Cao, Ming Yun v. Gonzales, Alberto

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 28, 2006
Decided March 23, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1542
On Petition for Review
Ming Yun Cao, of an Order of the
Petitioner, Board of Immigration Appeals
v.
No. A95-928-760
Alberto R. Gonzales, Attorney General
of the United States,
Respondent.
ORDER
Claiming that she had been persecuted in China’s Fujian Province because of her
Christian activities, Ming Yun Cao applied for asylum, withholding of removal, and
relief under the Convention Against Torture. The Immigration Judge denied relief,
both because he found that Cao was not a credible witness and because he concluded
that the events she recounted did not amount to persecution. The BIA rejected the IJ’s
adverse credibility finding but affirmed his determination that Cao failed to
demonstrate past persecution or a well-founded fear of future persecution. Cao now
No. 05-1542 Page 2
petitions for review of that judgment. We conclude that the BIA’s decision was
adequately supported by the evidence, and we therefore deny the petition.
I
Because the BIA assumed that Cao’s testimony was credible, we report the facts as
she portrayed them at her hearing. Cao testified that her family is Christian, although
her father is more observant than her mother and none of her four siblings has been
baptized. Her father left China in 1997 and applied for asylum in the United Kingdom
in 1998, apparently on the ground of religious persecution. Cao herself was baptized
by a priest in 2000; thereafter, she attended Bible study and prayer sessions with a
family-organized church approximately three times per week in the homes of various
church members. The size of the prayer group ranged from three to just over 10.
On April 3, 2002, Cao attended a religious service in a neighboring village led by a
visiting priest from Fuzhou City, to observe (as Cao put it) the holiday on which Jesus
was “nailed to the cross.” In the middle of the service, the local Communist Party
secretary and approximately five other people “broke[]” the door and charged into the
home. The party secretary “slapped” the priest several times and ordered his
subordinates to confiscate the church members’ Bibles. When Cao refused to relinquish
her Bible, she was hit “really hard” once in the head and became dizzy. At that point,
the government officials callously stated that the church members “should be just
beaten to death” and took them to jail.
Cao was detained overnight, but she was released after she was fingerprinted. As
a condition of her release, she was forced to sign a statement promising never to attend
church activities again. The circumstances were ominous: she was alone with a “huge
and tall” police officer who demanded that she sign and who threatened that she would
be “executed” if she was caught again. After her release, however, Cao continued often
to attend religious gatherings. In the year between her release and her departure from
China, she did not experience any further encounters with the authorities. Other
church members were not so lucky: some were detained for a few days up to a few
months, and the priest was still in a labor camp when Cao left China.
The IJ discounted Cao’s testimony because she submitted no documentation
corroborating her religious activities or the alleged incident of persecution, and no
documents revealing the resolution of her father’s asylum application in the United
Kingdom. He also found it “rather intriguing” that Cao was not bothered by the
authorities when she held religious activities in the clothing shop she operated, but she
was detected and arrested when she went to a family church in a neighboring village.
Furthermore, the IJ did not believe that Cao would have been able to obtain a
passport, as she did, if she truly had been “brought to the attention of the authorities”
No. 05-1542 Page 3
in China. He concluded, nonetheless, that even if Cao’s testimony was credible, the
single incident of arrest and abuse was too minor to satisfy the definition of
persecution. In addition, he found that Cao had not shown a well-founded fear of future
persecution, particularly because her family in China is “unaffected” and she was
issued a passport and allowed to leave China. Finally, the IJ denied Cao’s withholding
of removal and CAT claims because her failure to meet the burden of proof for asylum
meant also that she could not satisfy the more stringent burden of proof for these
claims.
Acting through a single member, the BIA affirmed in a one-paragraph order the IJ’s
determination that Cao had demonstrated neither past persecution nor a well-founded
fear of future persecution. In so doing, it noted in passing its disagreement with the
IJ’s adverse credibility finding. The BIA also summarily affirmed the dismissal of Cao’s
withholding of removal and CAT claims.
II
This Court reviews the denial of an asylum claim for substantial evidence. We will
reverse the decision of the BIA only if the evidence compels a different conclusion.
Hernandez-Baena v. Gonzales, 417 F.3d 720, 723 (7th Cir. 2005); Ahmed v. Ashcroft,
348 F.3d 611, 615 (7th Cir. 2003).
Cao devotes the bulk of her brief to contesting the IJ’s adverse credibility finding.
This is a peculiar strategy, given the fact that the BIA in fact rejected the IJ’s adverse
credibility finding and rested its decision on the alternate ground that her testimony
did not depict events that showed persecution. We have confined our review to the
latter ground only. It is therefore unnecessary for us to review the reasons behind the
IJ’s credibility ruling, although we note for the record that it was inappropriate for the
IJ to hold against Cao her apparent lack of knowledge of various aspects of Christian
doctrine. See Huang v. Gonzales, 403 F.3d 945, 948-49 (7th Cir. 2005); Muhur v.
Ashcroft, 355 F.3d 958, 960 (7th Cir. 2004).
While Cao’s brief could (and should) have devoted more time to the question of past
persecution, she at least touched upon those points, asserting that she conclusively
demonstrated persecution through her testimony that she was beaten, arrested, and
threatened with “severe consequences” on account of her religious activities. The BIA,
however, was not compelled to view these experiences in such a harsh light.
