Gao v. Barr ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1694
YONG GAO,
Petitioner,
v.
WILLIAM P. BARR,
ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Kayatta, Selya, and Stahl,
Circuit Judges.
Adedayo O. Idowu for petitioner.
Elizabeth K. Fitzgerald-Sambou, Trial Attorney, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, with whom Joseph H. Hunt, Assistant Attorney General,
Civil Division, and Bernard A. Joseph, Senior Litigation Counsel,
Office of Immigration Litigation, were on brief, for respondent.
February 20, 2020
STAHL, Circuit Judge. Yong Gao, a native and citizen
of the People's Republic of China ("China"), petitions this court
for review of a Board of Immigration Appeals ("BIA") order
affirming an Immigration Judge ("IJ")'s denial of his applications
for asylum, withholding of removal, and protection under Article
III of the United Nations Convention Against Torture ("CAT").
After careful consideration of Gao's claims, the BIA's order, and
the underlying findings of the IJ, we deny Gao's petition for
review.
I. Factual Background and Procedural History
In China, Gao worked for a construction supply house,
where he oversaw deliveries and dispatches. In 2011, a customer
named Auntie Li gave Gao a Bible from a church of so-called
"Shouters," which China considers to be a cult. Subsequently, Gao
attended church meetings at Auntie Li's house. Gao also brought
the Bible to his place of work and read it during his breaks.
In June or July of 2011, Gao's supervisor caught him
reading the Bible at work. The supervisor confiscated the Bible
and called the police, who arrested Gao at the supply house. The
police took Gao to the public security bureau and questioned him
from about 8 or 9 p.m. until midnight. The police then placed Gao
in a separate room overnight. The next day, a different officer
questioned Gao, pushed his head against the top of a desk, and
threatened to beat him. Gao ultimately admitted to the police
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that Auntie Li had given him the Bible. During his approximately
twenty-three hours of detention, Gao was denied food and water.
He was released around 7 p.m. on the second day of detention, after
his family had paid a 5000-yuan fine to the police. Gao
subsequently attempted to return to his place of employment but
was informed that he had been terminated because of his alleged
cult affiliation. He later visited Auntie Li's house and saw that
the door had been barred, leading him to conclude she had also
been arrested.
In March 2012, Gao acquired a visa to travel to the
United States. Obtained through a private agency in China, the
visa falsely stated that Gao would attend the Juilliard School in
New York.1 On March 27, 2012, he was admitted to the United States
as a nonimmigrant and was authorized to remain in the country until
September 26 of that year. On August 21, 2012, Gao applied for
asylum, withholding of removal, and protection under the CAT. On
September 29, 2014, the United States Department of Homeland
Security issued Gao a Notice to Appear and placed him in removal
1
Though the IJ stated that Gao had testified that he
obtained a "business visa . . . . to attend Julliard [sic] School
in New York," it is unclear whether the visa was intended for
study, work, or both. The issued visa was a nonimmigrant B-2 visa
that was good until September 26, 2012. Gao testified before the
IJ that the "business visa" was obtained on the pretense of
"[i]nterview[ing] for the school." He also testified that the
visa application falsely stated that he had both studied and worked
at the Shanghai Conservatory of Music.
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proceedings because he had overstayed his visa. Gao conceded
removability.
On January 18, 2018, an IJ denied Gao's applications and
ordered his removal. Regarding Gao's asylum application, the IJ
determined that he failed to demonstrate past persecution and a
well-founded fear of future persecution in China. Specifically,
the IJ reasoned that the harm Gao suffered did not constitute
persecution because he did not experience more than ordinary
harassment, mistreatment, or suffering. In coming to that
conclusion, the IJ considered the severity, duration, and
frequency of Gao's physical abuse and whether his harm was
systematic. The IJ found that Gao was arrested once in China and
detained for approximately twenty-three hours. The IJ noted Gao's
testimony that he was interrogated twice, beaten once, and denied
food and water. The IJ also observed that Gao did not indicate
he required professional medical treatment or sustained any
lasting injuries as a result of his encounter with police.
