Li v. Atty Gen USA , 322 F. App'x 248 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-23-2009
Li v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1598
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1598
___________
YOU GUANG LI,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A98-712-893
Immigration Judge: Daniel Meisner
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 22, 2009
Before: SLOVITER, STAPLETON and COWEN, Circuit Judges
(Opinion filed: April 23, 2009)
___________
OPINION
___________
PER CURIAM
Petitioner You Guang Li, a native and citizen of China, arrived in the United
States through Mexico on November 30, 2004 without being inspected, admitted or
paroled. He is thus removable under Immigration and Nationality Act (“INA”) §
212(a)(6)(A)(i), 8 U.S.C. § 1182 (a)(6)(A)(i). Li applied for asylum under INA § 208(a),
8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. §
1231(b)(3), and for protection under the Convention Against Torture, 8 C.F.R. §§
1208.16(c), 1208.18, claiming that he had been persecuted by the Chinese government on
account of his practice of the outlawed Falun Gong religion or spiritual movement.1 The
asylum application included a personal statement.
At his merits hearing, Li testified that he started practicing Falun Gong in April of
2003. He was introduced to it by a friend, Zhi Hong Zhu, and he was interested in it
because he thought it might improve his poor health. Li and his friend practiced in a
scenic area on a hill in the Gu Shan district at 5 a.m., three or four times a week until
September of 2004. On September 6, 2004, three police officers came to Li’s restaurant,
told him that practicing Falun Gong was illegal, and arrested him. He was taken to the
police station and interrogated with respect to others who might be practicing the
outlawed Falun Gong. He was struck in the head twice with an open hand because he
told police that no one practiced with him. The officers laughed at him when he asked for
food; they said that someone practicing Falun Gong should be powerful enough not to
have to eat. After 24 hours, Li was released when his parents found someone to bring
5,000 RMB to post bail. Li was told to report to the police station once a week.
Following his release, Li reported only once to the police, and on that occasion he
1
Falun Gong is a spiritual movement that blends aspects of Taoism, Buddhism, and
the meditative techniques and physical exercises of qigong – a traditional Chinese
exercise discipline – with the teachings of its founder. See generally Lin v. Att’y Gen. of
U.S., 543 F.3d 114, 117 n.3 (3d Cir. 2008).
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was questioned briefly and released. Then, fearing for his safety, he went to stay with his
maternal uncle, Shu Chuan Li, who lived approximately three or four hours away by car.
He stayed there for three or four months until he left China in November. During that
time, the police came to Li’s home on numerous occasions to ask his parents about his
whereabouts. Since departing China, the police have paid visits to his parents and have
told them that, if he ever returned, he would be arrested.
Since Li’s arrival in the United States, he has practiced Falun Gong several times a
week in his dormitory. Li related that he practiced the five sets of Falun Gong, one by
one. He described to the Immigration Judge the names of the five sets, their meaning,
and the number of movements in each set. He further related the principles of Falun
Gong, and he added that Falun Gong had been founded by Hongzhi Li, who had fled to
the United States. Li asserted that he would continue to practice Falun Gong if he
returned to China.
Following the hearing, the IJ found that Li had failed to meet his burden of
establishing either a well-founded fear of future persecution due to his practice of Falun
Gong, or past persecution on the basis of it. Accordingly, Li’s applications were denied.
The IJ found that Li was not credible on the basis of inconsistencies between his
application and testimony, and, even if his claims were to be believed, his proof of
persecution was insufficient. In his asylum application, Li stated that he left China on
October 14, 2004, but this was not consistent with his testimony that he remained at his
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uncle’s house for three or four months before leaving China in November 2004. When
confronted with the inconsistency, Li responded that, in actuality, he stayed with his uncle
for two months, and left China in November of 2004. In addition, Li submitted no
affidavits or declarations from persons to support his claim that he practiced Falun Gong
in China, or here in the United States.2 For example, he had no statement from either of
his parents who had been instrumental in obtaining his release. He submitted no
background information from the U.S. State Department or non-governmental agencies.
But, the IJ concluded, even assuming a favorable credibility determination, Li’s proof was
insufficient to show past persecution. He was arrested one time and released after 24
hours. He was struck twice during his interrogation, but he testified that he was not
injured. Importantly, the police made no attempt to locate him at his uncle’s home even
though he was under an obligation to report on a weekly basis. The IJ also found that Li
was not tortured in the past, and there was no indication from his evidence that he would
be tortured if he returned to China.
Li appealed, but, on January 31, 2008, the Board of Immigration Appeals affirmed,
citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994). Without addressing the IJ’s
adverse credibility finding, the Board concluded that “even if credible,” Li’s
circumstances did not demonstrate either past persecution or a well-founded fear of future
2
It appears from the administrative record that removal proceedings were transferred
from Texas to New York City because Li went to live with his aunt, a resident of Corona,
New York.
