NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 3735

___________ TAN CHEN ,

Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES

____________________________________ On Petition for Re view of an Order of the Board of Immigration Appeals (Agency No. A089

- 252

- 651) Immigration Judge: Honorable Susan G. Roy

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

July 21, 2011
Before: AMBRO, GREENAWAY, JR. and GREENBERG , Circuit Judges

(Opinion filed July 26, 2011 )

___________ OPINION

___________ PER CURIAM
Tan Chen seeks review of the Board of Immigration Appeals ’ ( “ BIA ” or “Board” ) final order of removal. In its order, the BIA affirmed the Immigration Judg e ’ s ( “ IJ ” ) decision to deny Chen ’ s application for asylum, withholding of removal, and protection2

under the Convention Against Torture ( “ CAT ” ). We will deny the petition.
I. Chen, a native and citizen of China, was served with a Notice to Appear in
Janua ry 2008 , charging him with removability pursuant to section 212(a)(6)(A) of the Immigration and Nationality Act (“INA”), as an alien present in the United States with out being admitted or paroled. Chen conceded removability and applied for asylum,
withhol ding of removal, and CAT relief , claiming that he experienced past persecution and fears future persecution by corrupt officials and subordinates in the village where he
lived. At his administrative hearing, Chen testified before the IJ that he began to

e xperience problems in 2002 when his village chief came to his family’s home and proposed an arranged marriage between his son and Chen’s younger sister. Chen testified that the chief sought to benefit from Chen’s father’s ownership in a steel factory.
Ch en claimed that after his father and sister rejected the proposal, village cadres returned to their home and took his sister back to the village chief’s home, but that he and his family helped her escape. 1 Chen claimed that between 2002 and 2006, he and h is family
members had occasional run

- ins with the village chief, mostly related to the situation
with his sister. However, Chen testified his problems became more severe in 2006 . Apparently, the government wanted to build a highway in the village that wo uld pass through Chen’s3

family home. Although Chen’s family was told that they would be fairly compensated, Chen claimed that the village chief refused to adequately compensate his father and their neighbors. Chen testified that after his father filed tw o complaints against the village
chief , cadres c ame to their home to confront his father ; when he attempted to protect his father, he was pushed to the ground and hit on his torso and back. After that incident, Chen’s parents told him to run away. Chen s pent a brief time in another village with relatives, but left the country soon after. Chen believes that the village chief will exact revenge on him if he is returned to China. The IJ denied Chen’s application s for asylum and related relief. She found that although Chen testified credibly, he did not demonstrate that he suffered harm rising to the level of persecution in China, or that he had a well

- founded fear of future persecution in China, on account of a protected ground. First, although Chen had claimed membership in a particular social group, namely

“ landowners deprived of their land without fair compensation,” the IJ concluded that, as a matter of law, he wa s not a member of a social group. The IJ also rejected Chen’s argument that he had bee n persecuted on account of his political opinion. Chen had claimed that he experienced retaliation after his father filed formal complaints against the village chief . The IJ noted that it was possible that such activity, if it constituted “whistle

- blower activity,” might form the basis of persecution on account of political opinion

. See Cao v. Att’y Gen. , 407 F.3d 146, 153

1 Chen’s sister later immigrated to Argentina and was granted asylum.4

(3d Cir. 2005). The IJ , relying on Matter of C

- A , 23 I. & N. Dec. 951 (BIA 2006) , noted
that whistle

- blower activity must be perform ed out of a sense of civic duty or moral responsibility, not simply for compensation

. The IJ determined that Chen and his family sought legal action against the village chief for compensatory reasons, not out of civic responsibility.
M oreover , even if Chen and his family had been targeted for fighting corru ption,
the IJ found that Chen failed to establish that it was anything more than a tange ntial

reason
. According to the IJ , the primary reason the village chief targeted Chen and his family was to ga in control of the steel mill, especially in light of the village ch ie f’s marriage proposal scheme. In an alternative finding, the IJ found that, even if Chen established a nexus between his claim of persecution and a protected ground, he did not suffer harm risi n g to the level of persecution. The IJ cited the fact that Chen was subjected to an isolated incident of physical abuse, which did not result in serious injury, stemming from his attempt to stop village officials from arresting his father.
As to Chen’s claimed well

- founded fear of future persecution, the IJ found that he failed to establish an objectively reasonable fear of future persecution and noted that
internal relocation was a reasonable possibility. The IJ further reasoned that Chen fai led to present any documentation that would establish that individuals in China would be
interested in him upon his return to the country. Lastly, the IJ concluded that C he n failed to demonstrate that he would likely be tortured if removed to China. Chen appealed and,5

i n an August 2010 decision, the BIA dismissed the appeal

. Chen file d a timely petition
for review.
II. This Court has authority to review final orders of removal. See 8 U.S.C. ' 1252(a). “ [W]hen the BIA both adopts the findings of the IJ and discusses some of the
bases for the IJ ’ s decision, we have authority to review the decisions of both the IJ and
the BIA. ” Chen v. Ashcroft , 376 F

. 3d 215, 222 (3d Cir. 2004). We review a agency ’s factual determinations for substantial evidence, and w ill uphold such determinations

“ unless the evidence not only supports a contrary conclusion, but compels it. ” Zhang v.
Gonzales , 405 F.3d 150, 155 (3d Cir. 2005) (internal citations omitted). Thus, if the applicant “seeks to obtain judicial reversal of t he [denial of asylum], he must show that the evidence he presented was so compelling that no reasonable fact finder could fail to find” the requi site likelihood of persecution. INS v. Elias

