Xue v. Lynch , 846 F.3d 1099 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
November 25, 2016
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
TING XUE,
Petitioner,
v. No. 15-9540
LORETTA E. LYNCH, United States
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
David J. Feder, Munger, Tolles & Olson LLP, Los Angeles, California, for
Petitioner.
Allison Frayer, Trial Attorney (M. Jocelyn Lopez Wright, Senior Litigation
Counsel, and Melissa Neiman-Kelting, Senior Litigation Counsel, with her on the
briefs), Office of Immigration Litigation, Civil Division, U.S. Department of
Justice, Washington, D.C., for Respondent.
Before BRISCOE, MURPHY, and PHILLIPS, Circuit Judges.
MURPHY, Circuit Judge.
Ting Xue, a native and citizen of China, petitions for review of an order by
the Board of Immigration Appeals (“BIA”). The BIA affirmed an Immigration
Judge’s (“IJ”) decision to deny Xue’s application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”).
Exercising jurisdiction pursuant to 8 U.S.C. § 1252, this court denies Xue’s
petition for review.
I. Background
A. Factual Background 1
Xue is a long-practicing, faithful Christian. He was raised as a Christian by
his mother and was baptized in 1998 when he was thirteen years old. Xue
attended services two or three times a week at an illegal “house church.” 2 In light
of the need to avoid detection by government officials, the house church Xue
attended gathered at a different member’s house each week. Despite this
1
The IJ found, pursuant to the provisions of 8 U.S.C. § 1158(b)(1)(B)(iii),
that Xue’s testimony was credible. The BIA affirmed this finding. Accordingly,
the factual background is, for the most part, drawn from Xue’s testimony before
the IJ.
2
Because they are not registered with the Chinese government, which
strictly controls the content of approved religions, house churches are illegal.
The record indicates the government-approved Christian church “modifies
doctrine and theology in an effort to eliminate elements of Christian faith that the
Communist Party regards as incompatible with its goals and ideology.” For
example, Xue testified the government-approved Christian church teaches that
loyalty to country and the Communist Party come before loyalty to God. Due to
the Chinese government’s perception that house churches threaten its control of
the country, officials have sought out house churches and arrested and imprisoned
their members and leaders.
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precaution, on Friday, October 26, 2007, Chinese authorities raided a house
church service attended by Xue. 3 The authorities arrested everyone in attendance
and took them to the police station.
At the police station, each church member faced interrogation. In the
interrogation room, two police officers sat behind a table facing Xue and another
officer stood behind him. Officers questioned Xue as to his personal/biographical
information and sought information regarding the organization and leadership of
the house church. After Xue persisted in responding that there was no organizer
of the house church, officers slapped Xue across the head and used a baton to hit
Xue on his upper left arm. Because he was extremely frightened, all Xue could
do was continuously repeat that he did not know the answers to the officers’
questions.
After the interrogation ended, the officers placed Xue in a small, dim jail
cell with four other men from his house church. The five men shared a single
wooden bucket for a toilet—a bucket not emptied during Xue’s entire
incarceration. Officers routinely mocked Xue and his cell mates, referring to
themselves as the prisoners’ “God,” claiming the power to refuse to feed them,
and taunting them to call on Jesus for rescue. The prisoners were fed a bowl of
3
Although his mother attended the same house church attended by Xue, she
was not present during this raid. While Xue attended church on both Fridays and
Sundays, his mother only attended services on Sundays. Xue explained that the
Friday house church gatherings were for young people.
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porridge twice a day. Sometimes before they were fed, the officers forced the
prisoners to sing the national anthem to ridicule the prisoners’ habit of praying
before eating. Xue remained in custody for three days and four nights.
Xue was released from imprisonment only after his mother paid a
significant fine. That is, although Xue’s entire yearly salary at the shoe factory
was 25,000 yuan, the fine paid by Xue’s mother to secure his release was 15,000
yuan. Upon his release, he was forced to sign a document guaranteeing he would
not attend any more illegal church meetings. Officers warned Xue that if he ever
again attended services at a house church, he would be severely punished. Xue
was required to report to the police station once every week and remain for one
hour. During these weekly sessions, officers would ask Xue about his
whereabouts during the week, tell him he should be patriotic and faithful to his
job, and force him to write down his personal feelings about his reeducation.
