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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3901

___________

BEN ZE ZHU,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent 

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A079-216-217)

Immigration Judge: Honorable Miriam K. Mills

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 23, 2012

Before: RENDELL, FUENTES and WEIS, Circuit Judges

(Opinion filed: August 28, 2012)

___________

OPINION

___________

PER CURIAM.
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Ben Ze Zhu, a citizen of the People’s Republic of China, petitions for review of 

the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that 

follow, we will deny the petition for review.

Zhu entered the United States without inspection in April 2001, and was charged 

with removability pursuant to Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i) 

[8 U.S.C. § 1182(a)(6)(A)(i)] (present without being admitted or paroled). An 

Immigration Judge (“IJ”) found that Zhu was removable as charged. Zhu applied for 

asylum, withholding of removal, and protection under the United Nations Convention 

Against Torture (“CAT”), based on persecution under China’s coercive population 

control policies. In particular, Zhu alleged that his wife was forced to have an abortion in 

1992 and was forcibly sterilized in 1996. He also claimed that he was beaten by family 

planning officials, detained for two days, publicly shamed, fired from his job, and 

required to pay a large fine following the birth of his second child. 

The IJ denied relief on March 10, 2003, noting that Zhu had voluntarily returned 

to China after trips to Thailand (in 2000) and Korea (in 2001). By order dated July 7, 

2004, the BIA affirmed, holding that “even if [Zhu] had shown past persecution, [his 

voluntary return to China from two trips abroad] totally undermine[s] his claim, including 

a claim of a well-founded fear of persecution.” Zhu filed a motion to reopen, which the 

BIA denied on December 1, 2004. 

In 2006, Zhu filed a second motion to reopen, which the BIA denied as time- and 

number-barred. Nevertheless, the Board exercised its authority to reopen the proceedings 
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sua sponte. The BIA concluded that Zhu “has established eligibility for withholding of 

removal,” noting that his “testimony of his wife’s forced abortion and involuntary 

sterilization is consistent and credible, and supported by corroborative evidence.” The 

Board stated, however, that it could not “yet find [Zhu] eligible for asylum due to the 

unresolved issue of the timeliness of [Zhu’s] asylum application.” The BIA remanded 

the matter to the IJ. 

The IJ held hearings, at which Zhu testified about his experiences in China and the 

date that he arrived in the United States. In a written decision, the IJ stated that “[w]hile 

this Court concludes that [Zhu’s] asylum application was timely filed, it cannot conclude 

that [he] is eligible for asylum on the basis of his wife’s forced abortion and involuntary 

sterilization in light of precedential decisions issued after the BIA’s July 25, 2006 

decision in this case.” In particular, the IJ relied on In re J-S-, 24 I. & N. Dec. 520 (AG 

2008), in which the Attorney General held that the spouse of a person forced to undergo 

an abortion or sterilization is not automatically a refugee under INA § 101(a)(42) [8 

U.S.C. § 1101(a)(42)]. With respect to Zhu’s allegations of “other resistance to a 

coercive population control program,” Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d 

Cir. 2009), the IJ held that the fine, detention, beating, job loss, and public 

embarrassment did not rise to the level of persecution. The IJ also concluded that Zhu 

had not demonstrated that he had a well-found fear of persecution based on leaving China 

illegally and applying for asylum in the United States. Accordingly, the IJ denied Zhu’s 

application for asylum, concluded that he necessarily failed to satisfy the withholding of 
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removal standard, and held that he failed to demonstrate that he warranted protection 

under the CAT. 

The BIA dismissed Zhu’s appeal, noting that he could not establish eligibility for 

asylum and withholding of removal based on his wife’s forced abortion and sterilization. 

In addition, the BIA agreed that Zhu’s experiences were not sufficiently severe to 

constitute past persecution. The Board also concluded that Zhu “does not face a 

reasonable possibility of being targeted for persecution for having left China illegally and 

for having sought asylum in the United States.” Finally, the BIA stated that Zhu “has not 

demonstrated that it is more likely than not that he would be tortured for any reason if 

removed to China.” Zhu filed a timely pro se petition for review of the BIA’s decision. 

We have jurisdiction under INA § 242 [8 U.S.C. § 1252]. Because the BIA 

adopted the findings of the IJ and also commented on the sufficiency of the IJ’s 

determinations, we review the decisions of both the BIA and the IJ. Kaita v. Att’y Gen., 

522 F.3d 288, 296 (3d Cir. 2008). Review of these decisions is for substantial evidence, 

considering whether they are “supported by reasonable, substantial, and probative 

evidence on the record considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 

161 (3d Cir. 1998) (citations omitted). The decisions must be affirmed “unless the 

evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 

333 F.3d 463, 471 (3d Cir. 2003) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d 

Cir. 2001)). 
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An applicant for asylum has the burden of establishing that he is unable or 

unwilling to return to his home country “because of [past] persecution or a well-founded 

fear of future persecution on account of race, religion, nationality, membership in a 

particular social group, or political opinion[.]” INA § 101(a)(42)(A) [8 U.S.C. § 

1101(a)(42)(A)]; see also Wang v. Gonzales, 405 F.3d 134, 138-39 (3d Cir. 2005). 