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persecution, quoting parenthetically the definition of persecution from Fatin v.
Immigration & Naturalization Serv., 12 F.3d 1233 (3d Cir. 1993). The Board identified
these circumstances: Li was detained in 2004 because of his practice of Falun Gong, he
was slapped twice and denied food and water, and he was released without further harm.
The Board also concluded that there was no support in the record for Li’s torture claim,
thus making him ineligible for CAT protection. Li now seeks review of the Board’s
decision.
We have jurisdiction to review a final order of removal under 8 U.S.C. §
1252(a)(1), (b)(1). To the extent the Board deferred to the IJ’s reasoning in part, we
review the Board’s decision but consider the IJ’s as well as a matter of logic. See
Abdulrahman v. Ashcroft, 330 F.3d 587, 591 (3d Cir. 2003). Under INA § 208(b), the
Attorney General has the discretion to grant asylum to "refugees." 8 U.S.C. § 1158(b);
see also Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5
(1987). Section 101(a)(42)(A) of the INA defines a "refugee" as a person unable to
return to her country of "nationality . . . 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).
The alien bears the burden of proof of establishing that he is a refugee and that he
has suffered past persecution or has a well-founded fear of persecution. See 8 C.F.R. §
1208.13(a); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Persecution has a well-
5
established meaning; it includes threats to life or freedom but it does not include
treatment that fairly may be regarded as unfair or unjust, or even unlawful. Fatin, 12 F.3d
at 1240. If past persecution is established, then the asylum applicant is presumed to have
a well-founded fear of persecution. See 8 C.F.R. § 1208.13(b)(1); Shardar v. U.S.
Attorney Gen., 503 F.3d 308, 312 (3d Cir. 2007). To establish entitlement to withholding
of removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), the alien must
demonstrate a "clear probability" of persecution through the presentation of evidence that
it is more likely than not that he would be subject to persecution if deported. See
Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003).
The agency’s “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). See also
Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under
this deferential standard, the petitioner must establish that the evidence does not just
support a contrary conclusion but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d
Cir. 2002).
Li has failed to show that the Board’s conclusion that he failed to demonstrate past
persecution is not supported by reasonable, substantial and probative evidence on the
record considered as a whole. Elias-Zacarias, 502 U.S. at 481. The record evidence
supports the finding that his arrest, detention, interrogation, and the requirement that he
report on a weekly basis did not rise to the level of persecution. The evidence Li
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submitted shows that he was arrested by local police and held for about 24 hours after he
had started to do Falun Gong exercises. While detained he was denied food and water,
and while interrogated he was slapped twice on the back of his head with an open hand
and laughed at, but he suffered no injury. He was released and ordered to report weekly
to the police, which he did once when he was briefly questioned and again released. He
went to his uncle’s home, where he stayed for several months, during which time police
made no attempt to locate him. After arriving in the United States, police visited his
parents to inquire as to his whereabouts, and, even though his family provided no
information to the police, they suffered no mistreatment or harm. None of these
circumstances rise to the level of persecution. See, e.g., Kibinda v. Att’y Gen. of U.S.,
477 F.3d 113, 119-20 (3d Cir. 2007) (five-day detention resulting in minor injury did not
amount to persecution); Fatin, 12 F.3d at 1240.
If the alien cannot show past persecution, he may still establish a well-founded fear
of future persecution by demonstrating a subjective fear of persecution, and that a
reasonable person in the alien’s circumstances would fear persecution if returned to the
country in question, Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). However, Li
also failed to show that the Board’s conclusion that he failed to demonstrate a well-
founded fear of future persecution is not supported by reasonable, substantial and
probative evidence. Li failed to provide specific and detailed testimony which would
establish both a subjective and an objective fear of future persecution. The only evidence
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Li presented was his own testimony that he currently practices Falun Gong and he would
continue to do so in China. Even if he had submitted a State Department Country Report
indicating that some Falun Gong followers have been subject to severe treatment by
Chinese authorities, Li provided no reason to believe either that every follower of Falun
Gong is persecuted or that he would be targeted specifically for such treatment. On the
contrary, his testimony that he was not pursued by the police while he lived with his
maternal uncle undercuts any such assertion. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d
Cir. 2005) (discussing individualized risk of persecution). Furthermore, Li did not assert
a pattern or practice of persecution.
Since the asylum standard is a more lenient standard, an alien’s failure to establish
eligibility for asylum forecloses eligibility for withholding of removal. Lukwago v.
Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). The Board also correctly determined that
Li’s CAT claim is without merit because he did not demonstrate that it was more likely
than not that he would be tortured, 8 C.F.R. 1208.16(c)(2), in China.
For the foregoing reasons, we will deny the petition for review.
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