                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 08a0568n.06
                            Filed: September 18, 2008

                                           No. 07-3629

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


KAI HUN SIN, ET AL.

               Petitioner,
                                                            On Appeal from the United
       vs.                                                  States District Court for the
                                                            Southern District of Ohio
MICHAEL MUKASEY, ATTORNEY
GENERAL OF THE UNITED STATES,

               Respondent.


BEFORE:        MOORE, COLE, Circuit Judges; and GRAHAM,* District Judge.

       GRAHAM, District Judge. Petitioners Kai Hun Sin, his wife, and his two sons petition for

review of a final order of removal issued by the Board of Immigration Appeals (“BIA”) on April 23,

2007. Sin contends that the BIA decision contained errors of law or was otherwise not supported

by substantial evidence. For the reasons stated herein we deny the petition for review.



                                     I. Procedural History
       The Department of Homeland Security commenced immigration proceedings against Sin,

his wife, and his two sons charging them with being subject to removal under Section 237(a)(1)(B)

of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B), as being aliens present in the

United States for a longer time than permitted. Sin, on behalf of himself and his two sons, and his

wife conceded removability but sought asylum, withholding of removal, and protection under the


       *
         The Hon. James L. Graham, United States District Judge for the Southern District of Ohio,
sitting by designation.
No. 07-3629
Sin v. Mukasey

United Nations Convention Against Torture (“CAT”). The immigration judge (“IJ”) consolidated

the cases of Sin, his wife, and their two sons, and made Sin the lead applicant.

       On October 13, 2005, the IJ issued an oral decision denying Sin’s applications for asylum,

withholding of removal, and protection under the CAT. The IJ ordered Sin, his wife, and their two

sons removed to China. On April 23, 2007, the BIA issued a decision dismissing Sin’s appeal. Sin’s

petition for review in this court followed.



                                              II. Facts
       Petitioners Sin, his wife, and their two sons are natives and citizens of the People’s Republic

of China (“China”). Sin claims that the Chinese government persecuted him and his family because

he rented his apartment to members of the Falun Gong— a movement that blends aspects of Taoism

and Buddhism with martial arts meditation. At the removal proceeding held before the IJ, Sin

testified that although he does not practice Falun Gong himself, prior to coming to the United States,

he rented an apartment he owned in Hong Kong to Falun Gong members.1 In March 2001, an

official from the Chinese government came to Sin’s home and asked him to stop renting to Falun

Gong. The government official told Sin “not to rent [his] property to the Falun Gong member” and

that “if [he] rent[s] it to a Falun Gong member, that means [he is] anti-Chinese government and [he

is] supporting the Falun Gong group, and it [will] hurt [his] family members.” J.A. 97-98. Sin

continued to rent to the Falun Gong members, and in August 2001, the officials from the Chinese

government came to Sin’s home again and expressed the same message. Sin continued renting to

the Falun Gong members, and a few months later, two officials from the Chinese government came

with a notice which stated that Sin “need[ed] to stop renting . . . the property to the Falun Gong


       1
        The facts relating Sin’s experiences while in China are based on Sin’s testimony at the
hearing in front of the IJ, which the IJ found to be credible.

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Sin v. Mukasey

member, [or] otherwise it [would] hurt everyone and anyone in [his] family.” J.A. 100. After

reading the document, Sin became very upset and tore up the document and threw it away.

        Sin’s wife traveled to the United States first and was admitted on or about June 25, 2002, as

a nonimmigrant transit without a visa with authorization to stay only for the day. Sin and his two

sons followed and were admitted to the United States on August 12, 2002, as temporary visitors for

pleasure with authorization to remain in the United States for a period not to exceed February 11,

2003. Sin, his wife, and their two sons all remained in the country beyond the authorized period of

their stay.

        After departing Hong Kong, Sin heard through his younger brother, who continued to live

in that same apartment building, that the Chinese government was making inquiries regarding Sin’s

whereabouts. He also learned that the Chinese government threatened his Falun Gong tenants and

some of the Falun Gong tenants were arrested. The Falun Gong tenants continue to reside in the

apartment and pay rent to Sin by depositing money into his bank account.



