                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 16-1737
                                   ________________


                                      JIAN BIN SHI,
                                               Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                    Respondent

                                   ________________

                       On Petition for Review of a Final Order
                         of the Board of Immigration Appeals
                    Immigration Judge: Honorable Steven A. Morley
                              (B.I.A. No. A200-745-168)
                                  ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 17, 2016

             Before: AMBRO, SHWARTZ, and FUENTES, Circuit Judges

                                (Filed: December 9, 2016)
                                    ________________

                                       OPINION*
                                   ________________

AMBRO, Circuit Judge



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Jian Bin Shi petitions for review of the Board of Immigration Appeals’s decision

affirming the Immigration Judge’s order of removal. For the following reasons, we grant

the petition in part, deny it in part, and remand to the BIA.

I. Facts and Procedural History

       Shi is from China and is a member of an unregistered Catholic church. Shi alleges

that in 2009, when he and other church members were renovating a church, the police

arrested them. They took Shi into custody and interrogated him. When he did not

comply with the interrogator’s requests to provide information about his church, he was

beaten for “several minutes.” App. 153. The beating stopped when Shi almost lost

consciousness. He remained in police custody for four days. The police released him

after his parents paid a 5,000 RMB bond. On release, the police asked Shi to sign an

acknowledgment that he would not participate in his church, and the police told him that

he needed to report to them once a month. They also warned Shi that he could face

“serious consequence[s]” for continuing to participate in the church. App. 109.

       After release, Shi did not seek medical treatment for the beating, but his mother

applied some herbal oil on his wounds. Shortly thereafter, Shi fled China and was

smuggled into the United States. He then filed an application for asylum and withholding

of removal under the Immigration and Nationality Act. The IJ denied relief, finding that,

although Shi credibly testified, he (1) failed to corroborate his claim and (2) even if he

had corroborated his story, failed to show a credible fear of persecution. The BIA

affirmed.

II. Jurisdiction and Standard of Review
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       We have jurisdiction under 8 U.S.C. § 1252(a)(1); the BIA had jurisdiction under

8 C.F.R. § 1003.1(e)(4)–(6). Where, as here, the BIA explicitly adopts the IJ’s opinion

and adds its own analysis, we review the decisions of both the IJ and BIA. Restrepo v.

Att’y Gen., 617 F.3d 787, 790-91 (3d Cir. 2010).

       We will not disturb the findings of fact that underpin the BIA’s decision if “they

are supported by substantial evidence from the record considered as a whole, and we will

reverse based on a factual error only if any reasonable fact-finder would be compelled to

conclude otherwise.” Id. (citations and internal quotation marks omitted). We review the

BIA’s legal conclusions de novo, but we defer to its reasonable interpretations of

immigration laws. Id.

III. Discussion

       Shi does not identify any legal error with the IJ’s analysis nor identify any

evidence that the IJ overlooked. Rather, he takes issue with the IJ’s factual

determinations that he failed to (1) corroborate his claim sufficiently and (2) establish a

credible fear of persecution.

A. Failure to Corroborate

       In both asylum and withholding of removal proceedings, “[t]he testimony of the

applicant, if credible, may be sufficient to sustain the burden of proof without

corroboration.” 8 C.F.R. § 208.13(a), 16(b) (emphasis added). When credible testimony

is not sufficient, the IJ may require corroboration. If so, the IJ must provide “(1) an

identification of the facts for which it is reasonable to expect corroboration; (2) an inquiry

as to whether the applicant has provided information corroborating the relevant facts;

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and, if he or she has not, (3) an analysis of whether the applicant has adequately

explained his or her failure to do so.” Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.

2001) (citation and internal quotation marks omitted). Shi does not argue that the IJ

failed to follow the three-part Abdulai framework. Instead, he disagrees with the IJ’s

ruling that he failed to corroborate his claims.

