IMG-107                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 10-2311
                                      ____________

                                 SHAN EN ZHANG;
                           JUAN CHEN, a/k/a KO-MIN TSAO,
                                                                Petitioners

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                    Respondent
                     __________________________________

                          On a Petition For Review of an Order
                          of the Board of Immigration Appeals
                      (Agency Nos. A089-252-304; A095-710-240)
                         Immigration Judge: Alberto J. Riefkohl
                        __________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 13, 2011
          Before: BARRY, HARDIMAN AND STAPLETON, Circuit Judges

                              (Opinion filed: April 15, 2011)
                                     ____________

                                        OPINION
                                      ____________


PER CURIAM

       Shan En Zhang (“Zhang”) and Juan Chen (“Chen”) petition for review of the

Board of Immigration Appeals’ final order of removal. For the reasons that follow, we

will deny the petition for review.
      Zhang and Chen are husband and wife and natives and citizens of China. Chen

entered the United States without inspection on or about May 29, 2005. On June 1, 2005,

the Department of Homeland Security issued a Notice to Appear, charging that she was

removable under Immigration & Nationality Act (“INA”) § 212(a)(7)(A)(i)(1), 8 U.S.C.

§ 1182(a)(7)(A)(i)(1), as an alien who was inadmissible at the time of entry. On August

27, 2006, Chen applied for asylum, statutory withholding of removal, and protection

under the Convention Against Torture, claiming that she fled China to avoid a forced

marriage. Zhang entered the United States without inspection, apparently in August,

2007. Chen and Zhang met in the United States and were married in December, 2007.

Zhang then filed his own application for asylum, statutory withholding of removal, and

protection under the CAT, claiming a fear of persecution by the Chinese government on

account of his practice of the outlawed Falun Gong. The application was referred to

Immigration Court, and, on March 3, 2008, the government issued a Notice to Appear,

charging that Zhang was removable under INA § 212(a)(6)(A)(i), 8 U.S.C.

§1182(a)(6)(A)(i), as an alien present in the United States without being admitted or

paroled. Zhang and Chen agreed to consolidate their separate cases into a single

proceeding, with Zhang as the principal applicant.

      At a hearing before the Immigration Judge on June 16, 2008, the couple conceded

the charges and renewed their request for asylum. Zhang testified that “I have not been

healthy since I was young…. I often had fevers and had cold.” A.R. 297. Zhang sought

medical treatment and “took medications almost every day.” 

“didn’t quite work out.” 

2003, Zhang’s friend, Hua Sheng Yang,

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recommended that he try practicing Falun Gong. See 

Petitioners’ Brief, at 9.

Zhang started practicing Falun Gong at his friend’s house and also at home. 

result, he “felt better mentally” and his “physical condition also got better.” 

300. But, on December 31, 2006, Zhang was practicing Falun Gong at his friend’s house

when four police officers arrived and arrested them. See 

Zhang testified

that he and his friend were taken to the police station and he was “detained in a small and

dark room” and interrogated. 

He was asked about other Falun Gong

practitioners and their whereabouts, and, when he said “that [he] didn’t know,” the

officers “cursed me dirty language and hit me with fists and kicked.” 

       Zhang was kept at the police station for seven days, was interrogated and beaten

every day, and was not provided with enough to eat or drink. See 

After

Zhang’s father “bribe[d] people” to obtain his release, Zhang signed a statement stating

that he would no longer practice Falun Gong. 

He was told to report to the

police on a weekly basis. See 

release, Zhang “didn’t dare” to practice

Falun Gong. 

to the police once a week, and, each time, the police

threatened him and told him not to practice Falun Gong. See 

Zhang “started

to have colds -- to suffer from colds more than before,” and his inability to practice Falun

Gong was “very painful for me. This was like having lost freedom.” 

China on July 17, 2007. Once in the United States, he practiced Falun

Gong every day by himself in his room. See 

Zhang testified that he fears

that, if he is returned to China, he will be jailed. See 

Since his departure, the



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police have come to his father’s house and threatened his father. See 

The

police want Zhang to return to China and “surrender to them.” 

