                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 09-4752
                                      ___________

                                  XIAO YONG TIAN,
                                                 Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                  Respondent

                      ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A097-166-190)
                    Immigration Judge: Honorable Alberto Riefkohl
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                September 23, 2010
               Before: RENDELL, FISHER and GARTH, Circuit Judges

                          (Opinion filed: September 27, 2010)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      Xiao Yong Tian, a citizen of China, petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision upholding the Immigration Judge’s (“IJ”) order

of removal. For the following reasons, we will deny the petition for review.
                                             I

       Tian entered the United States illegally in 2002. He was placed in removal

proceedings and eventually appeared before the IJ for a merits hearing in November

2008. Before the IJ, Tian conceded removability and sought asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”).

       At the hearing, Tian testified that he served as a battalion commander in the

Chinese military during the Beijing student protests of 1989. He stated that he was

ordered to prepare his soldiers to confront the students with loaded automatic rifles and

bayonettes, but refused to do so because he was sympathetic to the students. He feigned

illness to avoid carrying out his orders and was immediately arrested. Tian was then

subjected to a court martial for disobeying orders and sentenced to 360 days’

imprisonment in a military jail.

       After his release from jail in 1990, Tian received a demotion and was dishonorably

discharged from the army. Because he received a dishonorable discharge, Tian had

difficulty finding employment; he had to drive trucks and work on building renovations to

support his family. His wife, who served as a military officer, was also discharged as a

consequence of his situation. Tian also claimed that his wife was forced to submit to an

abortion after authorities discovered she was pregnant with a second child.

       The IJ denied relief, reasoning that Tian’s punishment for disobeying orders and

subsequent economic problems did not constitute persecution, and that his wife’s forced



                                             2
abortion did not entitle him to relief. The IJ also held that Tian failed to demonstrate a

well-founded fear of future persecution based on his past problems with the military.

Finally, the IJ held that Tian did not qualify for asylum on humanitarian grounds. Tian

appealed, and the BIA affirmed.1 Tian then filed a petition for review.

                                              II

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the BIA issued its

own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400

F.3d 157, 162 (3d Cir. 2005). However, we also look to the decision of the IJ to the

extent that the BIA deferred to or adopted the IJ’s reasoning. See Chavarria v. Gonzalez,

446 F.3d 508, 515 (3d Cir. 2006). We review the Agency’s factual determinations for

substantial evidence, and will uphold such determinations unless any reasonable

adjudicator would be compelled to reach a contrary conclusion. See Fiadjoe v. Att’y

Gen., 411 F.3d 135, 153 (3d Cir. 2005).

       To demonstrate eligibility for asylum, an applicant must demonstrate that he

suffered past persecution or that he has a well-founded fear of future persecution. See

Abdulrahman v. Ashcroft, 330 F.3d 587, 591-92 (3d Cir. 2003). If the applicant

demonstrates past persecution, he is entitled to a rebuttable presumption of a well-

founded fear of persecution. See id. at 592. Tian contends that the IJ and BIA erred in



   1
     On appeal to the BIA, Tian abandoned his claim for relief stemming from his wife’s
forced abortion. He also appears to have abandoned a claim, raised only before the IJ,
that he has a well-founded fear of persecution based on his illegal exit from China.

                                              3
concluding that he did not suffer past persecution. With regard to the economic

discrimination Tian faced, we agree with the Agency that such economic problems do not

rise to the level of persecution. “[T]he deliberate imposition of severe economic

disadvantage which threatens a petitioner’s life or freedom may constitute persecution.”

Li, 400 F.3d at 168. It is insufficient, however, for a petitioner to have faced only

economic discrimination or to have been denied his preferred job. See id. As the BIA

noted, although Tian experienced difficulty finding employment because he received a

dishonorable discharge, he was able to support his family by driving trucks and doing

building renovations. Thus, substantial evidence supports the BIA’s determination that

Tian did not suffer economic persecution.

       Tian also challenges the conclusion that his imprisonment for disobeying orders

did not amount to persecution. We need not reach that question because even if we

assume that Tian suffered persecution, we agree that he has not demonstrated a well-

founded fear of persecution on that basis if he returns to China.

       To demonstrate eligibility for asylum based on a fear of future persecution, an

applicant must demonstrate that he “has a genuine fear, and that a reasonable person in

[his] circumstances would fear persecution if returned to [his] native country.”

Abdulrahman 330 F.3d at 592. To satisfy the objective prong, a petitioner must show that

he would be individually singled out for persecution or demonstrate a pattern or practice

of persecution of similarly-situated individuals. See Lie v. Ashcroft, 396 F.3d 530, 536



                                              4
(3d Cir. 2005). Here, the IJ reasoned – and the BIA agreed – that Tian failed to

demonstrate that Chinese authorities have any interest in him. As the BIA noted, Tian

remained in China for approximately twelve years after his release from jail and, aside

from his difficulties finding employment, endured no further problems stemming from his

refusal to obey orders. Tian has provided no reasons that compel disagreement with the

BIA’s conclusion. Nor does he contend that a pattern or practice of persecution against

military dissenters exists in China.

       Finally, Tian argues that he was entitled to humanitarian asylum. “[I]n limited

circumstances, past persecution alone may warrant a grant of asylum, even in the absence

of a future threat of persecution.” Al-Fara v. Gonzales, 404 F.3d 733, 740 (3d Cir. 2005)

(citing Matter of Chen, 20 I&N Dec. 16 (BIA 1989)). Humanitarian asylum is reserved

for those applicants who have suffered particularly atrocious persecution. See Sheriff v.

Att’y Gen., 587 F.3d 584, 594 (3d Cir. 2009) (noting that persecution entitling an alien to

humanitarian asylum “must have been extreme” and “atrocious forms of persecution”). It

has historically been granted to Holocaust survivors, victims of the Chinese “Cultural

Revolution,” and survivors of the Cambodian genocide, and has recently been extended in

other extremely serious cases. See id. at 594-95 (remanding to BIA for consideration of

humanitarian asylum claim where applicant’s home was burned to the ground, and her

family members were murdered, injured, and raped); see also Brucaj v. Ashcroft, 381

F.3d 602, 609-11 (7th Cir. 2004) (remand where BIA failed to consider claim of applicant



                                             5
who was gang-raped and beaten by soldiers in front of her parents); Vongsakdy v. INS,

171 F.3d 1203, 1206-07 (9th Cir. 1999) (granting humanitarian asylum to applicant who

was placed in a labor camp, permanently injured, denied adequate food, and subjected to

Communist “reeducation” program). The Agency’s discretionary decision to deny asylum

on humanitarian grounds must be upheld unless it is manifestly contrary to law and an

abuse of discretion. 8 U.S.C. § 1252(b)(4)(D). Tian argues that his imprisonment and

economic troubles were sufficiently egregious to qualify him for humanitarian relief.

Assuming arguendo that his past experiences amounted to persecution, they plainly fall

short of the atrocities contemplated in the cases mentioned above. We therefore perceive

no abuse of discretion in the Agency’s decision to deny Tian humanitarian asylum.

         Because Tian was ineligible for asylum, we also agree that he was unable to meet

the higher standard applicable to applications for withholding of removal. See Sioe Tjen

Wong v. Att’y Gen., 539 F.3d 225, 236-37 (3d Cir. 2008). Nor did he demonstrate

eligibility for CAT protection. See Kamara v. Att’y Gen., 420 F.3d 202, 212-13 (3d Cir.

2005).

         Accordingly, we will deny the petition for review.




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