       As corroboration, Shi provided two letters, one from his father and one from a

friend, stating that Shi had been arrested. An additional letter from a Bishop in China,

however, did not mention the arrest. The IJ found this omission “curious,”

notwithstanding Shi’s explanation that the Bishop neglected to mention the arrest,

because the letter’s purpose was to confirm that Shi was a Catholic. App. 68. To the IJ,

this was not adequate. Instead, he concluded that, because the record demonstrated that

the Chinese government has an official practice of detaining unregistered Christians, Shi

should have obtained some official documentation corroborating his arrest or, at the very

least, some evidence that his parents actually posted a 5,000 RMB bail to release him

from police custody.

       Shi did not explain to the IJ why he did not try to obtain that documentation even

though he communicated with his parents throughout these proceedings. He merely

argues that the IJ was unreasonable in requesting documentation of his arrest because he

doubts that the Chinese government would be willing to give him that documentation.

Although it may have been difficult for Shi to obtain the documentation, the record does

not compel a conclusion that the evidence was actually unavailable. 8 U.S.C.

§ 1252(b)(4) (“No court shall reverse a determination made by a trier of fact with respect

                                              4
to the availability of corroborating evidence . . . unless the court finds . . . that a

reasonable trier of fact is compelled to conclude that such corroborating evidence is

unavailable.”).

       In his petition for review, Shi fails to address the second item of corroboration

required by the IJ: that he should have corroborated his mother’s church leadership role

and the government’s “restraint” of her activities. The IJ concluded that it would be

reasonable to expect Shi to corroborate this given that it would verify the government’s

harassment of Shi’s church and his family. It would also lend credence to Shi’s

contention that he would be personally singled out for persecution. The only

corroborating evidence was the Bishop’s letter, which stated that the government

“restrained” Shi’s mother from holding church events in her home and that his mother

was the “main director” of the church. App. 164. This letter predated Shi’s asylum

application. That application, however, did not mention his mother’s leadership role or

history of restraint, and neither did his father’s or friend’s letter.

       The IJ found that the Bishop’s letter did not carry Shi’s corroboration burden. See

Sandie v. Att’y Gen., 562 F.3d 246, 254 (3d Cir. 2009) (holding that the IJ could require

further corroborating evidence even when the record “include[d] statements from

multiple witnesses and two experts”). Shi had the opportunity to ask his father to amend

his letter or to ask his mother to submit a statement, but he did not. Shi also admitted that

he “didn’t know why [his father] didn’t mention . . . that [restraint].” App. 133.

       While under a de novo standard of review we might have disagreed with the IJ’s

finding that Shi failed to corroborate his claim, we do not disturb findings of fact unless

                                                5
the record compels a contrary conclusion. Because the record does not do so here, we

conclude that the IJ’s corroboration determination is supported by substantial evidence.

See Sandie, 562 F.3d at 254. Accordingly, we deny Shi’s petition with respect to the

corroboration determination.

B. Persecution

       The BIA and IJ next concluded that even if Shi had corroborated his claim, he

nonetheless did not demonstrate past persecution or a well-founded fear of future

persecution to qualify for asylum. We find nothing in the record to compel a contrary

conclusion with respect to the grounds for relief the IJ and BIA considered. We remand,

however, as to a ground for relief they did not consider.

       A person may receive asylum if he has suffered past persecution or has a

reasonable fear of future persecution. 8 C.F.R. § 208.13(b). If an applicant establishes

by substantial evidence that he has experienced past persecution, this triggers a rebuttable

presumption of a well-founded fear of future persecution. Singh v. Gonzales, 406 F.3d

191, 195–96 (3d Cir. 2005). For mandatory withholding of removal under the INA, an

applicant must show that it is more likely than not (a higher standard than asylum

requires) that he will be persecuted on removal. Jarbough v. Att’y Gen., 483 F.3d 184,

190-91 (3d Cir. 2007).

       “Persecution does not encompass all treatment that our society regards as unfair,

unjust, or even unlawful or unconstitutional.” Lukwago v. Ashcroft, 329 F.3d 157, 167-

68 (3d Cir. 2003) (internal quotation marks and citations omitted). Rather, it “is an



                                             6
extreme concept that does not include every sort of treatment our society regards as

offensive.” Jarbough, 483 F.3d at 191 (citation omitted).

