UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

JIN BIN WU, 

 Petitioner, 

v. 

ERIC H. HOLDER, JR., United States 

Attorney General, 

 Respondent. 

No. 11-9572 

(Petition for Review)

 

 

ORDER AND JUDGMENT*

 

Before BRISCOE, Chief Judge, PORFILIO, Senior Circuit Judge, and MURPHY, 

Circuit Judge. 

 

 

 Jin Bin Wu petitions for review of a Board of Immigration Appeals (BIA) 

decision upholding an order for his removal. The BIA dismissed Mr. Wu’s appeal 

from an Immigration Judge’s (IJ’s) denial of asylum and restriction on removal. We 

deny the petition for review for the reasons explained below. 

 

* After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 18, 2012

Elisabeth A. Shumaker 

Clerk of Court
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AGENCY PROCEEDINGS 

Mr. Wu is a native and citizen of the People’s Republic of China. He entered 

the United States without being admitted or paroled after inspection in July 2005, 

rendering him subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i). Less than a year 

later he applied for asylum, restriction on removal,1

 and relief under the United 

Nations Convention Against Torture (CAT). He claimed persecution on account of 

his resistance to China’s family planning policy. At the hearing before the IJ, he 

testified that in late December 2004, when authorities learned that his wife had 

become pregnant after already having a son, family planning officers came to their 

home to take her for an abortion. He and his wife ineffectually resisted. He initially 

pleaded with the officers not to take her. They did not relent and he began to chastise 

them, using some derogatory language, for persecuting innocent citizens. When they 

pushed past him and took hold of his wife, a scuffle ensued. The officers restrained 

Mr. Wu, who hit one and kicked another (he testified the blows were inadvertent) 

before falling to the floor. At that point, neighbors crowded around and he got to his 

feet and ran. An officer yelled to another to catch and arrest him. He was chased for 

five to ten minutes, but eventually got away. He hid with friends for several months 

and then began a lengthy journey to the United States. 

 

1

 We use the newer statutory terminology of “restriction on removal” in place of 

the superseded terminology of “withholding of removal.” See Razkane v. Holder, 

562 F.3d 1283, 1285 n.1 (10th Cir. 2009). 
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His wife had the abortion the day after she was taken by the family planning 

officers. She has since stayed at their home with their son, apparently without any 

repercussions from the incident. Mr. Wu testified that his wife has told him that 

unidentified family planning officers (not police) had looked for him at their home, 

his mother’s home, and his brother’s home, and have continued to come looking for 

him three to four times a year, the last time some three months before the hearing. 

They told his wife to tell him to return home. He testified that he believed the 

officers intended to arrest him upon his return, and later added that they told his wife 

and family that he would be arrested. He confirmed their authority to make arrests, 

but also admitted that he did not know anyone who had been arrested. He submitted 

a letter signed by several of his former neighbors in China vouching for his account 

of the incident leading to his wife’s abortion, which also stated that “[t]he officials 

wanted to arrest” him that night and that he “cannot return home, because the 

officials want to arrest him.” Admin. R. at 628. 

The IJ found that Mr. Wu had established neither past persecution nor a 

well-founded fear of future persecution, denied all requested relief, and ordered 

Mr. Wu removed. On appeal to the BIA, Mr. Wu did not challenge the IJ’s finding 

as to the lack of past persecution or the IJ’s denial of relief under the CAT. As for 

future persecution, the BIA agreed with the IJ that Mr. Wu’s fear of arrest was not 

well-founded, and added that there was no evidence an arrest would entail adverse 

consequences rising to the level of persecution in any event. Accordingly, the BIA 
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upheld the denial of asylum and restriction on removal and dismissed Mr. Wu’s 

appeal. The BIA also refused to consider additional documentation that Mr. Wu had 

submitted in connection with a motion to reopen/reconsider then still pending before 

the IJ.2

GOVERNING LEGAL STANDARDS 

Because the BIA’s decision was issued by a single member, see 8 C.F.R. 

§ 1003.1(e)(5), we “review[] both the decision of the BIA and any parts of the IJ’s 

decision relied on by the BIA in reaching its conclusion,” Dallakoti v. Holder, 

619 F.3d 1264, 1267 & n.1 (10th Cir. 2010). In doing so, “[w]e review the BIA’s 

legal determinations de novo and its findings of fact for substantial evidence.” Id.

at 1267. The latter standard is very deferential: “factual findings are conclusive 

unless any reasonable adjudicator would be compelled to conclude to the contrary.” 

Id. And it applies not only to historical facts but to ultimate factual determinations, 

including, as relevant here, whether an alien has demonstrated persecution to support 

a request for relief from removal. Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 

2009) (citing line of Tenth Circuit authority). 