Two weeks after his release, Xue returned to his underground house church.
Police officers again raided Friday youth services at Xue’s house church in
December 2007. Xue, who was working overtime at his job at a shoe factory, was
not present during the raid. Everybody present at the house church during the
second raid was arrested. Xue learned that all repeat offenders arrested during
the second raid were prohibited from posting bond and were eventually sentenced
to imprisonment for a term of one year.
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Xue testified he became fearful officers would learn he had continued to
attend the house church, even though he was not present during the second raid.
Because of these concerns, Xue’s mother counseled him to stop reporting to the
police station. Xue’s mother sent him to stay at his aunt’s house, a location ten
hours away by bus. Xue remained at his aunt’s residence for three months
without returning home. When Xue failed to appear at the police station as
required by the terms of his release from jail, officers came to his parents’ house
looking for him. Xue’s mother told him the officers asked why he had failed to
report as required and stated he needed to immediately report or he would be
severely punished. Rather than returning home and resuming his weekly visits to
the police station, Xue and his parents decided he should leave China. Xue’s six
uncles paid an exceedingly large amount of money to a smuggler to help Xue
escape China. In March 2008, Xue left China using his own passport. He
traveled for several months, ultimately entering the United States illegally
through Mexico in July 2008.
In addition to the testimony summarized above, Xue related that his mother
continues to attend unregistered church services and his father and brother
sometimes also attend those services. Although Xue’s mother began hosting a
weekly church meeting at her own home in 2010, she has never been arrested.
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B. Agency Decision
An IJ denied Xue’s request for asylum, 4 withholding of removal, 5 and relief
under CAT. 6 As to asylum, the IJ found Xue’s testimony credible but insufficient
to establish refugee status. See 8 U.S.C. § 1158(b)(1)(B) (imposing on an asylum
seeker the burden of establishing an entitlement to relief). The IJ concluded
Xue’s treatment at the hands of Chinese authorities before he came to the United
States was not sufficiently severe to amount to past persecution. Cf. Hayrapetyan
v. Mukasey, 534 F.3d 1330, 1337 (10th Cir. 2008) (“[P]ersecution requires the
infliction of suffering or harm . . . in a way regarded as offensive and must entail
more than just restrictions or threats to life or liberty.” (quotation omitted)).
Absent a showing of past persecution, the IJ recognized Xue was not entitled to a
presumption of a well-founded fear of future persecution. See 8 C.F.R.
§ 1208.13(b)(1)-(2). Instead, Xue was obligated to independently establish the
4
See 8 U.S.C. § 1158(a)(1) (providing that an alien present in the United
States, without regard to status, may apply for asylum); id. § 1158(b) (setting out
eligibility standards for a grant of asylum, including that the alien qualify as a
refugee under the provisions of 8 U.S.C. § 1101(a)(42)); id. § 1101(a)(42) (tying
refugee status to past persecution or a well-founded fear of future persecution on
account of, inter alia, religion in an alien’s country of nationality).
5
See 8 U.S.C. § 1231(b)(3) (providing that absent certain exceptions, “the
Attorney General may not remove an alien to a country if the Attorney General
decides that the alien’s life or freedom would be threatened in that country
because of the alien’s . . . religion”).
6
See 8 C.F.R. § 1208.16(c) (implementing the provisions of the U.S. Senate
Resolution of Advice and Consent to Ratification of the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).
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existence of a reasonable possibility he would suffer future persecution upon
return to China. See id. The IJ determined Xue could not make the necessary
showing given that his mother held house church meetings in her residence
without incident over the previous three years. Furthermore, the IJ found the
letters Xue submitted from his mother failed to demonstrate Xue would be
specifically targeted for persecution if he returned to China. Because Xue failed
to demonstrate his entitlement to relief under the asylum standard, the IJ
concluded Xue also failed to meet the more stringent standard of proof applicable
to a request for withholding of removal. 7 Finally, because Xue had alleged
neither past torture nor asserted a fear of torture in the future, the IJ concluded
Xue was not entitled to relief under CAT. See 8 C.F.R. §§ 208.13(c), 208.18(a).
