Shi Wen Lin v. ATTORNEY GENERAL OF THE UNITED STATES On Petition for Review of an Order of the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4328
SHI WEN LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A98-491-303)
Immigration Judge: Honorable Charles M. Honeyman
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 8, 2009
Before: AMBRO, CHAGARES and ALDISERT , Circuit Judges
(Opinion filed :December 23, 2009 )
OPINION
PER CURIAM
I.
Petitioner Shi Wen Lin seeks review of the Board of Immigration Appeals’

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(“BIA”) final order of removal. In its order, the BIA affirmed the Immigration Judge’s
(“IJ”) decision to deny Lin’s application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). We will deny the petition.
II.
Lin, a native and citizen of China, entered the United States without valid entry
documents in October 2004 and was taken into custody by the Department of Homeland
Security (“DHS”). Following his credible fear interview, Lin filed a formal application
for asylum, withholding of removal, and CAT protection, claiming that he had been
persecuted in China by family planning officials because of his opposition to his wife’s
forced abortion.
In his asylum application, Lin stated that in June 2004, his then-girlfriend became
pregnant. Because they were both under the legal age for marriage at the time, they
decided to marry in a “traditional ceremony,” but without the permission of Chinese
family planning officials. Ten days later, Lin claimed that planning officials came to his
home and told his wife that she had to abort the child, directing Lin to take her to a local
clinic. Lin verbally rejected the directive and alleges that he was beaten as a result.
Later that night, Lin and his wife went into hiding. Six days later, Lin fled China
for the United States alone. In his asylum application, Lin stated that he believes that if
he is returned to China, he will be jailed indefinitely and beaten for his opposition to the
country’s family planning policies.

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After identifying several evidentiary gaps in the record, the IJ denied Lin’s request
for asylum. Specifically, the IJ found that Lin failed to provide the court with any
identification documents, either for himself or establishing his marital status, and that it
was reasonable for him to have done so based on his testimony that his uncle was in
possession of, at least, his birth records. In addition, the IJ found that Lin failed to
provide any evidence that he sustained any medical problems or sought medical treatment
following his alleged beating at the hands of Chinese family planning officials.
Furthermore, even if Lin had sustained an injury as a result of his resistance, the
incident did not satisfy his burden of establishing past persecution. The IJ also rejected
Lin’s argument that he will sustain future persecution on account of his resistance if he is
returned to China as his testimony regarding his fear was both implausible and
inconsistent with country conditions as reflected in the record evidence.
On appeal, the BIA affirmed the IJ’s decision, finding that on the merits of Lin’s
case, there was insufficient evidence to show that the single alleged beating rose to the
level of persecution, or that Lin would be killed or imprisoned for life if he returned to
China.
III.
This Court has jurisdiction to review final orders of removal. See 8 U.S.C.
§ 1252(a). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the
bases for the IJ’s decision, we have authority to review the decisions of both the IJ and

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the BIA.” Chen v. Ashcroft, 376 F. 3d 215, 222 (3d Cir. 2004). The BIA’s factual
determinations are upheld if they are supported by reasonable, substantial, and probative
evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992) (citing 8 U.S.C. § 1105a(a)(4)).
We recently held that there is no automatic refugee status for spouses or unmarried
partners of individuals subjected to coercive population control policies. Lin-Zheng v.
Att’y Gen., 557 F.3d 147, 157 (3d Cir. 2009) (en banc). However, spouses remain
eligible for relief if they can establish their own persecution for resisting China’s coercive
reproductive policy or a well-founded fear of future persecution for that resistance. See
8 U.S.C. § 1101(a)(42). We agree with the BIA that Lin is unable to make such a
showing.
Lin argued in his asylum application that he was persecuted when he resisted the
directive of Chinese family planning officials to take his wife for an abortion. As a result
of his resistance, Lin claims that he was beaten and that soon thereafter, he fled the
country. Although we sympathize with Lin’s predicament, we have previously held that a
single alleged beating that does not result in any injuries that require medical attention
does not constitute persecution. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004).
As mentioned earlier, Lin did not provide any evidence that he sought medical attention
following the alleged incident. Accordingly, we are compelled to conclude that the BIA’s
ruling that Lin failed to show past persecution is supported by substantial evidence.

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Additionally, withholding of removal under the CAT is warranted only if a petitioner1
can show that “it is more likely than not” that he would be tortured if ordered removed.
See 8 C.F.R. § 1208.16(c)(2). We agree that Lin was unable to make such a showing
before the IJ.
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Having failed to show past persecution, Lin is not entitled to a rebuttable
presumption that he has a well-founded fear of future persecution. See 8 C.F.R.
§ 208.13(b)(1); Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir. 2003). In order to
establish a well-founded fear of future persecution, Lin must show that his fear of
persecution upon his return to China is genuine and is objectively reasonable. See
Abdille v. Ashcroft, 242 F.3d 477, 495-6 (3d Cir. 2001). The BIA concluded that Lin’s
reasons for fearing persecution upon his return to China were not plausible and
inconsistent with the background evidence that he provided with his application for
asylum. We agree. The 2003 and 2005 U.S. Department of State Country Reports that
Lin included with his application simply do not support his claim that he will likely be
killed or given a life sentence in prison for his prior resistance to his wife’s abortion.1
Lastly, Lin argues that he should be granted relief because his due process rights
were violated as a result of his prior counsel’s deficient performance. He further argues
that the BIA should have exercised its sua sponte authority and remanded the proceedings
so that Lin could be represented by competent counsel before the IJ.
An ineffective assistance of counsel claim may be considered as a due process
violation if a petitioner follows the procedural requirements set forth in Matter of Lozada.

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Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005) (citing Lozada, 19 I. & N. Dec. 637,
639 (B.I.A. 1988)). This Court does not have jurisdiction to hear a Lozada claim when an
alien has not brought that claim before the BIA. See 8 U.S.C. 1252(d); see also
Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). Because Lin did not
raise an ineffective assistance of counsel claim, in any form, before the BIA, we lack
jurisdiction to hear the claim.
Accordingly, we will deny the petition for review.

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