.”).
3
The IJ also recognized that, “[a]s the Court admitted the Religious Freedom
Report as part of the record, Exhibit 6, it is undisputed that there are reports that the
government physically abused, detained, arrest[ed,] and harassed individuals who
participate in both registered and unregistered religious group[s] for activities related to
their religious belief[s] and practices.” (AR47.)
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September 2015 incident without harm and did not present evidence that the police
continued to look for him. In fact, “[h]e was able to leave China with his own passport
without any difficulty ([AR50, AR119]).” (AR4.) While Ye calls into question this
reasoning (asserting, inter alia, that the fact he remained in hiding for several months
does not mean he lacked a well-founded fear of persecution and that his ability to leave
the country with his own passport is irrelevant), we must uphold the agency’s findings
because this is not a case where “any reasonable adjudicator would be compelled to
conclude to the contrary,” Valdiviezo-Galdamez v. Attorney General, 663 F.3d 582, 590
(3d Cir. 2011) (quoting 8 U.S.C. § 1252(b)(4)(B)).
Because the agency appropriately disposed of Ye’s asylum application, it did not
commit reversible error by rejecting his claim for withholding of removal. See, e.g.,
Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004) (stating that petitioner who fails to
establish well-founded fear of persecution for purposes of asylum claim will necessarily
fail to establish right to withholding of removal).
III.
For the foregoing reasons, we will deny Ye’s petition for review.
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