Unpleasant though it surely is, short-term imprisonment with no physical abuse does
not constitute persecution, nor do generalized, non-specific assertions of physical
abuse. Prela v. Ashcroft, 394 F.3d 515, 518 (7th Cir. 2005) (interrogations, 24-hour
detention, and beating causing injury to petitioner’s hands does not compel finding of
persecution); Liu v. Ashcroft, 380 F.3d 307, 313 (7th Cir. 2004) (two-day detainment
in which petitioner endured pushing and hair pulling followed by search of her home
No. 05-1542 Page 4
with no serious damage did not compel finding of persecution); Dandan v. Ashcroft, 339
F.3d 567, 573-74 (7th Cir. 2003) (three-day detention, food deprivation and beating
causing petitioner’s face to swell does not compel finding of persecution). The
experiences about which Cao testified were not as abusive as those presented by the
unsuccessful petitioners in Prela, Liu, and Dandan. She was detained only once for
only one day. She was hit on the head one time, but she alleges no other physical abuse
or injury and no need for medical attention. The BIA was entitled to conclude that this
was not enough to demonstrate persecution. See Dandan, 339 F.3d at 574; Liu, 380
F.3d at 313.
Cao also suggests that the past persecution of her father for his religious activities
in some way buttresses her own claim. She does not develop this argument, nor does
she claim that she herself was subjected to the same severe treatment as her father.
See Tamas-Mercea v. Reno, 222 F.3d 417, 423-24 (7th Cir. 2000). Thus, even if the
treatment of her father constituted persecution, we cannot impute his experiences to
her.
Finally, Cao asserts that the police officer who forced her to sign the statement
promising not to engage in further religious activities and threatened her with death
if she broke her promise persecuted her. While threats “of a most immediate and
menacing nature” may be enough to prove persecution, unfulfilled threats generally
do not. Hernandez-Baena v. Gonzales, 417 F.3d 720, 723 (7th Cir. 2005); Nakibuka v.
Gonzales, 421 F.3d 473, 477 (7th Cir. 2005); Ahmed v. Ashcroft, 348 F.3d 611, 616 (7th
Cir. 2003). Here, the threat was not immediate, and Cao reported no further
harassment by the authorities in the year between her arrest and her departure from
China. The BIA reasonably concluded that the officer’s threat was insufficient to
establish past persecution.
Even if a petitioner cannot establish past persecution, she can still qualify for
asylum if she can show (through both subjective and objective evidence) a well-founded
fear of future persecution. Giday v. Gonzales, 434 F.3d 543, 553-54 (7th Cir. 2006).
From a subjective point of view, the petitioner must show that she has a genuine fear
of returning to her home country. Asani v. INS, 154 F.3d 719, 725 (7th Cir. 1998).
Objectively, she “must ‘present specific, detailed facts showing a good reason to fear
that . . . she will be singled out for persecution.’” Ahmed, 348 F.3d at 618 (citations
omitted) (italics in original).
Cao’s discussion of the “future persecution” theory is again sketchy, but there is
enough here for us to reach it. She asserts that the history of past persecution of
herself and her family that she described, combined with her “earnest” commitment
to continue her “pursuit for God,” demonstrates a well-founded fear of future
persecution on account of her religion. But the future persecution she anticipates is
merely a continuation of the treatment she received in the past. As discussed above,
No. 05-1542 Page 5
from an objective standpoint that treatment did not amount to persecution. See Liu v.
Ashcroft, 380 F.3d 307, 313 (7th Cir. 2004); Dandan v. Ashcroft, 339 F.3d 567, 574 (7th
Cir. 2003). Moreover, Cao does not identify any reasonably possible future treatment
that would constitute persecution.
In any event, substantial evidence supports the BIA’s determination that Cao does
not have a well-founded fear of future persecution. We come to this conclusion despite
some tension between the IJ’s use of the State Department’s 2002 China Country
Report and Cao’s testimony. The IJ noted that “the policy of the People’s Republic of
China is not to unduly harass unregistered churches who are unobtrusive, and
apparently all the activities that the respondent has related here were activities that
the Court would deem to be unobtrusive.” This statement is troubling insofar as it fails
to acknowledge Cao’s testimony that she was harassed and arrested only when she
attended an unofficial religious gathering in a neighboring village led by a visiting
priest from Fuzhou City. Consistent with Cao’s testimony, the Country Report says
that family churches reportedly “encountered difficulties” when, among other things,
“they forged links with other unregistered groups,” as Cao asserts she was doing on the
day she was arrested. The Country Report indicates that the difficulties encountered
by unauthorized religious groups included harassment by the government,
interrogations, detention, and physical abuse. Nonetheless, the Country Report
contains only general conclusions, and the BIA was entitled to give greater weight to
Cao’s own account of the type of harassment inflicted upon her.
III
Although the record indicates that Cao was the victim of one instance of
harassment and physical abuse by the Chinese authorities on account of her religious
activities, it does not compel a finding that she was persecuted or that she has a well-
founded fear of future persecution if she returns to China. Because neither Cao’s brief
to the BIA nor her brief on appeal in this court addresses her claims for withholding
of removal and relief under the Convention Against Torture, those claims are waived.
Huang v. Gonzales, 403 F.3d at 951. We therefore DENY the petition for review.