                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      February 11, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
RONGHUA HE,

             Petitioner,

v.                                                          No. 13-9550
                                                        (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.


      Ronghua He petitions for review of the decision of the Board of Immigration

Appeals (“BIA”) affirming the Immigration Judge’s decision denying her

applications for asylum, restriction on removal, and protection under the United

Nations Convention Against Torture (“CAT”). Exercising jurisdiction under

8 U.S.C. § 1252(a)(1), we deny the petition.


*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   I.     Background

      He, a native and citizen of the People’s Republic of China, entered the United

States illegally in December 2007. The Department of Homeland Security

commenced removal proceedings against her in July 2008. At a hearing before an IJ

in April 2009, He conceded removability but sought relief in the form of asylum,

restriction on removal,1 and protection under the CAT, and later applied for these

forms of relief claiming religious persecution.

      In December 2010, a merits hearing was held before an IJ. He testified that

she began attending an underground Christian family church in China in July 2006.

She testified that such churches were illegal. She attended underground church

services every Sunday, where she and other members would read the Bible, pray, and

listen to a sermon. On one of these occasions, in May 2007, “police barged in” to the

service, announced that the church members “were holding [an] illegal underground

meeting that was evil,” handcuffed He and the other congregants, and took them to a

police station. Admin. R. at 128. He testified that she was detained for one week,

interrogated twice, and beaten. He was released from custody after signing a

“guarantee letter” stating that she would no longer attend the underground church


1
       He and the agency use the term “withholding of removal.” The Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) changed
the terminology to “restriction on removal.” See 8 U.S.C. § 1231(b)(3). Because this
case arose after the effective date of the IIRIRA, we refer to this provision as
“restriction on removal.” Sidabutar v. Gonzales, 503 F.3d 1116, 1117 n.1 (10th Cir.
2007).


                                         -2-
services and would report back to the police every week. Id. at 130. Although He

initially reported to the police regularly, she testified that she felt she lost her

religious freedom and, ultimately, fled China in October 2007.

       The IJ found He credible but concluded that she failed to show past

persecution or a well-founded fear of future persecution and, accordingly, denied

asylum. Having failed to establish eligibility for asylum, the IJ denied restriction on

removal. She also denied CAT relief. The BIA affirmed the IJ’s decision. He now

petitions for review.

                                      II.     Discussion

       A. Standard of Review

       Because a single member of the BIA entered a brief affirmance order under

8 C.F.R. § 1003.1(e)(5), we review the BIA’s decision as the final order of removal

and, therefore, we “will not affirm on grounds raised in the IJ decision unless they

are relied upon by the BIA in its affirmance.” Uanreroro v. Gonzales, 443 F.3d

1197, 1204 (10th Cir. 2006). “[W]e may consult the IJ’s opinion to the extent that

the BIA relied upon or incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 790

(10th Cir. 2007). We review any questions of law de novo, but we review factual

findings under the substantial evidence standard. Karki v. Holder, 715 F.3d 792, 800

(10th Cir. 2013). Under this standard, “administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the contrary.”

Id. (internal quotation marks omitted). “[O]ur duty is to guarantee that factual


                                            -3-
determinations are supported by reasonable, substantial and probative evidence

considering the record as a whole.” Uanreroro, 443 F.3d at 1204 (alteration in

original) (internal quotation marks omitted).

      B. Asylum and Restriction on Removal

      To prevail on her asylum claim under 8 U.S.C. § 1158(b)(1)(B)(i), He must

establish refugee status which requires that she demonstrate that she is unable or

unwilling to return to her country because she has suffered past persecution or has a

well-founded fear of future persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion. See Karki, 715 F.3d at

800-01; 8 U.S.C. § 1101(a)(42)(A). Upon establishing refugee status, the grant or

denial of asylum is discretionary. See Krastev v. I.N.S., 292 F.3d 1268, 1271

(10th Cir. 2002).

      Outside of the asylum context, He may also be entitled to restriction on

removal under 8 U.S.C. § 1231(b)(3) to avoid persecution in her home country by

showing a “clear probability of persecution on account of one of the statutorily

protected grounds.” Karki, 715 F.3d at 801 (internal quotation marks omitted).

