Sheng En Liu v. Eric Holder, Jr. , 557 F. App'x 562 ( 2014 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 28, 2014
Decided March 4, 2014
Before
DIANE P. WOOD, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 13-2105
SHENG EN LIU, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A088-784-797
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
ORDER
Sheng En Liu, a Chinese citizen, applied for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT) on the basis of his resistance to
China’s family planning policies and his practice of Falun Gong. An immigration judge
denied relief, and the Board of Immigration Appeals upheld that decision. Because Liu’s
evidence of past persecution for opposing family planning policies is vague, and his
No. 13-2105 Page 2
evidence that Chinese authorities will target his Falun Gong activities is weak, we deny
the petition for review.
Background
Liu unlawfully entered the United States in February 2008. The Department of
Homeland Security initiated removal proceedings the following month, alleging that he
did not possess a valid entry document at the time of his entry, see 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Liu conceded the charge of removability and applied for asylum,
withholding of removal, and relief under CAT based on his resistance to China’s family
planning policies, see 8 U.S.C. § 1101(a)(42)(B). While his removal proceedings were
pending, Liu began practicing Falun Gong and then amended his request for relief,
adding that he feared persecution in China on account of his Falun Gong activities.
At his removal hearing Liu, who is from Fujian Province, China, testified that he
has been accused of violating his country’s family planning policies. In 2007, when he
was 19 years old, Liu’s fiancée became pregnant. In China, a pregnancy before marriage
violates the family planning rules, and the couple could not marry because they had yet
to reach the legal marital age. In November of that year, family planning officials came
to Liu’s home and asked for the couple’s marriage certificate and birth permit. After Liu
told them that the couple planned to marry when they reached the legal age, the
officials accused Liu and his fiancée of violating China’s family planning policies.
What happened next constitutes the basis of Liu’s claim that he suffered past
persecuted for opposing the family planning policies. One of the officials touched his
fiancée’s shoulder, and Liu thought the official was going to push her out of the house.
He began yelling at the official, pushed the official’s arm away, and stood between his
fiancée and the official. The other officials responded by accusing him of hitting the
official. Four officials then kicked him and struck him with a “wooden stick” on his
head, back, and legs, producing “wounds.” His parents and neighbors heard the
commotion and came to Liu’s aid, trying to keep the officials back while he escaped
through a window.
Liu remained in China for another six weeks before fleeing the country. He first
went to a neighboring village where he stayed with his aunt for ten days. His aunt
treated his wounds. He did not seek other medical treatment, he testified, out of fear
that family planning officials would find him; he did not say what treatment he needed
and admitted that he would likely not have been recognized in that village. While he
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was in hiding, he testified, family planning officials visited his parents’ home several
times demanding his surrender; they also forced his fiancée to undergo an abortion. Liu
next traveled to a city an hour away from his home and stayed with his father’s friend
for a month, without attracting the attention of authorities, before fleeing China in
December 2007. Liu kept in touch with his fiancée for two years after he left China and
asked her to submit a statement confirming the beating and forced abortion, but he
testified that she refused because she did not want to revisit the incident.
After he entered the United States and removal proceedings began, Liu started
practicing Falun Gong. He testified that he picked up a Falun Gong flyer on the street
and decided to try the exercises because he was in poor health. Liu explained that he
practiced Falun Gong three or four times per week inside his home. He also presented
photos depicting him distributing flyers that promote Falun Gong. If he returns to
China, Liu stated, he will continue practicing Falun Gong, and he fears that Chinese
officials will arrest and jail him for his activities. He furnished a letter from his sister,
who asserts in one unelaborated sentence that the Chinese officials know of his Falun
Gong activities in the United States, but he told the IJ he does not know if that is true.
The IJ rejected Liu’s requests for relief from removal, focusing first on his claim
based on his resistance to family planning policies. Although the IJ credited Liu’s
testimony in general, the IJ disbelieved Liu’s description of the November 2007
encounter with family planning officials in China. The IJ reasoned that Liu presented no
corroborating evidence and his testimony contradicted the State Department’s
description of China’s official penalties for violating family planning policies.
