The Honor able William O. Ber telsman, United States District J udg e for the Easter

n * District of Ke ntucky , sitti ng by desig nation. NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON

File Na me: 11a0141n.06 No. 09-3696 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

YONG LAI

L I AN, ) ) Petitioner, ) ) ON PETI TI ON F OR REVI EW v. ) FROM A DE CI SI ON OF THE ) BO ARD OF I MMI GRATI ON ) A P P E A LS ERI C H. HOL DER, J R., ) ) Re sp on de nt. )

Be fore : GRI FF I

N and KE THL EDGE, Circuit Judges, B ERTEL SMAN, District J udg e. * BERTEL SMAN, District J udg e. YongL ai L ian (“ L ian”) petitions this Court for re view of a fina l order of the Board of I mmigration Appea ls (“B I A”) aff irming the decision of a

n I mmigration J udg e deny

ing L ian’s application for asylum, withholdi ng of re moval, and reque st f or relief under the Convention Ag ainst Torture. Be cause we are without jurisdiction t o revie w the denia l of L ian’s asylum a pplication, we DI SMI SS t hat par t of his petition, and beca

use he c annot satisfy

the string ent

c ri te ri a fo r w ith ho ldi ngof

re mov a l, w e AF F I RM the B I A’ s d e c isi on de nyingL ian’ s c la im. I. L ian is a nativ e and c iti zen of the Pe op le ’s Re pu bli c of Chi na , h a ili ngfr om C ha

ng le City in the F uji an Pr ov inc e . L ian e nte re d the Un ite d State s on or a bo ut No ve mbe r 8, 20 00 , w ith ou t va lid2

entry documentation. On December 18, 2000, the Depa rtment of Homela

nd Security

issued a Notice to Appear requiringL ian to appea

r in I mmigration Court to s h o w wh y h e s h ould not be remove d fr om t he Un ite d St a te s. On Dec ember 1 8 , 2 0 02, L ian appe are d befor e an Immigration J udg e (“ I J ”) a nd conce ded

remova bility . On Marc h 5, 2003, L ian filed an application for asylum, withholdi ng of re moval, and relief under the Convention Ag ainst Torture ( “CAT”)

. L ian, re pr e se nte d b y

c ouns e l, a

pp e are d in

I mmi g ra tio n Cou rt for a

me ri ts h e ari ngin Cleveland, Ohio on Dec ember 18, 2006. L ian testified that in 1999, he fell in love with a g irl from his vill ag e. L ian was 21 and his g irlfriend was 17, while the leg al ag e for marria g e wa s 22 for men and 20 for women. None theless, the two beg an living tog ether with L ian’s par ents. I n J une 2000, L i an l ea rn edt h at h i s gi rl fr i en d wa s p re gn an t , an d

t h e t wo d ec i d ed t h e y w a n t edt o m arry . Vi l l age officia ls, however , told L ian’s par ents that the two could not leg ally marry due to their a g e. Despite the officia ls’ ref

usal, L ian’s family made plans for L ian and his girlfrie nd to marry in a traditional villag e ce remony on Aug ust 10, 2000. Early on the m orning of that day , howeve r, village police ar

rived at L ian’s house a

nd in fo rm ed his pare nts that they wer e ther e to enf

orce the family planning policy . L ian and h i s gi rl friend e scape d out the back of the house, pursue d by

the po lic e . L ian te sti fi e d th a t th e po lic e c a ug ht u p to him and be a t him wi th a wo od e n c lub and

c ut h im with a steel blade such that he still has scar s on his back. L ian testified that, duringthis strugg le, he struck one of

the policemen. E ventually L ian esc aped a

nd fled to the Yuna

n Province. L ian’s g irlfriend di d not esca pe. Appr ox imately

ten day s later, L ian contac ted his mother who informed him that his g irlfriend was forced to have an abortion. L ian s ubmitted documentation3

