                                                            NOT PRECEDENTIAL


                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                   No. 08-3499
                                  ____________


                                 SHOUMIN CHAI,
                                        Petitioner

                                         v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                    Respondent
                              ___________

                             On Petition for Review of a
                    Decision of the Board of Immigration Appeals
                                    (A29-799-074)
                                     ___________

                               Argued June 23, 2011

       Before:   HARDIMAN, VANASKIE and GREENBERG, Circuit Judges

                               (Filed: July 28, 2011 )

Joshua E. Bardavid, Esq. ARGUED
22nd Floor
401 Broadway
New York, NY 10013-0000

Theodore N. Cox, Esq.
Suite 701
401 Broadway
New York, NY 10013-0000
Attorneys for Petitioner
Tony West, Esq., Assistant Attorney General
Stephen J. Flynn, Esq., Assistant Director
Sharon M. Clay, Esq., Attorney
Richard M. Evans, Esq., Attorney
Arthur L. Rabin, Esq., Attorney
Robert Michael Stalzer, Esq., Attorney ARGUED
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
                                      ___________

                               OPINION OF THE COURT
                                    ___________


VANASKIE, Circuit Judge.

       Before us is a petition for review of a decision by the Board of Immigration

Appeals (“BIA”) vacating and reversing an Immigration Judge’s (“IJ”) finding that

Petitioner Shoumin Chai (“Chai”), a native of China, was eligible for withholding of

removal under the Immigration and Nationality Act, § 237(a)(2)(A)(ii) and (iii), 8 U.S.C.

§ 1227(a)(2)(A)(ii) and (iii), and for relief under the Convention Against Torture

(“CAT”), art. 3, opened for signature Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988),

1465 U.N.T.S. 85. Because we find that the BIA correctly determined that Petitioner

failed to demonstrate that she was eligible for withholding of removal or relief under the

CAT, we will deny the petition for review.

                                             I.

       Because we write only for the parties, who are familiar with the facts and

procedural history of this case, we will set forth only those facts necessary to our

                                              2
analysis. Chai, a native and citizen of the People’s Republic of China, received a legal

education there and graduated from Maritime College in 1982, receiving special training

in maritime law. For the next five years, she was employed as a manager in the claims

department of China Ocean Shipping Company (“COSCO”), a state-owned company. In

1987, Chai was sent to the United States by COSCO and the Chinese Government. She

obtained a J-1 exchange scholar visa to work for a law firm in New York and Houston,

enabling her to study the American legal system in depth. This training was undertaken

so that COSCO would have a better understanding of how its claims were handled in the

United States. Chai signed an agreement to return to China and to employment with

COSCO following her training in the United States.

       After completing her training, however, Chai obtained the permission of the

Chinese government to obtain an LL.M. in Maritime Law from the University of Houston

Law School before her return to China. About one month before her graduation from law

school, in April, 1989, pro-democracy protests broke out in China. In early May, Chai

was contacted by a friend in New York, who was organizing Chinese student protests in

the United States. He invited Chai to participate in planned protests outside the Chinese

consulate in Houston. She did so twice, first at the end of May, 1989, and again on June

5, 1989, one day after the massive crackdown on Tiananmen Square. Chai claims that

the officials at the consulate obtained her photograph and identifying information at the

time of these protests.

       Chai received her LL.M. degree on May 13, 1989. Shortly thereafter, she was

ordered by the Chinese consulate in Houston to return to China immediately. She replied

                                             3
that she could not return as she was still working on her thesis. Chai also sought, and

received, permission from the Chinese government to remain in the United States for an

additional year to practice law. She was scheduled to return to China in August, 1990.

       Chai did not officially return to China. Instead, she remained in America where

she sought, and obtained, lawful permanent resident status in 1990.1 Chai, however, did

return to China clandestinely for ten days in August, 1990, with the assistance of friends

in the Chinese embassy in Washington, D.C., and another friend in the customs office in

Beijing, to visit her ailing father.

       Around this time, Chai unsuccessfully attempted to renew her Chinese passport.2

Her attempts were rebuffed because she had remained in the United States without

permission from the Chinese government.

       In March, 1990, she inquired about her situation from a friend, Mr. Di, who was a

high official in COSCO, during a secret meeting in Spain. Mr. Di informed her matter-

of-factly that she would be unable to get a passport, because she was involved in a protest

at Tiananmen Square and failed to return to China in accordance with her agreement with

       1
          In her brief, Chai claims that she obtained this relief under the Chinese Student
Protection Act. This, however, is impossible, as this Act was not passed until 1992. Pub.
L. No. 102-404, 106 Stat. 1969. It is likely that Chai obtained this relief pursuant to
Exec. Order No. 12,711, 55 F.R. 13897 (1990), issued by President George H. W. Bush
on April 11, 1990, which had essentially the same effect, deferring deportation of
Chinese nationals who were in the United States between June 5, 1989, and April 11,
1990, and waiving the requirement that J-visa holders must return to their home country
for at least two years before attempting to return or seek permanent resident status in the
United States.
        2
          The official transcript of her hearing indicates that this attempt occurred in 1992.
However, it does not fit with her travel to Spain in March, 1990. It is not clear which
date is correct, and it is possible that the court reporter misheard the dates, as other dates,
such as Chai’s date of birth, are misstated in the transcript.
                                               4
the Government and COSCO. Chai’s brother, also a COSCO employee, was not

permitted to travel outside of Chinese waters in his work, and her sisters were likewise

denied exit permits.