In a brief order, a single member of the BIA reviewed and affirmed the IJ’s
denial of asylum, withholding of removal, and relief under CAT. See 8 C.F.R.
§ 1003.1(e)(5) (empowering a single member of the BIA to resolve certain
appeals in “a brief order”). When the BIA reviews an IJ’s decision under the
provisions of § 1003.1(e)(5), it is the BIA’s decision “that constitutes the final
7
Compare 8 C.F.R. § 1208.13(b)(2)(i)(B) (providing that to demonstrate a
well-founded fear of future persecution, an asylum seeker must demonstrate only
that there is a “reasonable possibility” of suffering persecution upon a return to
the alien’s country of origin), with id. § 1208.16(b)(2) (providing that to
demonstrate a well-founded fear of persecution, an alien seeking withholding of
removal must establish “it is more likely than not” he would be persecuted on
account of, inter alia, religion upon a return to his country of nationality); see
also INS v. Cardoza-Fonseca, 480 U.S. 421, 427-32 (1987) (noting differing
standards of proof in these two contexts).
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order of removal under 8 U.S.C. § 1252(a).” Uanreroro v. Gonzales, 443 F.3d
1197, 1204 (10th Cir. 2006). “Accordingly, in deference to the agency’s own
procedures, we will not affirm on grounds raised in the IJ decision unless they are
relied upon by the BIA in its affirmance.” Id. In its order, the BIA affirmed the
IJ’s finding that Xue’s testimony was credible. Nevertheless, like the IJ, the BIA
concluded Xue’s testimony was insufficient to carry his burden of establishing he
was subjected to past persecution or there was a reasonable possibility he would,
upon being returned to China, be subjected to persecution in the future. Because
Xue could not satisfy the less rigorous standard for relief required for asylum
seekers, and because he had not alleged past torture or a fear of future torture, the
BIA concluded Xue’s claims for withholding of removal and relief under CAT
likewise failed.
II. Discussion
A. Standard of Review
1. Binding Tenth Circuit Precedent
This court reviews “the BIA’s legal determinations de novo, and its
findings of fact under a substantial-evidence standard.” Niang v. Gonzales, 422
F.3d 1187, 1196 (10th Cir. 2005). “The administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B). This court has made clear that “the
ultimate determination whether an alien has demonstrated persecution is a
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question of fact, even if the underlying factual circumstances are not in dispute
and the only issue is whether those circumstances qualify as persecution.”
Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2008).
Xue has not challenged the correctness of Vicente-Elias and, in any event,
this panel is bound by that decision. In re Smith, 10 F.3d 723, 724 (10th Cir.
1993) (“We are bound by the precedent of prior panels absent en banc
reconsideration or a superseding contrary decision by the Supreme Court.”).
Accordingly, in resolving Xue’s appeal, this court applies the standard of review
set out in Vicente-Elias.
2. Existence of Persecution as a Question of Fact
Despite the parties’ failure to recognize the issue, there is serious reason to
question whether this court should treat the BIA’s ultimate determination as to the
existence of persecution (i.e., whether a given set of facts amounts to persecution)
as factual in nature. The BIA’s own regulations prohibit it from reviewing an IJ’s
factual determinations de novo. 8 “Except for taking administrative notice of
commonly known facts such as current events or the contents of official
documents, the Board will not engage in factfinding in the course of deciding
8
8 C.F.R. § 1003.1(d)(3)(i) (“The Board will not engage in de novo review
of findings of fact determined by an immigration judge. Facts determined by the
immigration judge, including findings as to the credibility of testimony, shall be
reviewed only to determine whether the findings of the immigration judge are
clearly erroneous.”); see also id. § 1003.1(d)(3)(ii) (“The Board may review
questions of law, discretion, and judgment and all other issues in appeals from
decisions of immigration judges de novo.”).
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appeals.” 8 C.F.R. § 1003.1(d)(3)(iv). In the context of asylum cases, the BIA
has emphasized that the prohibitions set out in § 1003.1(d)(3)(i) and (iv) apply
only to questions of historical fact. In re A-S-B-, 24 I.&N. Dec. 493, 496-97 (BIA
May 8, 2008), overruled in part on other grounds by, In re Z-Z-O-, 26 I.&N. Dec.