to show that his girlfr iend under went an “ artifi ci al l y i nduced a bortion operation” on Aug ust 10, 2000. L ian also testified that the villag e off icials continued to come to his parents’ house looking fo r h im a nd that th e y de ta ine d his fathe r f or se ve n d ay s. Th e po lic e tol d L ian’ s f a the r t hat L ian mu st repor t t o the g overnme nt security depar tment for interr og ation, and L ian introduce d a summons date d Se pte mbe r 8 , 2 00 0, to t hat e ff e c t. After esca ping China, L ian hired a smugg ler to t ak e h i m to the United States, where he

arr ive d o n No ve mbe r 8 , 2 00 0. L ian’ s f a mil y so on pu t hi m in

tou c h w itha

lawy e r i n N e w Y or

k to help him file an a sy lum application. L ian spoke to this person only over the phone. L ian testified that, on Nove mber 13, 2001, he traveled to New York l ooking for the law y er but discovere d that his law firm had close d down. L ian then re tained anothe r lawy er, G rac e Chan, around N ovember

2001. Chan filed an a sy lum application on L ian’s beha lf in Marc h 2003. I n 2005, L ian marr ied a Chinese national in the Unit ed S tates. L ater that y ear , the couple ha d a daug hter. L ian testified that he be lieved that if he and his w ife returne d to China, they would not be allowe d to have more children a nd would fac e sterilization. Following this hearing , the I J issued a written dec ision deny ing a ll relief soug ht by L ian. The I J first noted that an application for asylum ge nera lly

must be filed within one y ear afte r an a lien’s

arr ival in the United States, pursuant to 8 U.S.C. § 1158(a)( 2)(B ). He noted that this period may be extended due to “e x traordina ry circ umstances” rela

tin g t o t h e d elay

or due to a

“cha ng e of circ umstances whic h materia lly aff ects the a pplicant’s elig ibilit y

for a sy lum.” Th e I J found

that, w hil e the on e -y e ar de lay in the fi lin g of L ian’ s asy lum a pp lic a tio n d

ue to the inaction of his first attorney could consti tute “extraordinar y circ umstances,” the additional delay4

of 17 months after

L ian obtained ne w counse l was n o t rea sonable. In addition, the I J found that L ian’s subsequent marriag e in the United States a nd the birth of his child could not extend the asylum application filing pe riod. Finally , the I J found that eve n had L ian’s application been timely filed, the evidenc e did not support a g rant of a sy lum. The I J noted that the evidenc e wa s uncontradic ted that L ian had ne ver been ma rried to his girlfrie nd and that various circuits have held that forc ed abor tion inflicted on a woman to whom the applicant was not marrie d cannot f orm the basis for

an asy lum application. The I J further found L ian’s testimony

and evide nce insuff

icient to show that he would likely be s ubjected, if retur ned to China, to forc ed sterilization, imprisonm ent, or a ny other pe nalty

as a r esult of the unwed pr eg nancy

of his g irlfriend, a

nd that his stated fea

r of beingsubjected to punishment for str iki nga Chi ne se g ov e rnme nt of fi c ia l duri ng his e sc a

pe pr ov ide d a

n in su ff ic ie nt b a sis fo r a sylum

. For the same r easons, t h e I J fo u n d that L ian could not pre vail under the highe r burde n for withholding of r emoval or r elief unde r CAT. L ian timely

appea led the I J ’s dec ision to t he BI A, which a ffirme d the dec ision and dismis sed L ian’s appe al on Aug ust 5, 2008. The B I A ag ree d with the I J that L ian was statutorily ineligible f

or asylum because his application was untimely

. The Boa rd further ag ree d with the I J ’s deter mination that, even a cce pting L ian’s testimony as cr edible, he ha d not shown a “c lear probability ” that he

wo uld su ff e r p e rs e c uti on

or tor tur e if re tur ne d to Chi na

so a s to q ua lif y fo r w ith ho ldi ngof

re mov a l. On May 29, 2009, the B I A re issued its de cision to c orre ct a defe ct in service , incorporating by ref ere nce its Aug ust 5, 2008 order

