Zhang, Wei L. v. Gonzales, Alberto R. , 136 F. App'x 930 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 14, 2005
Decided June 21, 2005
Before
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-2440
WEI LI ZHANG, On Petition for Review of an Order of
Petitioner, the Board of Immigration Appeals
v. No. A77-654-626
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
ORDER
Chinese citizen Wei Li Zhang applied for asylum, withholding of removal,
and relief under the Convention Against Torture, claiming that he was threatened
with arrest on account of his membership in the “social group” of Chinese citizens
who refuse to pay illegal taxes. The Immigration Judge denied relief, holding that
Zhang had not alleged membership in any social group that would qualify him for
asylum and that, regardless, he had not demonstrated past persecution or the
likelihood of future persecution. Zhang appealed and the Board of Immigration
Appeals affirmed without opinion. We deny Zhang’s petition for review.
Zhang attempted to enter the United States through Chicago in March 2000
but was refused admission because he misrepresented his identity and lacked a
valid immigrant visa. The INS placed him in removal proceedings the next month.
No. 04-2440 Page 2
Zhang applied for asylum and withholding of removal, alleging in his application
that he would be arrested and tortured if returned to China. He claimed Chinese
police had tried to arrest him in August 1999 for “illegal activities” after he refused
to pay fines arbitrarily assessed against his construction company for “not using
sufficient materials for the buildings.” He also stated that although he “did not
practice any more,” he had been involved with Falun Gong in China and had also
been pursued by the police for that reason.
Zhang repeated the substance of his application in testimony at his hearing
before an IJ in May 2003. He stated that he had been a construction worker in
China for ten years when in August 1999 a “monitoring person from the
government” began to visit the construction site frequently in an attempt to collect
unspecified “illegal” taxes. Zhang refused to pay the amount sought, and seven
policemen came to the construction site to coerce him into paying “the social
protection fees.” Believing he faced arrest, Zhang fled the construction site and hid
out at his friend’s home for a week, at which point he fled to the United States.
Zhang did not elaborate on what kind of taxes the government sought or why they
were illegal, other than to say, “[i]n my personal view those money my hard earn
salaries so there’s no reason for me to pay them for extra protection.”
Zhang also testified that he practiced Falun Gong “for nearly three weeks” in
July of 1999. A close friend brought him to a park where they participated in the
Falun Gong exercises. Zhang stated that he did not encounter any “direct
difficulties or trouble” as a result of his involvement in Falun Gong and that he no
longer practiced the religion.
The IJ denied Zhang’s application, holding that he had not established past
persecution or the likelihood of future persecution. The IJ noted that Zhang “did
not suffer any harm, was not arrested, was not detained[,]” and “did not even suffer
any economic damage.” Further, the IJ expressed skepticism that any of the
treatment Zhang had described in his testimony could be attributed to his
membership in a “social group” as defined by the INA. The IJ did not believe that
individuals who refused to pay taxes in China were the sort of “cohesive,
homogenous group” the INA intended to protect. Accordingly, Zhang had failed to
meet his burden of proof and the IJ denied relief.
Zhang’s sole argument on appeal is that the IJ erred in concluding that he
did not have a well-founded fear of persecution based on his membership in a
particular social group. He argues that he belongs to the group of “individuals who
refuse to succumb to extortion by government officials” and that he will be
persecuted based on his membership in this group if forced to return to China.
To qualify for asylum based on membership in a persecuted social group, an
No. 04-2440 Page 3
alien must: 1) identify that social group, 2) establish membership in that group, and
3) establish that his well-founded fear of persecution is based on his membership in
that group. Yadegar-Sargis v. INS, 297 F.3d 596, 603 (7th Cir. 2002). A social
group is defined by a common characteristic its members share, “such as sex, race,
kinship, or in some cases, past experiences such as former military service or land
ownership.” Lwin v. INS, 144 F.3d 505, 511 (7th Cir. 1998). Although the BIA
initially required that the common characteristic binding the group be “immutable,”
we have subsequently held that characteristics that an alien could change, but
should not be required to change “as a matter of conscience,” are also included.
Ahmed v. Ashcroft, 348 F.3d 611, 617 (7th Cir. 2003) (leaving open the possibility
that police officers might constitute a social group, even though they had the ability
to change their status by quitting).
Although it is possible that individuals opposing extortion might constitute a
social group, we need not decide that point, because Zhang has not demonstrated
that he has a well-founded fear of persecution based on his membership in that
group. Although the INA does not define the term “persecution,” we have held that
it includes “non-life-threatening behavior such as torture and economic deprivation
if the resulting conditions are sufficiently severe.” Capric v. Ashcroft, 355 F.3d
1075, 1084 (7th Cir. 2004). Zhang has alleged only that the Chinese government
attempted to collect taxes from him and then sought to jail him for his refusal to
pay. He has not claimed that he was physically harmed or even threatened with
physical harm, and unfulfilled threats are generally insufficient to establish past
persecution. See Ahmed, 348 F.3d at 615 (finding of no persecution supported by
substantial evidence where alien sequestered himself in desert and thus never
suffered physical harm or the threat thereof). Nor does once being told to pay a tax
constitute the “significant economic disadvantage” necessary to establish economic
persecution. See Capric, 355 F.3d at 1092-93 (no significant economic disadvantage
where alien was terminated from job and evicted from apartment due to political
beliefs).
We have recognized that “not every victim of corruption can qualify for
political asylum,” noting that this relief should be reserved for those individuals
who have engaged in “political agitation against state corruption.” Marquez v. INS,
105 F.3d 374, 381 (7th Cir. 1997) (no likelihood of future persecution where alien
criticized military corruption on national radio show; had alien joined an
anticorruption political party, the case would have been stronger). Zhang has not
alleged that he spoke publicly against government corruption nor sought to make
changes to the system; he merely alleges in the most general terms that he himself
was a victim of corruption. This is not sufficient to establish a likelihood of future
persecution. See id.; Ahmed, 348 F.3d at 618 (alien must “present specific, detailed
facts showing a good reason to fear that he or she will be singled out for
persecution”).
No. 04-2440 Page 4
Accordingly, we DENY Zhang’s petition for review.