586, 589-91 (BIA May 26, 2015). To be clear, the BIA has specifically
determined that the ultimate resolution whether a given set of facts amount to
persecution is a question of law reviewed de novo. 9 There is nothing in the record
indicating the BIA deviated from this course of de novo review in evaluating
whether Xue had demonstrated past persecution, as the BIA’s order merely recites
that it reviewed the IJ’s findings of fact and credibility determinations for clear
error and reviewed de novo all other issues. 10
9
In In re A-S-B-, 24 I.&N. Dec. 493, 496-97 (BIA May 8, 2008), the BIA
discussed the genesis of the new rules cabining BIA review of IJ determinations
set out in § 1003.1(d)(3). It concluded § 1003.1(d)(3) was never intended to
prevent it from reviewing any type of legal issue de novo, specifically including
(1) whether a given set of facts amounts to persecution and (2) a prediction as to
the likelihood of certain events occurring in the future. Id. Numerous circuit
courts of appeals held invalid the portion of In re A-S-B- treating as an issue of
law an IJ’s predictions as to what events were likely to happen in the future. In
re Z-Z-O-, 26 I.&N. Dec. 586, 589-91 (BIA May 26, 2015) (discussing circuit
decisions). The BIA eventually overruled that narrow portion of In re A-S-B-. Id.
In so doing, however, the BIA specifically left in place the portion of In re A-S-B-
which empowered the agency to review de novo an IJ’s determination as to
whether a given set of facts amounts to persecution. Id.
10
It does not appear that this issue (i.e., the appropriate standard of review
to be applied by this court) arises in the context of Xue’s appeal from the BIA’s
determination as to the existence of a well-founded fear of future persecution.
The IJ found that Xue failed to prove he would likely be targeted for, or subjected
(continued...)
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It is certainly odd, to say the least, for this court to review for clear error a
determination the BIA itself has concluded is legal in nature. 11 This is especially
10
(...continued)
to, mistreatment if he returned to China. This factual determination fully resolved
the future-persecution component of Xue’s asylum claim. For that reason, the IJ
did not address the logically subsequent question whether any such adverse
consequences Xue might suffer would amount to persecution. The BIA affirmed
the IJ’s factual determination. There is no doubt this court should review that
factual determination under a clear-error standard.
11
The circuits are split as to the standard of review applicable to the
question whether an undisputed set of facts constitute persecution. See, e.g., Lin
v. Holder, 723 F.3d 300, 307 (1st Cir. 2013) (recognizing the BIA reviews de
novo IJ’s determination as to persecution but, nevertheless, reviewing under
“deferential substantial evidence standard” “the BIA’s rulings on this question”);
Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir. 2005) (“Whether an asylum
applicant has demonstrated past persecution or a well-founded fear of future
persecution is a factual determination reviewed under the substantial evidence
standard.”); Eduard v. Ashcroft, 379 F.3d 182, 187-88 (5th Cir. 2004) (evaluating
the BIA’s decision that petitioner failed to show past persecution for substantial
evidence); Borca v. INS, 77 F.3d 210, 214 (7th Cir. 1996) (“We review the BIA’s
factual findings that Borca failed to establish past persecution or a well-founded
fear of future persecution under the ‘substantial evidence’ standard.”); Ghaly v.
INS, 58 F.3d 1425, 1429 (9th Cir. 1995) (“The [BIA’s] factual determinations,
including its finding of whether an applicant has demonstrated a ‘well-founded
fear of persecution,’ are reviewed for substantial evidence.”). But see Chen v.
Holder, 773 F.3d 396, 403 (2d Cir. 2014) (“[W]hether certain events, if they
occurred, would constitute persecution as defined by the INA is a question of
law.”); Alavez-Hernandez v. Holder, 714 F.3d 1063, 1066 (8th Cir. 2013)
(“[Petitioners] . . . contend the BIA erred in concluding the conditions in Mexico
had not been severe enough to constitute past persecution. This is a question of
law we review de novo.”).
