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


9-29-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1107




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   _____________

                                    No. 07-1107
                                   _____________

                                   YAN YING NI,

                                          Petitioner


                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                               Respondent


         Petition for Review of an Order of the Board of Immigration Appeals
                              Agency No. A77-282-988


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 28, 2008

            Before: McKEE , RENDELL, and TASHIMA,* Circuit Judges

                             (Filed: September 29, 2008)


                             OPINION OF THE COURT




  *
    The Honorable A. Wallace Tashima, Senior Circuit Judge of the United States Court
of Appeals for the Ninth Circuit, sitting by designation.
McKee, Circuit Judge.

       Petitioner Yan Ying Ni seeks review of a final order of the Board of Immigration

Appeals affirming the decision of an Immigration Judge denying her application for

asylum, withholding of removal and protection under the Convention Against Torture.

We have jurisdiction under 8 U.S.C. § 1252. For the following reasons, we will deny the

petition.

       Inasmuch as we write primarily for the parties who are familiar with this case, we

need not state the procedural or factual background.

       Petitioner argues that the IJ’s adverse credibility finding was not supported by

substantial evidence in the record. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)

(“[A]dverse credibility determinations are reviewed for substantial evidence.”) (citation

omitted). However, we need not resolve her challenge to the adverse credibility ruling

because the record supports the alternative holding of the IJ and the Board. Accordingly,

even if we accept all of Petitioner’s testimony, she would still not qualify for asylum,

withholding of removal, or withholding under the CAT.1




   1
     Were it necessary to review the credibility determination, we would have concerns
about the IJ’s reliance on discrepancies between her airport interview, her credible fear
interviews, her supporting affidavit and her hearing testimony. Petitioner testified that on
at least one occasion the interpreter spoke Mandarin Chinese. She explained that,
although she understands Mandarin, she does not speak it well. Some of the
discrepancies the IJ relied upon in rejecting her testimony may well have resulted from
problems with the translation, and we are not at all satisfied that the IJ considered that
possibility before relying upon apparent inconsistencies to reject Petitioner’s testimony.

                                              2
       The Attorney General may grant asylum to aliens who are “refugees” within the

meaning of 8 U.S.C. § 1101(a)(42). See 8 U.S.C. § 1158(b)(1). Generally, a refugee is

someone who demonstrates an inability or unwillingness to return to their prior country of

residence “because of persecution or a well-founded fear of persecution” on account of

one of five protected grounds: race, religion, nationality, membership in a particular

social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). Past persecution requires

proof of “(1) one or more incidents rising to the level of persecution; (2) that is ‘on

account of’ one of the statutorily-protected grounds; and (3) is committed either by the

government or by forces that the government is either unable or unwilling to control.”

Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003). We have explained that

“persecution is an extreme concept that does not include every sort of treatment our

society regards as offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir.1993). It

encompasses only grave harms such as “threats to life, confinement, torture, and

economic restrictions so severe that they constitute a threat to life or freedom.” Id. at

1240. A showing of past persecution gives rise to a rebuttable presumption of a well-

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

       Petitioner’s past persecution claim centers on an incident involving thugs who

broke into the home where she lived with her parents. Accepting her testimony that the

thugs kicked and beat her, there is nothing to suggest that it was on account of any

statutory ground that could establish she is a refugee. Rather, she concedes that the



                                              3
incident was retaliation against her father by his boss because he told the town authorities

that his boss was corrupt. Petitioner herself was never arrested or mistreated for her

religious beliefs, and she has not established a well-founded fear that such persecution

would occur if she returns to China. Petitioner could theoretically have a claim for

asylum arising from the fact that her parents have been detained for twenty-four hours for

promoting Christianity. See Singh v. Gonzales, 406 F.3d 191 (3d Cir. 2005). However,

this record does not support a finding that her parent’s religious beliefs were imputed to

her or that the abuse her parents had to suffer rose to the level required for a finding of

persecution. See Fatin, supra. Moreover, even if we accept her testimony about what

happened to her parents as evidence of a well-founded fear of persecution based upon the

possibility that their religious beliefs would be imputed to her, Petitioner has not

established that it would be impractical to return to another section of her country. See

Leia v. Ashcroft, 393 F.3d 427, 437 (3d Cir. 2005). Accordingly, she has not established a

claim for asylum or withholding of removal.

       The government argues that Petitioner’s CAT claim is waived because it was not

appealed to the BIA. Her brief to the Board does state that she is appealing the denial of

“asylum, restriction of removal and relief under the United Nations Convention Against

Torture.” A.R. 8. The body of the brief, however, addresses only the adverse credibility

finding and the “well-founded fear” standard for asylum. Moreover, the issue is




                                              4
irrelevant as the record falls woefully short of establishing that she has been tortured in

the past or is likely to be tortured if she returns to China.

       Accordingly, this petition for review will be denied.




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