     Case: 12-60313       Document: 00512176028         Page: 1     Date Filed: 03/15/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 15, 2013
                                     No. 12-60313
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JINYANG ZHUANG,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A087 597 601


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jinyang Zhuang, a native and citizen of China, applied for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”) based on his Christian religion. The immigration judge (“IJ”) issued an
oral decision denying relief. The IJ determined that Zhuang was credible but
that his interrogation at the hands of the police did not establish past
persecution based on his own religious practice. The IJ also determined that
although “it is likely that [Zhuang] would be investigated for his activities,” he

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-60313       Document: 00512176028   Page: 2   Date Filed: 03/15/2013

                                  No. 12-60313

had not established that it was “likely that he would be persecuted or tortured
based on these activities.” The Board of Immigration Appeals (“BIA”) affirmed
the IJ’s decision and dismissed the appeal.
      Zhuang argues that the IJ and BIA erred in denying his application for
asylum, withholding of removal, and relief under the CAT. We review factual
findings for substantial evidence. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444
(5th Cir. 2001). “Under this standard, reversal is improper unless [the court]
decide[s] not only that the evidence supports a contrary conclusion, but [also]
that the evidence compels it.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir.
2005) (quotation marks omitted).
      The BIA found that being slapped during the interrogation did not
constitute persecution. Zhuang does not challenge the BIA’s recitation of his
testimony, but he simply asserts that the BIA reached an incorrect conclusion.
Zhuang has not shown that the evidence, which is undisputed in this case,
compels a contrary determination. See Chen v. Gonzales, 470 F.3d 1131, 1134
(5th Cir. 2006). Because the BIA did not err in finding that there was no past
persecution, it is not necessary to address whether the past persecution was
based on his religion.
      The alternative asylum ground, a well-founded fear of persecution, exists
when “a reasonable person in the same circumstances would fear persecution if
deported.” Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994). Only “extreme
conduct” may establish persecution. Tesfamichael v. Gonzales, 469 F.3d 109, 116
(5th Cir. 2006). Both the BIA and the IJ noted that Zhuang asserted he feared
persecution if he returned to China because the Neighborhood Committee in his
hometown wanted him arrested for distributing religious materials that he had
brought back from the United States. Arguably, the March 19, 2009 order of the
Neighborhood Committee could support a finding of a well-founded fear of future
persecution, but it would not compel such a finding. See Chen, 470 F.3d at 1134.
Zhuang has not shown that the BIA erred by denying asylum.

                                        2
    Case: 12-60313     Document: 00512176028      Page: 3    Date Filed: 03/15/2013

                                  No. 12-60313

      To be eligible for withholding of removal, an applicant must establish that
there is a clear probability that he will be persecuted upon his return to his
home country. Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004). “An applicant
who has failed to establish the less stringent ‘well-founded fear’ standard of
proof required for asylum relief is necessarily also unable to establish an
entitlement to withholding of removal.” Dayo v. Holder, 687 F.3d 653, 658-59
(5th Cir. 2012) (quotation marks omitted). Zhuang has not shown that the BIA
erred by denying withholding of removal.
      In order to obtain CAT relief, “an applicant must show that it is more
likely than not that he would be tortured if returned to his home country.”
Zhang, 432 F.3d at 344-45 (quotation marks omitted).
      Torture is defined as any act by which severe pain or suffering . . .
      is intentionally inflicted on a person . . . for any reason . . . when
      such pain or suffering is inflicted by or at the instigation of or with
      the consent or acquiescence of a public official or other person acting
      in an official capacity.
8 C.F.R. § 208.18(a)(1). As discussed above, the evidence in the record does not
compel a finding that Zhuang, more likely than not, would be tortured if
returned to China. Zhuang has not shown that the BIA erred by denying relief
under the CAT. See Chen, 470 F.3d at 1134.
      As part of his main argument, Zhuang contends the BIA abused its
discretion by denying his motion to remand for additional evidence. A motion
to remand for the consideration of new evidence is considered to be the same in
substance as a motion to reopen removal proceedings and is reviewed under the
standards applicable to motions to reopen. See Wang v. Ashcroft, 260 F.3d 448,
451-52 (5th Cir. 2001). This court reviews the BIA’s denial of a motion to reopen
“under a highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404
F.3d 295, 303 (5th Cir. 2005). The new evidence consisted of an April 28, 2010,
order by the Neighborhood Committee ordering Zhuang to “surrender himself
to justice at once for leniency” and that a failure to report would result in severe

                                         3
    Case: 12-60313    Document: 00512176028     Page: 4   Date Filed: 03/15/2013

                                 No. 12-60313

punishment. This order was identical in substance to the prior order discussed
above. The BIA found that the new evidence was redundant and was not likely
to change the outcome of the case. Zhuang has not shown that the BIA abused
its discretion. See Mai v. Gonzales, 473 F.3d 162, 164 (5th Cir. 2006).
      Zhuang’s petition for review is DENIED.




                                       4