An alien like Mr. Wu, who has not been forced to undergo an abortion or an 

involuntary sterilization, or been persecuted for refusing to do so, may still establish 

eligibility for asylum based on governmental population control activities by showing 

 

2

 The BIA held that additional evidence could not be accepted on appeal and, 

further, that a remand of the case to the IJ was not warranted because the evidence 

was neither unavailable nor undiscoverable previously, 8 C.F.R. § 1003.2(c)(1), (4). 
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that he has been persecuted for “resistance to a coercive population control program.” 

8 U.S.C. § 1101(a)(42)(B); see Zhi Wei Pang v. Holder, 665 F.3d 1226, 1230 

(10th Cir. 2012). To qualify for asylum on this basis, Mr. Wu had to “demonstrate 

that (1) he resisted China’s coercive population control program, (2) he suffered or 

has a well-founded fear that he will suffer persecution by the Chinese Government, 

and (3) such persecution was [or will be] inflicted on account of his resistance.” 

Zhi Wei Pang, 665 F.3d at 1230-31 (internal quotation marks and ellipses omitted). 

“Because the BIA assumed that [Mr. Wu’s] conduct in China constituted resistance, 

our analysis focuses on . . . persecution.” Id. at 1231. And because Mr. Wu does not 

claim past persecution, we focus solely on whether the finding that he lacked a 

well-founded fear of future persecution was supported by substantial evidence—with 

no presumption of future persecution based on past events, see 8 C.F.R. 

§ 1208.13(b)(1). To be well-founded, such a fear requires “a reasonable possibility” 

that the alien would be persecuted upon removal to his country of nationality. Id.

§ 1208.13(b)(2)(i)(B); INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987). 

ANALYSIS 

A. Denial of Asylum 

The BIA found Mr. Wu’s case for asylum based on fear of future persecution 

deficient for two distinct reasons: (1) “the record evidence did not provide sufficient 

objective support for [Mr. Wu’s] belief that he faces a reasonable possibility of being 

arrested because of his altercation with family planning officials in 2004”; and (2) he 
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“did not, in any event, testify with any specificity as to his reasonable fear that if he 

were arrested upon his return to China, his arrest would lead to treatment that would 

rise to the level of persecution as this term is defined.” Admin. R. at 5. As each of 

these rationales is sufficient to support the BIA’s decision, we may affirm on either 

basis. See Murrell v. Shalala, 43 F.3d 1388, 1390 (10th Cir. 1994) (holding agency 

decision based on two independently sufficient grounds may be affirmed on one 

“regardless of the merit of [the litigant’s] arguments relating to [the other]”). 

1. Possibility of arrest 

The BIA recited several considerations leading to its conclusion that Mr. Wu 

had failed to substantiate a reasonable possibility of arrest. His testimony in this 

regard “primarily relied on hearsay statements from his family and wife” and “lacked 

details as to who these individuals were who he claimed have been continuously 

visiting his family and wife; . . . what they wanted [him] to do once he returned 

home; and . . . what they intended to do to [him] once he was found.” Admin. R. 

at 3-4. The BIA stated that he never “testif[ied] that his family was in fact told that 

he will be arrested”; rather “it was only [his] belief that he will be arrested.” Id. at 4. 

As for the letter submitted by his former neighbors, “neither their letter nor [his] 

testimony provided the foundation for the neighbors’ otherwise speculative belief 

regarding the authorities’ current and prospective interest in [Mr. Wu] years after his 

departure from the country.” Id. (citing “Matter of H-L-H & Z-Y-Z, 25 I&N Dec. 

209, 215-17 (BIA 2010) (letters from friends do not provide substantial support for 
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applicant’s claim of fear of persecution when devoid of details, and where they are 

not subject to cross-examination)”). The BIA also cited the 2007 Profile of Asylum 

Claims and Country Conditions (“2007 Profile”), which states that criminal penalties 

are not imposed “on families that do not comply with the birth planning law” in 

Mr. Wu’s home province. Admin. R. at 276.3

 And Mr. Wu admitted “that he did not 

know anyone who was arrested for violating the family planning rules.” Id. at 4. 

Finally, the BIA noted that “there is no indication that [Mr. Wu’s] wife, who [he] 

testified also attempted to physically resist the family planning officials, was herself 

arrested or faced criminal sanctions because she too resisted the enforcement efforts 

of the family planning officials.” Id. at 5. at 9 (citation omitted). 

On its face, the above evidence provides substantial support for the BIA’s 

conclusion that Mr. Wu had not established a reasonable possibility of arrest. 

