Chen v. Lynch , 814 F.3d 40 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1789
JINAN CHEN,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Thompson,
Circuit Judges.
Michael Brown on brief for petitioner.
Matthew A. Connelly, Trial Attorney, Office of Immigration
Litigation, Civil Division, Department of Justice, Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Civil
Division, and Edward E. Wiggers, Senior Litigation Counsel, Office
of Immigration Litigation, on brief for respondent.
February 24, 2016
THOMPSON, Circuit Judge. Petitioner Jinan Chen
("Chen"), a native and citizen of the People's Republic of China
("China"), seeks judicial review of a final order of removal issued
by the Board of Immigration Appeals ("BIA") affirming the
Immigration Judge's ("IJ's") denial of Chen's application for
asylum, withholding of removal, and protection under the United
Nations Convention Against Torture ("CAT"). For the reasons
articulated below, we deny Chen's petition for review.
I. Background
Chen entered the United States without inspection in
December 2009 and was detained shortly after entry. On January
14, 2010, Chen was issued a Notice to Appear. In a hearing before
an IJ on January 27, 2010, Chen, through counsel, conceded
removability but sought asylum, withholding of removal, and
protection under CAT.
In his subsequent asylum application, Chen stated that
he fled China to avoid persecution by the country's family planning
officials and that he feared being subjected to forced
sterilization if he were to return. Chen further indicated that
after his arrival in the United States -- and after his removal
proceedings had already begun -- he joined the China Democracy
Party ("CDP"), which, Chen explained, is seen "as a reactionary
political party by the Chinese government." As a result, Chen
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stated that he also feared future persecution due to his CDP
membership.
In support of his application, Chen testified before a
different IJ on October 25, 2013. At the hearing, Chen explained
that while living in China he got married in a traditional wedding
ceremony, held in accordance with "Chinese cultur[al]
tradition[]." But because his wife had not yet reached China's
legal marital age of 21 (she was 19 at the time) they did not
receive a marriage certificate. So, according to Chen, when his
wife then got pregnant it was considered a violation of China's
family planning regulations because they were not legally married.
Chen told the IJ that, on July 18, 2009, local government
officials came to his home1 looking for his wife, who, Chen claimed,
would have been forced to undergo an abortion. Fortunately, his
wife was not at home. Chen testified, however, that when he
refused to tell the officials his wife's whereabouts he was beaten
and subsequently taken to the police station where he was placed
in custody, interrogated, further assaulted, and threatened with
forced sterilization. Chen explained that he was released from
police custody on July 27, 2009 -- nine days later -- after his
father paid "a lot of money to the police station" and after Chen
1 From review of the record, it appears that Chen lived in a
small village -- Lantian Village -- in Changle City, Fujian
Province where he was born and where his father still resides.
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promised to go find his "girlfriend" and ask her to get an
abortion. Instead, Chen's wife escaped to Sichuan Province and
hid with family while Chen fled to Beijing, by way of Guangzhou,
before leaving China altogether in October of 2009.
Describing the injuries he received during his
detention, Chen explained that he was covered in bruises but he
admitted that he did not go to the hospital for treatment, relying
instead on traditional herbal medications. Chen further admitted
that after he left his village (in August of 2009) he was not
harassed by government officials in Guangzhou or Beijing prior to
his departure from China in October of that year. But he claimed
that the local family planning officials were still looking for
him and had visited his old house once, "around July." Since
arriving in the United States, Chen claims to have lost touch with
his wife and her entire family. He does not know if he has a
child.
In addition to Chen's concerns about China's family
planning authorities, Chen also testified that he feared
persecution in China due to his membership in the CDP, which the
Chinese government considers to be an "anti-government"
organization that is trying "to overthrow the government." Chen
explained that after moving to the United States he became involved
in the organization -- taking classes, attending demonstrations,
and even writing several articles for the CDP website
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(approximately four articles over the course of three years). Chen
testified, though, that the Chinese government actively monitors
CDP activities and claimed that representatives of the Chinese
government had, in fact, visited his parents in China to tell them
that Chen must cease his CDP activities or face imprisonment.
Despite these visits from the authorities, Chen acknowledged that
the Chinese government has never harmed any of his family members
who remain in China.
At the hearing, an assistant director from the CDP in
New York also testified in support of Chen. The director disclosed
that Chen was an active member of the CDP, participating in CDP
study classes and attending demonstrations in front of the Chinese
consulate. Although the director confirmed that Chen had written
articles for the CDP's website, he also divulged that most of the
CDP's over 2,000 members have posted articles on the website and
that the website boasts thousands of articles. Still, he stated
that the Chinese government actively monitors the organization's
activities, sometimes by hacking into the group's website, and
that he knew at least one CDP member who was arrested after the
member was forced to return to China.
