2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

1-27-2012 

# D e M in g Li a n v

. Att y Ge n U S A

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 11-2185

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NOT PRECEDENTIAL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 , Circu it 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

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on the remaining charge. He applied for asylum, withholding of removal, and relief under th e 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 foun d 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 j urisdiction 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 grou p, 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

ac count 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 adjud icator 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 opini on, 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 f ear 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 I UD 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 find ing; 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, e ven assuming Lian w as credi ble, 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.

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resulted in only brui ses. 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 well

founded fear of per secution based on his other resistance to family planning policies. For the above reasons, we will deny the petition for review.