                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-2496


QITIAN NI,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Argued:   December 9, 2014                  Decided:   March 17, 2015


Before MOTZ and KING, Circuit Judges, and Arenda L. Wright
ALLEN, United States District Judge for the Eastern District of
Virginia, sitting by designation.


Petition denied by unpublished per curiam opinion.


ARGUED: Troy Nader Moslemi, Flushing, New York, for Petitioner.
Briena Lorraine Strippoli, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.   ON BRIEF: Stuart F. Delery,
Assistant   Attorney  General,  Blair  T.   O'Connor, Assistant
Director, Juria L. Jones, Trial Attorney, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Qitian Ni (Mr. Ni), a native and citizen of the People’s

Republic of China (China), petitions for review of an order of

the Board of Immigration Appeals (BIA) dismissing his appeal

from    the      Immigration     Judge’s     denial     of    his   requests      for   (1)

asylum, (2) withholding of removal, and (3) protection under the

Convention Against Torture (CAT).

       Mr. Ni raises four arguments.                 First, Mr. Ni contends that

he demonstrated sufficient past persecution to warrant asylum,

and asserts that the BIA erred in finding that past persecution

required permanent injury.              Second, Mr. Ni contends that the BIA

erred       by     refusing       to    consider       his      wife’s      persecution

cumulatively with his persecution.                    Third, Mr. Ni disputes the

BIA’s    determination          that   he   failed     to    meet   the   standard      for

economic      persecution.         Finally,      Mr.    Ni    challenges      the   BIA’s

conclusion        that    CAT    relief     is   unavailable        because    there     is

insufficient        evidence      to   establish       that    he   would     likely     be

tortured by the Chinese government.

       We        reject    Mr.     Ni’s      arguments         because      the     BIA’s

determinations            are     supported       by         substantial       evidence.

Therefore, Mr. Ni’s petition must be denied.




                                             2
                                    I.

      Mr. Ni and his wife lived in the Fujian Province in China.

He was employed as a security guard.

      The couple had one child together before they married on

February 29, 2008.         Mr. Ni was unable to register their child

until he could produce an official marriage certificate.

      Family planning officials attempted to coerce Mr. Ni’s wife

into wearing an intrauterine device, but were unable to do so

due   to   her   medical    concerns.        Instead,      Mr.   Ni’s    wife   was

directed to report for a gynecological examination every three

months.

      In November 2008, Mr. Ni’s wife discovered that she was

pregnant    again   while    visiting       her   ailing    father      in   Yunnan

Province.    Mr. Ni asked his wife to verify her pregnancy at a

private clinic.      Because he was worried about his wife being

reported to the government, Mr. Ni advised his wife to remain

inside her brother’s home.

      In early 2009, Mr. Ni’s father-in-law passed away, and Mr.

Ni traveled to Yunnan Province to join his wife and assist with

funeral arrangements.        During that visit, three family planning

officials arrived at the home to take Mr. Ni’s wife away for a

forced abortion.

      Mr. Ni argued with the officials, claiming that they lacked

jurisdiction over his wife because the couple was from Fujian

                                        3
Province.           Mr.    Ni    also    criticized         the       population         control

program.      The officials asserted jurisdiction over Mr. Ni’s wife

because she was born in Yunnan Province.

       A    fight    ensued      between      Mr.    Ni   and     the      officials.        The

officials summoned police, who arrived and arrested Mr. Ni.                                  Mr.

Ni’s   wife    was    taken       away   and       compelled      to    undergo      a     forced

abortion.

       Mr. Ni was detained at the police station for approximately

ten hours.          Mr. Ni testified that he was beaten with a baton,

suffering painful injuries.                Mr. Ni sought medical attention for

his bruises and pain after his release.                      He was then notified to

pick up his wife at the facility where her pregnancy had been

terminated.

       On   March     3,    2009,   Mr.       Ni    was   fired      from    his     job    as   a

security guard in Fujian Province because he had violated the

governmental        family       planning      policy.          He     testified      that       he

attempted      to    find    another      job,      but   was     unsuccessful           because

employers     refused       to    hire    a    violator     of       the    family    planning

policy.      Mr. Ni continued his job search for approximately one

month.

