NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-2862

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XIU ZHEN NI; JIAN CHENG LIN,

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency Nos. A089-203-888 and A098-450-607)

Immigration Judge: Honorable Eugene Pugliese

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Submitted Pursuant to Third Circuit LAR 34.1(a)

January 23, 2013

Before: FISHER, GARTH and ROTH, Circuit Judges

(Opinion filed: January 31, 2013)

.

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OPINION

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PER CURIAM

Lead petitioner Xiu Zhen Ni and her husband, Jian Cheng Lin (hereinafter 

collectively referred to as “Petitioners”), petition for review of the Board of Immigration 

Appeals’ (“BIA”) final order of removal issued in their consolidated removal 

proceedings. For the reasons that follow, we will deny the petition.
2

I.

Because we write primarily for the parties, who are familiar with the background 

of this case, we discuss that background only briefly here. Petitioners are natives and 

citizens of the People’s Republic of China who entered the United States without proper 

documentation. They have two United States citizen children – a daughter, born in 2006, 

and a son, born in 2008. After Petitioners were placed in removal proceedings, they 

conceded their removability and applied for asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”). In support of their respective 

applications, Petitioners claimed that they feared returning to China based on their 

violation of China’s family planning policy. They subsequently amended those 

applications to add a second claim based on their practice of Falun Gong (a practice that 

began after they were placed in removal proceedings).

After conducting a merits hearing, at which Ni testified but Lin did not, the 

Immigration Judge (“IJ”) denied their respective applications. In doing so, the IJ found 

that Ni’s testimony was not credible, and that Petitioners had failed to meet their burden 

of proof for the requested relief. Petitioners then appealed that decision to the BIA.

In June 2012, the BIA dismissed the appeal. With respect to Petitioners’ asylum 

claims, the BIA concluded, inter alia, that (1) the IJ’s adverse credibility determination 

was not clearly erroneous, (2) Petitioners had not established that their subjective fear of 

future persecution on account of China’s family planning policy was objectively 

reasonable, and (3) even if Ni’s testimony were deemed credible, Petitioners had failed to 
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demonstrate a well-founded fear of future persecution based on their practice of Falun 

Gong. The BIA also ruled that, because Petitioners had not met the standard for asylum, 

they could not meet the higher standard for withholding of removal. Lastly, the BIA 

noted that Petitioners had waived any challenge relating to their CAT claims.

Petitioners now seek review of the agency’s decision.1

II.

We have jurisdiction over the instant petition pursuant to 8 U.S.C. § 1252(a)(1). 

We review the agency’s factual findings, which include its findings as to whether 

Petitioners have demonstrated a well-founded fear of future persecution, for substantial 

evidence. See Chavarria v. Gonzalez

Where, as here, an alien seeking asylum does not allege past persecution, she must 

demonstrate a well-founded fear of future persecution. 

, 446 F.3d 508, 515 (3d Cir. 2006). Under this 

deferential standard of review, we must uphold those findings “unless any reasonable 

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

See Chavarria, 446 F.3d at 516 

(citing 8 U.S.C. § 1101(a)(42)(A)). For an alien’s fear of future persecution to be wellfounded, it “must be both subjectively and objectively reasonable.” Dong v. Att’y Gen. 

of the U.S.

 1 We note that Petitioners do not contest the BIA’s waiver finding or otherwise 

present a challenge to the agency’s resolution of their CAT claims. Accordingly, the 

scope of our review is limited to the agency’s denial of Petitioners’ claims for asylum and 

withholding of removal. See Voci v. Gonzales, 409 F.3d 607, 610 n.1 (3d Cir. 2005).

, 638 F.3d 223, 228 (3d Cir. 2011). “To establish objective reasonableness, 

petitioners must show that a reasonable person in the alien’s circumstances would fear 
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persecution if returned to [the country in question].” Chen v. Att’y Gen. of the U.S., 676 

F.3d 112, 115 (3d Cir. 2011) (internal quotation marks and citation omitted). 

“Persecution” includes “threats to life, confinement, torture, and economic restrictions so 

severe that they constitute a threat to life or freedom,” but “does not encompass all 

treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” 

Fatin v. INS

Here, for substantially the reasons set forth in the BIA’s thorough and cogent 

decision, a reasonable adjudicator would not be compelled to disturb the BIA’s 

conclusion that Petitioners failed to establish that their subjective fear of future 

persecution on account of China’s family planning policy was objectively reasonable. 

Furthermore, Petitioners have not highlighted any record evidence that would compel a 

reasonable adjudicator to disturb the BIA’s conclusion that they failed to demonstrate a 

well-founded fear of future persecution based on their practice of Falun Gong. 

Accordingly, Petitioners’ challenge to the denial of their asylum claims fails,

, 12 F.3d 1233, 1240 (3d Cir. 1993).

2 and they 

necessarily cannot meet the higher standard for withholding of removal. See Lukwago v. 

Ashcroft

In light of the above, we will deny the petition for review.

, 329 F.3d 157, 182 (3d Cir. 2003).

 2 Because the aforementioned BIA rulings did not hinge on the agency’s adverse 

credibility determination, we need not address Petitioners’ challenge to that credibility 

determination.