       While she was living in the United States, Chai developed a gambling addiction.

To facilitate this addiction, she engaged in illegal behavior. On March 10, 2006, Chai

pleaded guilty to, and was convicted of, one count of theft by deception and one count of

theft by unlawful taking. She was sentenced to three years’ imprisonment on each count,

the terms to run concurrently.

       On June 20, 2006, Chai was charged with removability under 8 U.S.C. §

1227(a)(2)(A)(ii), as an alien convicted of two crimes involving moral turpitude not

arising out of a single scheme of criminal conduct, and under 8 U.S.C. §

1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony. On October 5, 2006,

Chai filed an Application for Withholding of Removal under the INA and for

Withholding of Removal under Article III of the Convention Against Torture.3 On

February 15, 2008, after hearing extensive testimony, the Immigration Judge granted her

application for Withholding of Removal. The Department of Homeland Security

appealed this decision to the BIA, which sustained the appeal on July 17, 2008, reversing

the decision of the IJ. The BIA ordered that Chai be removed from the United States.

She now petitions for review of the BIA decision.

                                             II.

       3
         The Government argues that Chai waived any claim that she had under CAT by
failing to raise the issue in her brief. It is clear, however, both from her Appellate Brief
and from the record below, that Chai has preserved her CAT claim.
                                              5
                                              A.

       This appeal presents difficult questions concerning jurisdiction and whether the

BIA applied an incorrect standard of review in determining Chai’s credibility.4 We need

not, however, resolve these thorny issues. Although INA § 242(a)(2)(C), 8 U.S.C. §

1252(a)(2)(C) deprives this Court of appellate jurisdiction over any final order of removal

concerning an alien convicted of an aggravated felony, we nonetheless would have

jurisdiction when an alien whose claim is otherwise unreviewable raises “constitutional

claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Even assuming arguendo that

Chai has indeed raised a question of law, however, and accepting on its face her

argument that the BIA applied an incorrect standard of review to the IJ’s decision, we

nonetheless conclude that the BIA did not err in concluding that the evidence presented

by Chai was insufficient to warrant relief.

                                              B.

       To be eligible for withholding of removal, Chai must show that it is “more likely

than not” that, if deported, she will be persecuted on account of her race, religion,

nationality, membership in a particular social group or political opinion. Lukwago v.

Ashcroft, 327 F.3d 157, 182 (3d Cir. 2003). The standard is the same for relief under the

CAT. See 8 C.F.R. § 1208.16.

       Chai did not present sufficient evidence to demonstrate that she is more likely than

not to suffer persecution if she returns to China. Chai has not apprised us of any case in

which an individual involved in two isolated protests related to the Tiananmen Square

       4
           The BIA had jurisdiction under 8 C.F.R. § 1003.1(b).
                                              6
incident has been persecuted so many years after the fact. Indeed, the evidence Chai cites

indicates quite the opposite. For example, Chai cites the U.S. State Department Report

for China, which found that while “[d]ozens of political activists have been arrested over

the past decade for . . . political activities, such as advocating . . . a reappraisal of the

1989 Tiananmen Massacre,” (A. 478), “the farther back in time an applicant’s political

involvement, the less likely he or she is to face reprisal from the government.” (A. 479.)

Specifically, with respect to protesters from the 1989 Tiananmen Democracy Movement,

“Chinese authorities have claimed that all Tiananmen cases have been resolved, but they

have not provided a credible accounting . . . . Individuals suspected of ongoing

involvement in activities commemorating those killed in the Tiananmen Square massacre

are subject to harassment and sometimes detention.” (A. 480.) (emphasis added). This

distinction is further emphasized in the Report. While the Report notes that “many

students and scholars claim that their political activities in the United States, such as

demonstrating at . . . Chinese consulates . . . would prompt security authorities to target

them for punishment on their return to China,” and that “[s]ome claim that their families

in China have been harassed as a result of their political activities in the United States,”

(A. 481), the Report gives as a relevant example the situation of an individual who was

involved in organized Chinese protest groups in America. (A. 481-82.) Chai does not

fall into that category.

       Moreover, other evidence offered by Chai, such as the alleged persecution of her

relatives, including her brother who is also employed by COSCO, may be equally

attributable to her failure to return to China after having been sponsored to come to the

                                                7
United States to receive legal training to benefit her company and country.5 Indeed, the

chronological relationship between the Chinese government’s request for Chai’s return,

its refusal to grant a new passport, and the government’s likely mounting expectation that

Chai would return to share her newly-gained knowledge and training with her

compatriots supports this conclusion. Any retribution on the basis of Petitioner’s failure

to adhere to her contractual obligations does not warrant relief. See Lukwago, 327 F.3d at

182.

                                            III.

       For the foregoing reasons, we will affirm the decision of the BIA.




       5
        We also note that the IJ found that Chai’s testimony regarding her family’s
persecution was likely “embellish[ed],” (A. 19), an adverse credibility determination that
was never reversed by the BIA.
                                             8
