Hao Zhu v. Alberto R. Gonzales

465 F.3d 316, 2006 U.S. App. LEXIS 24605, 2006 WL 2788499

Opinions

BAUER, Circuit Judge.

Hao Zhu, a citizen of the People’s Republic of China, appeals the denial of his request for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We deny Zhu’s petition for review.

I. Background

The government commenced removal proceedings against Zhu after he attempted to enter the United States at Chicago’s O’Hare International Airport on September 16, 2000. At a January 14, 2003 hear ing, Zhu submitted an application for asylum, a request for withholding of removal under the Immigration and Nationality Act (INA), and a request for deferral of removal under the CAT. Zhu indicated in his 1-589 form that his asylum request was based on political opinion.

Although the immigration judge (I J) did not credit portions of Zhu’s testimony, he stated that “on aspects related to his relationship with his girlfriend, Yun Dong, [Zhu’s testimony] should be full[y] credited.” Because of the IJ’s credibility determination, the facts are undisputed. Zhu impregnated Dong in early 2000. On April 7, he admitted to school officials that he was responsible for her pregnancy. When the family planning commission ordered Dong to appear at the hospital on April 8, she decided to travel to Shan Ming City to hide. That day, family planning officials came to Zhu’s home looking for Dong. They kicked and struck Zhu with fists in an attempt to bring him to the police station. Zhu also was hit on the head with a brick, an injury that required seven stitches. WOien Zhu started bleeding, the officials asked him to turn himself in after seeking treatment. They did not detain him. Zhu later traveled to Shan Ming City to find Dong, who, unbeknownst to him, had already returned home, been discovered, and forced to abort the pregnancy. After returning home and speaking with Dong, Zhu decided to leave for the United States. Upon his arrival at O’Hare, he stated that he left China because of the coercive birth control policy. He also stated that he would possibly be jailed if he returned.

The IJ ruled that Zhu failed to establish either past persecution or a well-founded fear of future persecution, and denied his request for asylum, withholding, and deferral of removal. After the BIA affirmed the IJ’s decision, Zhu petitioned for review.

II. Discussion

When the BIA summarily affirms, we review the IJ’s decision. Nakibuka v. Gonzales, 421 F.3d 473, 476 (7th Cir.2005). We review the BIA’s factual determinations under the highly deferential substantial evidence standard. Dandan v. Ashcroft, 339 F.3d 567, 572 (7th Cir.2003). We will not grant the petition for review unless the petitioner demonstrates that “the evidence not only supports [reversal of the BIA’s decision], but compels it.” Liu v. Ashcroft, 380 F.3d 307, 312 (7th Cir.2004) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (emphasis in original)).

A. Asylum

To establish eligibility for asylum, an applicant must demonstrate that she is a “refugee” within the meaning of the INA by proving that she was persecuted in the past or has a well-founded fear of future persecution on account of her race, religion, nationality, membership in a social group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A); Liu, 380 F.3d at 312. The applicant bears the burden of demonstrating persecution. See 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a). We have previously defined persecution as “punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate.” Nakibuka, 421 F.3d at 476 (citing Liu, 380 F.3d at 312). Although an asylum applicant need not show that her life or freedom were threatened, the harm suffered must rise above the level of “mere harassment” and result from more than unpleasant or even dangerous conditions in her home country. Id.

1. Past Persecution

Zhu first claims that he suffered past persecution, in the form of a beating by family planning officials, on account of his resistance to China’s family planning policies. Although the IJ credited Zhu’s testimony regarding his mistreatment, he determined that the facts did not warrant a finding of past persecution. The testimony reveals that the officials beat Zhu on this one occasion alone. Past persecution may be demonstrated by a single episode of physical abuse, if it is severe enough. Dandan, 339 F.3d at 573. Zhu’s beating required medical attention and, he claims, caused an injury that is comparable to other allegations of serious and specific physical abuse which we have found to constitute past persecution. While a cut requiring seven stitches is doubtless a substantial injury, however, we must consider all of the circumstances of the incident in specific detail, for “it is the details that reveal the severity of’ the abuse at issue. Liu, 380 F.3d at 313. A thorough review of the relevant case law reveals that physical injury serious enough to compel a finding of past persecution is typically accompanied by one or more additional factors that are not present here.

