2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-7-2010

Xia Chen v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4308

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2010

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2010 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Xia Chen v. Atty Gen USA" (2010). 2010 Decisions. Paper 645.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/645
IMG-287 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4308

___________

XIA CHEN,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the 

Board of Immigration Appeals 

(Agency No. A095-687-938)

Immigration Judge: Honorable Alberto J. Reifkohl

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 25, 2010

Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges

(Opinion filed: September 7, 2010)

___________

OPINION

___________

PER CURIAM.

Xia Chen, a citizen of China, seek review of a final removal order entered by the

Board of Immigration Appeals (“BIA”). We will deny the petition for review.

In January 2005, Chen sought to enter the United States at Los Angeles
2

International Airport without a valid entry document. She was interviewed and served

with a Notice to Appear charging inadmissibility under INA § 212(a)(7)(A)(i)(I). 

Removal proceedings eventually were transferred to an Immigration Judge (“IJ”) in New

Jersey. Chen conceded the charge in the Notice to Appear and applied for asylum,

withholding of removal, and Convention Against Torture (“CAT”) relief. Chen claimed

to have suffered persecution in China as a Christian, and to fear future persecution for

having once harbored a friend who practices Falun Gong.

Chen testified that she became a Christian at age fourteen and was actively

involved in her church, which was not government sponsored. Chen and her family

practiced secretly, and their congregation met in Chen’s home once or twice a week. In

October 2004, when Chen was age twenty-two, the police raided the home while eleven

or twelve parishioners were present, and they arrested Chen and four others. Chen was

questioned at the station, mainly regarding the identity of her pastor, and she claims that

an officer slapped her face during the interrogation. Chen was detained for three days

and released when her mother paid a 3,000 RMB fine.

In December 2004, in an unrelated incident, Chen allowed a friend to stay in her

home for a week. Shortly after the stay, the friend’s mother told Chen that the friend had

been arrested for Falun Gong-related activities. Chen promptly left China because she

feared that she too might be arrested.

The IJ denied relief. First, the IJ found that Chen was not credible inasmuch as
3

she had failed to mention her arrest and alleged religious persecution during the airport

interview. When asked at the airport why she was attempting to enter the United States,

Chen mentioned only the arrest of her friend. Second, and alternatively, the IJ denied

relief on the merits, finding no showing that Chen was persecuted through the two

unrelated incidents, or possessed a well-founded fear of future persecution, and he denied

withholding of removal and CAT relief.

The BIA dismissed Chen’s appeal. It held that, even if Chen was deemed credible,

she failed to satisfy the burden of proof for asylum. The BIA agreed, in particular, that

Chen did not show past harm that rises to the level of persecution or a well-founded fear

of future persecution. It observed that, while Chen was slapped during her three-day

detention, she did not require medical treatment after being released, she was never

charged with a crime, and she continued to worship at the family church. With regard to

Chen’s claim that she has a well-founded fear of persecution on account of her religion

given the poor treatment of Christians in China, the BIA noted that, while some

Christians, particularly those associated with unauthorized churches, have faced harm,

Chen failed to show that she would be unable to practice Christianity in China, or that she

would face persecution if she did so. The BIA rejected Chen’s claim for withholding of

removal under the higher standard that governs eligibility for that relief, and found no

evidence to establish that it is more likely than not that Chen would be tortured if returned

to China. Chen timely filed a petition for review in this Court.
 Cf. Jarbough, 483 F.3d at 191 (holding that record did not compel finding of past 1

persecution where alien testified that “Syrian intelligence officers seized him on two

occasions. The first time, the officers placed Jarbough in an interrogation room for four

hours. They threatened him with wires and electrical cables, screamed at him, and jabbed

his shoulder with their fists. The second time, the officers confined Jarbough for two

days. They cursed, threatened, kicked, shoved, and pushed him. As a result of this abuse,

Jarbough suffered bruising. He did not go to a doctor, however, as his injuries did not

‘require immediate medical intervention.’”).

4

We have jurisdiction under 8 U.S.C. § 1252(a)(1). “We review factual findings,

including findings of persecution and fear of persecution, under the substantial evidence

standard.” Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir. 2009). “Under this

deferential standard, findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” Id. (quotation marks omitted).

We agree that Chen’s detention did not amount to “persecution,” which we have

explained “is an extreme concept that does not include every sort of treatment our society

regards as offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993). “Abusive

treatment and harassment, while always deplorable, may not rise to the level of

persecution.” Jarbough v. Att’y Gen., 483 F.3d 184, 191 (3d Cir. 2007). Chen’s threeday detention was relatively brief, and although she was slapped in the face by a police

officer, she did not require medical treatment. Further, as the BIA noted, Chen was not

charged with a crime, and she continued to worship at the church after her release. This

record simply does not compel a finding of past persecution.1

Chen’s primary argument on this appeal is that the IJ erred in rejecting her
 Chen testified that the police “slap[ped] my face and they said, we got you. It’s not 2

worthwhile to sacrifice your life for this illegal church.” A.R. at 128. 

5

credibility, and she contends that the matter should be remanded for the BIA to consider

the adverse credibility finding. While the record shows that the IJ rejected Chen’s

credibility, the IJ also addressed the asylum claim on the merits and denied relief. On

appeal, the BIA acted within its authority in assuming Chen’s credibility and affirming

the IJ’s alternative merits determination. As a result, because “the BIA did not explicitly

adopt the IJ’s credibility findings, ... that portion of [the IJ’s] decision is not properly

before [this Court].” Jarbough, 483 F.3d at 191. Accordingly, we too will assume Chen’s

credibility, and, for the reasons discussed, must reject the asylum claim on the merits. See

id. This matter need not be remanded for the BIA to address the issue of credibility.

Chen also argues that the BIA erred by ignoring evidence that she received a

“death threat” while in custody, and that she heard one of her fellow church members

scream in pain due to a beating by the police. Assuming, arguendo, that the police did 2

make a “death threat” to Chen, we find no basis to hold that the BIA’s analysis of the

record was insufficient merely because it failed to make express reference to certain

aspects of Chen’s testimony, see Toussaint v. Att’y Gen., 455 F.3d 409, 414 (3d Cir.

2006), nor do we discern any basis to remand this matter for further consideration of the

alleged death threat. See Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir. 2005) (explaining

that “unfulfilled threats must be of a highly imminent and menacing nature in order to
 Chen further argues that she established a well-founded fear of future persecution 3

because, inter alia, “although Ms. Chen was not a Falun Gong practitioner, she had a

well-founded fear in that her association with a Falun Gong member would implicate

her.” Petitioner’s Br. at 25. The record reflects that Chen failed to raise this claim in

either her notice of appeal or brief to the BIA. Chen’s failure to exhaust administrative

remedies leaves this Court without jurisdiction to consider this claim. See 8 U.S.C.

§ 1252(a)(2)(D); Hoxha v. Holder, 559 F.3d 157, 159-61 (3d Cir. 2009).

6

constitute persecution”).3

In short, we discern no error in the denial of asylum. Because withholding of

removal carries a higher burden of proof than asylum, Chen’s request for withholding was

properly denied, as well. See Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). 

Finally, Chen does not challenge the denial of CAT relief in her brief before this Court. 

Accordingly, we deem that issue waived and do not address it. See Lie v. Ashcroft, 396

F.3d 530, 532 n.1 (3d Cir. 2005). 

We have considered all of Chen’s arguments and find them without merit. For the

foregoing reasons, we will deny the petition for review.