. L ian filed a timely petition for re view with this Court on J une 15, 2009.5 II. The B I A her e re viewed the I J ’s dec ision and issued an opinion by a si ng le-membe r pane l pursuant to 8 C.F.R. § 1003.1(e ) (2010) . “Where the B I A reviews the immigr ation judge ' s decision and issues a separ ate opinion, rather than summar ily aff irming the immigration judge' s decision, we revie w the BIA' s decision as the f inal ag ency

deter mination.” Khalil i v. Holder , 557 F.3d 429, 435 (6th Cir. 2009). This court a lso reviews the I J ’s decision to the extent his rea soning is adopte d by the B I A. Id. Questions of l aw are reviewe d de novo, but substantial defer ence is give n to the BIA’s interpre tation of the applica ble statutes and r eg ulations. Id. The B I A and I J ’s finding s are revie wed under the substantial evidence standard. Id. Under this standard, the court’s scope of revie w of fac tual finding s is na rrow. “The BIA’s interpr etation of the statute a

nd re gu l at i o n s will be upheld unless the interpr etation is ‘ar bitrary , capr icious, or manifestly

contra ry to the statute.’” Id. (c i t at i o no m i t t ed ). T h i s co u rt m ay n o tre v er s e s u ch fi n d i n gs simply beca use it would have de cided the c ase diff ere ntly

. Id. State d o the rw ise , th e B I A’ s f ind ing s “ a r e c o n c l u s i v e u

n l e s s a ny r e a s on a ble a dju dic a tor

wo uld be compe lled to conclude to the c ontrary .” Id. (quoting 8 U.S.C. § 1252(b)(4)( B) ). III . A. An alien must file an a

pplication for a sy lum within one y ear of ar riving in the United States in order to be elig ible for relief . 8 U.S.C. § 1158(a)(2) (B ). “A n exception to this rule c an be ma de if the alien de monstrates either the ex istence of chang ed cir cumstance s which mater ially aff ect the applicant’ s elig ibilit y

for a sy lum, or ext raor dinary circ u m s t an ce s relatingto the delay in filing a

n6

application within the one- y ear period.” Shkulaku-Purballori v. Muk asey , 51 4 F .3 d 4 99 , 5 02 (6 th Cir. 2007) (citing 8 U.S.C. § 1158(a)(2) (D))

. This Court will review a sy lum applications denied for untimeliness only

wher e the a

ppeal seeks revie w of “constitutional claims or matters of statutory construction,” not whe n the question is “discre tionary ” or “ fac tual.” Id. (q u o t i n g Almuhtaseb v. Gonzale s , 453 F.3d 743, 748 (6th Cir. 2006)). See also J

in Zhou Z heng v. H older , 339 F. App’ x 592, 594 (6th Cir. 2009). Despite re citi n g t his standard in his brief, L ian ra ises no constitutional or statutory construction claims with respec t to the denial of his asylum application. I nstead, he asser ts only that the B oa rd e rr e d in fi nd ing that the tim ing of his a sylum a pp lic a tio n wa s not “ re a so na ble .” Th is i s exactly the ty pe of f actual, discretionar

y deter mination that we ar e jurisdictionally barr ed fr om revie wing

. See A budaya v. H older , 393 F. App’ x 275, 279-80 (6th Cir. 2010). We t hu s d ism iss the pe tit ion

a s it pe rt a ins to L ian’ s a sylum c la im. B. To pr e va il o n a pe tit ion fo r wit hh old ing of

re mov a l un de r t

he I mmi g ra

tio n a nd Natio na lity Act (“ I NA”) , 8 U.S.C. § 1231(b)(3), a n alien must show that it is “more likely than not ” t h at he would be subjec t to persec ution on t h e b as i s o f his rac e, re ligion, nationality , membership in a particula r social g roup, or political opinion wer e he r emoved f rom t h i s co u n t ry . ShkulakuPu rb allor i , 514 F.3d at 503 (citation omitted). An applica nt may also seek w ithholding of re moval under CAT, under which “the applicant bears the burde n of establishing ‘it is more likely than not that he or she woul d b e t o rt u re d if remove d to the proposed c ountry of re moval.’” Id. (citations omitted).7

