Xue Zhu Lin v. Holder

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-1820
XUE ZHU LIN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Stahl, and Lipez, Circuit Judges.
Vlad Kuzmin and Kuzmin & Associates, P.C. on brief for
petitioner.
Lynda A. Do, Attorney, Office of Immigration Litigation,
United States Department of Justice, Stuart F. Delery, Assistant
Attorney General, and Anh-Thu P. Mai-Windle, Senior Litigation
Counsel, on brief for respondent.
July 15, 2014
Per Curiam. Petitioner Xue Zhu Lin applied for asylum
and withholding of removal under the Immigration and Nationality
Act ("INA"), 8 U.S.C. §§ 1158(a) and 1231(b)(3), and for protection
pursuant to the Convention Against Torture ("CAT"). The
Immigration Judge ("IJ") denied his application, and the Board of
Immigration Appeals ("BIA") affirmed. For the following reasons,
we deny Lin's petition for review of the BIA's decision.
I. BACKGROUND
Lin is a native and citizen of the People's Republic of
China. In September 2009, a friend introduced Lin to Christianity
to help him cope with depression arising from an incident five
years earlier, when Chinese officials fined him and forcibly
sterilized his wife after she gave birth to their second child.
Lin and his eleven-year-old daughter joined an underground
Protestant church and volunteered to distribute religious leaflets.
Law enforcement officials warned Lin on at least two
occasions to stop passing out the pamphlets. Lin changed his
location to avoid further contact with the officers, but continued
to distribute the pamphlets. On December 15, 2009, officers
arrested Lin and his daughter. They interrogated Lin in front of
his daughter and knocked him to the ground and kicked him while she
watched. The officers scolded Lin's daughter for "believing such
cult idea[s]." They detained Lin and his daughter overnight,
releasing them upon payment of a fine. Thereafter, Lin continued
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attending underground religious services. He left the country with
the assistance of a smuggler around January 6, 2010.
On April 1, 2010, Lin entered the United States without
admission or inspection. When immigration officials intercepted
him in Florence, Arizona, he expressed a fear of returning to
China. An asylum officer interviewed him on April 19, 2010, and
found his fear of harm sufficiently credible to refer him to an
Immigration Judge for a full hearing. At the same time, the
Department of Homeland Security issued Lin a Notice to Appear,
charging him with inadmissibility under the INA.
Lin admitted the allegations in the Notice to Appear and
conceded removability. He filed an application for asylum on
August 4, 2010. On September 15, 2010, after two changes of venue,
Lin appeared before the IJ in Massachusetts. He renewed his
application for asylum and further sought withholding of removal
and CAT protection. The IJ found him removable as charged and
denied his applications. The BIA upheld the IJ's denial and this
petition followed.
II. ANALYSIS
"Because the BIA's decision affirmed the IJ's decision
and added its own analysis, we review both." Sunarto Ang v.
Holder, 723 F.3d 6, 10 (1st Cir. 2013). We review the BIA's and
IJ's factual determinations under the "substantial evidence"
standard, "reversing only if a reasonable adjudicator would be
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compelled to conclude to the contrary." Id. (internal quotation
marks omitted). As we have previously observed, "[t]his is not a
petitioner-friendly standard of review; a reversal is appropriate
only when the record evidence points unerringly to a conclusion
different from that reached by the BIA." Xian Tong Dong v. Holder,
696 F.3d 121, 125 (1st Cir. 2012) (internal quotation marks
omitted).
An alien can establish eligibility for asylum either by
proving past persecution, which gives rise to an inference of
future persecution, or by establishing a well-founded fear of
future persecution on account of race, religion, nationality,
membership in a social group, or political opinion. Sunarto Ang,
723 F.3d at 10; Sugiarto v. Holder, 586 F.3d 90, 94 (1st Cir.
2009). In order to prove past persecution, an alien must provide
"evidence of experiences surpassing unpleasantness, harassment, and
even basic suffering." Sunarto Ang, 723 F.3d at 11 (internal
quotation marks omitted). Here, the BIA and IJ concluded that
Lin's ordeal did not rise to the level of persecution under our
case law.
