Guang Zhao Zhang v. Holder

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1489
GUANG ZHAO ZHANG,
Petitioner,
v.
ERIC H. HOLDER, JR.,* U.S. Attorney General,
Respondent.
PETITION OF REVIEW OF A FINAL ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Boudin, Siler,** and Howard, Circuit Judges.
Joshua E. Bardavid was on brief for petitioner.
Gregory G. Katsas, Assistant Attorney General, Civil Division,
Emily Anne Radford, Assistant Director, and Molly Debusschere,
Attorney, Office of Immigration Litigation, Civil Division, were on
brief for respondent.
May 29, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr. has been substituted for former Attorney General
Michael B. Mukasey as the respondent.
**
Senior Circuit Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.
SILER, Senior Circuit Judge. Petitioner Guang Zhao Zhang
seeks review of the final order of removal of the Board of
Immigration Appeals (“BIA”) denying his applications for asylum,
withholding of removal, and protection under the Convention Against
Torture (“CAT”). He argues that the BIA erred by concluding that
he failed to demonstrate a well-founded fear of future persecution
for his religious beliefs. For the following reasons, we deny the
petition for review.
I. BACKGROUND
Zhang, a native and citizen of the People’s Republic of
China, arrived in the United States in 2004 without valid entry
documents and was detained at the border. In 2005, after being
charged by the Department of Homeland Security with being subject
to removal, Zhang filed an application for asylum, withholding of
removal, and protection under CAT.
Zhang claims that he was a Protestant Christian and was
persecuted because of his religious beliefs. In China, he attended
mass with his grandmother. Prior to 1999, she organized mass in
public places in their village. After 1999, when the police did
not allow mass in public places, she held mass for ten to twenty
people in her home. In 2001, the police ransacked their home while
they were away at a wedding. Three weeks later, the police
approached their house again, but Zhang’s family left before the
police arrived. Two months later, his grandmother and parents
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moved into an old house. Zhang stayed with his uncle until he left
China in 2004. He attended middle school for one semester before
dropping out. His older brother and sister got jobs and moved to
other places. His parents and siblings still live and work in
China and have not been harmed.
The Immigration Judge (“IJ”) denied Zhang’s petition for
asylum and withholding of removal. The IJ found that the core
element in Zhang’s claim (that he left China because of religious
persecution) was not credible because the purpose of the police
raids was not clearly shown, it seemed implausible that the family
would flee and never return after the first contact with
authorities, he had “extremely limited familiarity” with the
Christian faith, and he had not attended church for two months and
was not baptized. The IJ also found, in the alternative, that
Zhang had not demonstrated past persecution or a well-founded fear
of future persecution in China on account of his religion for his
asylum or withholding of removal claims. There were no arrests,
detentions, or physical injuries to Zhang or any member of his
family. There was no information on the purpose of the police raid
or any reference to an arrest warrant or official proceedings.
There was no evidence of communication between Chinese officials
and Zhang or any member of his family.
The BIA dismissed Zhang’s appeal, adopting the IJ’s
decision in part. Without reaching the IJ’s credibility
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determination, it held that “even assuming that [Zhang] was
credible, he has not met his burden of proving that he suffered
past persecution or that he has a well-founded fear of future
persecution” for his asylum or withholding of removal claims. It
noted that Zhang conceded in his appellate brief that he had not
suffered past persecution. It also noted that Zhang remained
unharmed while living with his uncle and attending middle school;
the police raids of his home, when he was not there, were the only
harm that came to him; he does not suggest that any Chinese
officials were looking for him; and his family remains safely in
China.
II. ANALYSIS
A. Standard of Review
We review the BIA’s final order denying review under the
substantial evidence standard; we consider the record as a whole
and “reverse only if any reasonable adjudicator would be compelled
to conclude to the contrary.” El-Labaki v. Mukasey, 544 F.3d 1, 4-
5 (1st Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B)).
B. Asylum Claim
To be eligible for asylum, an applicant must show that he
is a “refugee,” which includes any person that is unable or
unwilling to return to his home country because of a well-founded
fear of future persecution based on religion. 8 U.S.C. §
1101(a)(42)(A). To be well-founded, fear must be subjectively
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genuine and objectively reasonable . Toloza-Jiminez v. Gonzales,
457 F.3d 155, 161 (1st Cir. 2005). A fear is objectively
reasonable if “a reasonable person in the asylum applicant’s
circumstances would fear persecution.” Aguilar-Solis v. INS, 168
F.3d 565, 572 (1st Cir. 1999).
Zhang did not establish that he had a well-founded fear
of future persecution. He did not show that he would be targeted
personally if returned to China; he had no personal encounter with
the police; there was no evidence that the police were looking for
him; he lived with his uncle for three years and went to school for
one semester without harm; and his parents, older brother, and
older sister still live and work in China and have not been harmed.
See Khem v. Ashcroft, 342 F.3d 51, 54 (1st Cir. 2003). He also did
not show that there was a pattern or practice of persecution of
persons in similar circumstances in China. See id. at 54 n.2.
According to the United States State Department 2005 Report on
China, although the government’s religious tolerance varies greatly
in China, Protestantism is one of the five officially recognized
religions and is rapidly growing. There is also no evidence that
Zhang’s former church opposed registration with the Chinese
government, that similarly situated Christians were prohibited from
worshiping in registered churches, or that Zhang was a member of a
group subject to a pattern or practice of persecution. In sum, the
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record, considered as a whole, does not compel the conclusion that
Zhang has a well-founded fear of future persecution.
C. Withholding of Removal
To be eligible for withholding of removal, an applicant
must establish that it is “more likely than not” that his “life or
freedom would be threatened” in his home country because of a
statutorily protected ground such as religion. 8 U.S.C. §
1231(b)(3); 8 C.F.R. § 1208.16(b)(1). The burden of proof for
withholding of removal is more stringent than that for asylum.
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005).
Because Zhang failed to meet the burden of proof for his asylum
claim, he necessarily failed to meet the higher burden of proof for
withholding of removal.
D. Convention Against Torture Claim
Although Zhang applied for protection under the CAT, he
devoted his appellate brief exclusively to whether he established
past persecution or a well-founded fear of future persecution.
Because he “failed to develop any argument supporting . . . his
claim for protection under CAT,” we deem this claim abandoned or
waived. Nikijuluw v. Gonzales, 427 F.3d 115, 120 n. 3 (1st Cir.
2005). Moreover, because Zhang failed to raise his CAT claim at
the hearing before the IJ or argue error in the denial of his CAT
claim before the BIA, we lack jurisdiction to consider it. See
Bollanos v. Gonzales, 461 F.3d 82, 87 (1st Cir. 2006).
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III. CONCLUSION
For the foregoing reasons, Zhang’s petition for review is
denied.
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