       On cross-examination, the government asked many questions about Zhang’s

knowledge of Falun Gong, and whether anyone could verify that Zhang practices Falun

Gong in the United States. In addition, the government established on cross-examination

that Zhang’s aunt lives in New York and is the individual who picked him up at the

smuggler’s house after he arrived in New York. See 

The government asked if

Zhang told his aunt that he left China because of his Falun Gong activities, and he replied

that he had not, explaining that “I felt that it wasn’t going to help anything by telling

her.” 

pressed, asking: “[S]he never asked you what you were doing

here in the United States?” 

no. See 

The government

then established that Zhang’s mother told his aunt that he was coming to the United

States. See 

Again, the government pressed, asking: “[Y]our mother didn’t tell

her why you were coming to the United States?” 

: “I heard that my

mother told … my aunt that I was released from detention because of … something, and

… I didn’t have much of anything else to do … in the country, and she was planning to

send me to the United States.” 

denied Zhang’s applications for relief and protection following the hearing,

concluding that he had failed to meet his burden of proof and persuasion. Although the IJ

did not make an adverse credibility finding, he expressed doubt about the truthfulness of

Zhang’s testimony that he had been detained for seven days. A.R. 10. In general, the IJ

noted a lack of details and supporting evidence, and Zhang’s failure to provide an

                                              4
adequate explanation for his inability to provide corroborating evidence. The IJ found

that Zhang’s aunt could have corroborated his claim that he had been detained in China,

because Zhang admitted that his mother gave her that information. With respect to

Zhang’s claim for protection under the CAT, the IJ found that he had presented

insufficient evidence to support it. The IJ ordered that Zhang and Chen be removed to

China. On October 30, 2009, the Board of Immigration Appeals affirmed the IJ in all

respects. Although Zhang argued otherwise, the Board specifically agreed with the IJ

that Zhang’s aunt could have corroborated his testimony regarding his claimed detention

in China, and that Zhang should have contacted her through his mother. The Board also

believed that Zhang should have been able to produce medical records to corroborate the

treatment he received when he was sickly prior to starting his practice of Falun Gong and

the treatment he received after he was released from detention.

       On December 30, 2009, Zhang and Chen filed a timely motion to reopen with the

Board, 8 C.F.R. § 1003.2(c)(1), (2), seeking further consideration of their asylum

application, and submitting additional new evidence, including: a notice to Zhang’s

parents dated 12/28/09 from the Guan Tou Town, HuJiang Village Committee, in which

it is stated that the committee is aware that Zhang has continued to practice Falun Gong

in the United States and wants him to return to China for severe and harsh punishment; an

affidavit from his mother adding her report of the local cadre’s visit to her home on

12/28/09; the May, 2007 Profile of Asylum Claims and Country Conditions for China; an

article relating to assaults on Falun Gong practitioners by Chinese immigrants in

Flushing, New York; and photographs of the couple practicing Falun Gong. The couple

                                             5
claimed that, following their hearing before the IJ, they had become active in Falun Gong

activities in the United States, and had participated in protests against China’s ban on

Falun Gong. A.R. 43-44. They also claimed that, due to Zhang’s own positive health

benefits, he had “encouraged his wife to practice Falun Gong too.” 

Zhang also

asked the Board to reissue its October 30, 2009 decision. The government opposed

reopening on the ground that the documents Zhang and Chen submitted had not been

authenticated.

       In a decision dated April 27, 2010, the Board denied the motion to reopen. The

Board considered the couple’s new and previously unavailable evidence, but concluded

that, even when buttressed by Zhang’s mother’s affidavit, the vague references in the

December 28, 2009 notice from the HuJiang Village Committee to potential “severe” or

“harsh” punishment were not sufficient to establish a likelihood that any penalty imposed

on Zhang or Chen for practicing Falun Gong would rise to the level of persecution. The

Board noted that, at his merits hearing, Zhang claimed a seven-day detention and

beatings on account of his practice of Falun Gong but, even so, that claim alone was

insufficient to satisfy his burden of proof with respect to showing past persecution. The

Board further found that the 2007 Asylum Report was available at the time of the June

16, 2008 merits hearing, but, in any event, the Board determined that the Report did not

support the assertion that Zhang would receive some harsher punishment for his activities

in the United States than what was previously imposed on him for his activities in China.