                                         III. Jurisdiction
        This court has jurisdiction to review the BIA’s April 23, 2007 decision under 8 U.S.C. §

1252(a)(1) which provides the courts of appeals with jurisdiction to review final immigration orders

of removal. Venue is proper in this court because the Sixth Circuit Court of Appeals encompasses

Cleveland, Ohio, where the proceedings were held via telephone conference. 8 U.S.C. § 1252(b)(2).



                                     IV. Standard of Review
        Asylum analysis involves a two-step inquiry: (1) whether the applicant qualifies as a

“refugee” as defined in 8 U.S.C. § 1101(a)(42)(A), and (2) whether the applicant merits favorable

exercise of discretion by the IJ. Patel v. Alberto Gonzales, 470 F.3d 216, 218 (6th Cir. 2006). The


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Sin v. Mukasey

burden of proving eligibility for asylum rests upon the petitioner. 8 U.S.C. § 1158(b)(1)(B).

Regarding the first step, whether the applicant qualifies as a refugee, the United States Supreme

Court has held that an IJ's determination must be upheld if “‘supported by reasonable, substantial,

and probative evidence on the record considered as a whole.’” INS v. Elias-Zacarias, 502 U.S. 478,

481 (1992)(quoting 8 U.S.C. § 1105a(a)(4)) (repealed and replaced by 8 U.S.C. § 1252(b)(4)(B)).2

The Supreme Court explained that to reverse such a finding, the evidence must “not only support

[the opposite] conclusion, but compel[] it.” Id. at n.1.           (emphasis omitted).      See also

Menendez-Donis v. Ashcroft, 360 F.3d 915, 918-919 (8th Cir. 2004)(holding that the court must

review the entire record when drawing conclusions about the reasonableness of an administrator’s

findings of fact). Questions of law are reviewed de novo. Ali v. Ashcroft, 366 F.3d 407, 409 (6th

Cir. 2004).

       Regarding the second inquiry, where the Board determines that an alien does not qualify as

a “refugee” and that decision is supported by substantial evidence, the court of appeals need not

answer whether the alien merits a favorable exercise of discretion with respect to his application for

asylum. Koliada v. INS, 259 F.3d 482, 488 (6th Cir. 2001). Because this court determines that Sin

does not qualify as a refugee, there is no need to determine whether he merits a favorable exercise

of discretion.

       When the BIA neither adopts nor summarily affirms the IJ's reasoning and provides an

explanation for its decision, this court reviews the BIA's decision as the final agency determination.



       2
         In articulating the “substantial evidence” standard, the Supreme Court quoted directly from
8 U.S.C. § 1105a(a)(4), which has subsequently been repealed and replaced by 8 U.S.C. §
1252(b)(4)(B). Section 1252(b)(4)(B) provides that “administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.” “Although
articulated differently, ‘§ 1252(b)(4)(B) basically codifies the Supreme Court’s substantial evidence
standard.’” Akhtar v. Gonzales, 406 F.3d 399, 404 (6th Cir. 2005)(quoting Yu v. Ashcroft, 364 F.3d
700, 702 (6th Cir. 2004)).

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Ilic-Lee v. Mukasey, 507 F.3d 1044, 1047 (6th Cir. 2007).

                                            V. Discussion

        a.      Applications for Asylum
        The term “refugee” means a person who is unable or unwilling to return to his or her country

because of “persecution or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.”             8 U.S.C. §

1101(a)(42)(A). Under that definition, therefore, Sin must show that he was either persecuted in the

past or has a “well-founded fear” of persecution in the future.

        The BIA dismissed Sin’s appeal, holding that he did not meet the burden necessary to

establish eligibility because he showed neither past persecution nor a well-founded fear of future

persecution. On appeal to this court, Sin raises no error with respect to the BIA’s determination that

he was not persecuted in the past. Instead, Sin argues the BIA incorrectly held that he did not show

a well-founded fear of future persecution. Petitioner’s Brief, 15-20. The BIA’s decision states the

following in relevant part:


        [T]he record fails to establish a well-founded fear of future persecution. The
        respondent does not practice Falun Gong nor is he politically active. He continues
        to own the apartments in Hong Kong and receive rental payments from the Falun
        Gong member. The respondent’s brother currently resides at the apartment where the
        respondent lived and the record does not indicate that any harm has befallen him.
        While we are sympathetic to respondent’s fears, we cannot conclude based upon the
        evidence of record that he has a well-founded fear of future persecution.