In an oral opinion issued the same day as the hearing,
the IJ denied Chen's application for asylum, withholding of
removal, and protection under CAT. With respect to Chen's first
claim, the IJ concluded that Chen had failed to carry his burden
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to show either past persecution or a well-founded fear of future
persecution due to his violation of China's family planning
regulations, noting that Chen had presented no concrete evidence
that his wife even existed. Specifically, the IJ mentioned Chen's
failure to produce a single picture of his wife or of the wedding
ceremony. The IJ was also somewhat incredulous that Chen did not
know where his wife was, whether the family planning officials
were still looking for her, or even whether she had his child.
The IJ further concluded that even if Chen had provided
corroborating evidence of his wife's existence,2 his testimony with
respect to his persecution by the family planning officials was
not credible, calling, for example, Chen's testimony that the
family planning officials "left it up to him" to find his wife
"unbelievable."
But in the end, the IJ determined that, even assuming
the truth of Chen's testimony, his treatment did not rise to the
level of past persecution. The IJ noted that Chen did not need to
see a doctor after his detention, was successfully able to travel
to, and live in, Beijing without being harassed, and was allowed
to leave the country using his own passport. As a result, the IJ
2The IJ acknowledged, but disregarded, a letter from Chen's
father, who still resides in China, submitted in support of his
application. Although the letter confirmed Chen's version of
events, including the existence of Chen's wife, the IJ determined
that it was of limited value because Chen's father was an
"interested witness who was not subject to cross-examination."
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also found that Chen had not established a well-founded fear of
future persecution since he "certainly could return to Beijing,
which is a city of millions of people several hours away from his
home" and where "the local family planning officials do not have
jurisdiction."
Regarding Chen's second claim, the IJ determined that
Chen had failed to demonstrate a well-founded fear of future
persecution based on his membership in the CDP. According to the
IJ, Chen had failed to offer any credible evidence that the Chinese
government was aware, or was likely to become aware, of his
involvement in the CDP. Noting that Chen was "merely a member" of
the CDP, not an officer or director, the IJ doubted that the
Chinese government was likely to search for, or find, Chen's name
among the thousands of articles that are posted on the CDP's
website. Moreover, the IJ stated that he "expressly disbelieve[d]"
Chen's father, who had submitted a letter indicating that the
Chinese government had come looking for Chen at the father's house
in China because of Chen's membership in the CDP. And finally,
the IJ concluded that Chen had not established that it was more
likely than not that he would be tortured upon his return to China.
Chen appealed to the BIA on November 14, 2013, arguing
that he had adequately established eligibility for asylum or, in
the alternative, withholding of removal and protection under CAT.
In particular, Chen argued that the IJ erred in concluding that
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Chen's past treatment did not rise to the level of past persecution
under the law and that Chen had not established a well-founded
fear of future persecution based on his membership in the CDP.
The BIA rejected Chen's appeal and affirmed the IJ's
decision. Concurring with the IJ, the BIA concluded that Chen had
not established past persecution based on his violation of China's
family planning policy or "shown that the punishment he received
from Chinese authorities, even when viewed cumulatively, rose to
the level of persecution." In addition, the BIA concluded that
Chen had not "established a well-founded fear of persecution in
China based on his membership and participation in the [CDP]."
Chen timely filed this petition for judicial review.
II. Analysis
Before us, Chen argues that the BIA erred in finding
that he had failed to establish (1) past persecution due to his
violation of China's family planning laws and (2) a well-founded
fear of future persecution due to his membership in the CDP.3
This court typically reviews the final decision of the
BIA, but when "the BIA accepts the IJ's findings and reasoning yet
adds its own gloss, we review the two decisions as a unit." Moreno
v. Holder, 749 F.3d 40, 43 (1st Cir. 2014) (quoting Xian Tong Dong
v. Holder, 696 F.3d 121, 123 (1st Cir. 2012)). We review agency
3 Chen does not make any arguments in support of his CAT
application.
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findings of fact under the familiar substantial evidence standard.
Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir. 2008). "This is not a
petitioner-friendly standard of review." Xian Tong Dong, 696 F.3d
at 125. Under this deferential standard, we must accept all
findings of fact "as long as those findings are supported by
reasonable, substantial, and probative evidence on the record
considered as a whole," and will reverse only if the evidence
compels a contrary determination. Chhay, 540 F.3d at 5 (quoting
I.N.S. v. Elias–Zacarias, 502 U.S. 478, 481 (1992)).
To establish eligibility for asylum, Chen "must
demonstrate a well-founded fear of persecution on one of five
protected grounds -- race, religion, nationality, political
opinion or membership in a particular social group." Paiz-Morales
v. Lynch, 795 F.3d 238, 243 (1st Cir. 2015) (quoting Singh v.
Holder, 750 F.3d 84, 86 (1st Cir. 2014)). He "can meet this burden
through proof of past persecution, which creates a rebuttable
presumption of a well-founded fear of future persecution" or by
demonstrating "a well-founded fear of persecution through an offer
of specific proof that his fear is both subjectively genuine and
objectively reasonable." Singh, 750 F.3d at 86. Unlike the higher
standard for withholding of removal, "to qualify for asylum [Chen]
is not required to prove that it is more likely than not that he
will be persecuted." Ravindran v. I.N.S., 976 F.2d 754, 758 (1st
Cir. 1992).