“A ‘clear probability’ means the persecution is more likely than not to occur upon

return.” Uanreroro, 443 F.3d at 1202 (internal quotation marks omitted). Failure to

establish a well-founded fear under asylum standards necessarily means a failure to

meet the higher burden of proof for restriction on removal. Karki, 715 F.3d at 801.

In this circuit, “[p]ersecution is the infliction of suffering or harm upon those who


                                          -4-
differ (in race, religion, or political opinion) in a way regarded as offensive, and

requires more than just restrictions or threats to life and liberty.” Id. (internal

quotation marks omitted). Mere “denigration, harassment, and threats” are

insufficient. Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (internal

quotation marks omitted).

       He challenges the BIA’s denial of her application for asylum and restriction on

removal arguing that the BIA erroneously concluded that she failed to demonstrate

past persecution or a well-founded fear of future persecution. We disagree.

       In declining to find past persecution, the BIA agreed with the IJ that He’s

incidents of harm and harassment did not rise in the aggregate to the level of

persecution. In support of its conclusion, the BIA explained that although He was

detained on account of her religious activity and beaten, the record did not reflect

that she suffered any severe physical injuries. And further, being required to sign a

“guarantee letter” indicating she would no longer participate in church activities and

report to the police as scheduled did not amount to more than simply restrictions or

threats to life and liberty. See Karki, 715 F.3d at 801 (observing that persecution

requires more than restrictions or threats to life and liberty).

       On these facts, even considering the incidents cumulatively, we conclude that

the evidence does not compel a result contrary to the BIA’s finding that He failed to

establish past persecution. He’s brief detention and beating herein where she

suffered minor injuries and did not require medical treatment—while morally


                                           -5-
repugnant—do not rise to the level of persecution. See Witjaksono v. Holder,

573 F.3d 968, 977 (10th Cir. 2009) (finding no persecution where alien physically

injured but did not require medical attention); Ritonga v. Holder, 633 F.3d 971, 976

(10th Cir. 2011) (“lone occasion” where alien “suffered minor injuries” did not

constitute persecution); Kapcia v. I.N.S., 944 F.2d 702, 704, 708 (10th Cir. 1991)

(two-day detention involving interrogation and beating did not rise to the level of

persecution); cf. Shi v. U.S. Att’y Gen., 707 F.3d 1231, 1237 (11th Cir. 2013) (finding

persecution where alien detained for one week, beaten, and handcuffed outside

overnight in the rain which resulted in requiring serious medical treatment).

      Turning to He’s claim of a well-founded fear of future persecution, we first

reject her claim that she is entitled to a presumption of future persecution based on

her showing of past persecution. See Aplt. Opening Br. at 11; see also Karki,

715 F.3d at 801 (showing of past persecution gives rise to a rebuttable presumption

of a well-founded fear of future persecution). The IJ and the BIA did not find a

showing of past persecution and we uphold this determination. Accordingly, a

well-founded fear of future persecution requires He to show “both a genuine,

subjective fear of persecution, and an objective basis by credible, direct, and specific

evidence in the record, of facts that would support a reasonable fear of persecution.”

Karki, 715 F.3d at 801 (internal quotation marks omitted). She may do so by

showing that she was or may be singled out personally for persecution in China, or




                                          -6-
that she has a reasonable fear of persecution because of her membership in a group

subject to a pattern or practice of persecution. See 8 C.F.R. § 1208.13(b)(2)(iii).

      The IJ concluded that He satisfied the subjective prong, and the BIA did not

disturb this finding. And the BIA agreed with the IJ’s finding that He failed to

establish that her fear of future persecution is objectively reasonable. He disputes

this, but does so only generally. He does not expressly state that she has been or will

be singled out personally for persecution or that she is a member of a group subject to

a pattern of persecution. She argues though that the Chinese government is aware of

her Christian beliefs, has persecuted her in the past for her beliefs, and will punish

her upon return to China as they have made threats to her family to do so. See Aplt.