J.A. 3 (internal cites to the transcript omitted).

        If Sin can establish past persecution, it is presumed that he has a well-founded fear of future

persecution. 8 C.F.R. § 1208.13(b)(1). Here, because Sin does not appeal the BIA’s finding that he

was not persecuted in the past, he does not have the benefit of that presumption. However, he can

establish a well-founded fear of persecution under INA regulations by showing (1) that he has a fear

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No. 07-3629
Sin v. Mukasey

of persecution in his country of origin on account of a protected ground, (2) that there is a reasonable

possibility of suffering such persecution if he were to return to that country, and (3) that he is unable

or unwilling to return to that country because of such fear.            8 C.F.R. § 1208.13(b)(2)(i);

Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. 1998).



                i.      Fear of Persecution on Account of a Protected Ground

        In order to establish that Sin has a well-founded fear of persecution, he has to show that he

has a fear of persecution on account of a protected ground. Here, the BIA’s decision recognized that

Sin “testified that while he does not practice Falun Gong, he supports those who do.” J.A. 2. The

BIA also recognized that the Chinese government’s threats were based on Sin renting to members

of the Falun Gong. J.A. 3. Therefore, the BIA’s decision can be reasonably read to have recognized

that Sin met the first prong of the well-founded fear test.

        Sin argues it was in error for the BIA to state that “the respondent does not practice Falun

Gong nor is he politically active” because it demonstrates the BIA mistakenly held that Sin did not

have a political opinion. (See Petitioner’s brief at 17, citing INS v. Elias-Zacharias, 502 U.S. 478,

482 (1992)3, Zou v. Gonzales, 437 F.3d 860, 868-869 (9th Cir. 2006), Kumar v. Gonzales, 435 F.3d

1019, 1029 (9th Cir. 2006), and Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir. 2005)). Sin argues that

the BIA should have recognized the theory of imputed political opinion, which is a theory that

applies when “[a] persecutor falsely attributes an opinion to the victim, and then persecutes the

victim because of that mistaken belief about the victim’s views.” Canas-Segovia v. INS, 970 F.2d

599, 602 (9th Cir. 1992); See also Pascual v. Mukasey, 514 F.3d 483, 488 (6th Cir. 2007) (quoting


        3
         The Supreme Court did not officially recognize the doctrine of imputed political opinion in
this case, noting only that: “Nor is there any indication (assuming arguendo it would suffice) that the
[persecutors] erroneously believed that [the applicant’s] refusal was politically based.” (emphasis
added in the first instance). 502 U.S. at 482.

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No. 07-3629
Sin v. Mukasey

Canas-Segovia v. INS, 970 F.2d at 602). Many courts have recognized the doctrine of imputed

political opinion, although the Sixth Circuit has yet to officially do so.4

       Because the BIA’s opinion can be reasonably read as recognizing that the Chinese

government believed that Sin supported the Falun Gong, we need not reach the issue of imputed

political opinion. The BIA’s decision notes that Sin “testified that while he does not practice Falun

Gong, he supports those who do” and that the Chinese government knew Sin was renting to the

Falun Gong. J.A. 2-3. By stating that Sin does not practice Falun Gong, the BIA was simply

emphasizing that because Sin himself is not a member of the Falun Gong, he has less to fear than

a member would. This language addresses the second prong, whether there was a reasonable basis

for Sin’s fear, not the first prong, whether that fear was on account of a political opinion.



               ii.     Reasonable Possibility of Suffering Persecution

       In order to establish that Sin has a well-founded fear of persecution, he must also show that

there is a reasonable possibility of suffering such persecution if he were to return to China. A well-

founded fear of persecution has both a subjective and objective component. The asylum applicant

must actually fear he will be persecuted upon return to his country and he must establish that an

objective situation exists under which his fear can be deemed reasonable. Ali v. Ashcroft, 366 F.3d

407, 410-11 (6th Cir. 2004). Here, the evidence does not compel a conclusion that Sin’s fears of the

Chinese government were objectively well-founded.

