Third Circuit disposition — 084819np-pdf

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4819
___________
XIN TAO LI,
Petitioner
vs.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A-094-798-130
Immigration Judge: Margaret R. Reichenberg
___________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 4, 2010
Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges
(Opinion filed : March 9, 2010)
___________
OPINION
___________
PER CURIAM.
Petitioner Xin Tao Li, a native and citizen of China, entered the United

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Falun Gong blends aspects of Taoism, Buddhism, and the meditative techniques and1
physical exercises of qigong – a traditional Chinese exercise discipline – with the
teachings of its founder. See generally Lin v. Att’y Gen. of U.S., 543 F.3d 114, 117 n.3
(3d Cir. 2008).
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States without being admitted or paroled on June 14, 2006 at Hidalgo, Texas. He is
removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(I), 8 U.S.C. §
1182 (a)(6)(A)(I), as an alien present in the United States without being admitted or
paroled. Venue was changed from Harlingen, Texas to Newark, New Jersey. On January
4, 2007, Li filed his application for asylum under INA § 208(a), 8 U.S.C. § 1158(a),
withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and protection
under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming that he
had been persecuted by the Chinese government on account of his practice of the
outlawed Falun Gong religion. Li’s asylum application included a personal statement.1
At his merits hearing on April 21, 2008, Li testified that, on May 10, 2006,
he was home watching television when the police came to his family’s house looking for
his parents, who are Falun Gong practitioners. Li told the police his parents were on a
seven-day tour and were not at home. The police searched the house and found Falun
Gong materials. They brought Li, who was then 20 years old, to the police station and
detained him for three days. He was interrogated several times, and slapped, or hit, in the
face two times. After he was released he was instructed to tell his parents that they must
surrender to the police. When Li got back home he telephoned his parents, told them

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what had happened, and advised them not to come back home. Three days later, the
police came back to Li’s house and asked him if his parents had returned. Li told the
police he did not know if they had returned. The police told him if they did not return
within seven days Li himself would be arrested. After the police left, Li again warned his
parents. They went into hiding at a relative’s home in a different village. Later, they
helped make arrangements for Li to come to the United States.
In addition to his testimony and the written statement accompanying his
asylum application, Li produced the testimony of a friend, Mei Hian Li, who lives in
Manhattan. Ms. Li testified that she has seen Li practicing Falun Gong in the United
States. Several documents were admitted into evidence, including the State Department’s
International Religious Freedom Report on China for 2006; an affidavit from Sheng
Wang Xu, Li’s lawful permanent resident cousin and a Falun Gong practitioner;
photographs showing Li practicing Falun Gong movements; copies of U.S. Congressional
Resolutions requesting that China stop persecuting Falun Gong practitioners; internet and
newspaper articles that discuss Falun Gong; and an affidavit from Li’s mother, among
other items. In her affidavit, Li’s mother stated she and her husband practiced Falun
Gong for its health benefits. A.R. 268. On May 21, 2006, they “traveled many industry
sites of Shanghai, Hangzhou, Nanjing, Suzhou, Wuxi and other cities and met many local
Falun Gong practitioners secretly.” See id. Li’s mother attested to the events
surrounding Li’s detention and interrogation.

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At the conclusion of the merits hearing, the Immigration Judge denied
relief. The IJ determined that Li was not credible on the basis of several inconsistencies
between his written statement and his testimony. In addition, the IJ did not believe that
Li’s mother’s affidavit supported his claim. Because of these deficiencies in his case, Li
failed to meet the burden of proof necessary to establish that he was a victim of past
persecution in China, or that he has a well-founded fear that he would be persecuted in
China upon his return. In the alternative, the IJ concluded that, even if Li was to be
believed, his testimony that he was taken into custody by the police for three days,
interrogated about his parents’ whereabouts, and slapped, did not support a finding of past
persecution. The detention and physical assault did not rise to the level of persecution
because Li was not injured. Furthermore, Li failed to establish a nexus to any of the five
statutory grounds.
With respect to a well-founded fear of persecution, the IJ concluded that
there was no evidence the police believed Li to be a Falun Gong practitioner. The police
were interested in him so that they could locate his parents. The IJ found Li’s evidence
that he is, himself, a Falun Gong practitioner, to be sparse. His mother’s affidavit did not,
for example, reflect the fact that Li himself is a Falun Gong practitioner. Last, the IJ
found Li’s torture claim lacking in merit.
Li appealed to the Board of Immigration Appeals, contending, among other
things, that the IJ disregarded the objective evidence of China’s human rights violations

