Ming Qiang Gao v. Attorney General

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2282
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MING QIANG GAO,
Petitioner
v.
ATTORNEY GENERAL,
Respondent
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On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-377-997)
Immigration Judge: Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 19, 2009
Before: SMITH, FISHER AND GARTH, Circuit Judges
(Opinion filed: October 20, 2009)
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OPINION
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PER CURIAM
Ming Qiang Gao petitions for review of an order of the Board of Immigration
Appeals (BIA). For the reasons below, we will deny the petition for review.

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Gao, a native of China, entered the United States as a visitor in March 2007. He
was subsequently charged as removable for overstaying his admission period. He filed an
application for asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). He argued that he suffered past persecution in China when his wife was
forcibly aborted two times and faces future persecution on account of his religion. The IJ
found Gao incredible and denied relief. The BIA upheld the adverse credibility
determination and dismissed the appeal. It also concluded that even if Gao were credible,
husbands of women who had undergone forced abortions were not automatically eligible
for relief and that Gao had not shown a well-founded fear of sterilization or other
persecution. It further held that Gao had not established a well-founded fear of
persecution on account of his religion. Gao filed a timely petition for review.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We may reverse the BIA’s
decision only if the record permits but one reasonable conclusion and that was not the one
reached by the Board. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). To establish
eligibility for asylum, Gao must demonstrate either past persecution or a well-founded
fear of future persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion. See Vente v. Gonzales, 415 F.3d 296, 300 (3d
Cir. 2005). For withholding of removal, he must demonstrate that it is more likely than
not that his life would be threatened in China on account of these protected grounds.
Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003); 8 U.S.C. § 1231(b)(3)(A). To

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be eligible for withholding of removal under the Convention Against Torture, Gao must
demonstrate that it is more likely than not that he would be tortured if removed to China.
8 C.F.R. § 208.16(c)(2).
We agree with the BIA that Gao is not entitled to relief even if he were credible.
The spouses of those who have undergone forced abortions are not automatically eligible
for asylum. Lin-Zheng v. Attorney General, 557 F.3d 147 (3d Cir. 2009) (en banc).
Moreover, Gao’s detention by police does not rise to the level of persecution. Gomez-
Zulaga v. Attorney General, 527 F.3d 330, 342 (3d Cir. 2008) (“[B]rief detentions, where
little or no physical harm occurs, generally do not rise to the level of persecution.”).
While Gao argues that the IJ should have given Gao an opportunity to elaborate on the
details of his detention, he has not explained why he did not present such evidence at his
hearing. Nor did he proffer any additional details of his detention before the BIA.
Gao also argues that the BIA failed to consider evidence of the economic
persecution he suffered. While he mentioned being fined in his asylum application and at
his hearing, Gao did not argue before the BIA that he suffered economic persecution.
Thus, this argument is unexhausted, and we lack jurisdiction to consider it. See Hua Wu
v. Attorney General, 571 F.3d 314, 317 (3d Cir. 2009). Moreover, while “deliberate
imposition of severe economic disadvantage which threatens a petitioner’s life or freedom
may constitute persecution,” Zhen Hua Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir.
2005), there is no evidence that the financial penalties imposed upon Gao meet this

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standard.
Gao also argues that he will suffer persecution on account of his religion if
returned to China. The BIA noted that while Gao asserted that eleven members of his
religious organization were arrested, he did not claim that they were persecuted or that the
Chinese government was aware of his membership in the organization. In his brief, Gao
does not challenge any of these findings.
For the above reasons, we will deny the petition for review.

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