En Tong Qiu v. ATTORNEY GENERAL OF THE UNITED STATES On

IMG-111 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1549
___________
EN TONG QIU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A097-904-731)
Immigration Judge: Honorable Charles Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 10, 2010
Before: RENDELL, FISHER AND GARTH, Circuit Judges.
(Filed: March 12, 2010 )
_________
OPINION
_________
PER CURIAM
En Tong Qiu petitions for review of the Board of Immigration Appeals’ (“BIA”)
final order of removal. For the reasons that follow, we will deny the petition.

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I.
Qiu is a citizen of China who entered the United States in 2004 without having
been admitted or paroled. Qiu concedes removability on that basis, but he seeks asylum,
statutory withholding of removal and relief under the Convention Against Torture
(“CAT”) on the grounds that he suffered past mistreatment and fears mistreatment in the
future for his resistance to China’s family planning policies.
Qiu testified before the Immigration Judge (“IJ”) that his mother was forcibly
sterilized and his family was fined because he was the family’s fourth child. He also
testified that his girlfriend became pregnant and that authorities forced her to have an
abortion. When he learned that authorities had taken her to the hospital, he went there
and discovered that the abortion had been performed. He then pushed aside a member of
the “cadres” who was guarding his girlfriend’s room and took her home.
At the time, Qiu was working at his village’s Government Committee office,
which housed the local branch of the family planning committee. He testified that he
performed janitorial services and other odd jobs, but also occasionally served as a guard.
When he returned to work after his girlfriend’s abortion, he learned that two women he
was guarding had been detained for forcible sterilization or insertion of an IUD device,
and he was so angered by his girlfriend’s abortion that he set them free. He then went
into hiding, and heard from his mother that the “cadres” had come to his house several

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We have jurisdiction under 8 U.S.C. § 1252(a)(1). “Because the BIA issued its1
own decision, we review that decision, and not that of the IJ.” Sheriff v. Att’y Gen., 587
F.3d 584, 588 (3d Cir. 2009). “Under the substantial evidence standard, the BIA’s
determinations ‘must be upheld unless the evidence not only supports a contrary
conclusion, but compels it.’” Id. (citations omitted).
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times in search of him to “hold him responsible” for that action. Shortly thereafter, he
came to the United States.
The IJ found Qiu credible in all respects relevant to our disposition but denied
relief. The IJ explained that neither Qiu’s mother’s sterilization and family fine nor his
girlfriend’s forced abortion constituted past persecution of Qiu. The IJ did not reach the
issues of whether Qiu had a well-founded fear of future persecution for purposes of
asylum or had shown that future persecution was more likely than not for purposes of
withholding. Instead, he concluded that Qiu was ineligible for those forms of relief
because he had “assisted, or otherwise participated in the persecution” of others. 8 U.S.C.
§§ 1158(b)(2)(A)(i) (asylum) and 1231(b)(3)(B)(i) (withholding).
On appeal, the BIA agreed that Qiu was ineligible for asylum and withholding
because he participated in persecution. The BIA also concluded that, even if Qiu were
not barred from relief for that reason, he had otherwise failed to show eligibility for relief
because he had shown neither past persecution nor a well-founded fear of future
persecution. Finally, the BIA concluded that Qiu had not shown it more likely than not
that he would be tortured on return. Qiu petitions for review.1

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We note our displeasure with Qiu’s failure to acknowledge this dispositive2
authority, which is particularly troubling in light of the BIA’s reliance on Chen in its
opinion.
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II.
The parties devote the majority of their briefs to the BIA’s conclusion that Qiu is
ineligible for asylum and withholding of removal because he assisted in the persecution
of others. We need not address that issue, however, because the BIA’s alternative
grounds for denying relief are supported by substantial evidence and Qiu’s arguments to
the contrary are unavailing.
First, Qiu argues that he was entitled to a presumption of eligibility for asylum
because he suffered past persecution in the form of his mother’s forcible sterilization and
his girlfriend’s forcible abortion. This argument lacks merit. We recently held that the
persecution even of an alien’s spouse under China’s family planning policies does not
constitute persecution of the alien, see Lin-Zheng v. Att’y Gen., 557 F.3d 147, 148-49 (3d
Cir. 2009) (en banc), and we previously held the same with respect to an alien’s parents,
see Wang v. Gonzales, 405 F.3d 134, 142-43 (3d Cir. 2005), and an alien’s unmarried
girlfriend or fiancée, see Chen v. Ashcroft, 381 F.3d 221, 222-23 (3d Cir. 2004). Qiu2
also asserts that he suffered past persecution because his family was fined for having four
children. The BIA did not specifically mention that assertion, but the IJ found that the
family’s fine did not present a cognizable claim for asylum (IJ Dec. at 14), the BIA
agreed that Qiu had failed to show past persecution in general, and Qiu neither argues that

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the BIA erred in not addressing this claim more specifically nor cites any evidence of
record that might compel the conclusion that his family’s fine amounted to the
persecution of him. See Wang, 405 F.3d at 143-44.
Second, Qiu challenges the BIA’s conclusion that he failed to establish a well-
founded fear of persecution. The BIA assumed that Qiu’s scuffle with a family planning
official and release of two women could constitute a statutorily protected ground. See 8
U.S.C. § 1101(a)(42)(B) (equating “resistance to a coercive population control program”
with political opinion for immigration purposes). It concluded, however, that his fear of
persecution was speculative because the record contains no evidence that Chinese
officials are still interested in him five years after those event or would persecute him
because of them on return. (BIA Dec. at 3.) Qiu cites no evidence of record that might
compel a contrary conclusion, and our review of the record has revealed none.
Finally, Qiu challenges the BIA’s conclusions that he was not entitled to
withholding of removal or relief under CAT. Because Qiu failed to establish a well-
founded fear of persecution, however, he necessarily failed to meet the higher burden
applicable to withholding of removal. See Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330,
348-49 (3d Cir. 2008). With regard to CAT, Qiu asserts that “various” reports document
the fact that “torture and ill treatment by the authorities in China was not eradicated and
in fact is practiced.” One again, however, he cites no record evidence compelling the

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conclusion that he personally faces probable torture on return. See id. at 349.
Accordingly, the petition for review will be denied.

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