Chen Qin v. Lynch , 833 F.3d 40 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-2158
CHEN QIN,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Thompson,
Circuit Judges.
Gerald Karikari and Karikari & Associates, P.C. on brief for
petitioner.
Elizabeth R. Chapman, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
and Shelley R. Goad, Assistant Director.
August 10, 2016
LYNCH, Circuit Judge. Chen Qin is a native and citizen
of the People's Republic of China ("China") who entered the United
States without permission in October 2011. She petitions for
review of the Board of Immigration Appeals's ("BIA") decision to
dismiss her appeal of the immigration judge's ("IJ") denial of her
application for asylum and withholding of removal. She argues
that the BIA erred in upholding the IJ's finding that she had not
demonstrated an objectively well-founded fear of future
persecution as a Christian in China, due to her prior attendance
at an underground Christian church. We deny the petition.
I.
We describe the record evidence in Chen's application
for asylum. Chen, who was born in 1985 in Pandu Township, Lianjian
County, Fujian Province, China, testified that she began
practicing as a Christian under the influence of her mother and
was baptized as a Protestant in December 2005. She testified that
the Chinese government began to "crack[] down" on Protestants at
some point after her baptism, such that her congregation sometimes
met in secret. She said her mother reported to her that on
September 15, 2011, the police visited her mother's house while
Chen was working elsewhere and told her mother that members of the
congregation had been arrested, that one of these members had
informed the police of Chen's membership, and that the police were
searching for Chen. Her mother urged her to travel from her
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mother's house to her older brother's house, some twenty hours
away by car, and stay there for the time being. She did so.
Chen testified that more than ten days later, the police
visited her brother, who then told her that she had "better leave
quick." In later contradictory testimony, she said that the police
did not actually visit her brother's home or place of work, but
rather that her mother called her brother to warn him that the
police were "just about to visit" his house. After the incident,
Chen was smuggled out of China. A letter from her mother included
in the administrative record asserts that "the Chinese police have
not given up [on] arresting [Chen]," and that her mother no longer
attends church services out of fear for her own safety.
Chen entered the United States through or near Laredo,
Texas, on October 26, 2011, and was apprehended by the United
States Customs and Border Protection in Laredo on November 3, 2011.
She was served with a Notice To Appear dated December 15, 2011.
She conceded removability and submitted an application for asylum,
withholding of removal, and relief under the Convention Against
Torture ("CAT"). The IJ found that she was not a credible witness,
and that she had not corroborated her testimony. He further found
that she had failed to show past persecution and that, even
"[a]ccepting as true [her] testimony that she is a practicing
Christian," she had not demonstrated an objectively well-founded
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fear of future persecution, and denied Chen's application. The IJ
explained:
The Department of State's International
Religious Freedom Report[] for China indicates
that in some regions in China, the government
was unlikely to disturb individuals' religious
practice, and permitted unregistered churches
to exist and operate freely. . . .
Specifically, the Report states that, in some
areas of China, unregistered house churches
operated openly and with the tacit approval of
local authorities. . . . Therefore, even if
the Court were to assume (without deciding)
that the Respondent is a Christian and would
join an unregistered church in China, there
are areas where she can practice her religion
freely without being persecuted. In fact, the
Respondent already relocated to her brother's
house, twenty hours from her mother's house,
indicating that relocation would be reasonable
for her. 8 C.F.R. § 1208.13(b)(2)(ii), (3).
The BIA dismissed Chen's appeal. It declined to pass
judgment on the IJ's credibility determination, and instead held
that even if Chen were credible, she had not demonstrated a well-
founded fear of persecution, rendering her ineligible for asylum
or withholding of removal. It held:
In particular, the Immigration Judge properly
relied on the Department of State report[] on
religious freedom in China which show[s] that,
while persecution of religious groups does
occur, it varies greatly depending on
location, and "in some areas, . . .
unregistered house churches operate[] openly
and with the tacit approval of local
authorities" . . . . See, e.g., Xue Zhu Lin
v. Holder, 570 F. App'x 4, 7 (1st Cir. 2014)
(affirming Board's denial of asylum to Chinese
Christian where analysis focused on the
objective component and State Department
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reports on religious freedom in China
explaining that while persecution of religious
groups does occur, it varies greatly depending
on location, and "[m]ost Christian groups, the
majority of which are [not officially
recognized or sanctioned], no longer operate[]
in strict secrecy[]"); Hong Chen v. Holder,
558 F. App'x 11 (1st Cir. 2014) (affirming
Board's determination in denying application
for asylum, that alien did not have well-
founded fear of religiously-based persecution
if she were removed to China, given State
Department reports indicating that there were
many areas of China where she could openly
practice Christianity). None of the arguments
raised by the respondent on appeal would cause
us to otherwise disturb the Immigration
Judge's decision in this regard.
