                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           MAY 20 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


WENJUN TONG,                                     No. 12-74015

              Petitioner,                        Agency No. A088-290-938

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                             Submitted May 3, 2016**
                               Pasadena, California

Before: BYBEE and N.R. SMITH, Circuit Judges and STEIN,*** District Judge.

      Petitioner Wenjun Tong, a Chinese citizen, seeks review of the Board of

Immigration Appeals’s (“BIA”) final order of removal affirming the immigration



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
judge’s (“IJ”) denial of his request for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). On appeal, Tong

argues that the BIA erred in finding that Tong was not targeted on account of a

protected ground and did not suffer past persecution. We have jurisdiction under 8

U.S.C. § 1252, and we DENY the petition for review.

      We note first that Tong does not appear to contest the BIA’s decision

regarding his withholding of removal and CAT claims. Because Tong failed to

raise any argument in his opening brief regarding either his withholding of removal

claim or his CAT claim, these claims have been waived and we do not address

them. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996)

(failure to raise an issue in an opening brief constitutes waiver).

      Regarding Tong’s asylum claim, we review legal questions de novo, and the

BIA’s factual findings for substantial evidence. Khudaverdyan v. Holder, 778 F.3d

1101, 1105 (9th Cir. 2015). Substantial evidence supports the BIA’s conclusion

that Tong did not suffer past persecution on account of a protected ground.

      First, Tong cannot demonstrate a nexus to a protected ground, because he

has not shown that he was targeted for arrest by Chinese police for expressing a

political opinion, rather than for legitimate law enforcement purposes. Police

conduct, even where heavy-handed, does not necessarily constitute “persecution” if


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the police are engaged in legitimate investigative or peace-keeping activities. See,

e.g., Lin v. Holder, 610 F.3d 1093, 1097 (9th Cir. 2010) (finding no persecution

where the petitioner testified that Chinese authorities sought him because he

assisted a Falun Gong fugitive in violation of Chinese law, and where the petitioner

“did not provide any evidence that Chinese authorities would act in such an

‘extreme’ way as to rise to the level of persecution”); Donchev v. Mukasey, 553

F.3d 1206, 1214–15 (9th Cir. 2009) (finding no persecution where petitioner

encountered police “when they were investigating crimes or maintaining the

peace” and where “any escalation during these encounters were caused by [the

petitioner’s] friends challenging police authority”). Tong testified that the

protesters “fought back” when the police tried to disperse the crowd, and Tong

himself was not arrested until he physically interacted with an officer using his

protest sign. Once the protest turned violent, the police had legitimate

investigative and peace-keeping reasons for arresting and interrogating those

involved in the fight, including Tong. Tong has not shown that the police

attributed any particular opinion to him. Cf. Hu v. Holder, 652 F.3d 1011, 1014,

1017–18 (9th Cir. 2011) (finding nexus to a protected ground where the petitioner

was arrested for participating in a protest and accused of having political opinions

adverse to the Chinese government and the Communist Party).


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      Even assuming that Tong could establish a nexus to a protected ground, the

treatment he suffered does not rise to the level of persecution. Persecution is an

“extreme concept, ” Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2006), and

“does not include every sort of treatment our society regards as offensive,”

Wakkary v. Holder, 558 F.3d 1049, 1059 (9th Cir. 2009). Tong was detained for a

week and beaten twice, but did not sustain serious injury. Although Tong sought

medical treatment from a small local hospital after he was released from custody,

he required only minimal treatment: he was simply given antibiotic medication and

ointments. See, e.g., Gu 454 F.3d at 1020 (finding no persecution where petitioner

was detained and beaten on one occasion, interrogated for two hours, did not

require medical treatment, and did not suffer adverse employment consequences);

Prasad v. INS, 47 F.3d 336, 339–40 (9th Cir. 1995) (finding no persecution where

petitioner was arrested once, hit in the stomach and kicked, and interrogated for six

hours about his political allegiances).

      Because Tong failed to establish past persecution, the BIA correctly found

that he is not entitled to a rebuttable presumption of future persecution. See 8

C.F.R. § 1208.13(b)(1). With regard to Tong’s fear that the police will come

looking for him if he returns to China, substantial evidence supports the BIA’s




                                          4
finding that Tong failed to establish that the government’s interest in him would be

for anything other than legitimate law enforcement purposes.

      The petition for review is DENIED.




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