Bin Jiang v. ALBERTO GONZALES, Attorney General of the United States

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 04-2561
BIN JIANG,
Petitioner
v.
*ALBERTO GONZALES, Attorney General
of the United States,
Respondent
*(Amended pursuant to F.R.A.P. 43(c))
Petition for Review of an Order of the
Board of Immigration Appeals
(No. A77-309-310)
Submitted pursuant to Third Circuit LAR 34.1(a)
July 14, 2005
Before: SLOVITER, MCKEE and WEIS, Circuit Judges
(Opinion filed: July 29, 2005)
______________
OPINION
______________
McKEE, Circuit Judge.
Bin Jiang seeks review of a decision of the Board of Immigration Appeals

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affirming an Immigration Judge’s decision denying his application for protection under
the Convention Against Torture. For the reasons that follow, we will dismiss the petition
for review.
I.
To prevail under a claim under the Contention Against Torture (“CAT”), “the
burden of proof is upon the applicant . . . to establish that it is more likely than not that he
or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. §
1208.16(c)(2). See also Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004). This is
more stringent than the standard for granting asylum. Wang, 368 F.3d at 349. In making
the determination, evidence relevant to the possibility of future torture is considered. 8
C.F.R. § 1208.16(c)(3).
The regulations define torture as
[Any] act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or her or a third person
information or a confession, punishing him or her for an act
he or she or a third person has committed or is suspected of
having committed, or intimidating or coercing him or her or a
third person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
8 C.F.R. § 208.18(a)(1). The regulations amplify the meaning of “severe.” They
explain that torture is “an extreme form of cruel and inhuman treatment and does not
include lesser forms of cruel, inhuman or degrading treatment or punishment that do not

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amount to torture.” 8 C.F.R. § 1208.18(a)(2).
II.
Jiang is a native and citizen of China, who arrived in the United States on June 20,
2000, without valid entry documents. After being served with a Notice to Appear
charging him with being an inadmissible alien pursuant to Section 212 of the
Immigration and Nationality Act, he was placed in removal proceedings, and thereafter
conceded removability.
In a written application for relief, Jiang claimed that in April of 2000, he had a
physical altercation with two corrupt local officials who attempted to extort money from
his family on the pretext of collecting taxes at his mother’s store. He asserted that after
he challenged the authority of one of the officials to collect the taxes, the official pushed
him to the ground, a struggle ensued, he hit the official in the head with a “rock like
object,” the other official came over to beat him, a fight with that official ensued, and,
after his mother’s intervention, he ultimately struggled free and ran away.
Jiang claimed that he then hid at a friend’s house for about a month because he
feared that if he returned home, he would be apprehended, accused falsely, put in jail and
beaten. He claimed that because of this confrontation, if he returns to China and these
corrupt officials find him, they will physically hurt him. Jiang also asserted that he left
China without permission, and that he fears if he is returned there, he will be put in jail,
beaten and fined for having left the country illegally.

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Jiang also submitted documents in support of his CAT application, which
included (1) Chinese household registry books, (2) a Chinese resident identification
card,(3) a Chinese notarial certificate of birth, (4) a Chinese elementary school
graduation certificate, and (5) news and human rights organization reports which focused
primarily on the mistreatment of practitioners of Falun Gong, but which also contained
two reports regarding the general problem of torture of prisoners in China.
Jiang was the only witness to testify at his merits hearing. On direct examination,
he testified that he was born in Fujian Province, China, on September 26, 1981. He said
that he illegally left China in May 2000, traveling first to England by boat, and then by
airplane to the United States. He further said that he believed that if he were returned to
China, he would be sent to jail for a year and a half, beaten and fined. When asked why
he believed he would be sent to jail, beaten and fined, he stated that he had heard family
members say that others who had illegally departed China were beaten after being sent
back. He claimed that there would be no way to avoid these problems if he were
returned to China.
On cross examination, he conceded that his belief that he would face problems
from the government if he returned to China was based on what family members had told
him had happened to others who left China illegally, and that he had submitted no
documents or other materials that would establish what has actually happened to other
people who were returned to China after departing without permission.