For instance, we found that the facts compelled a finding of past persecution where a severe beating resulted in the petitioner’s miscarriage, but that petitioner was also physically assaulted on two other occasions, detained twice, and threatened with sexual assault once. See Vladimirova v. Ashcroft, 377 F.3d 690, 692 (7th Cir.2004). The evidence likewise compelled reversal where the petitioner’s face was cut with a razor, but that petitioner was beaten on four separate occasions over the course of two months and was forced to watch his wife being raped. See Bace v. Ashcroft, 352 F.3d 1133, 1138 (7th Cir.2003). We remanded to the BIA on the question of past persecution where a petitioner’s beating resulted in the loss of two teeth, but the petitioner was also detained and handcuffed to a radiator for two weeks in a cell with only enough room to stand, deprived of sufficient food and water, and detained and questioned on a separate occasion. See Asani v. I.N.S., 154 F.3d 719, 723 (7th Cir.1998). Lastly, we held that the evidence compelled reversal where the petitioner sustained injuries requiring three days of medical care; the petitioner was also detained for two weeks, beaten daily, given only minimal food and water, and had salt literally rubbed into his wounds. See Soumahoro v. Gonzales, 415 F.3d 732, 737-38 (7th Cir.2005). In each of these cases, then, there were further incidents of abuse, such as detention, repeated beatings, and other humiliating or harmful acts beyond the resulting physical injury. Zhu endured only the single beating, was never detained, and was never subjected to additional abuse. Although Zhu’s physical injury is arguably as substantial as the ones suffered in these cases, the overall experiences endured by these petitioners were at once both more prolonged and more severe than that which Zhu encountered. To be clear, we by no means seek to minimize Zhu’s ordeal; we endeavor only to illuminate the distinctions essential to ruling on such a fact-specific determination.

In another group of cases, we have reviewed the BIA’s analysis of the petitioner’s single episode of physical abuse. First, we upheld the BIA’s finding of past persecution where the petitioner suffered a bruised face and broken finger from a single Christmas Eve beating. Vaduva v. I.N.S., 131 F.3d 689, 690 (7th Cir.1997). Although the Christmas Eve beating alone supported the BIA’s finding, we incidentally noted that Vaduva was beaten on another occasion and endured “harassing telephone calls, warnings, and at least one interrogation.” Id. Vaduva also differs from the present matter in its procedural posture; there, we upheld the BIA’s finding of past persecution as supported by substantial evidence, whereas here we are asked to reverse the BIA and hold that the evidence compels such a finding. Id. Under the substantial evidence standard of review, we reverse “only if ‘no reasonable fact-finder could fail to find’ that [the petitioner] had suffered from past persecution.” Oforji v. Ashcroft, 354 F.3d 609, 613 (7th Cir.2003) (quoting Georgis v. Ashcroft, 328 F.3d 962, 967-68 (7th Cir.2003)).

In a second case involving “a single episode of detention or physical abuse,” we upheld the BIA’s finding of no past persecution where the petitioner was beaten until his face was swollen and was detained for three days without food. See Dandan, 339 F.3d at 571. In so ruling, we noted that Dandan did not present the specifics of his injury that would “indicate the severity of the beating and support its claim to be considered persecution.” Id. at 574. We distinguished Asani where the petitioner lost two teeth, and Vaduva, where the petitioner suffered a bruised face and broken finger. See id. Although the specific nature of Zhu’s injury, a cut requiring seven stitches, would seem to differentiate his case from Dandan, we also noted that such specifics are not “the sine qua non of persecution.” Id. The result, moreover, rested equally on the fact of Dandan’s single detention; we noted that “[although the frequency issue is not disposi-tive, it does figure significantly in the analysis.” Id. at 573. This factor militates against Zhu’s position, for he encountered the authorities but once.

In again upholding the BIA’s finding of no past persecution, we emphasized that the petitioner had to endure only “a singular event” of pushing and hair-pulling, even though she was detained for two days, interrogated, and had her apartment ransacked. See Liu, 380 F.3d at 313. In both Liu and Dandan, then, we upheld the BIA’s finding of no past persecution based in part on the fact that the petitioner, like Zhu, encountered only a single instance of abuse. The severity and specificity of the injury Zhu describes, however, is more on the order of the petitioner’s injury in Va-duva. Another recent case helps to illustrate these countervailing factors; in it we upheld the BIA’s decision that no past persecution resulted from an unspecified injury to the petitioner’s hands, even though the police interrogated him three times, detained him for twenty-four hours, harassed him for money, and threatened to kill him. Prela v. Ashcroft, 394 F.3d 515, 517-18 (7th Cir.2005). Although the injury Zhu describes is more serious and specific than the injury suffered in Prela, his ordeal on the whole is less serious in that he was never detained and never endured additional humiliating or harmful official action (such as the repeated encounters with, and threat from, the police). His injury weighs in favor of a finding of persecution, but is without the typical accompanying factors that we have previously deemed significant.

