Haichun Liu v. Eric H. Holder, Jr. , 692 F.3d 848 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1130
H AICHUN L IU,
Petitioner,
v.
E RIC H. H OLDER, JR. , Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A097-838-869.
A RGUED A UGUST 7, 2012—D ECIDED A UGUST 31, 2012
Before P OSNER, T INDER, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Haichun Liu, a 50-year-old
native and citizen of China, came to the United States
over a decade ago after protesting the loss of his job at
a state-owned factory. He petitions for review of an order
of the Board of Immigration Appeals upholding the
immigration judge’s denial of his requests for asylum,
withholding of removal, and relief under the United
2 No. 12-1130
Nations Convention Against Torture. Because the
Board’s decision is supported by substantial evidence,
we deny the petition.
Liu arrived in the United States as a nonimmigrant
visitor in 2000 and overstayed. He came to the govern-
ment’s attention while working at a restaurant in Wis-
consin. The government began removal proceedings
against him in 2008, charging him with overstaying and
violating the conditions of his admission. See 8 U.S.C.
§ 1227(a)(1)(B), (C)(i). Liu conceded removability but
sought asylum and withholding of removal based on
political opinion, as well as relief under the Convention
Against Torture.
At a hearing before the immigration judge, Liu — who
is from the large industrial city of Fushun (Liaoning
Province) in China’s northeastern rustbelt — testified that
he was persecuted after protesting layoffs at Huafeng,
a state-owned machinery factory. Liu worked at
Huafeng as a welder from 1980 until 1999, when he and
half the workforce were laid off because of the factory’s
restructuring. Liu met with a company manager three
times to ask for his job and benefits back. At the third
meeting, Liu brought along sixteen co-workers and
pled that they had to “get back our insurances and bene-
fits” to survive. Liu testified that he became “very emo-
tional” during the meeting and used “aggressive” language
and swear words. The manager accused the group of
making trouble. After the meeting devolved into “verbal
quarrels,” Liu testified, security personnel handcuffed
him and brought him to the police station, where
No. 12-1130 3
officers accused him of “interfering with the social or-
der.” The next day jail inmates interrogated Liu. When
he refused to answer, the inmates beat him — kicking
him, pulling his hair, hitting him with a belt, and
knocking his head against a wall — for ten minutes until
he lost consciousness.
Liu was released from the police station five days
later after he admitted to wrongdoing and, he testified,
promised not to “make such a scene again” or to “report
on the company anymore.” He went to the hospital for
an x-ray and medications. (Liu testified that he did
not know the x-ray results, but that his body was
bruised and swollen and he had internal injuries in
his lower back.) Later Liu wrote an anonymous letter to
the civil complaints department of the municipal gov-
ernment complaining, he testified, about “how corrupted
the company leadership was” and how “despite the
hardship of the worker’s life,” they still laid off many
workers. He did not keep a copy of the letter because,
he said, he feared revenge. Presumably because the
letter was anonymous, Liu received no response to it.
He testified, however, that the municipal government
knew the letter was written by “one of the people who
was laid off by this company.” Public officials later
told Liu’s wife that he would face “serious consequences”
if he continued to make trouble. Five months later, Liu
left China for the United States, but he learned from
his wife that officials often came by their home asking
about his whereabouts. At the hearing, Liu testified that
he never belonged to any political organization in China
4 No. 12-1130
or the United States, and he acknowledged that he
“didn’t do anything to protest or criticize the govern-
ment of China.”
The immigration judge found Liu removable and
denied his applications for relief. Liu was ineligible
for asylum, the judge found, because he filed his applica-
tion eight years after arriving in the United States
and failed to show that he fell within an exception to
the one-year filing deadline. Liu was ineligible for with-
holding of removal, the judge determined, because his
alleged persecution did not occur on account of a
political opinion: Liu did not engage “in political agitation
against state corruption,” the judge explained, and “did
not publicly express any opposition.” Although Liu sent
an anonymous letter about corruption, he offered no
evidence that authorities knew he wrote it. Ultimately,
the judge found, Liu was a “private actor” whose “emo-
tional outburst led to his detention.” The judge also
said that Liu’s medical treatment after the beating sug-
gested only “superficial injury.” And although his testi-
mony was credible, the judge noted, Liu did not corrobo-
rate it with letters from family or friends. The judge
found that the police visits to Liu’s wife did not establish
a clear probability of future persecution because his
family remained unharmed. Finally, the judge found Liu
ineligible for Convention Against Torture protection
because he failed to show that he would likely
be tortured upon returning to China. The Board of Im-
migration Appeals agreed with the judge’s rationale
and upheld the decision.
