Zhang v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: March 22, 2007
• Docket: 05-3269
• Status: Unpublished

Opinion

Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit

3-22-2007

Zhang v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3269

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 05-3269 ____________

XIN WEN ZHANG,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent ____________

On Petition for Review from an Order of the Board of Immigration Appeals (Board No. A96 070 533) Immigration Judge: Walter A. Durling ____________

Submitted Under Third Circuit LAR 34.1(a) February 13, 2007

Before: SMITH and FISHER, Circuit Judges, and DIAMOND,* District Judge.

(Filed: March 22, 2007) ____________

OPINION OF THE COURT ____________

* The Honorable Gustave Diamond, United States District Judge for the Western District of Pennsylvania, sitting by designation. FISHER, Circuit Judge.

Xin Wen Zhang seeks review of an order of the Board of Immigration Appeals

(“BIA”) affirming the denial of his request for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). We have jurisdiction to review the

petition pursuant to 8 U.S.C. § 1252(a)(1) and will deny the petition.

I.

Because we write only for the parties, we forgo a lengthy recitation of the factual

and procedural background of this case. Petitioner Xin Wen Zhang (“Zhang”), a native

and citizen of the People’s Republic of China, arrived in the United States on a valid visa

on October 17, 2002. Zhang was an accountant for a government-owned steel company

in Tianjin City from 1991 through April 12, 2002. Zhang reported corruption in the

company to his supervisors on three occasions and organized a one-day protest of 1,000

factory workers at city hall to draw attention to the corruption at the steel plant. As a

result of his involvement in the steel company protest, Zhang was arrested for two

months. During the first three days of his detention, Zhang was interrogated. At his

immigration hearing, Zhang testified that the police pulled his hair, hit his head on a desk,

and kicked and beat him with batons on the back during his incarceration. Zhang was

subsequently fired from his job. Zhang left China without notifying government

authorities that he was leaving.

2 II.

In this case, because the BIA affirmed the Immigration Judge’s (“IJ”) decision

without opinion we review the decision of the IJ. Partyka v. Attorney General of U.S.,

417 F.3d 408, 411 (3d Cir. 2005). We must affirm the opinion of the IJ if there is

substantial evidence in the record to support it. Senathirajah v. INS, 157 F.3d 210, 216

(3d Cir. 1998) (citation omitted). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Id. Under this

standard, the IJ’s “findings must be upheld unless the evidence not only supports a

contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.

2001) (citing INS v. Elias- Zacarias, 502 U.S. 478, 481 (1992)).

III.

To be statutorily eligible for asylum, an applicant must demonstrate refugee status

by showing “(1) an incident, or incidents, that rise to the level of persecution; (2) that is

[or are] ‘on account of’ one of the statutorily-protected grounds; and (3) is [or are]

committed by a government or forces a government is either ‘unable or unwilling’ to

control.” Wu v. Ashcroft, 393 F.3d 418, 423 (3d Cir. 2005) (quoting Abdulrahman v.

Ashcroft, 330 F.3d 592 (3d Cir. 2003)). Persecution “includes threats to life,

confinement, torture, and economic restriction so severe that they constitute a threat to

life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). A showing of past

persecution leads to a rebuttable presumption of a well-founded fear of future

persecution. 8 C.F.R. § 1208.13(b)(1).

3 Zhang’s treatment while incarcerated does not rise to the level of persecution as

we have defined it. In order to form the basis for an asylum claim, the treatment

complained of must be “extreme.” Fatin, 12 F.3d at 1243 (“‘[P]ersecution’ is an extreme

concept that does not include every sort of treatment our society regards as offensive.”).

Although the mistreatment of Zhang in this case was certainly reprehensible, even

unlawful and unjust, “the concept of persecution does not encompass all treatment that

our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id. at 1241.

The incident described by Zhang – in which his hair was pulled, his head was hit on a

desk, and he was beat with batons – apparently did not result in serious injury and was not

unusual or extreme enough to qualify as persecution under our standard. See Voci v.

Gonzales, 409 F.3d 607, 615 (3d Cir. 2005) (“[O]ur cases suggest that isolated incidents

that do not result in serious injury do not rise to the level of persecution.”).

Having failed to establish past persecution, Zhang is not entitled to a rebuttable

presumption of a well-founded fear of future persecution. In order to show a well-

founded fear of future persecution the applicant must show a well founded subjective

fear, which is “supported by objective evidence that persecution is a reasonable

possibility.” Chang v. INS, 119 F.3d 1055, 1066 (3d Cir.1997) (citation omitted). The IJ

stated Zhang “fear[s] prosecution not persecution” for his illegal departure from China.

See id. at 1065 (holding prosecution pursuant to generally applicable laws is generally not

persecution unless based on one of the five statutorily-enumerated factors). Nothing in

4 the record compels a contrary conclusion. Consequently, we find substantial evidence

supports the IJ’s conclusion that Zhang is not eligible by statute for asylum.1

Zhang’s final claim is that he is eligible for withholding of removal under the

CAT. An applicant seeking relief under the CAT must establish “that it is more likely

than not that he or she would be tortured if removed to the proposed country of removal.”

Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002) (quoting 8 C.F.R.

§ 208.16(c)(2)). The Government asserts that Zhang has not exhausted administrative

remedies with respect to his CAT claim and we are therefore without jurisdiction to

consider the claim. Exhaustion is a jurisdictional prerequisite to review of a final order of

removal. Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir. 2004). We have noted that an

alien exhausts administrative remedies when “[he] makes some effort, however

insufficient, to place the Board on notice of a straightforward issue being raised on

appeal.” Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005) (citing Bhiski, 373 F.3d at

367-68). In Bhiski, we held that this could be accomplished without filing a brief with the

BIA where the BIA was on notice of the issue for review on appeal. In Wu, the petitioner

failed to allege the IJ committed error by considering only one Government conducted

interview in his brief to the BIA. 393 F.3d at 422. Yet, the petitioner did allege that the

1 “[A]n alien who fails to qualify for asylum is necessarily ineligible for withholding of removal.” Ghebrehiwot v. Attorney General of U.S., 467 F.3d 344, 351 (3d Cir. 2006) (citing Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003)). Here the IJ correctly concluded that Zhang was ineligible for withholding of removal because he failed to meet the standard for asylum.

5 eligibility determination was not supported by the record. Id. We held that this was

sufficient to give notice to the BIA and therefore the petitioner had exhausted his

administrative remedies. Id.

Unlike Wu, in the instant case there is nothing in the record to put the BIA on

notice that a CAT claim was being appealed. Zhang’s briefs before the BIA did not

address a CAT claim. In addition, at his hearing Zhang failed to describe any conduct

resembling torture and his testimony did not indicate that the threat of torture was a

central part of his application. Zhang has thus not exhausted his administrative remedies

on his CAT claim and this Court lacks jurisdiction to review the issue.

IV.

For the foregoing reasons, we conclude that substantial evidence supports the IJ’s

decision to deny relief, and we will accordingly deny the petition for review.