Those circuits treating the existence of persecution as a fact issue appear to
rely uncritically on the Supreme Court’s twenty-plus-year-old decision in INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). In Elias-Zacarias, the Court was
confronted with a decision of the Ninth Circuit holding that “conscription by a
nongovernmental group constitute[d] persecution on account of political opinion.”
(continued...)
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true when the BIA’s governing regulations forbid it from engaging in factfinding.
It is presumably for this reason that the statute empowering review of asylum
rulings in the circuit courts of appeals does not contemplate the application of a
clear error standard to any determinations that are not factual in nature. 8 U.S.C.
§ 1252(b)(4)(B). Unless the BIA’s decision in In re A-S-B- is wrong, it appears
entirely likely this court should be treating BIA decisions on the ultimate question
of the existence of persecution as legal in nature. See generally
Castellanos-Pineda v. Holder, 537 F. App’x 797, 800 (10th Cir. 2013)
(recognizing tension between review standard set out in In re A-S-B- and this
11
(...continued)
Id. at 480. The Supreme Court began by holding as follows:
The BIA’s determination that Elias-Zacarias was not eligible for
asylum must be upheld if supported by reasonable, substantial, and
probative evidence on the record considered as a whole. It can be
reversed only if the evidence presented by Elias-Zacarias was such
that a reasonable factfinder would have to conclude that the requisite
fear of persecution existed.
Id. at 481 (citation and quotation omitted). The Court ultimately reversed the
Ninth Circuit, concluding the record did not compel the conclusion that (1) Elias-
Zacarias’s opposition to recruitment into the guerrilla group was based on
political motivation or (2) the guerrillas erroneously believed political
motivations drove Elias-Zacarias’s refusal to join. Id. at 482-84. Thus, it appears
the question of persecution in Elias-Zacarias turned on disputed facts, not on the
ultimate question of whether a given set of facts amounted to persecution. In any
event, and most importantly, Elias-Zacarias was decided well before the BIA
propounded its own regulations, which regulations unambiguously (1) preclude
the BIA from making factual findings on review of an IJ’s asylum decision and
(2) establish that the ultimate question regarding the existence of persecution is a
question of law subject to de novo review by the BIA. 8 C.F.R. § 1003.1(d)(3).
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court’s decision in Vicente-Elias, but concluding it was unnecessary to address
the issue because petitioner failed to exhaust her merits claim before the BIA).
Alternatively, even assuming the determination whether a given set of facts
amounts to persecution could properly be labeled a factual determination, the
review structure set out by the BIA in In re A-S-B- and In re Z-Z-O- is at odds
with the rule set out in 8 C.F.R. § 1003.1(d)(3)(i). That is, if the issue is factual
in nature, § 1003.1(d)(3)(i) mandates review by the BIA under the clear-error
standard. The failure of the BIA to apply the correct standard of review on appeal
from the decision of an IJ is, itself, a legal error requiring remand for additional
proceedings. See Kabba v. Mukasey, 530 F.3d 1239, 1244-45 (10th Cir. 2008)
(holding question whether BIA applied correct standard of review is legal in
nature, and therefore subject to de novo review, and concluding BIA erred
because it reviewed an IJ’s credibility determinations de novo). As noted above,
however, Xue did not raise this issue on appeal. Thus, we leave the matter for a
future case in which the parties have presented the court with appropriate
briefing.
B. Asylum
The Attorney General has discretion to grant asylum to a person who
qualifies as a “refugee.” 8 U.S.C. § 1158(b). A refugee is a person unable or
unwilling to return to his country of nationality because of past persecution or a
well-founded fear of future persecution on account of, inter alia, religion. Id.-13-
§ 1101(a)(42)(A). The term “persecution” is not defined in the Immigration and
Nationality Act. Balazoski v. INS, 932 F.2d 638, 641-42 (7th Cir. 1991).
Nevertheless, this court has “observed that it requires the infliction of suffering
. . . in a way regarded as offensive and requires more than just restrictions or
threats to life and liberty.” Hayrapetyan, 534 F.3d at 1337.