       As the BIA noted, Sin is not a practicing member of the Falun Gong nor is he politically

active. Sin also continues to receive rental payments from the Falun Gong members, demonstrating



       4
        The Sixth Circuit has recognized the theory of imputed political opinion in at least one
unreported case, but has not officially recognized it in any reported case. See Pascual, 514 F.3d at
486-487.

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No. 07-3629
Sin v. Mukasey

the Chinese government has not sought to interfere with Sin’s business relationship with the Falun

Gong. Moreover, his brother currently resides at the apartment where Sin lived and the record does

not indicate that any harm has befallen him.

       Sin argues that the BIA erred in relying on the fact that Sin’s brother suffered no harm.

Petitioner’s Brief, 20. Sin argues that because there was no evidence Sin’s brother also supports the

Falun Gong, it was irrelevant that he continued to reside in China unharmed. Petitioner’s Brief, 20.

       The Sixth Circuit has recognized that acts of violence against an asylum applicant’s family

members may, in certain circumstances, demonstrate a well-founded fear of persecution. See Akhtar

v. Gonzales, 406 F.3d 399, 405 (6th Cir. 2005). Similarly, an absence of mistreatment is also

relevant to determining an asylum applicant’s well-founded fear. See, e.g., Gumbol v. Immigration

& Naturalization Service, 815 F.2d 406, 413 (6th Cir. 1987), Sall v. Gonzales, 124 Fed. Appx. 377,

379 (6th Cir. 2005), Shkreli v. Gonzales, 219 Fed. Appx. 474, 481 (6th Cir. 2007).

       Petitioner argues that Kumar v. Gonzales, 435 F.3d 1019, 1030-1031 (9th Cir. 2006)5, Vente

v. Gonzales, 415 F. 3d 296, 302 (3rd Cir. 2005), and Melencio Legui Lim v. INS, 224 F.3d 929, 935

(9th Cir. 2000) demonstrate that when an applicant’s family member is not persecuted, that fact is

not relevant to a claim for asylum when there is no evidence that the government authorities

suspected the family member of holding the same political opinion or belief for which the applicant

claims persecution. Petitioner’s Brief, 20. For example, in Vente v. Gonzales, 415 F.3d 296, 302

(3rd Cir. 2005), the court held that the status of Vente’s family was irrelevant to an inquiry into

whether his own fear of persecution was reasonable because there was no evidence the family was

ever targeted by paramilitary organizations, as Vente was.

       Here, Sin was not the only person threatened by the Chinese government. Sin testified that

       5
        In Kumar, threats were made against the applicant’s family members based on the
applicant’s belief, but the court did not squarely address whether these threats made the fact that the
family members were unharmed relevant to the claim for asylum.

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the Chinese government specifically threatened his family based on Sin’s support of the Falun Gong.

Under these circumstances, the BIA could conclude that because Sin’s brother was not harmed, Sin

and his family likewise will not be persecuted. See, e.g., Tamayo v. AG of the United States, 258

Fed. Appx. 471, 475 (3d Cir. 2007)(where threats were made against petitioner and petitioner’s

family members, the fact that the family members were not harmed was relevant to whether

petitioner had a well-founded fear of future persecution).

       The remaining evidence in the record likewise does not compel a conclusion that Sin had an

objectively reasonable fear of suffering persecution. Persecution “requires more than a few isolated

incidents of verbal harassment or intimidation, unaccompanied by any physical punishment,

infliction of harm, or significant deprivation of liberty.” Mikhailevitch v. INS, 146 F.3d 384, 390

(6th Cir. 1998). Here, the record is devoid of any evidence that Sin was threatened with any kind of

physical abuse, imprisonment, arrest, or economic hardship. See id. (holding applicant had not

shown the type of government action severe enough to rise to the level of persecution). Sin has put

forth no evidence that upon his return to Hong Kong he will face treatment any more severe than the

harassment and vague threats he received in the past or that those threats will materialize into any

action that resembles persecution.

       In addition, because a well-founded fear of persecution can be based upon what has happened

to others who are similarly situated, it is “necessary, in considering an applicant's asylum petition,

to weigh evidence of general conditions in the country of origin and the foreign government’s history

of treatment of others engaged in similar activities.” Perkovic v. INS, 33 F.3d 615, 621 (6th Cir.