Persecution “connotes extreme behavior, including threats to life, confinement, torture, 

and economic restrictions so severe that they constitute a threat to life or freedom.” 

Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003) (internal quotations and citation 

omitted). It “does not include all treatment that our society regards as unfair, unjust, or 

even unlawful or unconstitutional.” Id.

Zhu testified that, following the birth of his second child, population control 

officials sought to destroy his home. Zhu intervened and stopped the destruction. 

Nevertheless, the officials hit Zhu and pushed him to the ground. Notably, Zhu did not 

allege that this assault resulted in serious harm or required medical attention. 

(quotation omitted). To establish eligibility for 

withholding of removal, an applicant must prove that his “life or freedom would be 

threatened in that country because of [his] race, religion, nationality, membership in a 

particular social group, or political opinion.” INA § 241(b)(3) [8 U.S.C. § 1231(b)(3)]. 

To be eligible for withholding of removal under the CAT, an applicant needs to 

demonstrate that it is more likely than not that he would be tortured if removed. 8 C.F.R. 

§ 1208.16(c)(2). 

Voci v. 

Gonzales, 409 F.3d 607, 615 (3d Cir. 2005) (holding that “isolated incidents that do not 
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result in serious injury do not rise to the level of persecution”); Chen v. Ashcroft, 381 

F.3d 221, 234-35 (3d Cir. 2004) (holding that physical altercation with government 

officials, not resulting in injuries that required medical treatment, did not constitute 

persecution). The officials took Zhu to the local police station. Although Zhu was 

detained for two days, he was not mistreated or harmed. Jarbough v. Att’y Gen., 483 

F.3d 184, 191-92 (3d Cir. 2007) (holding that two brief detentions of petitioner by the 

Syrian government, while “harassing and intimidating,” did not rise to the level of 

persecution); Kibinda v. Att’y Gen., 477 F.3d 113, 120 (3d Cir. 2007) (holding that a 

five-day detention and beating that required stitches and left a scar were not “severe 

enough to constitute persecution under our stringent standard”). Zhu was released when 

his family pooled their money and paid a fine of 18,000 RMB. Thereafter, Zhu was fired 

from his construction job at the request of the birth control officials. The “deliberate 

imposition of severe economic disadvantage which threatens a petitioner’s life or 

freedom may constitute persecution.” Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir. 2005). 

In this case, however, the fine and job loss did not amount to a severe economic 

disadvantage. Although Zhu’s family had to combine their money to pay the fine, they 

were able to produce 18,000 RMB within two days. In addition, Zhu testified that after 

being fired from the construction job, he moved with his family to another town where he 

was able to find work. Although that job was only part-time, Zhu was able to support his 

family and send his older child to private school. Finally, the officials’ decision to 

announce to the village that Zhu had violated the family planning law did not constitute 
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persecution. Fatin v INS

Furthermore, the record does not support Zhu’s claim that he will face future 

persecution in China. Zhu alleged that if he returns to China he will assaulted, fined or, 

jailed because he left China illegally and applied for asylum in the United States. The IJ 

noted, however, that the State Department’s 2007 Asylum Profile for China states that 

that country accepts repatriation of its citizens and that U.S. officials have not confirmed 

any abuse of such persons. Zhu did not present any evidence that undermines this report. 

Zhu also relied in part on a letter from his hometown’s village committee, addressed to 

his wife, which “issued an official notice that you surrender the passport and all relevant 

travel documents of your husband, and persuade him to give up the political asylum.” 

The letter, however, does not contain any threats and, as noted by the BIA, did not 

identify the author and was not authenticated. In addition, after Zhu and his family 

moved from their hometown in 1996, they were not harassed by birth control officials. 

Zhu testified that nothing has happened to his wife and children since he left China in 

2001. 

, 12 F.3d 1233, 1240 & n.10 (3d Cir. 1993) (persecution denotes 

“extreme conduct,” including “threats to life, confinement, torture and economic 

restrictions so severe that they constitute a threat to life or freedom.”). Thus, we agree 

that Zhu’s experiences, even considered cumulatively, do not constitute persecution.

In sum, we conclude that a reasonable adjudicator would not be compelled to 

conclude that the BIA incorrectly rejected Zhu’s asylum claim. Because Zhu cannot 

satisfy the asylum standard, he cannot satisfy the more difficult withholding of removal 
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standard. Zubeda

For the foregoing reasons, we will deny the petition for review. 

, 333 F.3d at 469-70. Additionally, Zhu presented no evidence that he 

is likely to be tortured in China.