1. Past Persecution
In concluding he did not suffer past persecution, the BIA explained that
“[a]lthough [Xue] was detained for [four] nights, [he] was physically harmed only
once, and he did not testify that he required medical treatment or suffered any
lasting physical effects as a result of his detention.” The BIA rejected Xue’s
assertion that restrictions on his freedom and the practice of his religion in the
form of the guarantee letter and requirement to report weekly to the police
station, when added to the harm of his detention, established persecution. As the
BIA explained, “[Xue] testified that he returned to the underground church [two]
weeks after being released, and did not demonstrate that the reporting requirement
was onerous or that he suffered other harm.”
On appeal, Xue contests the BIA’s determination by asserting it is
reasonably subject to debate and several circuits have held that conduct similar to
that at issue here qualifies as persecution. See, e.g., Beskovic v. Gonzales, 467
F.3d 223, 226 (2d Cir. 2006) (“The BIA must . . . be keenly sensitive to the fact
that a ‘minor beating’ or, for that matter, any physical degradation designed to
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cause pain, humiliation, or other suffering, may rise to the level of persecution if
it occurred in the context of an arrest or detention on the basis of a protected
ground.”). He further contends that none of the Tenth Circuit cases identified by
the BIA compel the result reached by the agency. Xue’s argument as to the
existence of past persecution is not convincing. Xue’s arguments in this regard
misunderstand the governing standard of review. To prevail on appeal, Xue must
show that a reasonable factfinder would be compelled to conclude he suffered
past persecution. Vicente-Elias, 532 F.3d at 1091. Xue fails to make the required
showing. The BIA’s “finding,” see id., is supported by both substantial evidence
and by this court’s precedents.
According to his testimony, Xue was arrested and detained in cramped,
dark, and unsanitary conditions for four nights and three days. He was fed a bowl
of porridge twice a day. He was interrogated once, during which time he was hit
on the back of his head with an officer’s hand, and then struck on his arm with an
officer’s baton. Xue did not testify that he required medical treatment, or even
that he was in significant pain. He also did not claim he experienced any lasting
problems as a result of his detention. Xue’s family paid a significant fine to
secure his release and Xue promised to report to the police station weekly and
refrain from attending Christian services at an unregistered church. When he
reported as requested for questioning, he did not suffer any physical mistreatment.
As noted above, this court has previously determined that similar fact situations
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did not compel a finding of past persecution. Witjaksono v. Holder, 573 F.3d
968, 977 (10th Cir. 2009); Kapcia v. INS, 944 F.2d 702, 704, 708 (10th Cir.
1991). Nevertheless, Xue has not identified a single case concluding a similar
level of harassment (i.e., incarceration lasting no more than four days coupled
with a single incident of physical abuse amounting to two separate blows which
did not inflict serious pain) compels a finding of persecution. Indeed, this court
has consistently concluded that this type of evidence does not compel a finding of
past persecution. See, e.g., Witjaksono, 573 F.3d at 977 (affirming BIA finding
that alien had not suffered past persecution when evidence showed soldier
physically assaulted alien on one occasion and alien suffered minor injuries that
did not require medical treatment); Kapcia, 944 F.2d at 704, 708 (affirming BIA
finding that aliens suffered no past persecution when evidence showed one alien
was arrested four times, detained three times, and beaten once and the other alien
was twice detained for forty-eight hours during which time he was interrogated
and beaten). Other circuits have reached a similar result. See, e.g., Dandan v.
Ashcroft, 339 F.3d 567, 574 (7th Cir. 2003) (holding that being detained, beaten,
and deprived of food for three days did not compel a finding of persecution);
Prasad v. INS, 47 F.3d 336, 340 (9th Cir. 1995) (holding that, “[a]lthough a
reasonable factfinder could have found” a brief detention and beating requiring no
medical care “sufficient to establish past persecution . . . a factfinder would [not]
be compelled to do so”).
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Xue claims he faced financial harm in the form of the fine paid to secure
his release and asserts this harm to his pecuniary interests, when coupled with the
harms identified above, compel a finding of past persecution. The problem for
Xue is that he did not testify to any long-term effects from paying the fine and the
record reveals his family was able to secure the money to pay the fine within a
few days. Furthermore, just a few months after his release from jail, Xue, with
the help of his family, was able to pay a significantly larger amount of money to a
smuggler to aid Xue’s travels to the United States. This evidence strongly
suggests the fine was not as burdensome to Xue as he now asserts on appeal.