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with respect to the basic freedoms of Falun Gong practitioners. A.R. 68. In dismissing
Li’s appeal in a decision dated November 21, 2008, the Board agreed with the IJ that Li’s
brief detention and interrogation did not rise to the level of persecution, see Fatin v.
Immigration & Naturalization Serv., 12 F.3d 1233 (3d Cir. 1993); Matter of O-Z- & I-Z-,
22 I. & N. Dec. 23 (BIA 1998). The Board also noted a lack of evidence to suggest that
the Chinese police have an interest in mistreating Li in the future, given that, during his
past encounters, the police only asked him where his parents were, and accused them, but
not him, of practicing Falun Gong. Thus, the Board concluded, the record contained no
indication that the police imputed the practice of Falun Gong to Li. Moreover, the Board
noted that Li’s parents continue to live in China, and Li produced no evidence that his
parents have been harmed, which undermines his claim that he fears persecution in China,
see, e.g., Matter of A-E-M, 21 I. & N. Dec. 1157 (BIA 1998). The Board did not see the
need to reach the IJ’s adverse credibility determination, or her finding that Li failed to
establish a nexus between his detention and mistreatment and a protected ground. The
Board agreed with the IJ’s conclusion that Li failed to establish that he is more likely than
not to be tortured in China by or with the acquiescence of government officials, see 8
C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). Li now seeks review of the Board’s decision.
We will deny the petition for review. We have jurisdiction to review a final
order of removal under 8 U.S.C. § 1252(a)(1), (b)(1). Our power of review extends only
to the decision of the Board. Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001).

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The agency’s “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 Immigration
& Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under this
deferential standard, the petitioner must establish that the evidence does not just support a
contrary conclusion but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.
2002).
Under INA § 208(b), the Attorney General has the discretion to grant
asylum to “refugees.” 8 U.S.C. § 1158(b); see also Immigration & Naturalization Serv. v.
Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987). Section 101(a)(42)(A) of the INA
defines a “refugee” as a person unable to return to her country of “nationality . . . because
of persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion . . . .” 8 U.S.C.
§ 1101(a)(42)(A). The alien bears the burden of proof of establishing that he is a refugee
and that he has suffered past persecution or has a well-founded fear of persecution. See 8
C.F.R. § 1208.13(a); Gao, 299 F.3d at 272. Persecution has a well-established meaning;
it includes threats to life or freedom but it does not include treatment that fairly may be
regarded as unfair or unjust, or even unlawful. Fatin, 12 F.3d at 1240. If past persecution
is established, then the asylum applicant is presumed to have a well-founded fear of
persecution. See 8 C.F.R. § 1208.13(b)(1); Shardar v. Att’y Gen. of U.S., 503 F.3d 308,
312 (3d Cir. 2007).

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To establish entitlement to withholding of removal under section 241(b)(3)
of the INA, 8 U.S.C. § 1231(b)(3), the alien must demonstrate a “clear probability” of
persecution through the presentation of evidence that it is more likely than not that he
would be subject to persecution if deported. See Mulanga v. Ashcroft, 349 F.3d 123, 132
(3d Cir. 2003). This is a more stringent standard than the asylum standard. See Mudric v.
Att’y Gen. of U.S., 469 F.3d 94, 102 n.8 (3d Cir. 2006) (citing Janusiak v. Immigration &
Naturalization Serv., 947 F.2d 46, 47 (3d Cir. 1991)).
Li has failed to show that the Board’s conclusion that he failed to
demonstrate past persecution is not supported by reasonable, substantial and probative
evidence on the record considered as a whole. Elias-Zacarias, 502 U.S. at 481. The
record evidence supports the finding that Li’s detention and mistreatment did not rise to
the level of persecution, a term which connotes extreme conduct. Fatin, 12 F.3d at 1240.
He suffered no injury and needed no medical attention as a result of what happened to
him. We have held that this is insufficient to establish persecution. See, e.g., Kibinda v.
Att’y Gen. of U.S., 477 F.3d 113, 119-20 (3d Cir. 2007) (five-day detention resulting in
minor injury did not amount to persecution); Voci v. Gonzales, 409 F.3d 607, 615 (3d
Cir. 2005) (single beating that does not result in serious physical injury does not compel
reversal of the Board’s decision that alien did not suffer past persecution).
Having failed to establish past persecution, Li does not have the benefit of
the presumption that he has a well-founded fear of persecution. In the absence of

