2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-27-2012

De Ming Lian v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2185

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2185

___________

DE MING LIAN,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A078-854-067)

Immigration Judge: Honorable Susan G. Roy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 25, 2012

Before: SLOVITER, GREENAWAY, JR., and COWEN, Circuit Judges

(Opinion filed : January 27, 2012 )

___________

OPINION

___________

PER CURIAM

De Ming Lian, a citizen of China, arrived in the United States in November 2001. 

He was charged as inadmissible as an arriving alien not in possession of a valid entry 

document and for misrepresenting a material fact to procure an immigration benefit. The 

government later dropped the fraud charge. A.R. at 111. Lian conceded inadmissibility 
2

on the remaining charge. He applied for asylum, withholding of removal, and relief 

under the Convention Against Torture (CAT). He argued that he was or would be 

persecuted in China based on (1) his wife being forced to wear an IUD; (2) his other 

resistance to family planning policies; and (3) his Christian beliefs. After a hearing, the 

IJ found Lian not credible and denied relief. The IJ also concluded that Lian’s allegations 

would not entitle him to relief even if he had been found credible. The BIA affirmed the 

IJ’s decision without an opinion. Lian filed a petition for review.

We have jurisdiction pursuant to 8 U.S.C. § 1252. To establish eligibility for 

asylum, Lian needed to demonstrate either past persecution or a well-founded fear of 

future persecution on account of race, religion, nationality, membership in a particular 

social group, or political opinion. See Wang v. Gonzales, 405 F.3d 134, 138-39 (3d Cir. 

2005). To establish eligibility for withholding of removal, he needed to demonstrate that 

it was more likely than not that his life or freedom would be threatened in China on 

account of a protected ground. Wang, 405 F.3d at 139; 8 U.S.C. § 1231(b)(3)(A). To be 

eligible for withholding of removal under the Convention Against Torture, Lian needed 

to demonstrate that it is more likely than not that he would be tortured if removed to 

China. 8 C.F.R. § 1208.16(c)(2).

We review the BIA’s factual determinations under the substantial evidence 

standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc). The BIA’s 

findings are considered conclusive unless any reasonable adjudicator would be compelled 

to conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B). We exercise de novo review over 

the BIA’s legal decisions. Toussaint v. Att’y Gen., 455 F.3d 409, 413 (3d Cir. 2006). If 
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the BIA affirms the IJ’s decision without an opinion, we review the IJ’s decision as the 

final administrative determination. Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 

2010).

Lian challenges the adverse credibility finding and argues that he has shown a 

well-founded fear of persecution based on a fear of forced sterilization. He also contends 

that he is eligible for withholding of removal and CAT relief. However, many of his 

arguments are unexhausted.

Under 8 U.S.C. § 1252(d)(1), we may review a final order of removal only if the 

petitioner has exhausted all administrative remedies. In his short brief before the BIA, 

Lian did not challenge the IJ’s adverse credibility finding. He argued only that he had 

shown other resistance by pleading with the family planning officials to remove his 

wife’s IUD and by being shoved, kicked, and beaten as a result. He also contended that 

he qualified for withholding of removal based on his new-found practice of Christianity.1 

A.R. at 4-10. Thus, he did not exhaust any challenge to the adverse credibility finding; 

nor did he exhaust any claim based on a fear of forced sterilization or for relief under the 

CAT. We therefore lack jurisdiction to consider these claims. Abdulrahman v. Ashcroft, 

330 F.3d 587, 594-95 (3d Cir. 2003).

Moreover, even assuming Lian was credible, we agree with the IJ that the beating 

Lian allegedly received for his other resistance to the family planning policies did not rise 

to the level of persecution. Lian testified that he was punched two or three times which 

 

1

Lian now admits that the evidence in support of his religious persecution claim is 

lacking. Brief at 1. 
4

resulted in only bruises. A.R. at 224-25. When asked why he had not mentioned this 

incident before the hearing, Lian conceded that it was not that serious. A.R. at 227-28. 

Lian has not shown that the record compels a finding of past persecution or a wellfounded fear of persecution based on his other resistance to family planning policies.

For the above reasons, we will deny the petition for review.