No. 12-1130 5
In his petition, Liu first asserts that the immigra-
tion judge wrongly dismissed his asylum application
as untimely and insists he provided a “legally sound
reason to establish an exceptional circumstance” to
the one-year bar. But Liu does not identify why extra-
ordinary or changed circumstances excuse his late
filing, see 8 U.S.C. § 1158(a)(2)(D), so his undeveloped
contentions are waived. See Raghunathan v. Holder, 604
F.3d 371, 378 (7th Cir. 2010); Wang v. Gonzales, 445 F.3d
993, 999 (7th Cir. 2006). Because Liu did not discuss the
Convention Against Torture claim in his opening brief,
he has waived it as well. See Haxhiu v. Mukasey, 519
F.3d 685, 692 (7th Cir. 2008); Huang v. Gonzales, 403 F.3d
945, 951 (7th Cir. 2005).
Liu focuses on the denial of his application for with-
holding of removal, arguing that the record compels
the conclusion that he was persecuted because of a
political opinion that he held. Specifically, he argues
that his efforts in organizing sixteen co-workers in
“waging the protests” at Huafeng constituted a “matter
of public concern.” He contends that the immigration
judge “ignored” both his anonymous letter in which
he “expose[d] the corruption of the leadership” and the
fact that public officials told his wife to forward warnings
to him. He identifies the correct legal standards: to
qualify for withholding of removal based on political
opinion, Liu had to show a clear probability that his life
or freedom would be threatened on account of political
opinion if he returns to China. See 8 U.S.C. § 1231(b)(3)(A);
8 C.F.R. § 1208.16(b); Prela v. Ashcroft, 394 F.3d 515, 519 (7th
Cir. 2005). We review the agency’s decision denying
6 No. 12-1130
withholding of removal for substantial evidence and
may reverse “only if the evidence compels a different
result.” Abraham v. Holder, 647 F.3d 626, 632 (7th
Cir. 2011); see 8 U.S.C. § 1252(b)(4)(B).
The factory closures, mass layoffs, and labor unrest
in China’s northeast region in the 1990s — like those
described in Liu’s petition — set the stage for large-scale
political protests condemning official corruption. See
Reforming the north-east: Rustbelt revival, The Economist
(June 16, 2012), available at http://www.economist.com/
node/21556988; U.S. Dep’t of State, 2002 Country Report
on Human Rights Practices: China (Mar. 31, 2003), avail-
able at http://www.state.gov/j/drl/rls/hrrpt/2002/18239. htm.
Courts have granted petitions for review of laid-off Chi-
nese workers who publicly condemned government
misconduct during this era. See generally Hu v. Holder,
652 F.3d 1011, 1013-14 (9th Cir. 2011) (granting petition
where petitioner organized 100 laid-off workers to
protest in front of city government building, was accused
of acting against Communist party, and was detained
and beaten); Bu v. Gonzales, 490 F.3d 424, 426-31 (6th Cir.
2007) (granting petition where petitioner organized
1,800 factory workers to stage sit-in strike to protest
factory officials’ corrupt acts and was arrested and beaten).
In Liu’s case, however, the record does not compel
the conclusion that he was mistreated because of his
political activities in arranging his protest at Huafeng,
as required for withholding of removal. See 8 U.S.C.
§ 1231(b)(3)(A). A political opinion is “one that is ex-
pressed through political activities or through some sort
No. 12-1130 7
of speech in the political arena.” Li v. Gonzales, 416 F.3d
681, 685 (7th Cir. 2005). Campaigning against the govern-
ment, writing op-ed pieces, urging voters to oust corrupt
officials, founding an anti-corruption political party,
actively participating in an anti-corruption party’s activi-
ties, or speaking out repeatedly as a “public gadfly” are
classic examples of political speech. See Musabelliu v.
Gonzales, 442 F.3d 991, 995 (7th Cir. 2006); Marquez v. INS,
105 F.3d 374, 381 (7th Cir. 1997). Liu did not engage in
these political activities. As he conceded, he never be-
longed to a political organization or demonstrated against
the Chinese government. Rather, he organized co-workers
at Huafeng to ask for their jobs and benefits back; this
was an economic demand, not a protest of government
corruption. Cf. Hu, 652 F.3d at 1013-14; Bu, 490 F.3d at 426-
31. Furthermore, he was removed from the Huafeng
premises for causing a “verbal quarrel,” not for the
content of the protest. (After all, he previously met with
his manager posing the same grievances without in-
cident.) See Zhang v. Gonzales, 452 F.3d 167, 172 (2d
Cir. 2006) (finding no political persecution where police
removed Chinese petitioner from factory premises
when she organized protest of layoffs).