The IJ determined that because Gao did not demonstrate
past persecution, he was not entitled to a presumption that he
would face future persecution. See 8 C.F.R. § 1208.13(b)(1). The
IJ did state that Gao could nevertheless prevail on his asylum
claim by proving a well-founded fear of future persecution on
account of a protected ground that was both subjectively and
objectively reasonable. The IJ added that Gao needed to
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demonstrate that he could not safely relocate in China to avoid
future persecution. See 8 C.F.R. § 1208.13(b)(2)-(3). The IJ
then found that Gao had remained in China without police encounters
for nine months following his arrest and that he was then given a
visa to leave China and go to the United States.2
After reviewing the United States Department of State
2016 International Religious Freedom Report for China, which Gao
had submitted into evidence, the IJ found that Gao could
nevertheless "relocate somewhere safely in China." Accordingly,
the IJ determined that Gao had not established a well-founded fear
of future persecution and denied his asylum application.
As to Gao's withholding of removal application, the IJ
determined that Gao did not meet the requisite clear probability
of persecution standard because he failed to meet the less
stringent standard for asylum. The IJ also denied Gao CAT
protection because Gao did not establish that Chinese officials
would more likely than not torture him upon his repatriation.
Gao appealed to the BIA on February 12, 2018, arguing
that the IJ erred in concluding that his experience did not
constitute past persecution and that he did not have a well-founded
fear of future persecution. On June 28, 2019, the BIA affirmed
2
Though the IJ stated that Gao "was given a visa to
leave China," the record does not describe any visa other than the
nonimmigrant B-2 entry visa that Gao obtained from the United
States.
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the IJ's decision, agreeing that Gao's single instance of harm did
not constitute past persecution. The BIA also determined that Gao
"ha[d] not challenged the Immigration Judge's determination that
he could avoid future harm by relocating" in China. The BIA
further determined that Gao could not satisfy the more stringent
standard for withholding of removal and that he did not raise
specific arguments relating to the IJ's denial of CAT protection.
Gao timely petitioned this court for review of the BIA's order.
II. Discussion
Where, as here, "the BIA adopts and affirms the IJ's
ruling but also examines some of the IJ's conclusions, this Court
reviews both the BIA's and IJ's opinions." Loja-Paguay v. Barr,
939 F.3d 11, 15 (1st Cir. 2019) (quoting Perlera-Sola v. Holder,
699 F.3d 572, 576 (1st Cir. 2012)). We review legal conclusions
de novo, "with appropriate deference to the agency's
interpretation of the underlying statute in accordance with
administrative law principles." Ramírez-Pérez v. Barr, 934 F.3d
47, 50 (1st Cir. 2019) (quoting Rivas-Durán v. Barr, 927 F.3d 26,
30 (1st Cir. 2019)). We review administrative factual findings
"under the deferential 'substantial evidence standard,' meaning
that we will not disturb such findings if they are 'supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.'" Id. (quoting Rivas-Durán, 927 F.3d at
30). Under this standard, "administrative findings of fact are
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conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
Gao now contends that the IJ and the BIA erred in
concluding that he did not suffer past persecution and was not
entitled to asylum, withholding of removal, or protection under
the CAT. We address each argument in turn, and conclude that none
has merit.
A. Asylum
Under our immigration laws, the Attorney General may
grant asylum to an applicant if the applicant demonstrates that he
is a "refugee." 8 U.S.C. § 1158(b)(1)(A), (B)(i); see 8 C.F.R.
§ 1240.8. A refugee is defined as a person who is unable or
unwilling to return to the country of his nationality because of
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. 8 U.S.C. § 1101(a)(42)(A).
A showing of past persecution creates a rebuttable presumption
that the applicant's fear of future persecution is well-founded.
8 C.F.R. § 1208.13(b)(1).
"Persecution" is not defined by statute, and "what
constitutes persecution is resolved on a case-by-case basis."
Panoto v. Holder, 770 F.3d 43, 46 (1st Cir. 2014). Generally, it
involves a discriminatory harm caused by government action or
allowed by government acquiescence that "surpasses
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'unpleasantness, harassment, and even basic suffering.'" Id.
(quoting Sombah v. Mukasey, 529 F.3d 49, 51 (1st Cir. 2008)).
"The severity, duration, and frequency of physical abuse are
factors relevant to this determination, as is whether harm is
systematic rather than reflective of a series of isolated
incidents." Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir. 2014)
(quoting Barsoum v. Holder, 617 F.3d 73, 79 (1st Cir. 2010)). We
also consider the severity and frequency of the applicant's alleged
harassment in light of "the nature and extent of an applicant's
injuries." Martínez-Pérez v. Sessions, 897 F.3d 33, 40 (1st Cir.
2018) (quoting Vasili v. Holder, 732 F.3d 83, 89 (1st Cir. 2013)).