Opening Br. at 10. To the extent that she offers these arguments to support a claim

of individualized persecution, we disagree. The BIA concluded that the evidence did

not support a claim of individualized persecution, observing that He was not a

religious leader but simply a member of an unregistered household church. And it

rejected He’s claim of future individualized persecution on account of her failure to

report to Chinese authorities, finding that persecution entails more than just

restrictions or threats to life and liberty. See Karki, 715 F.3d at 801. We agree with

the BIA’s conclusion.

      He otherwise argues generally that she satisfies the objective prong, reciting in

support various statements from the 2009 International Religious Freedom Report

issued by the United States Department of State (State Department Report), which


                                          -7-
discusses curtailment of religious activities in China. But as the IJ found, and the

BIA likewise cited the IJ’s decision, excerpts from the State Department Report

indicate that the extent that Chinese officials interfere with the activities of

unregistered house churches varies, and in non-urban areas some house churches are

able to hold meetings without interference and had significant membership. The IJ

concluded that while there was some persecution of house churches, it was not

pervasive throughout the country. See Admin. R. at 50. Like the IJ, the BIA

similarly concluded that the State Department Report supported that small,

unregistered house churches were able to exist and were largely tolerated by the

Chinese government in some areas. See id. at 4.

       Accordingly, while He points to some evidence of religious persecution in

China, we disagree that the BIA erred in evaluating the overall strength of her claim.

See Woldemeskel v. I.N.S., 257 F.3d 1185, 1191 (10th Cir. 2001) (noting that a

pattern or practice of persecution has been defined as “something on the order of

organized or systematic or pervasive persecution”) (quoting Makonnen v. I.N.S.,

44 F.3d 1378, 1383 (8th Cir. 1995)). On this record, we are not compelled to

conclude contrary to the BIA. The record supports the BIA’s determination that He

did not meet her burden in establishing a well-founded fear of future persecution.

       Because He failed to show a well-founded fear of persecution under asylum

standards, she necessarily fails to meet the higher burden of proof required for

restriction on removal. See Karki, 715 F.3d at 801.


                                           -8-
       C. Convention Against Torture

       He also seeks review of the BIA’s denial of her CAT claim. The CAT

“prohibits the return of an alien to a country where it is more likely than not that

[s]he will be subject to torture by a public official, or at the instigation or with the

acquiescence of such an official.” Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192

(10th Cir. 2005) (internal quotation marks and brackets omitted); see also 8 C.F.R.

§ 208.18(a)(1). CAT protection does not require that He show she would be tortured

on the basis of a statutorily protected ground. See Cruz-Funez, 406 F.3d at 1192.

       The BIA concluded that He failed to establish a clear probability of torture in

China by a public official or with the acquiescence of a public official. We have

reviewed the record and determine that the BIA’s conclusion is supported by

reasonable and substantial evidence and, as such, we are not compelled to conclude

to the contrary.

                                     III.    Conclusion

       The petition for review is denied.

                                                  Entered for the Court


                                                  Timothy M. Tymkovich
                                                  Circuit Judge




                                            -9-
No. 13-9550, Ronghua He v. Eric H. Holder, Jr.

KELLY, Circuit Judge, dissenting.

      Although the IJ and the BIA accepted that Ms. He was detained for a week on

account of her religious activities, they concluded that she did not suffer past

persecution in part because she did not suffer severe physical injuries.1 This court

concludes that a week detention, two interrogations and a beating resulting in minor

injuries (not requiring medical attention) does not constitute past persecution. We

have previously rejected the idea that permanent injury is required, and imposing a

medical care requirement is equally problematic. Karki v. Holder, 715 F.3d 792,

804-05 (10th Cir. 2013). For this reason, I do not find past cases involving beatings

where relief has been denied dispositive. See Ritonga v. Holder, 633 F.3d 971, 976

(10th Cir. 2011); Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009);

Sidabutur v. Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007); Kapcia v. INS, 944

F.2d 702, 704, 708 (10th Cir. 1991). Beatings have enormous potential for physical

and psychological harm. While I recognize that Ms. He was required to prove more

than harassment and intimidation, I would hold she has done so and remand for

further findings. I respectfully dissent.




1
 Apparently, Ms. He’s mother reported multiple bruises on her daughter’s body
when she was released from interrogation. R. 43, 201-02.