       Mr. Ni left China on October 1, 2009 and entered the United

States illegally on November 1, 2009.                       On July 2, 2010, Mr. Ni

applied      with    the     United      States       Citizenship          and   Immigration



                                               4
Service       (USCIS)        for     asylum,            withholding      of     removal,      and

protection from removal under the CAT.

       Following       an    interview          with      USCIS,   Mr.    Ni    was   issued    a

Notice    to    Appear        charging          him       with   removability.         Mr.     Ni

conceded       removability           under          Section       237(a)(1)(B)        of     the

Immigration and Nationality Act (INA or the Act), which provides

that    any    alien        present       in    the       United   States      unlawfully      is

deportable.        See       8     U.S.C.       §    1227(a)(1)(B)       (2014).        Mr.    Ni

resubmitted his application for relief.

       On December 6, 2011, Mr. Ni appeared before an Immigration

Judge to testify in support of his application.                               The Immigration

Judge     found    Mr.        Ni’s    testimony             credible,     but     denied      his

application for asylum, withholding of removal and protection

under    the    CAT.         The     Immigration           Judge   found       that   Mr.    Ni’s

treatment      failed       to     rise    to       the    level   of    persecution.         The

Immigration Judge found no past persecution, and found any risk

of   future     persecution          to    be       speculative.         Additionally,        the

Immigration Judge determined that Mr. Ni’s termination from his

government security job was not “so severe as to constitute a

threat to his life or freedom.”                         A.R. 37.    The Immigration Judge

further determined that “[t]here is no serious evidence that

[Mr. Ni] would be tortured if he returned to China.”                                  A.R. 38.

The Immigration Judge concluded that Mr. Ni did not qualify for

asylum, withholding of removal or protection under the CAT.

                                                    5
    On     December   30,   2011,     Mr.    Ni    appealed   the    Immigration

Judge’s decision to the BIA.               On November 14, 2013, the BIA

dismissed Mr. Ni’s appeal and affirmed the Immigration Judge’s

decision.    The BIA agreed with the Immigration Judge that the

harm suffered by Mr. Ni on account of his “other resistance to a

coercive    population      control     program” 1      did   not     amount     to

persecution,   noting    that   there       was    no   evidence    that   Mr.   Ni

required medical      treatment for         his injuries 2 or suffered any

long-term health effects.       A.R. 6.           Additionally, the BIA found

that Mr. Ni failed to show that “he would suffer any persecution

on account of ‘other resistance’ if he returned to China,” and

    1
       Section 101(a)(42) of the INA provides that “a person who
has been forced to abort a pregnancy or to undergo involuntary
sterilization, or who has been persecuted for failure or refusal
to undergo such a procedure or for other resistance to a
coercive population control program, shall be deemed to have
been persecuted on account of political opinion.”    8 U.S.C. §
1101(a)(42).     The Immigration Judge found that Mr. Ni’s
opposition to China’s population control program constituted
“other resistance.” The BIA agreed.
    2
       At oral argument, Mr. Ni asserted that the Immigration
Judge erred by finding that he did not require medical treatment
for the injuries that he suffered.    This Court concludes that
any error regarding findings that Mr. Ni sought medical
treatment for injuries under these circumstances would be
harmless. See Ngarurih v. Ashcroft, 371 F.3d 182, 191 n.8 (4th
Cir. 2004) (“While the general rule is that an administrative
order cannot be upheld unless the grounds upon which the agency
acted in exercising its powers were those upon which its action
can be sustained . . . reversal is not required when the alleged
error clearly had no bearing on the procedure used or the
substance of the decision reached.”).



                                       6
his    claim        that        he    or     his       wife     would      be    sterilized         “is

speculative at this time.”                       Id.       The BIA further found that the

loss of his job was not “shown to be so severe as to constitute

a threat to his life or freedom . . . particularly . . . when

[Mr.     Ni]        only    spent          approximately            one    month         looking    for

employment.”          Id.       The BIA upheld the denial of CAT protection.

                                                    II.