That being the case, this evidence does not compel a finding of past persecution,
even when considered in conjunction with evidence regarding Xue’s mistreatment
while incarcerated.
Alternatively, Xue asks this court to hold that any time an asylum seeker
was ordered, under threat of penalty, to stop practicing his religion, persecution is
established. In so requesting, Xue relies on the Eleventh Circuit’s decision in
Kazemzadeh v. U.S. Attorney General, 577 F.3d 1341 (11th Cir. 2009). In
Kazemzadeh, an asylum seeker was forced to choose between practicing
Christianity in hiding or facing death in Iran. Id. at 1353-54. Kazemzadeh
concluded that “having to practice religion underground to avoid punishment is
itself a form of persecution.” Id. at 1354. This court perceives more than one
problem with Xue’s reliance on Kazemzadeh.
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Most importantly, under similar facts to those at issue here, the Eleventh
Circuit declined to extend its holding in Kazemzadeh in the way requested by
Xue. In Wang v. U.S. Attorney General, 591 F. App’x 794, 799 (11th Cir. 2014)
(unpublished disposition), the Eleventh Circuit rejected the notion that
Kazemzadeh created a hard-and-fast rule, explaining that case-specific evidence
in Wang demonstrated “that local governments do not interfere with unregistered
churches viewed as non-threatening; restrictions on religious freedom vary
according to region; and certain areas protect religious freedom.” In that regard,
the court in Wang recognized the petitioner’s testimony “that her mother, father,
and siblings have long attended unregistered churches in China without incident.”
Id. Like the court in Wang, we do not read Kazemzadeh as creating the
generalized rule advocated by Xue. Instead the result in Kazemzadeh is highly
specific to context and the record.
Even if Kazemzadeh could be read as creating the inflexible rule advocated
by Xue, this court would be obligated to reject such an approach. Here the record
supports the BIA’s determination that the restriction on Xue’s religious practice
in the form of the guarantee letter was not particularly meaningful given that Xue
returned to his house church within two weeks of his release from jail. As noted
above, Vicente-Elias holds that the existence of persecution is a factual
determination focused on the record evidence. An inflexible rule treating each
and every instance of a certain type of religious harassment as amounting to
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persecution as a matter of law is flatly inconsistent with the Vicente-Elias
standard of review. Thus, this court cannot conclude the BIA was compelled to
find past persecution based exclusively on the fact Xue was required to sign the
guarantee letter as a condition of his release from jail.
Considering the entire record, the evidence adduced by Xue at the
immigration hearing does not compel the conclusion he suffered persecution prior
to leaving China to travel to the United States. That being the case, the BIA’s
finding that Xue did not suffer past persecution must be affirmed.
2. Future Persecution
In affirming the IJ’s finding that Xue did not show a well-founded fear of
future persecution, the BIA concluded Xue did not demonstrate that he faces a
particularized threat of persecution should he return to China. The BIA observed
that Xue was able to depart China using his true name and passport, which
“supports a conclusion that the authorities were not actively pursuing him [three]
months after he stopped reporting to the police station on a weekly basis.” The
BIA also noted that Xue “ha[d] not offered any updated evidence establishing that
[the] police have a continued interest in him in China.” Finally, the BIA noted
that Xue’s “mother has not been arrested and detained, or been required to report
to the police; however, she has actively participated in an underground church
and for years has been holding [a] weekly church meeting at her home.”
According to the BIA, “evidence that [Xue’s] parents and brother actively
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participate in an unregistered church undermines the reasonableness of his fear of
future persecution.”
Because Xue failed to establish past persecution, he is not entitled to a
presumption that he has a well-founded fear of future persecution. 8 C.F.R.
§ 1208.13(b)(1). He must, therefore, establish a well-founded fear of persecution
to demonstrate an entitlement to asylum. Id. § 1208.13(b)(2). In the context of
this particular case, he can do so only by showing that a reasonable factfinder
would be compelled to conclude he will be targeted for mistreatment upon his
return to China. On the record before the BIA, we have no difficulty concluding
Xue has failed to carry that burden.
