Minhong Liu v. Eric Holder, Jr.

Case: 11-60620 Document: 00511988232 Page: 1 Date Filed: 09/14/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 14, 2012
No. 11-60620
Summary Calendar Lyle W. Cayce
Clerk
MINHONG LIU,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 293 434
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Minhong Liu, a native and citizen of China, petitions for review of the
decision of the Board of Immigration Appeals (BIA) dismissing his appeal from
an immigration judge’s (IJ’s) order of removal. Liu sought asylum, withholding
of removal, and relief under the Convention Against Torture (CAT).
Liu argues that he was entitled to asylum based on a well-founded fear of
persecution on account of political opinion. Liu does not challenge the BIA’s
determination that he failed to demonstrate that he was entitled to asylum
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-60620
based on past persecution or that he was entitled to either withholding of
removal or relief under the CAT. Thus, Liu waives, by his failure to brief, any
challenge to those determinations. See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th
Cir. 2004).
We review only the BIA’s decision, “unless the IJ’s decision has some
impact on the BIA’s decision.” Wang v. Holder, 569 F.3d 531, 536 (5th Cir.
2009). Although the BIA agreed with the IJ’s determinations that Liu had failed
to establish past persecution or to establish a well-founded fear of persecution,
the BIA issued its own opinion and reasoning. Thus, we confine our review to
the decision of the BIA.
We review the BIA’s rulings of law de novo and its findings of fact for
substantial evidence. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). Under
the substantial evidence standard, reversal is improper unless we decide ‘“not
only that the evidence supports a contrary conclusion, but also that the evidence
compels it.’” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006) (citation
omitted); 8 U.S.C. § 1252(b)(4)(B) (“[A]dministrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.”).
Liu asserts that the BIA failed to follow the correct legal standard in
assessing whether he had demonstrated that he had a well-founded fear of
persecution by failing to evaluate his claims based on the doctrine of imputed
political opinion set forth in Bu v. Gonzales, 490 F.3d 424, 429-30 (6th Cir. 2007),
and that the BIA “completely ignored the imputed opinion analysis.” Liu has not
exhausted this claim. Although he cited Bu in his brief to the BIA, he did not
cite it for the proposition that he raises in his petition for review. See U.S.C.
§ 1252 (d)(1); Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009); Roy v. Ashcroft,
389 F.3d 132, 137 (5th Cir. 2004). Nevertheless, substantial evidence supports
the BIA’s determination that Liu failed to show a well-founded fear of
persecution on account of his political opinion (imputed or not) if he returns to
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China. Although not binding precedent, this court has, in an unpublished but
persuasive opinion, denied a petition for review of the BIA’s dismissal of an
appeal from an IJ’s order of removal under similar circumstances. See Ni v.
Holder, No. 11-60487, 2012 WL 2369318, at *2 (5th Cir. June 22, 2012) (per
curiam) (unpublished).1
The Secretary of Homeland Security or the Attorney General may grant
asylum to aliens who qualify as refugees. 8 U.S.C. § 1158(b)(1); Jukic v. INS, 40
F.3d 747, 749 (5th Cir. 1994). A refugee is a person who is outside of his country
and is unable or unwilling to return “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).
“Persecution” means “infliction of suffering or harm, under government sanction,
upon persons who differ in a way regarded as offensive (e.g., race, religion,
political opinion, etc.), in a manner condemned by civilized governments.”
Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th Cir. 1996) (internal quotation marks
and citation omitted).
Absent evidence of past persecution, Liu must establish a well-founded
fear of future persecution by showing a subjective fear of persecution, which is
also objectively reasonable. See Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445 (5th
Cir. 2001). Liu must also demonstrate that the persecutors knew of his political
opinion and will likely persecute him because of it. Ontunez-Tursios v. Ashcroft,
303 F.3d 341, 351 (5th Cir. 2002). Prosecution for violating the laws of a country
generally does not constitute persecution, unless the punishment was motivated
1
In this prior case, the petitioner alleged that the BIA failed to apply the correct legal
standard in assessing her claim of persecution on account of her imputed political opinion. Ni,
2012 WL 2369318, at *2. This court recognized that the petitioner had failed to exhaust her
administrative remedies as to that issue because she raised it for the first time on appeal. Id.
Nevertheless, this court held that denial of her petition for review was proper because the
record supported the BIA’s determination that she had failed to show a well-founded fear of
future persecution on the basis of her political opinion (imputed or not). Id.
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by one of the protected grounds and the punishment is excessive or arbitrary.
See Abdel-Masieh, 73 F.3d at 584.
The record reflects that Liu’s troubles in China stemmed from the failure
of local government officials to honor a contract for landscaping services provided
by Liu’s company. Liu testified that he was paid only a portion of the agreed-
upon price for his services. He attempted to collect the balance, but his efforts
were unavailing. After refusing to leave a government office, where he went to
seek assistance in collecting the balance owed to him under the contract, Liu was
escorted out of the building, and he, along with several of his employees,
unfurled a banner containing the message, “[T]he government is cheating me out
of my sweat money.” Liu was arrested for disturbing the peace and for being
“against the government.” Liu fears that if he returns to China he will be
prosecuted and imprisoned on account of his political opinion.
The BIA concluded that Liu did not sufficiently demonstrate “that he
would be prosecuted as a pretext for punishing political opinion,” and the
evidence does not compel a contrary conclusion. The evidence does not compel
a conclusion that Liu’s demand for payment owed under a contract or his claim
that “the government [was] cheating [him] out of [his] sweat money” was an
expression of a political opinion, nor does the evidence compel the conclusion
that any incarceration would be on account of a political opinion. Indeed, there
is no evidence in the record that any prosecuting authority has ever formally
charged Liu with a criminal offense, nor is there evidence that any person who
participated with Liu in his “protests” for payment or who continued to demand
payment even after Liu left China has been charged, prosecuted, or persecuted
for their efforts.
Because the BIA’s determination that Liu has not established that he has
a well-founded fear of future persecution is supported by substantial evidence,
we will not disturb it. See § 1252(b)(4)(B); Chen, 470 F.3d at 1134.
The petition for review is DENIED.
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