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On February 25, 2003, the Immigration Judge rendered a written decision denying
Jiang’s application for CAT relief and ordering his removal from the United States. The
BIA summarily affirmed, and this petition for review followed.
III.
Ordinarily, we review BIA’s decision, and not the IJ’s. See Abdulai v. Ashcroft,
239 F.3d 542, 548-49 (3d Cir. 2001). Here, however, given the BIA’s summary
affirmance, the IJ’s decision, by regulation, constitutes “the final agency determination,”
and, therefore is the decision under review. See 8 C.F.R. § 1003.1(e)(4)(ii);
Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (2004).
Our scope of review is narrow. We review factual findings under the “substantial
evidence” standard. Id., at 89. An agency determination is supported by substantial
evidence if a reasonable factfinder could make a determination based upon the
administrative record. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc).
“[T]he Administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also
Lanza v. Ashcroft, 389 F.3d 917, 936 (3d Cir. 2004). This standard adopts and codifies
the standard announced by the Supreme Court in INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992). In reviewing a final order of removal, we may not disturb the administrative
findings of fact unless any reasonable factfinder would be compelled to conclude to the
contrary. See id., at 481. To reverse the IJ’s decision, we would have to find that the

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record “not only supports that conclusion, but compels it.” Id. at 481 n.1. See 8 U.S.C. §
1252(b)(4)(B).
IV.
To be eligible for CAT protection, Jiang had to establish that it is more likely than
not that he will be tortured if removed to China. Wang, 368 F.3d at 350, 351. However,
there is no evidence in the record to support such a conclusion here. While evidence of
past torture can be considered in assessing whether future torture is likely, see Zubeda v.
Ashcroft, 333 F.3d 463, 478 (3d Cir. 1003), Jiang’s physical altercation with two Chinese
officials over taxes certainly did not involve the degree of “severe pain and suffering”
necessary to constitute torture. 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of
cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or
degrading treatment or punishment that do not amount to torture.”). Moreover, Jiang
produced no evidence that these two officials or any other officials are still looking for
him (more than four and one-half years after the incident) or that they would take any
action against him if they were to find him.
Similarly, Jiang’s leaving China without official permission does not make it more
likely than not that he would be tortured if returned to China. The only evidence offered
to support his claim that he would be mistreated because of his unlawful departure is his
own testimony which was based exclusively on what he had heard other family members
say had happened to others who had returned to China after leaving without permission.

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Moreover, what Jiang heard had happened to others, and what he believed would happen
to him, does not constitute torture. He said that he would be sent to jail for a year and a
half, fined, and beaten. However, prosecution for violating a country’s laws does not
alone constitute torture. See Wang, 368 F.3d at 350 (“The requirement to pay a fine does
not fit within the definition of ‘torture’”.) Beatings could constitute torture, but there is
nothing in the record to support Jiang’s claim that he would be mistreated at all should he
be sent to prison, let alone beaten to the extent required to constitute torture.
There are two short reports in the record which state that some prisoners in China
are tortured; however, those reports do not compel the conclusion that it is more likely
than not that Jiang himself would receive such treatment.
V.
Jiang also argues that the IJ violated his due process rights in three respects. We
disagree. First, contrary to Jiang’s assertion, the IJ did provide a reasoned basis for his
decision. After considering the oral testimony and written submissions in the record, the
IJ entered a written order summarizing the grounds for Jiang’s claim of CAT protection,
and concluding that he had “not submitted any independent evidence to support is claim
for protection under Article 3.” The IJ explained that he was not willing to engage in an
“assumption” that Jiang was entitled to relief simply on the basis of the “reputation of the
Chinese government.” AR at 28, 29.
Second, Jiang’s assertion that the IJ failed to consider all the relevant documentary

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The documents referred to are a reports about the mistreatment of practitioners of1
Falun Gong and two reports on the more general problem of torture in Chinese prisons.
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evidence is without merit. The IJ specifically said during the merits hearing that “in1
fairness to Mr. Jiang,” he would further review the documents submitted by Jiang prior to
entering his decision. AR at 47. Moreover, it is clear from the IJ’s written decision that
he reviewed that documentary evidence.
Third, Jiang’s argument that the IJ requested corroborative evidence of the incident
with the two Chinese officials is without merit. The IJ did not request corroborative
evidence of that incident and he made no adverse credibility determinations.
Furthermore, Jiang’s lack of independent evidence of the incident was not essential to the
IJ’s decision. Even if Jiang’s account of that incident is accepted as true, it still does not
rise to the level of torture. Since it does not constitute past torture, it can not establish the
likelihood that he will be tortured if returned to China. The IJ’s reference to
“independent evidence to support his claim for protection under Article 3” was not a
request for corroborative evidence, but was a reference to the legal requirement for
evidence establishing that it is more likely than not that Jiang will face torture if returned
to China.
VI.
For all of the above reasons, we will deny the petition for review.

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