Chen then filed this timely petition for review of the
BIA's dismissal of her appeal.1
II.
We "review[] the BIA's decision as well as any portions
of the IJ's opinion adopted by the BIA." Peña–Beltre v. Holder,
622 F.3d 57, 61 (1st Cir. 2010). We conduct our review of the
BIA's factual determination of an applicant's eligibility for
asylum under the substantial evidence standard, which instructs us
to affirm the BIA "so long as its decision is supported by
substantial evidence in the record." Topalli v. Gonzales, 417
F.3d 128, 131 (1st Cir. 2005) (quoting Rodriguez-Ramirez v.
1 Chen has not challenged the IJ's finding that she did
not suffer past persecution, or his denial of her application for
protection under the CAT, and thus has waived those issues. See
Mediouni v. INS, 314 F.3d 24, 28 n.5 (1st Cir. 2002).
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Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005)); see also Yu v.
Gonzales, 502 F.3d 17, 19 (1st Cir. 2007). The standard is
deferential: "[U]nless any reasonable adjudicator would be
compelled to conclude to the contrary," we must affirm the BIA's
determination. 8 U.S.C. § 1252(b)(4)(B); Topalli, 417 F.3d at
131.
Chen bears the burden of establishing her refugee
status. 8 C.F.R. § 1208.13(a). She may do so by demonstrating
that she is "unwilling to return to [China] . . . because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1101(a)(42)(A).
Because Chen did not dispute the IJ's determination that
she has not suffered past persecution, we limit our consideration
to whether the evidence compels us to overturn the BIA's holding
that she has failed to demonstrate an objectively reasonable well-
founded fear of future persecution. And because she has not
demonstrated that she has suffered past persecution, she "is not
entitled to the rebuttable presumption that [her] fear of future
persecution is well-founded." Anacassus v. Holder, 602 F.3d 14,
21 (1st Cir. 2010); see also 8 C.F.R. § 208.13(b)(1).
Normally, we analyze both the "subjective and objective
components" of a well-founded fear claim: "[T]he asylum
applicant's fear must be both genuine and objectively reasonable."
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Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir. 1999). We agree
with the BIA, however, that focusing on the objective prong
disposes of Chen's claim. Chen can show an objectively reasonable
well-founded fear if (1) she demonstrates that she likely will be
singled out for persecution and cannot avoid that persecution by
relocating within China, or (2) she demonstrates that there is a
"pattern or practice" of persecution in China against a group to
which she belongs, or which is "similarly situated" to her. 8
C.F.R. § 1208.13(b)(2). Her arguments must present "specific,
direct, and credible evidence relative to [her] own situation."
Xian Tong Dong v. Holder, 696 F.3d 121, 126 (1st Cir. 2012)
(citation omitted).
III.
Chen's petition argues first that the IJ's adverse
credibility finding is clearly erroneous. Since the BIA did not
rely on that ground, this argument is beside the point. Her second
argument is that the finding of no well-founded fear of future
persecution is clearly erroneous because the BIA failed to review
completely the State Department Religious Freedom Report, and the
Report would compel a different outcome.
Chen also argues that the BIA erred because, as her
mother asserts, the Chinese police continue to seek her. At most,
Chen alleges a risk of detention or arrest without more.
"Establishing persecution requires evidence of experiences
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surpassing unpleasantness, harassment, and even basic suffering."
Sunarto Ang v. Holder, 723 F.3d 6, 11 (1st Cir. 2013) (quoting Kho
v. Keisler, 505 F.3d 50, 57 (1st Cir. 2007)). "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)).
