Shi Jin Ou v. Attorney General of the United States ( 2012 )

IMG-016 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3216
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SHI JIN OU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-377-984)
Immigration Judge: Honorable Margaret Reichenberg
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Submitted Pursuant to Third Circuit LAR 34.1(a)
January 3, 2012
Before: RENDELL, VANASKIE AND GARTH, Circuit Judges
(Opinion filed: January 4, 2012)
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OPINION OF THE COURT
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PER CURIAM
Shi Jin Ou, a citizen of the People’s Republic of China, petitions for review of the
Board of Immigration Appeals’s (“BIA”) order upholding the decision of the
Immigration Judge (“IJ”) denying Ou’s applications for asylum and related relief, and
ordering his removal to China. For the reasons that follow, we will deny the petition for
review.
I
Ou entered the United States without inspection in 2007. In June 2007, he filed an
application for asylum predicated on a forced abortion his wife allegedly endured in
2004. In that application, Ou alleged that when authorities discovered that his wife was
pregnant with a second child, they forcibly terminated the pregnancy. He further stated
that, although he was angry about the way his wife was treated, he was unable to fight
against the Chinese government as a civilian.
Ou subsequently submitted an amended asylum application, which included a
claim for relief based on persecution he allegedly endured at the hands of Chinese
officials. Ou claimed -- in contrast to his first application -- that after his wife’s abortion,
he became angry and confronted family planning officials, calling them “killers” and
accusing the Chinese government of denying people human rights. As a result, Ou
alleged, some of the officials began to beat him; he was detained for two days and beaten
twice more. He stated that the officials, upon releasing him, threatened to beat him more
severely and sterilize him if he complained again. Ou suffered bruises from the beatings
and did not seek professional medical treatment. He returned to work the following day.
Thereafter, Ou received a notice to appear. Before the IJ, he repeated the
allegations set forth in his second asylum application, and testified that although neither
he nor his wife had any further problems with family planning officials after 2004, he
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fled to the United States in 2007 because he was “persecuted by the Chinese
government.” Ou also requested relief in the form of withholding of removal and
protection under the Convention Against Torture (“CAT”).
The IJ denied Ou’s applications for relief, finding him incredible based on the
inconsistencies between his first asylum application, on one hand, and his second
application and testimony, on the other. The IJ further held that, even if Ou had testified
credibly, he had not met his burden of demonstrating past persecution or a well-founded
fear of future persecution. The BIA dismissed Ou’s appeal, agreeing with the IJ’s
reasoning. Ou now seeks review of that order.
II
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the BIA issued its
own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400
F.3d 157, 162 (3d Cir. 2005). However, we also look to the decision of the IJ to the
extent that the BIA deferred to or adopted the IJ’s reasoning. See Chavarria v. Gonzalez,
446 F.3d 508, 515 (3d Cir. 2006). We review the Agency’s factual determinations for
substantial evidence, and will uphold such determinations unless any reasonable
adjudicator would be compelled to reach a contrary conclusion. See Fiadjoe v. Att’y
Gen., 411 F.3d 135, 153 (3d Cir. 2005).
In his petition for review, Ou challenges both the BIA’s affirmance of the adverse
credibility determination and its holding that, notwithstanding the credibility issue, Ou
failed to satisfy his burden of proving eligibility for relief from removal. We need not
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consider the merits of the adverse credibility determination because we agree with the IJ
and BIA that, even if Ou’s testimony was credible, he failed to demonstrate entitlement to
relief.
To demonstrate eligibility for asylum, an applicant must show that he suffered past
persecution or that he has a well-founded fear of future persecution. See Abdulrahman v.
Ashcroft, 330 F.3d 587, 591-92 (3d Cir. 2003). If the applicant demonstrates past
persecution, he is entitled to a rebuttable presumption of a well-founded fear of future
persecution. See id. at 592. Persecution includes “threats to life, confinement, torture,
and economic restrictions so severe that they constitute a threat to life or freedom.” Fatin
v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). However, it “does not encompass all
treatment that our society regards as unfair, unjust or even unlawful or unconstitutional.”
Id. Generally, “isolated incidents that do not result in serious injury do not rise to the
level of persecution.” Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005). The BIA
reasoned that the mistreatment Ou endured -- two days’ detention during which he was
subjected to three beatings that left him sore, but not injured enough to require medical
treatment or prevent Ou from returning to work the day after his release -- did not rise to
the level of persecution. Ou has provided no good reason to question, let alone compel
disagreement with, that assessment. Accordingly, Ou was not entitled to a presumption
that he faces a well-founded fear of persecution. Further, given that neither Ou nor his
wife faced any further problems with family planning officials in the ensuing three years
before he left China, we perceive no reason to disturb the determination that Ou did not
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otherwise demonstrate a well-founded fear of persecution.
Because Ou did not meet the standard for obtaining asylum, the BIA also
appropriately denied his requests for withholding of removal and CAT protection. See
Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 236-37 (3d Cir. 2008) (withholding of
removal); Kamara v. Att’y Gen., 420 F.3d 202, 212-13 (3d Cir. 2005) (CAT).
Accordingly, we will deny the petition for review.
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