2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-9-2010

Jian Weng v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1686

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1686

___________

JIAN HUA WENG,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A088-380-418)

Immigration Judge: Honorable Annie Garcy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 7, 2010

Before: SCIRICA, SMITH and VANASKIE, Circuit Judges

(Filed: December 9, 2010)

___________

OPINION OF THE COURT

___________

PER CURIAM.

Jian Hua Weng, a native and citizen of the People’s Republic of China, entered the 

United States in 2007 without inspection or parole. The Government charged him with 

removability, which he conceded. Weng sought asylum, withholding, and relief under 
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the Convention Against Torture (“CAT”) related to his wife’s sterilization and his 

resistance to Chinese population control policies. The Immigration Judge (“IJ”) denied 

his applications, and the Board of Immigration Appeals (“BIA”) dismissed Weng’s 

subsequent appeal on July 24, 2009. Weng filed a motion for reconsideration on August 

13, 2009, arguing that the BIA should have better considered his argument that he

showed other resistance to China’s family planning policy and that he had a valid CAT 

claim which was not considered by the IJ below. The BIA denied his motion on 

February 18, 2010. 

On March 13, 2010, Weng filed a petition for review. In the petition itself, he 

states that he is seeking review of the February 18, 2010 order denying his motion for 

reconsideration. In his appellate brief, however, he only mentions the February order, 

stating instead that he appeals from the BIA order dismissing his appeal. He argues that 

the BIA erred in concluding that he had not suffered past persecution on account of other 

resistance and that he did not have a well-founded fear of future persecution, and also in 

ruling that he was not entitled to asylum, withholding, and CAT relief. (We note that the 

initial list of arguments in Weng’s pro se brief includes a challenge to an adverse 

credibility finding. The Government cites the initial list and states that the brief 

exclusively addresses those issues; we note, however, that the credibility issue was not 

addressed. That it was not discussed further is unsurprising, as the IJ made no specific 

credibility finding, and the BIA considered Weng to have testified credibly.)
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First, we consider the scope of our review. The arguments Weng raises in his 

brief largely relate to the BIA’s order dismissing his administrative appeal. However, 

that order was final on July 24, 2009, and Weng did not file a petition for review from it 

within the 30 days permitted by statute, see 8 U.S.C. § 1252(b)(1). Because the time 

limit is mandatory and jurisdictional, we cannot review the July order. See McAllister v. 

Attorney Gen. of the United States, 444 F. 3d 178, 185 (3d Cir. 2006). Weng’s later 

petition for review from the order denying the motion for reconsideration cannot serve as 

a challenge to the earlier order. See Stone v. INS, 514 U.S. 386, 405 (1995); Nocon v. 

INS, 789 F. 2d 1028, 1033 (3d Cir. 1986). Accordingly, we must dismiss the petition for 

review to the extent that Weng is seeking to challenge the July order. 

The question then is whether Weng presents in his brief a challenge to the order 

denying the motion for reconsideration that we can review under 8 U.S.C. § 1252(a). 

The Government argues that Weng abandoned any such challenge by failing to include 

an argument relating to the relevant BIA decision (and alternatively urges us to reject 

Weng’s petition on the merits). Although the matter is not entirely free from doubt, in 

light of Weng’s pro se status, as well as his statement that “the main issue on appeal” is 

whether his activities constituted other resistance and his argument that the agency did 

not consider his CAT claim – the very issues he raised in his motion for reconsideration –

we conclude that he presents a challenge to the February order. 

We review an order denying a motion for reconsideration under a highly 

deferential abuse of discretion standard. See Nocon, 789 F.2d at 1033. We do not 
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disturb the BIA’s discretionary decision unless it is arbitrary, irrational or contrary to law.

See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). 

Upon review, we conclude that the BIA did not err in denying Weng’s motion for 

reconsideration because Weng did not raise an error of law or fact. The IJ and the BIA 

had considered his CAT claim (and rejected it because it was not more likely than not 

that he would be tortured on return to China, see Tarrawally v. Ashcroft, 338 F.3d 180, 

186 (3d Cir. 2003), a conclusion supported by the record). 

Also, Weng’s argument relating to “other resistance” did not entitle him to relief. 

The spouse of someone who was sterilized can claim refugee status if he or she can 

demonstrate actual persecution for resisting a country’s coercive family planning policy, 

or a well founded fear of future persecution for doing so. See Lin Zheng v. Attorney 

Gen. of the United States, 557 F.3d 147, 157 (3d Cir. 2009) (en banc). Without repeating 

all the details in the record (which we have reviewed), we summarize that Weng arrived 

at a hospital hoping to stop the forced sterilization of his wife. 

Whether or not his actions constituted resistance, Weng cannot show that he was 

persecuted for his actions or that he has a well-founded fear of future persecution because 

of them. He did suffer mistreatment at the hands of the hospital guards, but being pushed 

and kicked and locked in a room for two hours does not rise to the level of persecution. 

An isolated incident that does not result in serious injury is not considered persecution. 

See Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005); see also Kibinda v. Attorney 

Gen. of the United States, 477 F.3d 113, 117 (3d Cir. 2007) (holding that a five day 
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detention, during which a guard threw a heavy object at the petitioner, causing an injury 

requiring seven stitches, did not constitute persecution). As the IJ noted, Weng did not 

present any evidence about anything that happened after the sterilization to suggest that 

he would be subject to future persecution (as the IJ put it, there was no evidence that the 

Chinese government even noticed Weng’s actions). For these reasons, to the extent that 

Weng challenges the order denying his motion for reconsideration, we must deny the 

petition for review.