Ming Li Hui v. Eric H. Holder, Jr. , 769 F.3d 984 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-3733
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Ming Li Hui
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr.
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: September 10, 2014
Filed: October 14, 2014
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Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
Petitioner Ming Li Hui, a native of Hong Kong, overstayed her visa and was
placed in removal proceedings. She applied for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). The Immigration Judge (IJ)
denied all three claims, and the Board of Immigration Appeals (BIA) affirmed. Hui
now seeks a petition for review focusing on the denial of withholding of removal.
After due consideration, we deny her petition.
Hui bases her claims for relief on physical and emotional abuse by her mother.
She asserts that her mother severely abused her as a child "because she hated girl[s]."
The abuse included the mother burning her hand with a cigarette butt, withholding
food, calling her "trash, garbage," and telling her she "wish[ed] you'd die soon." Hui
was also forced to do all the household chores. When she was eight years old, her
mother cut Hui's hair short and made her dress like a boy. During high school, Hui
worked at McDonald's in addition to doing chores at home, and her mother
confiscated all of her earnings. Her two brothers were not mistreated. Hui was
unable to escape the abuse until 1999, when at about 20 years old she was promoted
to assistant manager at McDonald's and could afford to move away from home. Her
mother located her in 2003, however, and threatened to kill her grandmother if she
did not return to the mother's apartment. Hui warned her grandmother but continued
to live independently. Her mother did not attempt to carry out her threat, and Hui did
not see her again before she left Hong Kong for the United States.
Hui entered the United States on February 2, 2004 with a nonimmigrant visa
and remained past its expiration. She received a notice to appear on November 10,
2008, charging her with removability under 8 U.S.C. § 1227(a)(1)(B). Hui conceded
removability and applied for asylum, withholding of removal, and protection under
CAT. At a hearing before an immigration judge on October 24, 2011, Hui testified
about her mother’s abuse and stated that she is afraid to return to Hong Kong and that
family members have told her that her mother has threatened to kill her and her infant
son if she were to return. Hui acknowledged that she had never contacted the police
to report her mother's abuse and stated that she feared her mother would kill her if she
returned to Hong Kong before she could contact the authorities. To corroborate her
testimony, Hui submitted letters from relatives. She also submitted articles about
child abuse and the Chinese preference for sons as evidence of country conditions.
Hui argued she was eligible for asylum or withholding of removal because she
was subject to past persecution on account of her membership in a particular social
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group, namely "Chinese daughters [who are] viewed as property by virtue of their
position within a domestic relationship." The IJ found Hui's testimony credible but
determined that she did not meet the requirements for asylum, withholding of
removal, or protection under CAT. The BIA agreed with the IJ's reasoning and
affirmed. Hui petitions for review of the denial of withholding of removal.
The BIA's decision is reviewed “as the final agency action" but we also
consider the findings and reasoning of the IJ if they have been adopted by the board.
Diaz-Perez v. Holder, 750 F.3d 961, 963-64 (8th Cir. 2014). We review the decisions
under the substantial evidence standard and we "reverse only if the petitioner
demonstrates that the evidence is so compelling that no reasonable factfinder could
fail to find in favor of the petitioner." Quiñonez–Perez v. Holder, 635 F.3d 342, 344
(8th Cir. 2011) (quotation omitted). To qualify for withholding of removal, an alien
must show her "life or freedom would be threatened" in the country of removal
"because of the alien's race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). The applicant bears the
burden of proving eligibility, but she may establish a presumption that her "life or
freedom would be threatened" by showing she has suffered past persecution in that
country on account of a protected ground. 8 C.F.R. § 1208.16(b)(1)(i). The burden
then shifts to the government to rebut the presumption by showing a "fundamental
change in circumstances such that the applicant's life or freedom would not be
threatened on account of" a protected ground or that the applicant could reasonably
relocate within the country of removal to avoid a future threat. 8 C.F.R.
§ 1208.16(b)(1)(i)(A), (B).
In evaluating Hui's application for withholding of removal, the IJ assumed that
Hui suffered past persecution on account of membership in the particular social group
she identified. The IJ then considered the presumption that Hui would suffer future
harm if she were removed to Hong Kong but concluded that the government had
rebutted the presumption by showing a fundamental change in circumstances. That
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change was Hui's age. The IJ noted that Hui lived apart from her mother from 1999
to 2004 and was not harmed during that time. Now as an adult, Hui is able to live
alone. Moreover, the Department of State reports that Hong Kong has laws against
domestic violence and child abuse, "and the government enforced the law." U.S.
Dept. of State, 2010 Human Rights Report: China (includes Tibet, Hong Kong, and
Macau) (2011). Hui's "earlier failure to contact the authorities [could] be attributed
to her young age," but the IJ concluded there was no reason Hui could not now seek
their protection. The IJ also determined that Hui could relocate to prevent future
persecution. In affirming, the BIA agreed that the government had proven Hui's
current age was a fundamental change in circumstances. Since the BIA did not reach
the question of relocation, we do not address it. See Ixtlilco-Morales v. Keisler, 507
F.3d 651, 655 n.3 (8th Cir. 2007).
When a petitioner has suffered past persecution, a change in personal
circumstances such as age may be a "fundamental change in circumstances" that
rebuts any presumption of future threat to life and freedom. Ixtlilco-Morales, 507
F.3d at 654-55. Hui's testimony showed that she had only been abused when she
lived with her mother, a circumstance she could not control as a child but now could.
She would be able to contact the authorities if her mother were to threaten her again,
and there is evidence that the Hong Kong government enforces laws against abuse.
Hui testified that she feared the police would not arrive in time to protect her, but she
failed to produce any evidence to support any fear that the Hong Kong government
condoned abuse of adult daughters or "demonstrated a complete helplessness to
protect the victims." Salman v. Holder, 687 F.3d 991, 995 (8th Cir. 2012).
We conclude that substantial evidence supports the determination by the IJ and
the BIA that Hui's age was a fundamental change in circumstances such that her life
or freedom would not be threatened if she returned to Hong Kong. The petition for
review is therefore denied.
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