The mistreatment that Lin endured was by no means
trivial, but under even more extreme circumstances this court has
refused to see persecution where the BIA found none. See, e.g.,
Khan v. Mukasey, 549 F.3d 573, 575–77 (1st Cir. 2008) (finding no
persecution where the petitioner was imprisoned for ten days,
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beaten with wooden sticks, and shocked with electrical wires);
Nelson v. I.N.S., 232 F.3d 258, 264 (1st Cir. 2000) (finding no
persecution where the petitioner suffered three periods of solitary
confinement accompanied by physical abuse and subsequent
surveillance, threats, and harassment). On appeal, Lin argues that
the BIA and IJ erred by failing to take into account the context of
the incident; specifically, the "psychological trauma, humiliation
and fear" caused by the fact that his daughter was present. The
government claims that this argument fails because Lin presents it
here for the first time.
Regardless of any exhaustion issues, Lin has not overcome
the extremely deferential standard with which we review BIA and IJ
determinations. He does not point to any evidence in the record of
psychological suffering above and beyond what we can infer from the
circumstances, and even accounting for the presence of his
daughter, there is no reason to infer that Lin's psychological
trauma was any greater than that of the petitioners in Khan or
Nelson. See Attia v. Gonzalez, 477 F.3d 21, 23-24 (1st Cir. 2007)
(finding isolated incidents of violence, including being beaten in
front of his children, insufficient to sustain petitioner's claim
of past persecution); cf. Rodriguez-Ramirez v. Ashcroft, 398 F.3d
120, 124 (1st Cir. 2005) (explaining that the effect of watching
his father be beaten as a young child, although traumatic, did not
amount to persecution). In short, the evidence does not point
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"unerringly to a conclusion different from that reached by the
BIA." Xian Tong Dong, 696 F.3d at 125.
Without a finding of past persecution, we do not apply
the presumption that Lin has a well-founded fear of future
persecution. See Sunarto Ang, 723 F.3d at 10. But Lin can still
establish a well-founded fear of future persecution by proving
"that his fear is both subjectively genuine and objectively
reasonable, meaning that a reasonable person in the applicant's
circumstances would fear persecution." Id. at 10–11. The IJ's
analysis focused on the objective component. It relied on State
Department 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." [Add. at 7] On this basis, the IJ
rejected the conclusion that "merely being Christian in China or
belonging to [an underground] church necessarily gives rise to a
well-founded fear of persecution on an objective basis." [Id.] The
BIA adopted the IJ's reasoning in affirming its conclusion on this
point.
On appeal, Lin disputes the IJ's reading of the State
Department reports. We have explained, however, that in order to
establish a well-founded fear of future persecution, a petitioner
must offer "specific, direct, and credible evidence relative to the
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petitioner's own situation." Xian Tong Dong, 696 F.3d at 126
(alteration omitted) (internal quotation mark omitted). Here, Lin
merely offers a different reading of reports describing generalized
conditions of uneven persecution. Standing alone, this argument
does not point to evidence that would compel a reasonable
adjudicator to reach a conclusion contrary to the IJ's. See
Sunarto Ang, 723 F.3d at 10.
In sum, Lin is unable to establish either past
persecution or a well-founded fear of future persecution. Thus, we
deny his petition for review of the BIA's denial of his
application. Having failed to meet his burden to prevail on a
petition for asylum, Lin cannot meet the more stringent standard
required for a withholding of removal. See Sompotan v. Mukasey,
533 F.3d 63, 68 (1st Cir. 2008) ("[A] withholding case is analyzed
in the same way 'persecution' is analyzed in asylum cases. A
petitioner's burden in a withholding case is, however, more
stringent; petitioners must show a 'clear probability' that they
were or will be persecuted." (citation omitted)).
Lin's petition for protection under the CAT fares no
better. To obtain relief under the CAT, Lin must offer "specific
objective evidence" establishing "that it is more likely that not
that he will be tortured if he is returned" to China. Romilus v.
Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004) (emphasis omitted)
(internal quotation marks omitted). Here, Lin offers a State
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Department report from 1998 describing a practice of detaining
Chinese citizens who left the country without permission in forced
labor camps upon their reentry. This report describing a general
state of affairs sixteen years ago tells us nothing specific about
Lin's situation in 2014. Accordingly, we affirm the BIA's denial
of relief under the CAT.
III. CONCLUSION
For the foregoing reasons, we DENY Lin's petition for
review.
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