       Even if Shi had corroborated his May 2009 arrest, the IJ found that the arrest,

four-day detention, and interrogation—in which Shi was beaten for several minutes but

failed to seek medical treatment—did not amount to past persecution. Although we

recognize that the police’s treatment of Shi was appalling, he has not shown that a

reasonable factfinder would be compelled to conclude that this treatment amounted to

persecution. See id. (holding that substantial evidence supported finding of no past

persecution when officers detained petitioner for two days, threatened and beat him

during interrogation, yet he did not require immediate medical intervention).

       The IJ also found that Shi failed to show a well-founded fear of future persecution.

The IJ concluded that, due to the lapse in time since the 2009 arrest, the police were

probably no longer looking for Shi. The IJ also found that Shi would not be persecuted

within the meaning of the INA if he continued his religious practice. Shi testified that his

friend (who was also arrested) continues to participate in the church and that the worst

treatment the friend receives is that on occasion the police yell at him or “smack [him] on

the head.” App. 150. Further, the IJ concluded that, based on various reports, religious

restrictions on unregistered Christians vary by region and Shi had not demonstrated that

he was from a region where China strictly enforced these restrictions. The reports also

noted that the Chinese government’s reprisals are directed at church leaders, not

laypersons like Shi. Although he disagrees with the IJ’s interpretation of this record,



                                             7
substantial evidence supports the IJ’s determination that Shi failed to establish a credible

fear of future persecution.

       Shi also argues that having to practice his religion underground to avoid being

punished by the government is itself a form of persecution. He presented this argument

to the BIA, but it did not address the contention.

       In Fatin v. INS, we left open the question of whether certain government conduct

could be so abhorrent to an individual’s beliefs that it would constitute persecution even

if it did not include physical harm. 12 F.3d 1233, 1242 (3d Cir. 1993) (“[W]e will

assume for the sake of argument that the concept of persecution is broad enough to

include governmental measures that compel an individual to engage in conduct that is not

physically painful or harmful but is abhorrent to that individual’s deepest beliefs. An

example of such conduct might be requiring a person to renounce his or her religious

beliefs or to desecrate an object of religious importance.”). Every circuit court to

consider the question has held that being forced to practice one’s religion underground

constitutes persecution. See Kazemzadeh v. Att’y Gen., 577 F.3d 1341, 1354 (11th Cir.

2009) (holding that “having to practice religion underground to avoid punishment is itself

a form of persecution”); id. at 1359-60 (Marcus, J., concurring) (examining Supreme

Court precedent and the legislative history of the INA, and concluding that “[n]either the

founders nor the drafters of the Refugee Act could have accepted the narrow view that

secret practice can cure persecution”); Zhang v. Ashcroft, 388 F.3d 713, 719 (9th Cir.

2004) (rejecting the IJ’s finding that the petitioner could avoid persecution by practicing

his religion in private, and explaining that “to require [the petitioner] to practice his

                                               8
beliefs in secret is contrary to our basic principles of religious freedom and the protection

of religious refugees”); Muhur v. Ashcroft, 355 F.3d 958, 960 (7th Cir. 2004) (holding

that “the fatal flaw in the immigration judge’s opinion lies . . . in the assumption—a clear

error of law—that one is not entitled to claim asylum on the basis of religious persecution

if . . . one can escape the notice of the persecutors by concealing one’s religion”).

       The BIA did not address this question, and so we lack a ruling to review.

Accordingly, we will grant the petition for review in part, deny it in part, and remand to

the BIA to determine whether, in light of these authorities, being forced to practice one’s

religion underground constitutes persecution and, if so, what level of force is required.

On remand, the BIA should also determine whether, as a factual matter, Shi was required

to hide his religious practice to avoid being targeted by the government.

                               *       *      *      *      *

       We therefore grant Shi’s petition in part, deny it in part, and remand this matter to

the BIA.




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