Dai Xiao v. Holder , 570 F. App'x 1 ( 2014 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-1357
DAI XIAO,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Souter,* Associate Justice,
and Thompson, Circuit Judge.
Jim Li on brief for petitioner.
Elizabeth D. Kurlan, Trial Attorney, Office of Immigration
Litigation, Civil Division, Department of Justice, Stuart F.
Delery, Assistant Attorney General, Civil Division, and Holly M.
Smith, Senior Litigation Counsel, Office of Immigration Litigation,
on brief for respondent.
July 11, 2014
*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
SOUTER, Associate Justice. Petitioner Dai Xiao, a native
and citizen of China, seeks review of an order of the Board of
Immigration Appeals (BIA) affirming the order of an immigration
judge (IJ) denying his applications for relief from removal. We
deny the petition for review.
I.
When he was still living in China in 2007, Xiao converted
to Christianity under the guidance of his aunt. After his
conversion, he attended underground religious services at the
houses of fellow church members rather than those authorized by the
Chinese government. He believed that "the government approve[d]
church . . . just taught you how to love the country, how to love
the party, . . . [but not] to love Jesus Christ."
In April 2008, police officers warned Xiao's aunt against
continuing to hold church gatherings, but she persisted, and in
July police arrived at her house during a church service and
arrested everyone there, including Xiao. For the next three days,
Xiao was held and interrogated by police about his religious
activities and urged to denounce his aunt. When he refused, he was
beaten by the police, on one occasion to the point of nearly losing
consciousness. On his final day in captivity, he was forced to
sign a pledge to discontinue his participation in unauthorized
church activities. He did not seek medical treatment for any
injuries suffered during the detention.
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During the ensuing ten months, police officers showed up
sporadically at Xiao's house to check on him, but they did not
otherwise interfere in any way with his education, employment, or
daily life. He continued to attend underground religious services
at church members' houses, and his practice apparently went
undetected by the authorities.
In 2009, with permission from the Chinese government,
Xiao was lawfully admitted into the United States on a non-
immigrant student visa to study at Kansas State University. After
his arrival, he continued his Christian religious practice,
regularly frequenting church services and Bible study group
sessions. He did not, however, attend his classes at Kansas State,
a condition of his entry into the United States, see 8 C.F.R. §
214.2(f), and the year after his arrival, Xiao was charged as
removable for failing to comply with the terms of his student visa.
See 8 U.S.C. § 1227(a)(1)(C)(i). He conceded removability, but
applied for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT), arguing that he feared religious
persecution and torture if returned to China.
The IJ denied the application for asylum on the ground
that Xiao's "one time arrest and detention of three days" was not
the sort of severe mistreatment characteristic of persecution. The
judge also held that Xiao's fear of being persecuted if returned to
China was not objectively reasonable, given the evidence that he
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was able to live and practice his religion largely undisturbed
during the ten months he remained in the country after his arrest
and brief detention. The IJ thought it also counseled against the
reasonableness of his fear that Xiao’s aunt continued to live and
observe Christian practice in China without suffering persecution.
Although she was again arrested and detained for organizing
unauthorized church activities in 2011, the judge determined that
two such episodes over a four-year period were insufficient to
constitute persecution. From the finding of Xiao's inability to
meet his burden for asylum it followed that he failed to satisfy
the more stringent standards for entitlement to withholding of
removal and CAT relief.
Xiao appealed to the BIA, which affirmed and adopted the
immigration judge's reasoning as to asylum and withholding of
removal. The Board noted that Xiao did not specifically contest
the denial of CAT relief, and so considered the issue waived. This
petition for review limited to the BIA's denial of the asylum claim
followed.1
II.
We review the BIA’s legal conclusions de novo and factual
findings for substantial evidence, taking them as true unless the
1
The petition does not advance any argument related to the
applications for withholding of removal and CAT relief. Any
challenge to the BIA’s denial of those applications is therefore
waived. See Vasili v. Holder, 732 F.3d 83, 92 (1st Cir. 2013).
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record compels a contrary conclusion. See Guaman-Loja v. Holder,
707 F.3d 119, 122 (1st Cir. 2013). To show eligibility for asylum,
Xiao must show he is unable to return to China because he either
suffered past persecution or faces a well-founded fear of future
persecution on account of his religion. See Singh v. Holder, 750
F. 3d 84, 86 (1st Cir. 2014).
The petition claims the record compels the conclusion
that Xiao was subjected to religious persecution by the Chinese
government. Given the existing precedent explaining persecution
under 8 U.S.C. § 1101(a)(42), however, there is no question that a
single episode of ill treatment involving a three-day detention and
physical abuse not requiring medical attention is not severe enough
for a finding of past persecution. See Khan v. Mukasey, 549 F.3d
573, 576-77 (1st Cir. 2008) (no persecution where petitioner was
once beaten with wooden sticks and detained for ten days without
seeking medical treatment upon release). Xiao acknowledges as much
in his brief, but argues that the persecution in his case came in
the form of the Chinese government’s "systematic” suppression of
his ability to practice Christianity. He specifically points to
being forced to sign the pledge to abstain from attending
underground church services, as well as to the occasional visits of
police officers to his house, presumably intended to monitor and
induce compliance with the pledge.
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But it is clear under existing law dealing with
restrictive circumstances short of physical abuse that the
treatment described here fell short of persecution. After his
arrest and brief detention, Xiao was able to live, work and pursue
his studies freely in China for ten months, at which point the
Chinese government granted him permission to study in the United
States. During that same period, there were no repercussions
despite his continued attendance at underground church services, in
defiance of his pledge to the contrary. Granted, the police visits
to his house would reasonably provoke fear of further arrest and
detention, and a “dictionary reading layperson” might think that
living under the specter of arrest for a prohibited religious
practice should constitute persecution. Id. at 577. But this
Court’s cases make clear that “unpleasantness, harassment, and even
basic suffering” of this sort is not sufficient to sustain an
asylum claim. Id. at 576 (quoting Nelson v. INS, 232 F.3d 258, 263
(1st Cir. 2000); see also Attia v. Gonzales, 477 F.3d 21, 23-24
(1st Cir. 2007) ("a general climate of discrimination" is
insufficient to compel finding of persecution); Bocova v. Gonzales,
412 F.3d 257, 263 (1st Cir. 2005) (no persecution compelled where
petitioner was arrested, threatened with death, and so severely
beaten that he lost consciousness and was hospitalized).
The BIA’s determination that Xiao lacks an objectively
reasonable fear of being persecuted if returned to China was also
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sound. See Singh, 750 F. 3d at 86 (well-founded fear of future
persecution is shown where an asylum applicant makes “an offer of
specific proof that his fear is both subjectively genuine and
objectively reasonable”). Xiao presented no evidence or argument
indicating that he will be subject to greater restrictions on the
practice of his religion than previously experienced, which do not
amount to persecution, as we have just said. Nor does Xiao’s
aunt’s second arrest and detention for organizing underground
church services, which occurred three years after her initial
arrest, compel a different result. Cf. Topalli v. Gonzales, 417
F.3d 128, 132 (1st Cir. 2005) (no finding of persecution compelled
where petitioner was arrested, detained, and beaten seven times
over a two-year period, where none of the beatings required medical
treatment).
III.
The petition for review is DENIED.
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