       When     the       BIA    affirms         and       adopts    an   Immigration            Judge’s

decision, and includes its own reasons for affirming, this Court

reviews both decisions as the final agency action.                                       Marynenka v.

Holder,       592     F.3d        594,       600       (4th    Cir.       2010).           The     BIA’s

determination that an alien is not eligible for asylum must be

upheld unless that determination is “manifestly contrary to the

law    and     an    abuse       of    discretion.”             8    U.S.C.     §    1252(b)(4)(D)

(2014).        This Court may not disturb the BIA’s determinations on

asylum       eligibility              so     long      as     those       determinations            “are

supported by reasonable, substantial, and probative evidence on

the record considered as a whole.”                              Tassi v. Holder, 660 F.3d

710, 719 (4th Cir. 2011).                           While we review the BIA’s legal

conclusions          de    novo,       our    standard         of    review     of   the     agency’s

factual       findings          is     “narrow         and    deferential.”               Djadjou     v.

Holder,      662     F.3d       265,       273    (4th       Cir.    2011).         We    accept     the

agency’s       factual          findings         unless       “any    reasonable          adjudicator



                                                       7
would be compelled to conclude to the contrary.”                                  8 U.S.C. §

1252(b)(4)(B).

      The   scope      of     our        review       of    a     final       order     denying

withholding     of    removal       is    likewise         narrow.         See    Hui   Pan   v.

Holder, 737 F.3d 921, 926 (4th Cir. 2013).                          Where, as here, the

BIA   concludes      that    the    applicant         has    not     met    the    applicable

burden of proof, “we will affirm the BIA’s determination if it

is supported by substantial evidence on the record considered as

a whole.”     Niang v. Gonzales, 492 F.3d 505, 510 (4th Cir. 2007).

Even if the record “plausibly could support two results: the one

the   [Immigration      Judge]       chose          and    the    one   [the      petitioner]

advances, reversal is only appropriate where the court find[s]

that the evidence not only supports [the opposite] conclusion,

but compels it.”        Id. at 511 (first alteration added) (internal

quotation marks omitted).

                                            III.

                                               A.

      Mr. Ni challenges the BIA’s conclusion that he failed to

meet his burden of proof for asylum and withholding of removal.

He contends that a finding of past persecution does not require

permanent   injury,         and    that    the      injuries       inflicted       on   him   by

Chinese government officials amounts to past persecution.

      Section   1158     of       Title    8   provides          that   the      Secretary    of

Homeland Security and the Attorney General have discretion to

                                               8
grant   asylum     to    any   alien        who      is     a    “refugee.”            8    U.S.C.    §

1158(b)   (2014).         A    “refugee”          is      an     alien    who     is       unable    or

unwilling    to    return      to   his      or      her        home    country      “because        of

persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social

group, or political opinion.”                8 U.S.C. § 1101(a)(42)(A) (2014).

     Applicants         bear    the    burden           of       proving       eligibility          for

asylum.     8 C.F.R. § 1208.13(a) (2013).                              To meet their burden,

applicants may show that they have a well-founded fear of future

persecution,      or    that    they    suffered             past       persecution.           Id.    §

1208.13(b).        Applicants         who    demonstrate               past    persecution          are

presumed to have a well-founded fear of future persecution.                                         Id.

§ 1208.13(b)(1).

     Qualifying         for    withholding             of       removal       also     requires       a

showing     of    persecution,         but        “‘implicates            a     more       demanding

standard of proof.’”            Lizama v. Holder, 629 F.3d 440, 446 n.3

(4th Cir. 2011) (quoting Mirisawo v. Holder, 599 F.3d 391, 396

(4th Cir. 2010)).         Accordingly, an applicant “who fails to meet

the lower standard for showing eligibility for asylum will be

unable to satisfy the higher standard for showing withholding of

removal.”    Mirisawo, 599 F.3d at 396.

     For purposes of gaining asylum, persecution is construed as

involving    “‘the      infliction          or       threat       of     death,      torture,        or

injury to one’s person or freedom, on account of one of the

                                                 9
enumerated grounds in the refugee definition.’”                           Li v. Gonzales,

405   F.3d    171,       177     (4th    Cir.       2005)    (quoting       Kondakova      v.

Ashcroft,     383     F.3d      792,     797    (8th      Cir.    2004)).          The   term

encompasses        “‘actions      less     severe        than    threats     to     life   or

freedom,’” but these actions must be more than mere harassment.