Alternatively, the IJ concluded that the beating Liu described did not rise to the level of
persecution or torture, and so he could not demonstrate past persecution on account of
his resistance to China’s family planning policies. The IJ also concluded that Liu had not
demonstrated his eligibility for asylum on account of his Falun Gong activities because
Liu did not show that the Chinese government knew or would learn of his practices.
The Board dismissed Liu’s administrative appeal. In discussing the beating that
Liu testified he received for opposing the family planning policies, the Board rejected
the IJ’s adverse credibility finding. But it agreed with the IJ that the beating did not
constitute persecution. The Board also ruled that the evidence did not establish that Liu
has an objectively reasonable basis for fearing persecution in China on account of his
Falun Gong activities. It observed (as the IJ had not) that the letter submitted by Liu’s
sister asserts that the Chinese government is aware of Liu’s activities. But it gave the
letter “little weight” because it was unauthenticated, uncorroborated, and written by an
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interested party for the purpose of the hearing. Moreover, Liu himself had testified that
he did not know whether the Chinese government was aware of his Falun Gong
activities. Finally the Board reasoned that Liu had not testified that he would practice
Falun Gong in China if he returns. (This is partially incorrect: Liu had testified that he
would practice Falun Gong in China, but he did not testify whether he wanted to
practice publicly.) The Board therefore denied relief from removal.
Analysis
Liu contests the decisions to deny him relief from removal. We review the
decisions of the IJ as supplemented by the Board because the Board adopted the IJ’s
decision but also added its own analysis. See Munoz-Avila v. Holder, 716 F.3d 976, 978
(7th Cir. 2013); Barradas v. Holder, 582 F.3d 754, 762 (7th Cir. 2009). If the IJ’s decision, as
supplemented by the Board, is supported by substantial evidence we will affirm;
reversal is warranted only if the evidence compels a different result. See Cece v. Holder,
733 F.3d 662, 675–76 (7th Cir. 2013) (en banc); Young Dong Kim v. Holder, 737 F.3d 1181,
1184 (7th Cir. 2013).
Liu first challenges the Board’s conclusion that the beating he received from the
Chinese family planning authorities was not persecution. Persecution requires the
application of “significant physical force against a person’s body, . . . the infliction of
comparable physical harm without direct application of force,” or the infliction of
“nonphysical harm of equal gravity.” Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir.
2011) (emphasis in original). We have recognized that even one attack may constitute
persecution. See Asani v. INS, 154 F.3d 719, 725 (7th Cir. 1998); Vaduva v. INS, 131 F.3d
689, 690 (7th Cir. 1997). But the force used or the resulting harm must reflect severe
abuse. See Mekhtiev v. Holder, 559 F.3d 725, 730 (7th Cir. 2009) (concluding that injuries
from detention and beating that required only stitches were not sufficiently severe to
compel conclusion of past persecution); Zhu v. Gonzales, 465 F.3d 316, 319 (7th Cir. 2006)
(same). Moreover where the record contains no corroboration of the alien’s story, the
alien must supply the specifics about the force used or injuries sustained because “it is
the details that reveal the severity of the particular situation.” Liu v. Ashcroft, 380 F.3d
307, 313 (7th Cir. 2004); see also Mitondo v. Mukasey, 523 F.3d 784, 789 (7th Cir. 2008)
(stating that in the absence of documentary proof, courts must use details that alien
provides to evaluate alien’s story); Dandan v. Ashcroft, 339 F.3d 567, 574 (7th Cir. 2003)
(concluding that, although petitioner suffered temporary facial swelling, he did not
provide enough other specifics about the three-day detention and beatings to compel
finding of past persecution).
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Any details that might illuminate the severity of the force used against Liu or the
harm inflicted on him are absent from this record. Liu stated only that he was kicked
and hit with a wooden stick and that his aunt applied medicine to his wounds. He did
not specify how long he was beaten (seconds versus minutes or longer), the size of the
stick used (small and light, like a stirring spoon or large and heavy, like a baseball bat),
or the injuries incurred (temporary bruises versus permanent damage or broken bones).