Mr. Wu does, however, point out certain problems lurking behind the BIA’s stated 

rationale. The most troubling is the BIA’s flat misstatement of the record when it 

said Mr. Wu never testified that his family had been told he would be arrested, so that 

his fear in this respect rested solely on his own personal belief. Actually, when 

 

3

 Mr. Wu had objected to the IJ’s reliance on the 2007 Profile instead of the 

2002 Population and Family Planning Regulations of Fujian Province (“2002 

PFPR”), which indicated that impeding execution of family planning policies and 

insulting or injuring family planning officers were criminal acts. Admin. R. at 308. 

The BIA followed the IJ in “according greater weight to the text of the 2007 Profile, 

which more aptly reflect[s], and relevantly inform[s], how the provisions of the 2002 

PFPR have been applied or enforced since it came into effect in September 2002.” 

Id. at 4-5. 
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squarely asked “Did they [family planning officials] ever directly say that you would 

be arrested,” he responded “Yes. They told that to my wife, and my family.” 

Admin. R. at 167. This also undercuts the BIA’s criticism that Mr. Wu’s testimony 

lacked specificity as to what the authorities intended to do to him if they found him: 

he said they intended to arrest him. Of course, his claim in this critical respect is still 

premised on hearsay, as the BIA pointed out. 

Mr. Wu also advances a legitimate objection to the BIA’s reliance on the 

2007 Profile’s assurance that criminal penalties are not imposed for violating the 

family planning policy. He emphasizes that he is not claiming he will be arrested for 

a violation of family planning policy, but that he will be arrested for impeding, 

insulting, and assaulting family planning officers—conduct not addressed by the 

2007 Profile. And the 2002 PFPR makes this very distinction: violations of family 

planning policy (failure to implement effective contraceptive measures or terminate 

an unauthorized pregnancy, giving birth in violation of regulations) trigger only 

administrative correction, Admin. R. at 306-08 (Articles 39 & 43), while impeding, 

insulting, or injuring family planning officers is “a criminal act [and] criminal 

responsibility shall be determined,” id. at 308 (Article 46). The BIA “disagree[d] 

that any such distinction is material,” “not[ing] that the PFPR has grouped both types 

of offenses under the same section it labeled as ‘Legal Liability,’ and thus both can 

be considered as violative of the family planning regulations.” Id. at 4. But the fact 

that the PFPR sets out both administrative violations of family planning regulations 
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and criminal offenses involving interference with family planning authorities in the 

same “Legal Liability” section in no way alters the material point that the PFPR 

clearly distinguishes the former as administrative and the latter as criminal (and that 

the 2007 Profile refers only to the former).4

 

In short, as to the possibility of arrest, the BIA misstated the quality of 

Mr. Wu’s testimony and failed to recognize documentary support for it. We need not 

decide whether we might nevertheless affirm on the basis that, properly considering 

this evidence and the rest of the record, the BIA would have reached the same result. 

Cf. Uanreroro v. Gonzales, 443 F.3d 1197, 1208 (10th Cir. 2006) (remanding for 

agency redetermination of factual matter where reasoning underlying initial 

determination was flawed, instead of “step[ping] into the agency’s role and 

engag[ing] in our own fact-finding”)). The BIA’s alternative rationale for rejecting 

Mr. Wu’s future-persecution claim is not tainted by the problems noted above. 

2. Possibility of persecution if arrested 

“[P]ersecution requires the infliction of suffering or harm . . . in a way 

regarded as offensive and must entail more than just restrictions [on] or threats to life 

and liberty.” Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004) (internal 

quotation marks omitted). More directly to the point, an arrest or threat of arrest 

 

4

 Indeed, the PFPR’s “Legal Liability” section includes many other criminal 

offenses relating to family planning activities, such as embezzlement, extortion, 

bribery, fraud, and misappropriation of funds. Admin. R. at 309 (Article 48). Surely 

these are still handled as criminal matters notwithstanding the 2007 Profile’s 

statement that family planning violations are not treated as crimes. 
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does not in itself entail persecution. See, e.g., Kapcia v. INS, 944 F.2d 702, 704-05, 

708 (10th Cir. 1991); Jian Qiu Liu v. Holder, 632 F.3d 820, 821-22 (2d Cir. 2011); 

Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290-91 (11th Cir. 2006); Dandan v. 

Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003); Prasad v. INS, 47 F.3d 336, 339-40 

(9th Cir. 1995). Thus, as Jian Qiu Liu in particular illustrates, it is not enough for a 

Chinese asylum seeker like Mr. Wu to demonstrate a reasonable possibility that he 

may be arrested, detained, and/or questioned by authorities regarding his momentary 

resistance to family planning officers when they took his wife for a forced abortion. 

He must substantiate an associated risk of harm and/or at least extended confinement. 

Cf. Nazaraghaie v. INS, 102 F.3d 460, 463-64 (10th Cir. 1996) (indicating that arrest 

followed by beating and ten months’ detention amounted to persecution). 

