Hua Li v. Holder , 355 F. App'x 430 ( 2009 )

Not for Publication in West's Federal Reported
United States Court of Appeals
For the First Circuit
No. 09-1243
HUA LI,
Petitioner,
v.
ERIC HOLDER, JR., Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Boudin and Lipez,
Circuit Judges.
Theodore N. Cox on brief for petitioner.
Jennifer R. Khouri, Trial Attorney, Tony West, Assistant
Attorney General, and Barry J. Pettinato, Assistant Director, on
brief for respondent.
December 11, 2009
Per Curiam. This is a petition for review of a removal
order. The petitioner, Hua Li, a Chinese citizen who entered the
United States illegally and was subsequently ordered removed, seeks
review of the denial of his application for asylum and withholding
of removal. For the reasons discussed below--essentially, that Li
failed to meet his burden of proving that he had an objectively
reasonable fear of future persecution if removed to China--we deny
the petition.
Given the uncontested finding that Li did not suffer past
persecution, he cannot benefit from the presumption that he would
suffer future persecution on a protected ground. 8 C.F.R.
§ 208.13(b)(1); see also Jorgji v. Mukasey, 514 F.3d 53, 57 (1st
Cir. 2008). Rather, it was his burden to show that he had an
objectively reasonable fear of future persecution. 8 C.F.R.
§ 1208.13(b)(1); see also Sugiarto v. Holder, 2009 WL 3738792, at
*3 (1st Cir. Nov. 10, 2009). To show that a fear is objectively
reasonable, the applicant must show "a reasonable possibility of
suffering such persecution" upon return to his country. 8 C.F.R.
§ 1208.13(b)(2)(i)(b); see also Castillo-Diaz v. Holder, 562 F.3d
23, 26 (1st Cir. 2009).
Our review of the Board of Immigration Appeals'
determination that Li did not satisfy that burden is deferential.
Jorgji, 514 F.3d at 57. That determination must be upheld "unless
the record 'points unerringly in the opposite direction.'" Lopez
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de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007) (quoting
Laurent v. Ashcroft, 359 F.3d 59, 69 (1st Cir. 2004)). Under that
standard, this petition fails.
As the BIA acknowledged, Li could have established his
eligibility for asylum if he had demonstrated a well-founded fear
of persecution on account of an imputed affiliation with Falun
Gong.1 See Lin v. Holder, 561 F.3d 68, 73 n.2 (1st Cir. 2009).
However, the BIA was "not persuaded by the unsupported assertion
that the later denouncement [of Li] by the village cadre2 'could
very well' have led the police to believe that [Li] was more
involved in Falun Gong than they had previously thought."
The BIA's skepticism in that regard is amply supported by
the record. The letter threatening "serious consequences" came not
from the police, the feared persecutors, but from the village cadre
whom, Li admits, was motivated not by Li's alleged Falun Gong
activities but by his refusal to marry the cadre's sister. And
those unspecified consequences were threatened to flow from Li's
1
According to a 2006 State Department report submitted as an
exhibit in this case, "Falun Gong blends aspects of Taoism,
Buddhism, and the meditation techniques and physical exercises of
qigong (a traditional Chinese exercise discipline) with the
teachings of Falun Gong leader Li Hongzhi."
2
Li defined the "village cadre" as the "head of the village."
From the context here and in previous cases, see, e.g., Zheng v.
Gonzales, 416 F.3d 97, 99 (1st Cir. 2005), it appears that the
cadres (Li used the term "cadre" as a singular rather than a
collective noun) are local officials who enforce the law in
conjunction with the local police.
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failure to report to the police station on the appointed date, not
from his distribution of Falun Gong leaflets. The police were
already aware of Li's August 2005 leafleting activities and had
addressed them only by requiring him to file a written statement and
report to the police station for reeducation once a week for 10 or
11 weeks. Although, under Chinese law, Falun Gong leafleters may
be imprisoned for up to seven years, there is no evidence that a
person in Li's circumstances, who was not a Falun Gong adherent and
merely leafleted for money on two occasions, would be treated that
harshly.
Because the record does not compel the conclusion that Li
would be persecuted if he returned to China, we uphold the denial
of his application for asylum and withholding of removal. And,
because he did not seek relief under the Convention Against Torture
before the immigration judge or the BIA, we have no jurisdiction to
review the denial of such relief. Accordingly, the petition for
review is denied. See 1st Cir. R. 27.0(c).
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