1994). The Chinese government began a crackdown on the Falun Gong in 1999, and in mainland

China, the government has incarcerated tens of thousands of practitioners. U.S. Dep’t of State,

Country Report on Human Rights Practices, 2004, China (incl. Hong Kong & Macau) (Feb. 2004)

[hereinafter “Country Report”), J.A. 278. Several hundred Falun Gong adherents have reportedly


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No. 07-3629
Sin v. Mukasey

died in custody due to torture, abuse, and neglect. Id.

       The situation in Hong Kong, however, is different. Hong Kong is a Special Administrative

Region of China and enjoys a high degree of autonomy from the Chinese government, except in

matters of defense and foreign affairs. Id. at 325. In Hong Kong, although some discrimination

exists against Falun Gong, “the Government generally respects the human rights of its residents, and

the law and judiciary provide[] effective means of dealing with individual instances of abuse.” Id.

at 325. In addition, in Hong Kong, “Falun Gong practitioners regularly conduct[] public protests

against the crackdown on fellow practitioners in China.” Id. at 329.

       In order to reverse the Board’s determination, we would have to decide that the evidence

would compel a reasonable factfinder to conclude that there is a reasonable possibility that Sin would

suffer future persecution if he were to return to China. 8 C.F.R. § 1208.13(b)(2)(B); Mikhailevitch

v. INS, 146 F.3d at 390. Under these circumstances, and considering the present situation of the

Falun Gong in Hong Kong, we are satisfied that the evidence would not compel such a conclusion.

Thus, based on the facts before the BIA, we cannot conclude that “any reasonable adjudicator would

be compelled to conclude” a contrary result. 8 U.S.C. §1252(b)(4)(B); See Yu v. Ashcroft, 364 F.3d

700, 702 (6th Cir. 2004).



               iii.     Unable or Unwilling to Return Because of Such Fear

       Because Sin has failed to show that he has an objectively reasonable well-founded fear of

future persecution, we need not address whether he was unable or unwilling to return to China

because of that fear.



       B. Withholding of Removal
       Sin also petitions for review of the administrative denial of his request for withholding of


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Sin v. Mukasey

removal. The BIA dismissed Sin’s appeal, holding because he failed to meet the burden necessary

to establish eligibility for asylum, he therefore also failed to satisfy the higher standard required for

withholding of removal. Pursuant to the provisions of 8 U.S.C. § 1231(b), the burden is on the

applicant to establish that his “life or freedom would be threatened in the proposed country of

removal on account of the alien’s race, religion, nationality, membership in a particular social group,

or political opinion.” In order to qualify for withholding of removal, the petitioner “must establish

that there is a clear probability that he will be subject to persecution if forced to return to the country

of removal” Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004) and that it is more likely than not

that he will be persecuted upon return. Liti v. Gonzales, 411 F.3d 631, 641 (6th Cir. 2005) (quoting

8 C.F.R. § 1208.16(b)(2)). Because this burden is “a more stringent burden than what is required

on a claim for asylum,” Id. at 640 (quoting Pilica, 388 F.3d at 951), Sin’s failure to establish his

eligibility for asylum likewise results in his failure to satisfy the more onerous burden for

withholding of removal. See, e.g., Koliada v. INS, 259 F.3d 482, 489 (6th Cir. 2001).



        C.      Request for Relief Under The United Nations Convention Against Torture

        Sin additionally requests relief under the provisions of the United Nations Convention

Against Torture. The BIA held that he was not likely to be tortured if returned to his home country.
To obtain withholding of removal under that convention, “[t]he burden of proof is on the applicant

. . . to establish that it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). This burden is significantly greater than

the burden required to demonstrate eligibility for asylum. Asylum requires only a “well-founded fear

of persecution” whereas withholding of removal under the CAT requires a showing that it is more

likely than not that Sin will not only be persecuted upon his return to China, but that he would be

tortured. Because Sin cannot demonstrate entitlement to asylum in this case, he also cannot meet


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Sin v. Mukasey

the more stringent requirements under the CAT. See, e.g., Liti v. Gonzales, 411 F.3d 631, 641 (6th

Cir. 2005).



                                         VI. Conclusion
       We conclude that the BIA’s opinion finding no well-founded fear of future persecution was

substantially supported by the evidence contained in the administrative record and was not contrary

to law. We therefore deny the petition for review.




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