Lin Guo Li v. Holder

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
M ay 28, 2010
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
LIN GUO LI ,
Petitioner , No. 09-9542
v. Board of Immigration Appeals
ERIC H. HOLDER, JR., United States
Attorney General ,
Respondent .
OR D ER AND JUDGM ENT *
Before H ARTZ , SE YM OU R , and A ND ER SO N , Circuit Judges.
Lin Guo Li attempted to enter the United States at San Francisco,
California, on August 20, 2005, without proper entry documentation. The
Department of Homeland Security issued him a Notice to Appear before an
immigration judge. In response M r. Li conceded removability but sought political
asylum, restriction on removal, and relief under the Convention Against Torture.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
At the hearing before the immigration judge (IJ), M r. Li gave the following
account: In July 1999, when he was 16 years old and living in China, he
impregnated his 17-year-old girlfriend in violation of Chinese law. That
September he and his girlfriend were married in an unofficial ceremony at his
home. The following month, officers came to his home, issued him a summons to
pay a 10,000-Y en fine, and took his wife away for an involuntary abortion. An
altercation broke out between the officers and his family during which he hit one
of the officers on the head with a stick. He fled the scene. After learning from his
father that officers had come to arrest him, he moved to another province, where
he found employment and lived safely for five years. H e then returned to visit his
family, but “public security officers” came looking for him the following evening.
R., Vol. 1 at 144. At that point he decided to pay smugglers to get him to the
United States.
The IJ denied M r. Li’s requests for relief and ordered him deported, ruling
(1) that M r. Li was not credible and (2) that even if he were to be believed, he had
not shown that he had been persecuted or that there was a reasonable chance that
if he returned to China he would be persecuted or tortured. The IJ explained that
China is a big country, with many areas that do not enforce the population-control
laws, and persecution for his attack on an officer would not be persecution under
the immigration laws.
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On appeal to the Board of Immigration Appeals (the BIA), M r. Li argued
(1) that the IJ’s credibility determination was speculative and (2) that persecution
stemm ing from his attack on the family-planning officer is a proper ground under
the Immigration and Nationality Act (the IN A). The BIA dismissed the appeal. It
ruled that it need not review M r. Li’s challenge to the IJ’s credibility
determination, because his evidence, even if believed, would not satisfy his
burden of showing that he had been persecuted in the past or was likely to be
persecuted or tortured if he returned to China. The BIA stated that the INA
provides for asylum based only on persecution that the applicant himself has
suffered or must suffer, not on what may have happened or might happen to a
girlfriend, and that he had not shown that he had suffered any past persecution or
could reasonably fear future persecution because he had lived unharmed for six
years in a province other than his home province.
On appeal M r. Li (1) again challenges the IJ’s determination that he was
not credible; (2) asserts that persecution based on his attack on the officer is
protected under the INA because the attack was resistance to a coercive
population-control policy, see 8 U.S.C. § 1101(a)(42)(B) (“a person . . . who has
been persecuted for . . . resistance to a coercive population control program, shall
be deemed to have been persecuted on account of political opinion”); (3) contends
that his safety in a province other than his home province is irrelevant because
“he should not have been expected to have waited around to have been
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persecuted,” Aplt. Br. at 6; and (4) points out that “a person need not have
actually suffered persecution in the past to qualify for asylum,” id.W e are not persuaded. W e review the BIA’s legal determinations de novo
and its findings of fact under a substantial-evidence standard. See Kabba v.
M ukasey, 530 F.3d 1239, 1244 (10th Cir. 2008). To qualify for asylum under the
INA, an applicant bears the burden of showing that he suffered persecution or has
“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) (defining refugee); see id. 1158(b)(1)(A) (alien must be a refugee
to be eligible for asylum); 8 C.F.R. § 1208.13(a) (applicant bears the burden of
proving refugee status). To qualify for restriction on removal under the INA, an
applicant must show a “clear probability” that in the country to which he is to be
removed his “life or freedom w ould be threatened” on account of “race, religion,
nationality, membership in a particular social group, or political opinion.”
Hayrapetyan v. M ukasey, 534 F.3d 1330, 1336 (10th Cir. 2008) (internal
quotation marks omitted). To qualify for relief under the Convention Against
Torture, an applicant bears the burden of showing that “it is more likely than not
that he or she would be tortured if removed to the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2). A showing of past persecution creates a rebuttable
presumption of a well-founded fear of future persecution. See id.§ 1208.13(b)(1). An applicant who can relocate to an area of his country of
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nationality where he could live safely has not established a well-founded fear of
future persecution. See Tulengkey v. Gonzales, 425 F.3d 1277, 1281–82 (10th
Cir. 2005).
Substantial evidence supports the BIA’s determination that the evidence
presented by M r. Li, even if believed, did not satisfy his burden of showing prior
persecution, a well-founded fear of future persecution, or the likelihood of
torture.
Accordingly, we AFFIRM the BIA’s dismissal of M r. Li’s appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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