The treatment Chen claims she will face in China, even
assuming it is likely to occur, is not sufficient to substantiate
her well-founded fear claim. Though Congress has not clearly
defined persecution, "we view persecution as encompassing not only
death and imprisonment, but [also] 'the well-founded fear of non-
lifethreatening violence and physical abuse.'" Marquez v. INS, 105
F.3d 374, 379 (7th Cir. 1997) (citation omitted) (quoting Balazoski
v. INS, 932 F.2d 638, 642 (7th Cir. 1991)); see also Chávez-Oliva
v. Gonzáles, 190 F. App'x 6, 10 (1st Cir. 2006) (noting that "[t]he
harm suffered by the individual must be more than mere annoyance
or harassment, but may be less than a total deprivation of freedom
or life"). Our precedents have upheld the BIA when it has
determined that circumstances more dire than the ones Chen alleges
she will face in China do not rise to the level of persecution,
because the mistreatment was reflective of an isolated incident or
did not constitute a systematic harm. See, e.g., Thapaliya, 750
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F.3d at 59–60 (single beating by Maoist rebels, accompanied by
possible death threat, does not compel finding of persecution);
Xue Zhu Lin v. Holder, 570 F. App'x 4, 5, 6–7 (1st Cir. 2014) (per
curiam) (arrest, interrogation, and physical abuse of petitioner
in front of daughter not persecution); Khan v. Mukasey, 549 F.3d
573, 574–75, 576–77 (1st Cir. 2008) (beating with sticks and
shocking with electrical wires by police during ten-day
imprisonment not persecution); Topalli, 417 F.3d at 129, 132 (seven
brief arrests over a three-year period, during which petitioner
was beaten in a manner not requiring medical attention, not
persecution).2
And Chen's mother, though she claims not to attend
services out of safety concerns, has remained unharmed as a
Christian in China. The BIA was entitled to affirm the IJ's
finding that this instance of a similarly-situated family member
living in relative peace in Chen's country of origin undermined
Chen's well-founded fear claim. See, e.g., Vasili v. Holder, 732
F.3d 83, 91 (1st Cir. 2013) (holding that "where the record does
2 Chen also points to letters from her family and friends
to corroborate her claim that she will suffer persecution upon
return to China, including one from Lin Yun Geng, a friend in her
congregation who asserts she was beaten and detained for a month.
The BIA was not compelled to decide that Lin Yun Geng was similarly
situated to Chen, that what Ling Yun Geng underwent was
persecution, see Sunarto Ang, 723 F.3d at 11, or that Lin Yun
Geng's letter was enough to demonstrate that Chen faces a
likelihood of persecution.
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not provide[] a satisfactory differentiation between a petitioner
and similarly-situated family members, the lack of harm to
remaining family members is a factor that is entitled to weight in
the decisional calculus." (citations omitted) (internal quotation
marks omitted)); Khan v. Holder, 727 F.3d 1, 9 (1st Cir. 2013).
And as the IJ noted, Chen's own movement to her brother's house
demonstrates that she can relocate safely. See 8 C.F.R.
§§ 1208.13(b)(2)(ii), (3).
Chen argues at greater length that the State Department
Report supports her well-founded fear claim and that governmental
actions against Christians in China constitute a "pattern or
practice" of persecution. She takes issue with the BIA's reliance
on the State Department's assertion that "while persecution of
religious groups does occur, it varies greatly depending on
location, and 'in some areas, . . . unregistered house churches
operate[] openly and with the tacit approval of local
authorities.'" As she notes, the same State Department Report
emphasizes that the Chinese government imposes significant
restrictions on its citizens' freedom of worship.
We have denied petitions for review of the BIA's
decisions based on similar language from State Department reports
on religious freedom and human rights in China. See, e.g., Xue
Zhu Lin, 570 F. App'x at 7; Hong Chen v. Holder, 558 F. App'x 11,
16 (1st Cir. 2014); Xian Tong Dong, 696 F.3d at 126–27; Zheng v.
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Gonzales, 416 F.3d 97, 101 (1st Cir. 2005). The evidence Chen
cites from the State Department report is not enough to establish
a pattern or practice of persecution. Nor is it sufficiently
related to her own situation to be persuasive. See Xian Tong Dong,
696 F.3d at 126–27 (reaffirming the general principle that a
petitioner's reliance on State Department reports to prove a fear
of persecution is not sufficiently specific). The BIA's conclusion
that Chen would not be persecuted for her faith upon return to
China was not unreasonable, and its decision to affirm the IJ's
denial of her asylum application was supported by substantial
evidence.
Because Chen's asylum claim fails, her claim under the
more stringent test for withholding removal "necessarily fail[s]"
as well. Singh v. Mukasey, 543 F.3d 1, 7 (1st Cir. 2008).
IV.
The petition is denied.
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