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Here, Chen first argues that the BIA erred in finding
that his treatment at the hands of the family planning authorities
did not rise to the level of past persecution. Although
acknowledging that a finding of persecution requires more than
harassment or unfair treatment, Chen maintains that his arrest and
assault "far exceeded hollow threats" and was severe enough to
rise to the level of persecution. In addition, Chen seems to
suggest that "[t]he length of [his] detainment itself" -- nine
days -- necessarily rises to the level of persecution. After
careful review of the record, however, we find substantial evidence
to support the agency's decision.
Persecution requires more than "unpleasantness,
harassment, and even basic suffering." Nelson v. I.N.S., 232 F.3d
258, 263 (1st Cir. 2000). And "[a]n individual seeking asylum
'bears a heavy burden,' and faces a 'daunting task' in establishing
subjection to past persecution." Vasili v. Holder, 732 F.3d 83,
89 (1st Cir. 2013) (quoting Alibeaj v. Gonzales, 469 F.3d 188, 191
(1st Cir. 2006)). Accepting the facts as presented by Chen, the
record indicates that over a period of nine days he was detained,
threatened, and subjected to physical abuse. But a single
detention, even one accompanied by beatings and threats (and we
certainly do not want to minimize Chen's treatment at the hands of
the family planning authorities), does not necessarily rise to the
level of persecution. See, e.g., Topalli v. Gonzales, 417 F.3d
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128, 132 (1st Cir. 2005) (concluding that seven arrests and brief
detentions coupled with beatings over a two-year period did not
amount to persecution). This is especially true where, as here,
Chen was released from custody, was able to travel freely in and
around the country without being harassed, and was allowed to leave
the country using his own passport. See Decky v. Holder, 587 F.3d
104, 111 (1st Cir. 2009) (finding no persecution where the evidence
supported the conclusion that the beating was an isolated event
and there was no evidence of systematic mistreatment).
Furthermore, although Chen's ordeal included repeated
beatings during his detention, his injuries did not exceed bruising
and did not require hospitalization or conventional, allopathic
medical care. Instead, Chen was able to adequately treat his
injuries by relying on traditional herbal medicines. Without
discounting the effectiveness of herbal treatments (or turning
"the presence or absence of injury requiring medical attention
into a sort of 'acid test' for persecution," Topalli, 417 F.3d at
132), we recognize that the fact that Chen did not require
hospitalization bears on the "nature and extent" of his injuries
and is certainly "relevant to the ultimate determination." Vasili,
732 F.3d at 89.
Next, Chen argues that the agency erred in concluding
that he had not established a well-founded fear of persecution
based on his CDP membership. In essence, Chen contends that he
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presented sufficient evidence -- his father's letter stating that
government officials had visited his house in China due to Chen's
CDP activities, photographs of Chen attending CDP events in the
United States, and a 2012 Department of State Country Report
confirming that the Chinese government monitors and imprisons CDP
members -- to establish a well-founded fear of persecution. But
the IJ and the BIA were justified in concluding that Chen had not
provided "reasonable, substantial, and probative evidence," Xian
Tong Dong, 696 F.3d at 125 (citation omitted), that the Chinese
government was actually aware of, or was likely to become aware
of, his CDP activities.
Chen was not an officer or a director in the CDP and,
although he had attended rallies and classes, his only concrete
links to the organization were a few pro-CDP articles posted on
the group's website -- a website that boasts thousands upon
thousands of similar writings. And although the letter submitted
by Chen's father does suggest that the Chinese government is aware
of Chen's CDP activities, the agency was entitled to conclude that,
absent substantiation, this statement, which was made by an
interested witness not subject to cross examination,4 was entitled
to limited weight, see Yong Xiu Lin v. Holder, 754 F.3d 9, 15 (1st
4 Although here we defer to the agency's determination of the
weight afforded Chen's father's letter, we do not mean to suggest
that all interested witness statements not subject to cross
examination should necessarily be given limited weight.
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Cir. 2014), especially here, where the IJ had expressly stated
that he did not believe Chen's father's statement. As for Chen's
remaining proffer, the 2012 Department of State Country Report,
"[w]ithout some specific, direct, and credible evidence relative
to [Chen's] own situation, the nexus between [Chen] and the
report['s] generalized depictions are too speculative to compel a
finding of persecution." Xian Tong Dong, 696 F.3d at 126-27
(quoting Seng v. Holder, 584 F.3d 13, 19-20 (1st Cir. 2009)).
In sum, nothing in the record compels us to find that
the agency erred in concluding that Chen failed to carry his burden
to demonstrate either past persecution or an objectively
reasonable and well-founded fear of future persecution. And
"[b]ecause [Chen] has failed to meet the more forgiving asylum
standard, he necessarily cannot meet the higher standard for
withholding of removal." Attia v. Gonzales, 477 F.3d 21, 24 (1st
Cir. 2007)(per curiam).
The petition for review is denied.
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