1. Past Persecution
Substantial evidence supported the IJ's and BIA's
conclusions that Gao's harm did not constitute past persecution.
Gao's sole detention was neither systematic nor frequent, and "a
single detention, even one accompanied by beatings and
threats . . . does not necessarily rise to the level of
persecution." Jinan Chen v. Lynch, 814 F.3d 40, 45 (1st Cir.
2016); see Anacassus v. Holder, 602 F.3d 14, 19-20 (1st Cir. 2010)
("[I]solated beatings, even when rather severe, do not establish
systematic mistreatment needed to show persecution." (quoting
Wiratama v. Mukasey, 538 F.3d 1, 7 (1st Cir. 2008))). Gao also
fails to establish that the twenty-three-hour duration of his
detention was persecutory. See Jinan Chen, 814 F.3d at 45-46
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(finding no persecution where petitioner was detained for nine
days, beaten, and threatened by Chinese police); Topalli v.
Gonzales, 417 F.3d 128, 132 (1st Cir. 2005) (finding no persecution
where petitioner's multiple detentions coupled with beatings
"never exceeded 24 hours").
Gao also does not demonstrate that his ordeal was
sufficiently severe to constitute persecution under this court's
precedent. The record does not show that Gao sustained any
injuries during his twenty-three-hour detention. See Jinan Chen,
814 F.3d at 45-46 (finding no persecution where petitioner's
injuries following nine-day detention with beatings "did not
exceed bruising"); Thapaliya, 750 F.3d at 58-60 (finding no
persecution where petitioner was beaten "fairly severely" and
"suffered injuries to his head and chin, as well as bruising all
over his body"). Moreover, Gao did not indicate that he sought
or required medical treatment following his release. See
Jinan Chen, 814 F.3d at 46 (citing Topalli, 417 F.3d at 132;
Vasili, 732 F.3d at 89) (recognizing as relevant that petitioner
"did not require hospitalization or conventional, allopathic
medical care" following detention); Cabas v. Holder, 695 F.3d 169,
174 (1st Cir. 2012) (finding no persecution where petitioner's
"single incident of physical harm was an isolated event and the
resulting injuries were not sufficiently severe to require medical
attention").
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Gao additionally contends that the IJ and the BIA failed
to consider the 5000-yuan fine his family paid to obtain his
release from detention and his loss of employment.3 This argument
is unpersuasive. "[E]conomic disadvantage must be severe and
deliberate to rise to the level of persecution." Yong Xiu Lin v.
Holder, 754 F.3d 9, 16 (1st Cir. 2014) (alteration in original)
(quoting Wu v. Holder, 741 F.3d 211, 215 (1st Cir. 2013)). Gao
has not demonstrated that these harms caused him severe financial
difficulty or prevented him from obtaining other employment.4 See
Jinan Chen, 814 F.3d at 43-46 (finding no persecution where
petitioner's father paid "a lot of money" to Chinese police to
secure petitioner's release from detention); Alexandrescu v.
Mukasey, 537 F.3d 22, 25 (1st Cir. 2008) (finding no economic
persecution where petitioner "lost his job, not his ability to
make a living"). Gao's argument that he suffered post-detention
persecution is further undermined by his continued, uneventful
3In his petition for review, Gao asserts for the first
time that he was required to report to Chinese police on a weekly
basis after his detention. We will not consider this assertion
because it was not raised below. See 8 U.S.C. § 1252(b)(4)(A)
("[T]he court of appeals shall decide the petition only on the
administrative record on which the order of removal is
based . . . .").
4In an affidavit accompanying his initial applications
for asylum, withholding of removal, and CAT protection, Gao stated
that he "gave up a steady job in China" around the time he departed
for the United States. The record does not otherwise describe
Gao's employment in China beyond the position that he lost
following his detention.
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residence in China for approximately nine months until his
departure on his own passport to the United States. See
Jinan Chen, 814 F.3d at 43-46 (finding no persecution where
petitioner remained in China without police mistreatment for
approximately three months following detention until departing on
his own passport); Topalli, 417 F.3d at 132 (finding no persecution
where petitioner remained in Albania without police mistreatment
for approximately three years following arrest). In sum, the IJ's
and BIA's conclusions that Gao's harm did not constitute past
persecution, even when looking at all the evidence in aggregate,
were supported by substantial record evidence.
2. Future Persecution
Because he did not establish past persecution, Gao is
not presumed to have a well-founded fear of future persecution.