Id. (quoting Dandan v. Ashcroft, 339 F.3d 567, 573 (7th Cir.

2003)).       If    an    applicant       seeking        asylum     or     withholding     of

removal      demonstrates         that     he       or   she     “has      been    severely

physically     abused      or    tortured,          courts   have    not     hesitated     to

characterize such treatment as persecution.”                        Id.

      If an applicant can establish past persecution based on a

protected     factor,      the    applicant         is   presumed     to    have    a    well-

founded fear of future persecution.                       8 C.F.R. § 1208.13(b)(1).

“In contrast, if an alien has been mistreated in the past on the

basis of a protected factor, but the mistreatment did not rise

to the level of persecution, the alien cannot prove a well-

founded fear of future persecution merely by relying on the past

mistreatment.”           Li, 405 F.3d at 176–77.                  Instead, applicants

must prove that they have reason to believe they will suffer

more, and be persecuted, upon return to their native country.

Id. at 177.




                                               10
       Mr.       Ni     contends   that     he    made    the    necessary       showing    to

establish past persecution. 3                Specifically, Mr. Ni contends that

past persecution does not require permanent injury, and that the

injuries he suffered constitute past persecution.                              Pet’r Br. 9–

13.

       We        have    held    that   “[e]ligibility           for    asylum      based   on

severity of persecution alone is reserved for the most atrocious

abuse.”           Gonahasa v. INS, 181 F.3d 538, 544 (4th Cir. 1999)

(emphasis added).                “[P]ersecution is an extreme concept that

does       not    include       every   sort     of     treatment       that   our    society

regards as offensive.”              Gormley v. Ashcroft, 364 F.3d 1172, 1180

(9th       Cir.       2004)     (internal      quotation        marks    and     alterations

omitted)          (citation      omitted).            Brief   detentions       or    repeated


       3
           The Immigration Judge noted that:

     For years the Board of Immigration Appeals held that
     coercive population control persecution to the wife
     was persecution to the entire family and, therefore,
     the husband could obtain asylum on that basis.     See
     Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997).
     However, the Attorney General overruled that decision
     in Matter of J-S-, 24 I&N Dec. 250 (AG. 2008).    This
     decision . . . has been upheld by the Court of
     Appeals. See Yi Ni v. Holder, 613 F.3d 415 (4th Cir.
     2010).   Therefore what happened to respondent’s wife,
     although clearly persecution, is not persecution to
     respondent.
A.R. 35–36.
     Accordingly, even though the mistreatment of his wife is
deplorable, Mr. Ni would have to demonstrate that he himself
suffered past persecution.



                                                 11
interrogations fail to rise to the level of persecution.                                   See

Dandan, 339 F.3d at 573 (upholding the BIA’s determination that

an     applicant       had    not       been     persecuted       despite     a    three-day

detention in which the applicant was interrogated, beaten, and

deprived of food and water). 4

       “Courts . . . have been reluctant to categorize detentions

unaccompanied          by     severe           physical     abuse     or      torture       as

persecution.”        Li, 405 F.3d at 177 (citing cases).

       In     contrast,      as     noted      above,     when    applicants       who     seek

asylum       demonstrate      that       they    have     been    “severely       physically

abused or tortured, courts have not hesitated to characterize

such treatment as persecution.”                      Li, 405 F.3d at 177 (citing

cases).

       Our decisions construe persecution narrowly.                           In Ngarurih

v. Ashcroft, 371 F.3d 182 (4th Cir. 2004), we held that the

petitioner could not establish past persecution severe enough to

warrant       relief     under      8     C.F.R.     §    1208.13(b)(1)(iii)          where,

because of his political activities, the petitioner had been

interrogated under threat of execution, held for a week in a

dark       cement   cell     that    officials       flooded      with     cold    water    at

irregular       intervals,        and     imprisoned        for     several       months     in


       4
       Comparatively, a one-time detainment of ten hours of this
nature likewise fails to rise to the level of persecution. See
Dandan, 339 F.3d at 573.