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evidence of past persecution, the alien must demonstrate a subjective fear of persecution
through credible testimony that his fear is genuine, Zubeda v. Ashcroft, 333 F.3d 463,
469 (3d Cir. 2003), and he must show that a reasonable person in his circumstances
would fear persecution if returned to the country in question, see id. Li produced no
individualized evidence to show that the Chinese police have an interest in mistreating
him in the future. During his past encounters with the police, they were interested only in
his parents’ whereabouts. The police accused his parents, but not Li himself, of being
Falun Gong practitioners. Li’s evidence did not establish that the police imputed the
practice of Falun Gong to him. His own testimony established that the Chinese police did
not accuse him of being a Falun Gong practitioner, and their interest in him was only
because he might know of his parents’ whereabouts. A.R. 181-82. As the Board pointed
out, Li’s parents continue to live in China, and Li produced no evidence to show that his
parents have been harmed, see, e.g., Matter of A-E-M, 21 I. & N. Dec. 1157
(reasonableness of alien’s fear of persecution is reduced when his family remains in his
native country unharmed for long period of time after his departure). His mother stated in
her affidavit that she and her husband are living at a relative’s home in Ronghuaxin
Village; she does not indicate that she has had any trouble there. A.R. 269.
Li’s documentary evidence, including the State Department’s International
Religious Freedom Report on China for 2006, indicates that some Falun Gong followers
have been subject to severe treatment by Chinese authorities. He contends that the Board

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ignored this evidence, and it is true that the Board discussed only Li’s lack of
individualized evidence. Li notes that the 2006 International Religious Freedom Report
states on p. 9 that: “There were credible reports of torture and deaths in custody of Falun
Gong practitioners in past years . . . . In April 2006, overseas Falun Gong groups claimed
that a hospital in Sujiatun, Shenyang, had been the site of a ‘concentration camp’ and of
mass organ harvesting, including from live prisoners.” See Petitioner’s Brief, at 26
(quoting 2006 Religious Freedom Report), & at 13-14. But Li omitted from his brief the
remainder of the quoted paragraph, which states: “In response to the allegations, the
Government opened the facility in question to diplomatic observers and foreign
journalists. Observers found nothing inconsistent with the operation of a hospital.” A.R.
208 (emphasis added). In sum, even if we accept that Li himself has become a Falun
Gong practitioner in the United States, see Petitioner’s Brief, at 23-24, he provided no
evidence to show either that every follower of Falun Gong is persecuted in China or that
he would be targeted specifically for such treatment. Accordingly, the Board’s
determination that Li does not have a well-founded fear of persecution is supported by
substantial evidence. Elias-Zacarias, 502 U.S. at 481.
Last, we address Li’s contention that the Board’s decision not to address the
credibility issue “is a clear abuse of discretion.” See Petitioner’s Brief, at 18. We
disagree. The Board may decide a case without considering an alternative basis upon
which the Immigration Judge made his or her decision. That the Board gave Li the

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benefit of the doubt on the credibility issue is not cause for complaint. The Board did not
err when it decided Li’s case without considering the IJ’s adverse credibility
determination.
Because Li failed to show past persecution or a well-founded fear of future
persecution under the lower burden of proof required for asylum, he is necessarily
ineligible for withholding of removal. Cardoza-Fonseca, 480 U.S. at 430-32. In addition,
the record does not compel a conclusion that Li met his burden of establishing that it is
more likely than not that he will be tortured upon his return to China, 8 C.F.R. §
1208.16(c)(2).
For the foregoing reasons, we will deny the petition for review.
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