                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2008

Li v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3689




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"Li v. Atty Gen USA" (2008). 2008 Decisions. Paper 1412.
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                                                                     NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 06-3689


                                     YAN GANG LI,

                                                        Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                        Respondent


                         On Petition for Review of an Order of
                          The Board of Immigration Appeals
                     Immigration Judge: Honorable Miriam K. Mills
                                  (No. A79-424-762)


                       Submitted Under Third Circuit LAR 34.1(a)
                                   February 5, 2008

                     Before: MCKEE and AMBRO, Circuit Judges,
                             and IRENAS,* District Judge

                             (Opinion filed March 20, 2008)



                                        OPINION

AMBRO, Circuit Judge


       *
         Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
sitting by designation.
       Yan Gang Li seeks asylum, withholding of removal, and relief under the

Convention Against Torture because he alleges that, if returned to China, he will face

persecution and torture on account of his parents’ practice of Falun Gong.1 For the

reasons below, we deny his petition for review of an adverse ruling of the Board of

Immigration Appeals (“BIA”).

       Li alleges more specifically that the Chinese authorities arrested his parents for

practicing Falun Gong. As a result of this arrest, he claims that he fears he will meet a

similar fate if returned to China. Li himself has never practiced Falun Gong. The

Chinese authorities have never arrested or harmed him. At one time they did threaten to

arrest him if he began to practice Falun Gong. Li does not allege, however, that he plans

to do so. Moreover, the record contains no indication that the Chinese authorities punish

relatives of Falun Gong followers.

       The Immigration Judge (“IJ”) denied Li’s applications for relief for two reasons.

First, she found Li not to be credible. Second, she determined that even if Li were

credible, he has not shown past persecution or a well-founded fear of future persecution,

nor has he shown that he would likely be tortured if returned to China. The BIA adopted

and affirmed the Immigration Judge’s decision, and Li petitions for review.

       We deny the petition for review because, even assuming Li is credible, substantial


       1
         He also alleges that he will be persecuted because he departed China illegally.
Because he did not raise this issue before the Board of Immigration Appeals, however, we
lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1).

                                              2
evidence supports the IJ’s and the BIA’s conclusions that he is not entitled to relief. First,

substantial evidence supports their conclusion that Li is not eligible for asylum. Although

an applicant for asylum need not show it is more likely than not that he will be

persecuted, he must establish a well-founded fear, which requires a showing of past

persecution or a reasonable possibility of future persecution. Shardar v. Attorney Gen. of

the U.S., 503 F.3d 308, 313 (3d Cir. 2007). Li has shown neither, given that he has no

plans to practice Falun Gong and the record provides no indication that his mere status as

a relative of a practitioner will subject him to persecution. This absence of evidence

precludes not only his claim for asylum, but also his claim for withholding of removal.

See Zubeda v. Ashcroft, 333 F.3d 463, 469–70 (3d Cir. 2003) (“[I]f an alien fails to

establish the well-founded fear of persecution required for a grant of asylum, he or she

will, by definition, have failed to establish the clear probability of persecution required

for withholding of deportation.”).

       Finally, because Li has not shown a likelihood of adverse action against him by or

through the acquiescence of the Chinese government, substantial evidence supports the

IJ’s and the BIA’s conclusions that he is not entitled to relief under the Convention

Against Torture. See id. at 471 (relief under the Convention requires showing that it is

more likely than not that the alien will be tortured if removed).

       Accordingly, we deny the petition for review.




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