The Board determined that the article showing attacks in Flushing, New York on Falun

Gong practitioners was not relevant to whether the couple would suffer future persecution

                                             6
in China. Finding that the October 30, 2009 decision had been returned to the Board “by

the postal service as undelivered,” the Board exercised its discretion to reissue its original

decision as of April 27, 2010.

       Zhang and Chen filed a petition for review within 30 days of the Board’s decision

denying their motion to reopen and the Board’s reissued decision affirming the IJ. In

their brief, they contend that the Board’s original decision is not supported by substantial

evidence because they provided sufficient corroborative evidence, see Petitioners’ Brief,

at 19-20. Specifically, they contend that the agency’s finding that Zhang’s aunt should

have been able to corroborate his testimony concerning his detention in China is flawed.

See 

They also contend that the Board abused its discretion in denying their

motion to reopen because their new and material evidence was not vague, see 

24. In addition, the Board improperly required them to show “full eligibility for asylum,

as opposed to a prima facie showing of eligibility for asylum….,” see 

       We will deny the petition for review. We have jurisdiction under 8 U.S.C. §

1252(a)(1), (b)(1). Where the Board adopts and affirms the IJ’s decision as it did here,

and provides some analysis of its own, we review both decisions. Chen v. Ashcroft, 

, 222 (3d Cir. 2004). We review the agency’s determination of whether an alien

has established eligibility for asylum and withholding of removal under the substantial

evidence standard, treating the factual findings as “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” INA § 242(b)(4)(B), 8

U.S.C. § 1252(b)(4)(B); Immigration & Naturalization Serv. v. Elias-Zacarias, 

478, 481 n.1 (1992) (reversal of the agency’s decision requires a finding that the evidence

not only supports reversal but compels it).

       The determination that Zhang did not show past persecution is supported by

substantial evidence. The IJ and the Board originally determined that what allegedly

happened to Zhang – a seven-day detention and beatings every day – did not rise to the

level of persecution, and the record does not compel a contrary conclusion, see Kibinda

v. Att’y Gen. of U.S., 

, 119-20 (3d Cir. 2007) (five-day detention resulting

in minor injury did not amount to persecution); Voci v. Gonzales, 

, 615 (3d

Cir. 2005) (single beating that does not result in serious physical injury does not compel

reversal of the Board’s decision that alien did not suffer past persecution). Zhang offered

no evidence that he was seriously injured. Persecution is defined as “threats to life,

confinement, torture, and economic restrictions so severe that they constitute a threat to

life or freedom.” 

(quoting Fatin v. Immigration &

Naturalization Serv., 

, 1240 (3d Cir. 1993)). It refers only to “severe”

conduct and “does not encompass all treatment our society regards as unfair, unjust or

even unlawful or unconstitutional.” 

whether an alien has met his burden of proof, the trier of fact may

“determine[] that the applicant should provide evidence that corroborates otherwise

credible testimony….” INA § 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii). We have

held that corroboration may be required, even from credible applicants, see Abdulai v.

Ashcroft, 

, 554 (3d Cir. 2001), where it is (1) reasonable to expect the

applicant to produce corroboration, (2) the applicant fails to corroborate, and (3) the

                                              8
applicant fails to adequately explain that failure. Chukwu v. Att’y Gen. of U.S., 

, 191-92 (3d Cir. 2007) (citing Toure v. Att’y Gen. of U.S., 

, 323 (3d Cir.