The BIA could reasonably conclude that the fact Xue’s family remains in
China unharmed and continues to attend unregistered church services, including
hosting a weekly service in the family home, demonstrates Xue will not be
targeted upon a return to China. See Ritonga v. Holder, 633 F.3d 971, 977 (10th
Cir. 2011). Xue attempts to overcome this evidence by arguing he is not similarly
situated to his family members because he was previously arrested and required to
report weekly to police. He also asserts that signing the guarantee letter upon his
release from jail singled him out as a dissident and that police officers visited his
parents’ house on occasion after he stopped reporting. Xue’s arguments in this
regard suffer from a lack of evidentiary support.
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In asserting he is not similarly situated to his family members, Xue focuses
on the guarantee letter and evidence in the record demonstrating individuals
arrested during the second raid of his house church who were repeat offenders
were sentenced to a year of imprisonment. That evidence certainly demonstrates
(1) an active effort by Chinese authorities in 2008 in Xue’s hometown to
eliminate underground house churches and (2) if Xue were targeted by Chinese
authorities upon a return to his country of nationality, he would likely suffer
persecution. This evidence does not, however, negate in any way the BIA’s
finding that authorities in Xue’s hometown have not targeted house church
services since at least 2010, as demonstrated by the experience of Xue’s family.
The BIA’s finding in this regard is entirely consistent with documentary evidence
in the record, including country reports, which indicates suppression of Christian
house churches in China is both regionalized and irregular.
Likewise, although the record (i.e., letters and other forms of
communication from Xue’s mother to Xue) indicates officials maintained a
particularized interest in Xue immediately after Xue stopped attending his weekly
reporting sessions, none of that evidence compels the conclusion Chinese officials
have maintained that particularized interest. In arguing for a contrary finding,
Xue relies heavily on a letter from his mother dated January 27, 2012. That
letter, however, appears to discuss Xue’s unhappiness with past events and
appears to explain that Xue’s mother sent him abroad in 2008 because police, at
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that time, threatened Xue with a penalty for failing to report for his weekly
sessions at the police station. The letter does not compel the conclusion officials
maintain a particularized interest in Xue. Furthermore, as noted by the BIA,
despite the entitlement to do so, Xue did not adduce any additional evidence
demonstrating such a particularized interest between the IJ’s decision and the
BIA’s resolution of the appeal. See generally Board of Immigration Appeals
Practice Manual 5(f), at 78 (relevant page last revised April 26, 2016) (discussing
process for filing motions based on new evidence), available at
https://www.justice.gov/eoir/board-immigration-appeals-2; see also 8 C.F.R.
§ 1003.1(d)(4) (empowering the BIA to “to prescribe procedures governing
proceedings before it”).
For those reasons set out above, the BIA’s finding that Xue would not be
targeted for persecution based on religion should he return to China is supported
by substantial evidence. Therefore, the BIA did not clearly err in concluding Xue
failed to establish a reasonable possibility of future persecution.
C. Other Requests for Relief
The BIA correctly concluded that because Xue failed to show a reasonable
possibility of future persecution, he necessarily failed to meet the higher burden
required for withholding of removal under the Immigration and Nationality Act.
See supra n.7. The BIA also correctly concluded Xue failed to show his
eligibility for relief under the CAT. Because Xue did not present sufficient
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evidence to establish it is more likely than not he would be tortured upon his
return to China, he is not entitled to CAT relief. 8 C.F.R. § 1208.16(c).
III. Conclusion
For the foregoing reasons, this court DENIES Xue’s petition for review.
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15-9540, Xue v. Lynch
BRISCOE, Circuit Judge, concurring in part:
I agree that Xue’s petition for review should be denied.
I join, except for section II.A.2., which addresses an issue not raised or
briefed by the parties. The views expressed there regarding standard of review
concern a “rule of law or legal proposition not necessarily involved nor essential
to the determination of the case in hand,” and are thereby dicta. Rohrbaugh v.
Celotex Corp., 53 F.3d 1181, 1184 (10th Cir. 1995) (quoting Black’s Law
Dictionary 454 (6th ed. 1990)).