IMG-203                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 09-3338
                                      ___________

                                      WEN CHEN,
                                                        Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                    Respondent

                      ____________________________________

                        On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A099-936-077)
                      Immigration Judge: Honorable Susan G. Roy
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 12, 2010
           Before: BARRY, STAPLETON AND NYGAARD, Circuit Judges

                              (Opinion filed: May 17, 2010)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

       Petitioner Wen Chen seeks review of the Board of Immigration Appeals’ (“BIA”)

final order of removal. For the following reasons, we will deny his petition.
       Chen, a native and citizen of China, entered the United States on or about August

28, 2006. He was served with a notice to appear and conceded removability. As relief

from removal, Chen filed applications for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”). In support of his claims for relief, Chen

alleged that he had been persecuted after his wife was forcibly sterilized in 1994 and

feared future harm following his departure from China in 2006.

       Before the Immigration Judge (“IJ”), Chen testified that on November 13, 1994,

his wife was forcibly sterilized following the birth of their second child. Chen stated that

five officials from the family planning offices came to his mother-in-law’s home, where

he and his wife were hiding. Chen testified that he begged the cadres not to sterilize his

wife, and when he tried to stop them, three cadres knocked him to the ground, and began

to kick and punch him. For about three minutes, they beat Chen with their fists and feet

and he sustained bruises that lasted for about ten days after the attack. The cadres took

his wife, and once Chen was able to locate her, he found that she had already been

sterilized. Chen left China on February 26, 2006, even though he did not suffer any harm

by the Chinese authorities since the forced sterilization of his wife in 1994.

       The IJ denied Chen all relief. With respect to his asylum claim, the IJ found that

Chen was not a per se refugee as the spouse of one who had been forcibly sterilized.

According to the IJ, Chen did not establish that the harm he suffered amounted to

persecution, or that he had a well-founded fear of future persecution. Because Chen



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failed to establish eligibility for asylum, the IJ concluded that he failed to meet the higher

burden of establishing withholding of removal. The IJ also found that he failed to show

that he would be tortured and denied CAT protection. Chen sought review, and the BIA

dismissed the appeal. Citing Lin-Zheng v. Att’y Gen., 557 F.3d 147 (3d Cir. 2009) (en

banc), the BIA found that Chen was unable to establish eligibility for asylum or

withholding of removal. The BIA also denied CAT protection. Chen now petitions this

Court for review of the BIA removal order.

       We have jurisdiction to review the BIA’s final order of removal pursuant to 8

U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001). We

review these findings, including any credibility determinations, under a substantial

evidence standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir. 2005). Under the

substantial evidence standard, we must uphold the BIA’s decision unless the evidence not

only supports a contrary conclusion, but compels it. See Abdille v. Ashcroft, 242 F.3d

477, 483-84 (3d Cir. 2001). An applicant bears the burden of proving eligibility for

asylum. Shardar v. Att’y Gen., 503 F.3d 308, 312 (3d Cir. 2007).

       Chen argues that the BIA failed to provide adequate analysis for this Court to

review. We disagree. The BIA clearly found that Chen could not establish eligibility for

asylum or withholding of removal due to the treatment of his spouse in connection with

violation of the family planning policy law in China. The BIA’s reliance on Lin-Zheng

was proper; as a matter of law, no automatic refugee status exists for spouses of



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individuals subjected to coercive population control policies. See Lin-Zheng, 557 F.3d at

148-49.

       Chen also alleges that the BIA erred in concluding that he did not suffer past

persecution on account of “other resistance” to the family planning policy. Even

assuming that Chen testified credibly, he has not met his burden of proof in showing

persecution. As the BIA found, the single incident of physical abuse, which lasted three

minutes and did not require Chen to seek further medical attention, did not rise to the

level of “extreme behavior” that persecution requires. See Voci v. Gonzales, 409 F.3d

607, 615 (3d Cir. 2005) (“isolated incidents that do not result in serious injury do not rise

to the level of persecution.”); Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004) (an

alleged beating that does not result in any injuries that require medical attention does not

constitute persecution). Moreover, Chen’s claims are undercut by the fact that he

remained in China for twelve years after the 1994 sterilization without any additional

incidents with the Chinese government. Accordingly, the BIA reasonably concluded that

Chen failed to establish that he suffered past persecution or a well-founded fear of future

persecution, and the record is devoid of any evidence that would compel a reasonable

adjudicator to conclude otherwise.

       As Chen fails to meet the burden for asylum, he fails to meet the higher burden for

withholding of removal. See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). In

addition, we agree with the BIA that he has not shown that he would more likely than not



                                              4
face torture, and therefore, is ineligible for CAT protection. Id. at 182-83.

       For these reasons, the petition for review will be denied.




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