See 8 C.F.R. § 1208.13(b)(1). In addition, Gao "does not have a
well-founded fear of persecution if [he] could avoid persecution
by relocating to another part of [his] country of nationality . . .
if under all the circumstances it would be reasonable to expect
[him] to do so." Id. § 1208.13(b)(2)(ii); see Chen Qin v. Lynch,
833 F.3d 40, 45 (1st Cir. 2016) (finding no well-founded fear of
future persecution where petitioner could safely relocate to her
brother's home in her native country). The IJ found that Gao
could safely relocate in China upon his return to avoid
persecution. Gao did not dispute that finding in his brief to the
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BIA, and in its order, the BIA determined that Gao had "not
challenged the Immigration Judge's determination that he could
avoid future harm by relocating."
This court "may review a final order of removal only
if . . . the alien has exhausted all administrative remedies
available to the alien as of right." 8 U.S.C. § 1252(d)(1). A
petitioner's "failure to present developed argumentation to the
BIA on a particular theory amounts to a failure to exhaust
administrative remedies as to that theory." Avelar Gonzalez v.
Whitaker, 908 F.3d 820, 828 (1st Cir. 2018) (quoting
Ramirez-Matias v. Holder, 778 F.3d 322, 327 (1st Cir. 2015)).
Before the BIA, Gao failed to present any argumentation regarding
the relocation finding. Accordingly, as Gao failed to exhaust his
administrative remedies regarding that finding, we may not now
review it. Consequently, Gao cannot demonstrate a well-founded
fear of future persecution upon return to China. See 8 C.F.R.
§ 1208.13(b)(2)(ii); Chen Qin, 833 F.3d at 45.
Overall, Gao has not demonstrated past persecution or a
well-founded fear of future persecution, and the denial of his
asylum application was supported by substantial record evidence.
See 8 U.S.C. §§ 1101(a)(42)(A), 1252(b)(4)(B).
B. Withholding of Removal
To be entitled to withholding of removal, Gao must
establish that his "life or freedom would be threatened in [China]
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because of [his] race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C.
§ 1231(b)(3)(A); see 8 C.F.R. § 1208.16(b). To carry this burden
without having demonstrated past persecution, Gao must show that
it is "more likely than not" that he would be persecuted on account
of a protected ground if repatriated. 8 C.F.R. § 1208.16(b)(2);
see Olmos-Colaj v. Sessions, 886 F.3d 168, 176 (1st Cir. 2018)
(describing the standard as "a clear probability of future
persecution" (quoting López-Castro v. Holder, 577 F.3d 49, 54 (1st
Cir. 2009))). This standard is more stringent than that of asylum.
Villalta-Martinez v. Sessions, 882 F.3d 20, 23 (1st Cir. 2018).
Thus, because Gao cannot succeed on his asylum claim, we also
affirm the denial of his claim for withholding of removal.5 See
id. at 26.
C. CAT
In his brief to this court, Gao included a section titled
"Petitioner's application for protection under Article 3 of the UN
Convention Against Torture should also be granted." Thereafter,
5
We note that an applicant for withholding of removal
who has not demonstrated past persecution cannot satisfy the
relevant standard if he "could avoid a future threat to his or her
life or freedom by relocating to another part of the proposed
country of removal and, under all the circumstances, it would be
reasonable to expect the applicant to do so." 8 C.F.R.
§ 1208.16(b)(2). Therefore, Gao cannot succeed in his claim for
withholding of removal because of the IJ's unchallenged relocation
finding, which we cannot now review. See 8 U.S.C. § 1252(d)(1).
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Gao merely cites to Article 3 of the CAT, provides the standard
governing eligibility for CAT protection, see 8 C.F.R.
§ 208.16(c)(2)-(3), and recites the relevant definition of
torture, see id. § 208.18(a)(1). Because Gao has not offered any
developed argumentation relating to his claim, we deem it waived.
See Olmos-Colaj, 886 F.3d at 176 (citing Jiang v. Gonzales, 474
F.3d 25, 32 (1st Cir. 2007) ("[T]heories advanced in skeletal form,
unaccompanied by developed argumentation, are deemed
abandoned.")); Sok v. Mukasey, 526 F.3d 48, 52 (1st Cir. 2008)
(deeming CAT claim waived where petitioner only presented
introductory assertion of entitlement to CAT protection).
III. Conclusion
We deny the petition for review and affirm the decision
of the BIA upholding the IJ's denial of Gao's applications for
asylum, withholding of removal, and protection under the CAT.
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