- Zacarias , 502 U.S. 478, 483

- 84 (1992). To be granted asylum as a refugee, an applicant must establish that he is unable to return to his homeland “because of persecution or a well

- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” See INA § 101(a)(42). A n applicant who offers credible testimony regarding past persecution is presumed to have a well

- founded fear of future persecution

. Berishaj
v. Ashcroft , 378 F.3d 314, 323 (3d Cir. 2004) (citation omitted).6 III. On petition for revi ew, Chen argues that his testimony established eligibility for asylum based on past persecution on account of his political opinion, as well as his membership in a social group

. See Petitioner’s Brief (“Pet. Br.”) at 12. H e further argues that his testim ony and the evidence of record establish that he has a well

- founded fear of
future persecution on account of his political opinion , as well as his membership in a social group

. Id. In his appeal to the BIA , Chen argued that the IJ erred in concluding tha t hi s proposed social group of “landowners deprived of their land without fair compensation” is not a congnizable social group

. ( See Administrative Record (“A.R.”) at 46

- 47.) However, in his opening brief here , Chen abandons that argument and instead ass erts that
the IJ and BIA both erred in classifying his articulated social group as “landowners deprived of their land without fair compensation” rather than his “immediate family .”
See Pet. Br. at 15. C he n did not ra ise that argument on appeal to the BIA , however.
Therefore , because Chen failed to administratively exhaust the argument , we lack jurisdiction to review it

. See INA § 242(d)(1); Abdulrahman v. Ashcroft , 330 F.3d 587,
594

- 95 (3d Cir. 2003).
We also determine that Chen has waived review of th e agency’s determination that
he was unable to establish that he was a member of a cognizable social group , namely “landowners deprived of their land without fair compensation .” See Laborers’ Int’l Union v. Foster Wheeler Corp. , 26 F. 3d 375, 398 (3d Cir. 1994) (“An issue is waived7

unless a party raises it in its opening brief [. . .]”) (internal quotation marks and citation omitted). Accordingly, his broader argument that the IJ and BIA erred in concluding that
he did not demonstrate past persecution , or a likelihood of future persecution , on account of his membership in a social group , necessarily fails. Next, Chen argues that he established before the IJ that he was persecuted in the past , and would be persecuted in the future , on acc o unt of his politic al opinion. Specifically, Chen argue s that he and his father were retaliated against for their opposition to the actions of the village chief, which the IJ and BIA interpreted as a
whistle

- blower claim. 2 Specifically, Chen claimed that after his father filed a second
formal complaint against the chief , village cadres came to the family home to arrest his
father. Chen claimed that , w hen he attempted to prevent his father’s arrest , he was
thr own to the ground by the cadres

. As mentioned, t he IJ and BIA d etermined that Chen was unable to establish that his activity constituted whistle

- blowing

. However, even assuming that it did , the IJ and
BIA concluded that Chen was unable to demonstrate that any treatment that he endured at the hands of the village chie f or his followers rose to the level of persecution, or that he
has a well

- founded fear of futur e persecution.
Because substantial evidence supports the agency’s finding that Chen was unable
to demonstrate either past persecution or a well

- founded fear of future persecution, w e

2 Chen did not object to that characterization in his appeal to do the BIA, nor does he here.8

need not review its additional whistle

- blower determination.
Chen claimed to have suffered only one minor injury stemming from his coming to his father’s defense when village cadres attempted to arrest his father. This Court has
h eld that a single alleged beating that does not result in any injuries requiring medical
attention does not constitute past persecution

. S ee Chen v. Ashcroft , 381 F.3d 221, 235 (3d Cir. 2004). Substantial evidence also supports the finding that Chen do es not have a well

founded fear of future persecution. See Ghebrehiwot v. Att’y Gen. , 467 F.3d 344, 351 (3d Cir. 2006) (to establish a well

- founded fear of future persecution, an applicant must show both a subjectively genuine fear of persecution and an o bjectively reasonab le possibility of persecution). Although Chen testified that Chinese officials would be
aware of his return to the country , he did not present any evid ence to demonstrate that
this i s the case.
In a letter provided by Chen’s father i n support of Chen’s application, Chen’s father explained that after his son fled the country, he was detained and later released, but
that he suffered only a minor injury to his waist during that incident. Chen did not provide any letters from neighbors d escribing any ongoing persecution that they have
suffered in the years since Chen fled China

. As Chen’s claim is largely based on incidents involving his family and neighbors , the fact that they remain in China without apparent difficulty undermines his a ssertion that he fears persecution if removed to9

China

. See Lie v. Ashcroft , 396 F.3d 530, 537 (3d Cir. 2005) (“We agree that when family members remain in petitioner’s native country without meeting harm, and there is
no individualized showing that petit ioner would be singled out for persecution, the
reasonableness of a petitioner’s well

- founded fear of future persecution is diminished.”).
Moreover , as the IJ found, Chen’s claimed well

- founded fear is also undermined by the fact that he could safely relo cate within China. See 8 C.F.R. § 1208.13(b)(2)(ii).
Chen has not presented any evidence or convin cing arguments contradict ing that finding

. Because Chen did not meet his burden of proof as to his asylum claim, his claim
for withhol ding of remova l necessarily fails, as does his claim for protection under the
CAT. See Yu v. Att’y Gen. , 513 F. 3d 346, 349 (3d Cir. 2008). Accordingly, we will deny the petition for review

.