Liu’s testimony that he composed an unsigned letter
asserting corruption in the layoffs does not transform
his economic protest into a political one. He never
publicly acknowledged writing the anonymous letter or
testified that anyone knew he wrote it. Cf. Hu, 652 F.3d
at 1018. Although at oral argument Liu’s counsel
insisted that Chinese officials knew he wrote the letter
because they could identify his handwriting, Liu never
8 No. 12-1130
testified to that effect. Nor does any other evidence in
the record support this assertion. Liu testified that
officials knew only that some laid-off worker from
Huafeng wrote the letter, not that he wrote it.
The lack of compelling evidence that Liu was
mistreated because of his political opinion is “a more
important consideration in an evaluation of [his] claim
of persecution” than the severity of his injuries
following his beating and detention. See Zheng v. Holder,
666 F.3d 1064, 1066 (7th Cir. 2012). The mistreatment
must be on account of his political activity, and as we
have explained, the judge did not err by finding that
Liu’s activity was economic, not political. For this
reason, we must deny his petition for review.
We are troubled, however, that the immigration judge
and Board concluded that Liu did not experience past
persecution because, in their view, the beating and deten-
tion caused only “superficial injury.” The Board has not
defined persecution, and although in the past we have
determined that evidence of government-sanctioned or
tolerated beatings did not necessarily compel a finding
of past persecution, see, e.g., Mema v. Gonzales, 474 F.3d
412, 416-18 (7th Cir. 2007); Zhu v. Gonzales, 465 F.3d 316,
318-20 (7th Cir. 2006); Dandan v. Ashcroft, 339 F.3d 567, 573-
74 (7th Cir. 2003), we have recently clarified that “the
physical force [at issue in persecution] need not be so
great as to inflict a serious injury.” Zheng, 666 F.3d at
1067, citing Beskovic v. Gonzales, 467 F.3d 223, 224 (2d
Cir. 2006); see also Stanojkova v. Holder, 645 F.3d 943, 948
(7th Cir. 2011) (explaining that although past persecution
No. 12-1130 9
sometimes involves “the use of significant physical force
against a person’s body, or the infliction of comparable
physical harm without direct application of force,” it
also includes “nonphysical harm of equal gravity”).
In this case, Liu testified that he was struck with a belt
until he fainted, his body was bruised and swollen, and
he had internal injuries in his lower back. He did not
have medical records of the x-ray results, but he was not
required to document organ damage to prove that the
beating amounted to persecution. See Bu, 490 F.3d at
427, 430 (beating constituted persecution where peti-
tioner testified that beating by inmates caused bleeding,
vomiting, lost consciousness, and blood clots on peti-
tioner’s body). Nonetheless, even if the beatings were
carried out, approved, or tolerated by the government,
the ground for the beating must be one of the grounds
listed in 8 U.S.C. § 1231(b)(3)(A). Zheng, 666 F.3d at 1067.
The record here does not compel the conclusion that
Liu’s political opinion provided the ground for his
beating and detention.
Liu also argues that he established a clear probability
of future persecution on account of his political opinion
because the police occasionally visit his wife’s house to
ask where he is. But inquiries about his location, without
any threats to his “life or freedom,” do not compel a
conclusion of future persecution on account of political
opinion. See 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b).
Moreover, the mistreatment that Liu experienced
occurred over a decade ago, and despite the police in-
quiries, his family in China has never been harmed.
See Marquez, 105 F.3d at 380.
10 No. 12-1130
Finally, Liu maintains that because the immigration
judge found him credible, the judge erred in requiring
corroboration of past or future persecution with letters
from family and friends. But because the REAL ID
Act applies to Liu’s case, once the judge determined that
he should provide corroborating evidence, he was
required to do so unless he showed that he could
not reasonably obtain that evidence. See 8 U.S.C.
§§ 1158(b)(2)(B)(ii), 1229a(c)(4)(B), 1231(b)(3)(C), 1252(b)(4);
Krishnapillai v. Holder, 563 F.3d 606, 618 (7th Cir. 2009). Liu
contends that he gave a reasonable explanation for not
acquiring letters from his family or friends: he did not
want to implicate them or put them at risk. But if Liu
organized a protest of sixteen people who were already
willing to go public with their grievances, it is not unrea-
sonable to expect that at least one of them would
provide a statement. See Abraham, 647 F.3d at 633. In
any event, because the judge did not err by finding that
hostility to Liu is not politically motivated, it cannot
support the relief of withholding of removal even if the
hostility need not have been corroborated. The agency
did not err in determining that Liu’s claim did not
justify withholding of removal.
For these reasons, the petition for review is D ENIED.
8-31-12