In short, none of our past cases is precisely on point. All in all, though, we find that the evidence of this isolated beating does not compel a finding of past persecution. Essential to this ruling is our understanding of the deferential nature of substantial evidence review. See Prela, 394 F.3d at 518; Liu, 380 F.3d at 313-14; Dandan, 339 F.3d at 573-74 (describing substantial evidence, in the context of reversal, as “a high standard and one that is properly difficult to meet without powerful and moving evidence”). While the officials’ treatment of Zhu in China was undeniably deplorable, substantial evidence supports the BIA’s determination.

Zhu next argues that he suffered past persecution because his girlfriend Dong was forced to have an abortion. The definition of “refugee” was amended to provide that:

a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion.

8 U.S.C. § 1101(a)(42)(B). The BIA has previously interpreted this language so that “past persecution of one spouse can be established by coerced abortion or sterilization of the other spouse.” Matter of C-Y-Z-, 21 I. & N. Dec. 915, 917 (BIA 1997). The IJ held that Zhu’s status as the boyfriend of a woman who was forced to abort her pregnancy did not entitle him to a finding of past persecution under the amendment. This legal determination is subject to de novo review. Ahmed v. Ashcroft, 348 F.3d 611, 615 (7th Cir.2003).

We have interpreted the language of the amendment as affording protection to spouses in cases “[wjhere a traditional marriage ceremony has taken place, but is not recognized by the Chinese government because of the age restrictions in the population control measures.” See Zhang v. Gonzales, 434 F.3d 993, 999 (7th Cir.2006). Zhu cannot claim this protection for himself, however, because he and Dong engaged in no marriage ceremony; they were simply boyfriend and girlfriend. There was not even a suggestion that they had planned to wed. A case that we recently decided controls. See Chen v. Gonzales, 457 F.3d 670 (7th Cir.2006). We, like other circuits, have declined to expand the definition of “refugee” to include the boyfriends of women who are forced to abort a pregnancy. See id. at 674; see also Zhang v. Ashcroft, 395 F.3d 531, 532 (5th Cir.2004); Chen v. Ashcroft, 381 F.3d 221, 227-29 (3d Cir.2004). Zhu cannot demonstrate past persecution on this basis.

2. Well-Founded Fear of Future Persecution

Without a finding of past persecution, a person seeking asylum must prove that she genuinely fears she will be persecuted based on a protected ground if returned to her native country, and that her fears are objectively reasonable. Liu, 380 F.3d at 312 (citing I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). In his brief, however, Zhu does not claim that he has an independent fear of persecution, but rather relies completely on the presumption that arises from a demonstration of past persecution. See 8 C.F.R. § 208.13(b)(1); Dandan, 339 F.3d at 573. He cannot avail himself of this presumption, however, because we upheld the BIA’s finding that he suffered no past persecution.

We additionally note the IJ’s correct assertion that the likelihood of Zhu’s persecution upon return to China was quite minimal, given the fact that Dong was already forced to abort her pregnancy. When questioned upon his arrival at O’Hare, Zhu stated that he would possibly be jailed if he returned to China. Such an indeterminate suggestion, however, cannot qualify as objectively reasonable. See Borca v. I.N.S., 77 F.3d 210, 214 (7th Cir.1996) (to establish reasonableness, the “petitioner must present specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution”). Zhu’s fear of possible future arrest seems strange given the officials’ decision not to detain him on April 8. In fact, Zhu remained in China until September and was never detained. It is more reasonable to presume that persecution intended to coerce adherence to the family practice policies would cease after the forced abortion was carried out. Zhu fails to demonstrate a well-founded fear of future persecution.

B. Withholding and Deferral of Removal

Finally, because Zhu has not met the lesser burden of proof required to establish eligibility for asylum, we decline to consider his claims for withholding of removal under the INA and deferral of removal under the CAT, both of which entail a higher standard of proof. See Ahmed, 348 F.3d at 619.

III. Conclusion

For the foregoing reasons, we Deny the petition for review.