                                                12
solitary confinement.               Id. at 185.       In Rusu v. INS, 296 F.3d 316

(4th   Cir.   2002),       we   concluded        that    the    past    persecution        the

petitioner     suffered         “was      horrible,”     but     “not    of    the    scale

warranting a grant of asylum” where that persecution involved

interrogation, assault, and torture, including the removal of

his teeth with pliers and a screwdriver.                    Id. at 325.

       Mr. Ni refers to the decision in Sanchez Jimenez v. U.S.

Atty. Gen., 492 F.3d 1223 (11th Cir. 2007).                       In Sanchez Jimenez,

the    petitioner     was       a    member      of   the   Conservative           Party    in

Colombia,     which    the          Revolutionary       Armed    Forces       of    Colombia

(FARC) opposed.        FARC threatened the petitioner’s life and the

lives of his family members repeatedly.                         Id. at 1233.         On one

occasion, FARC attempted to murder the petitioner by shooting at

his moving vehicle.                 Id.    FARC also attempted to kidnap his

daughter.     Id.     The Immigration Judge omitted the details of the

shooting from his legal analysis, and instead focused on the

fact that the petitioner “was not physically harmed.”                               Id.     On

appeal, the Court of Appeals for the Eleventh Circuit found that

the    multiple     threats         to    the    petitioner’s        life    amounted       to

persecution—“put simply, attempted murder is persecution.”                            Id.

       Mr. Ni’s reliance on Sanchez Jimenez is misplaced.                                  Like

the    petitioner     in    Sanchez        Jimenez,      Mr.    Ni     did    not    sustain

permanent physical injury.                  However, unlike the petitioner in

that case, Mr. Ni failed to present evidence that his life was

                                                13
threatened    or    that        attempts         against     his      life     were        made.

Although    Mr.    Ni’s    mistreatment—being               detained    and     beaten        by

Chinese officials—is abhorrent, this occurred once.                             This Court

has recognized that “[a] key difference between persecution and

less-severe    mistreatment           is    that    the      former    is     ‘systematic’

while the latter consists of isolated incidents.”                              Baharon v.

Holder, 588 F.3d 228, 232 (4th Cir. 2009) (quotation marks and

citation omitted).             Mr. Ni was detained for ten hours, beaten

with a baton, and released.                  This isolated incident, although

cruel, fails to rise to the level of persecution required for

relief under the Act.

      “Because the burden of proof for withholding of removal is

higher than for asylum—even though the facts that must be proved

are   the   same—an    applicant           who    is   ineligible       for     asylum       is

necessarily ineligible for withholding of removal.”                             Camara v.

Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004).

      Accordingly,        we    are    compelled        to    find     that     the        BIA’s

determination that Mr. Ni did not suffer past persecution, and

lacked a well-founded fear of future persecution, was supported

by    substantial     evidence.            The     BIA’s      determination           is    not

manifestly contrary to law.

                                            B.

      Mr. Ni next contends that the Immigration Judge failed to

consider     the    forced       termination           of    his      wife’s     pregnancy

                                            14
cumulatively with his own alleged persecution.                     “Violence or

threats   to     one’s    close    relatives    is    an    important   factor    in

deciding whether a petitioner’s mistreatment” rises to the level

of persecution.         Baharon, 588 F.3d at 232 (citing cases).             “This

is especially so where the harm inflicted on family members adds

immediacy and severity to threats directed at the petitioner,

making it more reasonable for the petitioner to fear” suffering

the same mistreatment.          Id. (citing cases).

       In the cases cited, the petitioners’ family members and

friends were threatened with bodily harm or death, while the

petitioners were also being personally threatened.                        Mr. Ni’s

wife’s persecution—her forced abortion—is not persecution that

Mr. Ni will face, or could fear facing, upon his return to

China.    Mr. Ni testified that if his wife were to get pregnant

again, she would be forced to terminate her pregnancy.                          This

well-founded fear of persecution for his wife is inapplicable to

Mr. Ni.     See Yi Ni v. Holder, 613 F.3d 415, 427–28 (4th Cir.