True, during redirect examination Liu’s counsel attempted to elicit more details about
his injuries, and the IJ cut off the questioning. But Liu did not contest this ruling in his
appeal to the Board, so it is waived, limiting Liu to the evidence in the record. See 8
U.S.C. § 1252(d)(1); Zeqiri v. Mukasey, 529 F.3d 364, 369 (7th Cir. 2008). Because the
evidence Liu submitted does not specify the severity of the force used and the harm he
suffered, it does not compel a finding that Liu had suffered past persecution. And since
Liu did not demonstrate past persecution, he is not entitled to a presumption of future
persecution. See 8 C.F.R. § 208.13(b)(1).
Liu next asserts that the IJ and the Board wrongly concluded that he could not
establish a well-founded fear of future persecution based on his Falun Gong activities in
the United States. The parties do not dispute that a Falun Gong practitioner can qualify
for asylum or that Liu is a bona fide Falun Gong practitioner. The only issue is whether
the Board was compelled to conclude that Liu’s fear of future persecution is objectively
reasonable. Liu argues that his testimony that he would continue practicing Falun Gong
in China, coupled with his sister’s letter stating that the Chinese government knew he
was practicing Falun Gong in the United States, compels a finding of an objective basis
for fearing persecution if returned.
Liu’s evidence does not compel the conclusion that he has an objectively
reasonable fear of future persecution. Although Liu testified that he plans to continue
practicing Falun Gong in China, he did not say whether he wants to promote the
exercises in public or practice just within his home (as he does in the United States).
Without evidence showing that Liu would like to advance the practice openly in China,
attracting publicity and possibly the authorities’ attention, the record does not require a
conclusion that Chinese officials will learn about his activities. See Yi Xian Chen v.
Holder, 705 F.3d 624, 630 (7th Cir. 2013) (concluding that petitioner’s testimony that he
planned to practice Falun Gong on land adjacent to house did not compel conclusion
that Chinese authorities would find out).
Liu counters that he does not need evidence that he plans to practice openly
because his sister’s letter, which he argues the Board erroneously dismissed, asserts that
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the Chinese officials already know that he practices Falun Gong in the United States.
The Board gave several reasons for concluding that the sister’s one-sentence assertion is
unreliable: it is unauthenticated, uncorroborated, written by an interested party for
Liu’s asylum hearing, and contradicted by Liu’s own testimony. Although letters from
family members prepared for a hearing need not be authenticated under 8 C.F.R.
§ 1287.6, see Gebreeyesus v. Gonzales, 482 F.3d 952, 955 (7th Cir. 2007), the Board’s other
reasons for rejecting the letter are sound: It is written by a relative interested in the
outcome of Liu’s removal proceedings, it is inconsistent with Liu’s testimony, and,
further, it does not explain how the Chinese government discovered Liu’s activities half
a world away. See Qiu Yun Chen v. Holder, 715 F.3d 207, 212 (7th Cir. 2013) (recognizing
that letters from family “can hardly be thought neutral, reliable sources.”); Matter of H-
L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215–16 (BIA 2010), remanded on other grounds by
Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). Liu replies that, even if the Chinese
officials do not yet know of his activities, his photos showing him distributing Falun
Gong flyers in the United States will eventually alert them. But he does not explain
what in the record shows how, if he does not desire publicity in China, the photos will
come their way. Accordingly the Board permissibly rejected Liu’s claim of future
persecution and, therefore, properly denied his application for asylum.
Because Liu did not meet his burden of proof to establish eligibility for asylum,
“it necessarily follows that he cannot make the more stringent showing required to
prove” that he is eligible for withholding of removal. Soumare v. Mukasey, 525 F.3d 547,
552 (7th Cir. 2008) (internal citation and quotation marks omitted). And since he could
not establish that his Falun Gong activities would attract the attention of Chinese
authorities, Liu cannot demonstrate that authorities would torture him for practicing
Falun Gong. See Zhu, 465 F.3d at 322. The agency therefore did not erroneously deny
his request for relief under CAT.
The petition for review is DENIED.