Substantial evidence supports the Boa rd’s finding that L ian did not show that he had suf fer ed past perse cution, that he wa s likely to suffer future pe rsec ution on any of the statutory

g rounds, or that he would likely

fac e torture should he retur n to China. Th e BI A an d I J cor

re c tly de te rm ine d th at th e fa c t th a t L ian’ s g ir lf ri e nd ha d b e e n f

or c e d to underg o an abor

tion did not establish an act of pa st persec ution ag ainst him, because the two wer e not married. See M

u Hua Pan v. H

older , 381 F. Ap p ’x 5 7 2 , 575 (6th Cir. 2010) (noting that protec tion for per secution on ac count of for ce d ab o rtion ext ends to the woman unde rg oing the proce dure a

nd her spouse ) (c itation omit ted). The B I A furthe r dete rmined that L ian’s single encounte r with the villag e police in whic h he

wa s p ur su e d a

nd be a te n d oe s n ot r ise to t

he le ve l of pe rs e c uti on , an d the re c or d doe s not c omp e l a

c on tr ary re su lt. Th is C ourt

ha s h e ld t

hat pe rs e c uti on

inv olv e s “mo re tha

n a f e w i so la te d in c ide nts of ve rb a l ha ra ssm e nt o r i nti mi d a

t i o n , u n a c c o m p a n i e d b y a ny ph y sic a l pu

nis hme nt, inf

lic tio n o f h a rm , or sig nificant de privation of liberty .” Mi k ha ile v itch v . I

NS , 146 F.3d 384, 390 ( 6th Cir. 1998). Moreove r, “a single beating does not compel a court to find that the per secution threshold ha s been

m et .” Altangerel v. Holde r , 366 F. App’ x 574, 579 (6th Cir. 2010) (c itation omit ted). Se e als o Traore v. Holder , 358 F. App’ x 677, 679-80 (6 t h Cir. 2009) (“[W] e have consistently rec og nized that w hil e e ve n a

sin g le be a tin g of

fe nd s o ne ’s se ns e of

c ivi lize d g ov e rnme nta l con du c t, a sin g le be a tin g do e s n ot compe l

a finding of per secution) ( citation and interna l quotation marks omitted). Sub sta nti a l e vid e nc e a lso su

pp or ts the B I A’ s c on c lus ion that L ian fa ile d to sh ow that it is

mor e lik e ly tha

n no t that he wo uld su ff

e r futur e pe rs e c uti on sh ou ld he re tur n to Chi na . Hi s si ng le encounte r with the police that occur red more than ten y ear s ag o ce rt ainly does not compel such a finding

. Se e Tra or e , 358 F. App’x a t 680 (holding that single beating at the hands of the g overnme nt8

occur ring seven y ear s befor e did not establish probability of future perse cution). L ian produc ed no

e vid e nc e that the Chi ne se g ov e rnme nt ha s ma de any fu rt he r e ff or ts to se arc h fo r him or that he wo uld l i k e l y b e p e r s e c u t e d

s h o u l d h e r e tu r nt o h i s c o u n t r

y. Finally , L ian’s expressed f ear that he would be subje ct to forc ed st er i l i z at ion or other punishment as a re sult of having fathe red a child in t h e Un i t ed S t ates without his gove rnment’s permission has re peate dly been rejec ted by this Court as a basis for showinga likelihood of future perse cution. See Ling Juan Chen v . Holder , 3 94 F . App ’x 25 2, 25 7 (6 th Cir . 2 01 0) ; Qui Hua Chen v. Holder , N o . 0 8

- 4 1 8 8 , 2 0 1 0 W L3 2 7 2 6 2 4 , a t* 7 ( 6 t h C i r . A u g . 1 8 , 20 10 ); Mi ng Juan Chen v

. Holder , 3 89 F . App ’x 4 68 , 47 2-7 3 (6th Cir . 2 01 0) ; Jin Zhou Zheng v. Holder , 339 F. App’ x 592, 595-96 (6th Cir. 2009). For these same rea sons, substantial evidenc e also supports the BIA’s reje ction of L ian’s CAT claim. IV. We theref ore D I SMI SS t he petition for review as to L ian’s asy lum claim and AF FI RM the de c isi on of the B I A a s to his c la ims fo r w ith ho ldi ngof re mov a l.