2010) (holding that coercive population control persecution to a

wife is no longer considered persecution to the family).                          As

such, Mr. Ni’s wife’s persecution cannot be imputed to him.                      See

id.    Accordingly, we hold that the Immigration Judge’s failure

to    consider    Mr.    Ni’s     wife’s   abortion    as    cumulative    to    his

mistreatment is not manifestly contrary to law.



                                           15
                                             C.

     Mr.      Ni      next     challenges              the     Immigration          Judge’s

determination that the loss of his job did not rise to the level

of economic persecution.              Specifically, Mr. Ni argues that the

Immigration Judge engaged in speculation as to the likelihood of

Mr. Ni’s ability to obtain employment.

     “While        persecution        is     often       manifested        in      physical

violence, the harm or suffering [amounting to persecution] need

not be physical, but may take other forms,” if the harm is “of

sufficient severity.”          Mirisawo, 599 F.3d at 396 (alteration in

the original) (internal quotation marks omitted) (citing H.R.

Rep. No. 95–1452, at 5 (1978), reprinted in 1978 U.S.C.C.A.N.

4700,   4704).        “[E]conomic          penalties         rise    to   the     level   of

persecution only if such sanctions are sufficiently harsh to

constitute    a     threat     to     life        or   freedom.”          Id.     (internal

quotation marks and citations omitted).

     The Immigration Judge concluded that Mr. Ni’s testimony,

although     credible,       did     not     meet      the    standard       of   economic

persecution, particularly because he conducted a job search for

a relatively short period of time.                       The BIA agreed.            To the

extent the BIA based its decision on dicta that speculated that

Mr. Ni could have obtained a job in the private sector, it is

harmless   error.        See       Ngarurih,       371   at    191    n.8.        There   is

substantial evidence on the record that Mr. Ni conducted a job

                                             16
search for only one month.               Mr. Ni failed to demonstrate that

the record compels the conclusion that he suffered economic harm

so severe that it threatened his life or freedom.

      Without      more,    the    record       falls   short    of   justifying    a

reversal of the BIA.           We must uphold the BIA’s decision so long

as it is “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.”                     Tassi, 660 F.3d

at    719.         Here,    substantial         evidence    supports      the   BIA’s

determination that Mr. Ni failed to show that the loss of his

job was so severe as to constitute a threat to his life or

freedom.       The    record      is    insufficient       to   compel    a   contrary

conclusion.

                                           D.

      Mr. Ni’s final argument is that the BIA improperly denied

his   claim   for     relief    under     the    CAT.      As   stated    above,   our

standard of review is deferential to the BIA.                            We review a

denial of relief under the CAT for substantial evidence.                           See

Lizama, 629 F.3d at 449.               “Under this standard, ‘administrative

findings      of     fact    are       conclusive       unless     any     reasonable

adjudicator would be compelled to conclude to the contrary.’”

Suarez-Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir. 2013)

(quoting 8 U.S.C. § 1252(b)(4)(B)).

      An applicant for withholding of removal under the CAT must

“establish that it is more likely than not that he or she would

                                           17
be tortured if removed to the proposed country of removal.”                  8

C.F.R. § 1208.16(c)(2) (2015).            The burden of proof rests with

the applicant.      Id.

      Mr. Ni contends that his credible evidence and testimony

entitles him to protection under the CAT.              The Immigration Judge

found Mr. Ni to be completely credible, but also found that Mr.

Ni offered “no serious evidence that he would be tortured if he

returned    to    China.”    A.R.   38.     We   are   compelled   to    agree.

Although the facts presented here are troubling, our role must

be   “to   ensure    that   substantial    evidence     supports   the   BIA’s

judgment.”       Gonahasa, 181 F.3d at 542.      The evidence that Mr. Ni

presents in this appeal is insufficient to overcome the findings

and conclusions of the BIA.

                                     IV.

      Pursuant to the foregoing, we are compelled to deny Mr.

Ni’s petition for review, and must affirm the BIA’s order.



                                                             PETITION DENIED




                                     18