2006). See also Sandie v. Att’y Gen. of U.S., 

, 252-53 (3d Cir. 2009)

(same). The IJ and the Board complied with this test in Zhang’s case. This is a case in

which the IJ had considerable doubt about Zhang’s credibility. A.R. 10. The agency

concluded that it was reasonable to expect corroboration and we agree. Zhang’s aunt was

in the United States, had contact with him in the United States, and, by his own

admission, was aware that he had been detained in China. Zhang’s assertion that she had

no relevant testimony to offer concerning his claimed detention is contradicted by the

record. We further agree with the agency that Zhang had no reasonable explanation for

his failure to request a letter from his aunt corroborating his claim. In addition, it was

reasonable for the agency to expect corroboration of Zhang’s medical treatment. Zhang

testified that he received his medical care at small, private clinics and thus there were no

medical records to document any of his treatment, A.R. 339-40. The agency determined

that this explanation was insufficient and the record does not compel a contrary

conclusion.

       In the absence of evidence of past persecution, the alien must demonstrate a

subjective fear of persecution through credible testimony that his fear is genuine, Zubeda

v. Ashcroft, 

, 469 (3d Cir. 2003), and the alien must show that a reasonable

person in his circumstances would fear persecution if returned to the country in question,

see 

agency’s determination that Zhang could not establish a well-founded

fear of persecution without corroborating evidence is supported by substantial evidence.

                                              9
Withholding of removal requires Zhang to demonstrate a clear probability that he will

face persecution on account of a protected ground if returned to China. See Immigration

& Naturalization Serv. v. Stevic, 

(1984). Because Zhang could not meet

the asylum standard, he necessarily cannot satisfy the withholding of removal standard.

See also Immigration & Naturalization Serv. v. Cardoza-Fonseca, 

, 430

(1987) (“would be threatened” standard has no subjective component). In addition, the

record does not compel a conclusion that Zhang met his burden of establishing that it is

more likely than not that he will be tortured upon his return to China. See 8 C.F.R. §

1208.16(c)(2).

       “A motion to reopen proceedings shall state the new facts that will be proven at a

hearing to be held if the motion is granted and shall be supported by affidavits or other

evidentiary material.... A motion to reopen proceedings shall not be granted unless it

appears to the Board that evidence sought to be offered is material and was not available

and could not have been discovered or presented at the former hearing.” 8 C.F.R. §

1003.2(c)(1). The Board will deny a motion to reopen if the new evidence would not

likely change the result in the case. Matter of Coelho, 20 I. & N. Dec. 464, 472-73 (BIA

1992). See also Immigration & Naturalization Serv. v. Abudu, 

, 105 (1988)

(Board may deny motion to reopen where alien has not demonstrated prima facie

eligibility for substantive relief sought). The prima facie standard for a motion to reopen

requires the applicant to produce objective evidence showing a reasonable likelihood that

he can establish that he is entitled to relief. 

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       We review the Board’s denial of a motion to reopen for abuse of discretion.

Immigration & Naturalization Serv. v. Doherty, 

, 323 (1992). Under this

deferential standard, we will reverse the Board’s decision only if it is arbitrary, irrational,

or contrary to law. Sevoian v. Ashcroft, 

, 174 (3d Cir. 2002). The Board

did not abuse its discretion in denying the couple’s motion to reopen, nor did it require

from them any more than a prima facie showing of eligibility for relief. Zhang and Chen

did not establish a prima facie case for asylum. Vague references to potential “severe” or

“harsh” future punishment by village officials are indeed insufficient to show that any

penalty imposed on Zhang or his wife for practicing Falun Gong would rise to the level

of persecution. In addition, the problems in Flushing among members of the Chinese

immigrant community – those who practice Falun Gong and those who do not – are not

probative of what Zhang and Chen can expect to find when they return to China. The

Board did not err in determining that the May, 2007 Asylum Report is not new evidence,

because it was available at the time of the June 16, 2008 merits hearing in this case.

Moreover, although 2007 Asylum Report notes that some Falun Gong practitioners have

been “confined in reeducation – through – labor camps and high-security psychiatric

hospitals for the criminally insane,” A.R. 101, the record here does not suggest, let alone

compel, a finding that Zhang and Chen might suffer such a fate.

       For the foregoing reasons, we will deny the petition for review.




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