UNITED STATES CO URT 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 (I J’s) denial of as ylum and restricti on on removal. We deny the petition for review for the reasons explained below.

* After examining the briefs and appellate record, this pane l 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 18, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - AGENCY PROCEEDINGS Mr. Wu is a native and citizen of the Pe ople’s Republic of China. He entered the United States without being admitted or paroled after inspec tion in July 2005, rendering him subject to remova l under 8 U.S.C. § 1182(a)(6)(A)(i). Less than a year later he applied for asyl um, 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 fami ly planning policy. At the hearing before the IJ, he testified that in late Dece mber 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 hi s wife ineffectually re sisted. He initially pleaded with the officers not to take her. They did not rele nt and he began to chastise them, using some derogatory language, for persecuting innocent citiz ens. 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 (h e 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 jour ney 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).- 3 - His wife had the abortion the day afte r she was taken by the family planning officers. She has since stay ed at their home with their son, apparently without any repercussions from the incident. Mr. Wu te stified that his wife has told him that unidentified family planning officers (not police) had l ooked 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 hi m upon his return, and later adde d 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 any one who had been arrested. He submitted a letter signed by several of his former ne ighbors in China vouching for his account of the incident leading to his wife’s aborti on, which also stated that “[t]he officials wanted to arrest” him that night and th at he “cannot return home, because the officials want to arrest him. ” Admin. R. at 628. The IJ found that Mr. Wu had estab lished 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 pers ecution or the IJ’s denial of relief under the CAT. As for future persecution, the BIA agre ed 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 le vel of persecution in any even t. Accordingly, the BIA- 4 - upheld the denial of asyl um and restriction on remova l 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 re open/reconsider then still pending before the IJ. 2
GOVERNING LEGAL STANDARDS Because the BIA’s decision wa s issued by a single member, see 8 C.F.R. § 1003.1(e)(5), we “review[] both the decisi on 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 (10t h Cir. 2010). In doing so, “[w]e review the BIA’s legal determinations de nov o and its findings of fact for substantial evidence.” Id. at 1267. The latter standard is very defe rential: “factual findings are conclusive unless any reasonable adjudicator would be compelled to conc lude to the contrary.” Id. And it applies not only to historical fact s but to ultimate fa ctual determinations, including, as relevant here, whether an al ien 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 government al population control activities by showing

2 The BIA held that additional eviden ce could not be accepted on appeal and, further, that a remand of th e case to the IJ was not wa rranted because the evidence was neither unavailable nor undi scoverable previously, 8 C.F. R. § 1003.2(c)(1), (4).- 5 - that he has been persecuted for “resistan ce 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 cont rol program, (2) he suffered or has a well-founded fear that he will su ffer 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 quota tion 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 pers ecution 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 reas ons: (1) “the record eviden ce did not provide sufficient objective support for [Mr. Wu’s ] belief that he faces a re asonable possibility of being arrested because of hi s altercation with family planni ng officials in 2004”; and (2) he- 6 - “did not, in any event, testify with any specif icity as to his reasona ble fear that if he were arrested upon his return to China, his arrest would l ead to treatment that would rise to the level of persecution as this term is de fined.” Admin. R. at 5. As each of these rationales is sufficient to support the BIA’s decisi on, 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 suffi cient grounds may be affirmed on one “regardless of the merit of [the litigant’s] arguments re lating to [the other]”). 1. Possibility of arrest The BIA recited several cons iderations leading to its conclusion that Mr. Wu had failed to substantiate a reasonable possibility of arre st. His testimony in this regard “primarily relied on hearsay statements from his family and wife” and “lacked details as to who these indi viduals were who he claime d have been continuously visiting his family and wife; . . . what they wanted [h im] 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 wa s in fact told that he will be arrested”; rather “it was only [h is] belief that he will be arrested.” Id. at 4. As for the letter submitted by his former neighbors, “neith er their letter nor [his] testimony provided the founda tion for the neighbors’ ot herwise speculative belief regarding the authorities’ current and prospec tive 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 frie nds do not provide subs tantial support for- 7 - applicant’s claim of fear of persecution wh en devoid of details, and where they are not subject to cross-examination)”). The BIA also cited the 200 7 Profile of Asylum Claims and Country Conditions (“2007 Profile”), which stat es 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 viol ating the family planning rules.” Id . at 4. Finally, the BIA noted that “there is no i ndication that [Mr. Wu’s] wife, who [he] testified also attempted to phys ically resist the family pl anning officials, was herself arrested or faced criminal sanctions because she too resisted th e enforcement efforts of the family planning officials.” Id. at 5. at 9 (cit ation omitted). On its face, the above ev idence provides substantia l support for the BIA’s conclusion that Mr. Wu had not establis hed a reasonable possibility of arrest. Mr. Wu does, however, point out certain pr oblems 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 re sted solely on his own persona l belief. Actually, when