Mr. Wu made no effort to do this. His testimony never touched on the 

possibility of extended confinement or any physical punishment. He attempts to fill 

this gap in his case now by suggesting that if he is arrested, the authorities “could 

take liberties with him and harm him severely.” Aplt. Br. at 10. Not only does this 

come late, but such unsubstantiated speculation cannot satisfy Mr. Wu’s burden to 

offer “specific facts sufficient to demonstrate” an entitlement to asylum. Uanreroro, 

443 F.3d at 1205 (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)) (emphasis added). In short, 

“[b]ecause [Mr. Wu] provided no evidence regarding the risks associated with an 

arrest of uncertain duration, . . . [he] did not establish a threat of persecution.” Xiu 

Fen Xia v. Mukasey, 510 F.3d 162, 166 (2d Cir. 2007). A fortiori, he cannot satisfy 
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his burden on judicial review to point to evidence from which a reasonable factfinder 

would have been compelled to find a fear of persecution entitling him to asylum. 

3. Conclusion as to denial of asylum 

Certain analytical errors taint the BIA’s determination that Mr. Wu failed to 

establish a reasonable possibility of arrest for his resistance to the forced abortion of 

his wife in 2004. We need not decide whether affirmance of the denial of asylum on 

that basis might still be proper, as the BIA’s decision rested on an alternative 

determination unaffected by the cited errors. The BIA also held that Mr. Wu failed 

to establish a reasonable possibility that if he were arrested over the 2004 incident he 

would be subjected to conduct rising to the level of persecution. We conclude that 

substantial evidence supports this alternative rationale for the denial of asylum. 

B. Denial of Restriction on Removal 

An alien subject to removal can prevent his return to a particular country by 

establishing “a clear probability of persecution” should he be sent there. Wiransane, 

366 F.3d at 894 (internal quotation marks omitted). This standard of proof for 

restriction on removal “is more demanding than the well-founded fear standard 

applicable to an asylum claim.” Id. Thus when, as here, an alien “fails to establish 

the objective component of a well-founded fear of persecution, he necessarily fails to 

establish entitlement to restriction on removal.” Id. The BIA therefore properly 

denied Mr. Wu’s request for restriction on removal to China. 
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C. Refusal to Consider New Materials or Remand Case 

Mr. Wu’s briefing to the BIA referenced new evidence that he had submitted in 

support of a motion to reopen still pending with the IJ. The BIA “properly has 

procedural rules governing the introduction of evidence, and under those rules [new 

items of evidence submitted on appeal to the BIA] [ar]e not timely submitted.” 

Solomon v. Gonzales, 454 F.3d 1160, 1164 (10th Cir. 2006). The BIA nevertheless 

construed Mr. Wu’s reference to the new evidence as a motion for the BIA to remand 

the case, which it denied. We review such a ruling for an abuse of discretion.5

 

Clifton v. Holder, 598 F.3d 486, 490 (8th Cir. 2010). The BIA noted that Mr. Wu 

had not shown that the new evidence was previously unavailable or undiscoverable, 

as required by 8 C.F.R. § 1003.2(c)(1). Mr. Wu admits that “the BIA’s viewpoint 

here is understood,” but insists that “at the least the BIA ought to have accepted [a 

second] letter signed by the 3 neighbors as such evidence had, essentially, already 

been submitted and admitted into the record.” Aplt. Br. at 20. But in arguing this 

way, Mr. Wu effectively concedes that the evidence could not satisfy the other 

requirement for new evidence, i.e., that it be material. 8 C.F.R. § 1003.2(c)(1). 

 

5

 The BIA’s discretionary authority in this regard derives from a regulation, 

8 C.F.R. § 1003.2(c)(1) & (4), rather than from a statute. For this reason, our review 

is not prohibited by the jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B), which, as the 

Supreme Court clarified in Kucana v. Holder, 130 S. Ct. 827, 831-40 (2010), applies 

only to decisions made discretionary by the statutory provisions referenced therein, 

not to decisions the Attorney General has made discretionary by regulation. See also

Luevano v. Holder, 660 F.3d 1207, 1213 (10th Cir. 2011) (holding discretionary 

denial of continuance reviewable in light of Kucana). 
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Cumulative evidence is not material. See Lin Xing Jiang v. Holder, 639 F.3d 751, 

756 (7th Cir. 2011). In any event, the BIA did not foreclose Mr. Wu’s use of the 

evidence, which as noted, was already before the IJ in connection with his motion to 

reopen. In sum, the BIA properly refused to consider the new evidence on appeal 

and did not abuse its discretion in declining to remand the matter to the IJ before 

whom Mr. Wu’s motion to reopen was pending. 

 The petition for review is DENIED. 

 Entered for the Court 

 Mary Beck Briscoe 

 Chief Judge