3 Mr. Wu had objected to the IJ’s re liance on the 2007 Profile instead of the 2002 Population and Family Planning Regulations of Fujian Province (“2002 PFPR”), which indicated that impeding exec ution 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 th e 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.- 8 - squarely asked “Did they [family planning o fficials] ever directly say that you would be arrested,” he responded “Yes. They to ld that to my wife, and my family.” Admin. R. at 167. This al so undercuts the BIA’s critici sm 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 re spect is still premised on hearsay, as th e 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 planni ng policy, but that he will be arrested for impeding, insulting, and assaulting family planni ng officers—conduct not addressed by the 2007 Profile. And the 2002 PFPR makes this very distinction: violations of family planning policy (failure to im plement effective contraceptiv e measures or terminate an unauthorized pregnancy, giving birth in violation of regul ations) trigger only administrative correction, Admin. R. at 306-08 (Articles 39 & 43), while impeding, insulting, or injuring family planning officers is “a cr iminal act [a nd] 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 labele d as ‘Legal Liability,’ and thus both can be considered as violative of th e family planning regulations.” Id . at 4. But the fact that the PFPR sets out both administrative violations of family planning regulations- 9 - and criminal offenses involving interferen ce with family pla nning 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 la tter 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 doc umentary support for it. We need not decide whether we might nevertheless affi rm on the basis that, properly considering this evidence and the rest of the record, the BIA would ha ve reached the same result. Cf. Uanreroro v. Gonzales , 443 F.3d 1197, 1208 (10th Cir. 2006) (remanding for agency redetermination of factual ma tter where reasoning underlying initial determination was flawed, instead of “s tep[ping] into the agency’s role and engag[ing] in our own fact-f inding”)). The BIA’s alterna tive 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 (10t h 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 activi ties, such as embezzl ement, extortion, bribery, fraud, and misappropriation of funds. Admin. R. at 309 (Article 48). Surely these are still handled as criminal ma tters notwithstanding the 2007 Profile’s statement that family planning viola tions are not treated as crimes.- 10 - 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 r easonable possibility that he may be arrested, detained, and/or questi oned by authorities regarding his momentary resistance to family planning officers when they took his wi fe for a forced abortion. He must substantiate an asso ciated 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’ de tention amounted to persecution). Mr. Wu made no effort to do this. His testimony never touched on the possibility of extended confinem ent 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 severe ly.” Aplt. Br. at 10. Not only does this come late, but such unsubs tantiated speculation cannot sa tisfy 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 ri sks associated with an arrest of uncertain duration, . . . [he] did not establis h a threat of persecution.” Xiu Fen Xia v. Mukasey , 510 F.3d 162, 166 (2d Cir. 2007). A fortiori , he cannot satisfy- 11 - 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 determinati on that Mr. Wu failed to establish a reasonable possibility of arrest for his resistan ce to the forced abortion of his wife in 2004. We need not decide wh ether affirmance of the denial of asylum on that basis might still be proper, as th e 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 possibi lity that if he were arrest ed 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 fo r 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 pers ecution” should he be sent there. Wiransane , 366 F.3d at 894 (internal quotation marks om itted). This standard of proof for restriction on removal “is more demandi ng 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 n ecessarily fails to establish entitlement to re striction on removal.” Id . The BIA therefore properly denied Mr. Wu’s request for rest riction on removal to China.- 12 - 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 re open 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). Th e BIA nevertheless construed Mr. Wu’s reference to the new evidence as a motion fo r the BIA to remand the case, which it denied. We review su ch 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 th e least the BIA ought to have accepted [a second] letter signed by the 3 neighbors as such eviden ce had, essentially, already been submitted and admitted in to the record.” Aplt. Br. at 20. But in arguing this way, Mr. Wu effectively concedes that the evidence could no t satisfy the other requirement for new eviden ce, 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 fro m 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 discre tionary by the statutory provi sions referenced therein, not to decisions the Attorney General has made discretiona ry by regulation. See also Luevano v. Holder , 660 F.3d 1207, 1213 (10th Cir. 2011) (holding discretionary denial of continuance re viewable in light of Kucana ).- 13 - Cumulative evidence is not material. See Lin Xing Jiang v. Holder , 639 F.3d 751, 756 (7th Cir. 2011). In any event, the BI A 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 declini ng 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