     Case: 14-60897      Document: 00513623907         Page: 1    Date Filed: 08/04/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-60897                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
MINGMING LI,                                                               August 4, 2016
                                                                           Lyle W. Cayce
              Petitioner                                                        Clerk

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

              Respondent




                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A087 823 589


Before KING, JOLLY, and ELROD, Circuit Judges.
PER CURIAM:*
       Petitioner Mingming Li petitions this court to review the Board of
Immigration Appeals’ denial of his applications for asylum, withholding of
removal, and protection under the Convention Against Torture. Li argues that
he credibly demonstrated past persecution on the basis of his religion and that,
accordingly, the BIA erred in denying his applications for relief. Because




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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substantial evidence in the record supports the BIA’s determination that Li
failed to demonstrate past persecution, we DENY his petition.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Petitioner Mingming Li, a native and citizen of the People’s Republic of
China, was admitted to the United States on a nonimmigrant student visa to
attend the University of Tennessee, Knoxville, in May 2009, but he failed to
attend the university following his admission. Li subsequently filed I-589
applications for asylum, withholding of removal, and Convention Against
Torture (CAT) protection with the Department of Homeland Security (DHS) in
December 2009. Thereafter, on January 11, 2010, DHS served Li with a Notice
to Appear at removal proceedings and charged that he was subject to removal
from the United States pursuant to 8 U.S.C. § 1227(a)(1)(C)(i), as an admitted
nonimmigrant who failed to maintain or comply with the conditions of his
nonimmigrant status.
      Removal proceedings began on January 28, 2010, whereupon Li
conceded the charge of removability but pursued his previous applications for
asylum, withholding, and CAT protection. In said applications, Li sought
asylum and withholding of removal on the basis of his Christian beliefs. As
recounted in a written statement attached to the petition, Li claimed that he
had converted to Christianity and been baptized on Easter Sunday of 2006
while living in Tianjin, China. He alleged that, on Easter Sunday of 2008, he
and members of his church had been arrested while preaching, taken to a
public security bureau, and detained for four days. Li claimed that he was
beaten, tortured, and shocked with a baton during this detention. Following
his arrest, Li alleged that his “church was dismissed,” he could no longer attend
his university in China, and he was threatened by police, which led him to
leave China.    Li asserted that he could not return to China for fear of
imprisonment. In support of his petition, Li attached exhibits verifying his
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                                 No. 14-60897
residency in Tianjin as well as a translated letter from his father referencing
Li’s harassment by police and mentioning future searches of their family home
but not mentioning Li’s religion or the specifics of Li’s alleged 2008 arrest. Li
later submitted supplemental documentation in support of his applications,
including his certificate of baptism, a letter from his pastor in the United
States, documents supporting his previous status as a student in China, and
materials from the United States Department of State and the Commission on
International Religious Freedom detailing the status of Christians in China.
        After a change of venue at Li’s request, removal proceedings were held
in front of an Immigration Judge (IJ) in San Antonio, Texas, starting in April
2012. A hearing on the merits of Li’s applications was then held on June 6,
2012.     At the hearing, Li was questioned by his own attorney and the
government about his introduction to Christianity, his activity at church
meetings in Tianjin, his 2008 arrest, and his alleged detention and torture by
police in China. Elaborating on the information included in his affidavit, Li
testified that he had been part of a small unregistered church prior to his
arrest.   He further testified that he had no information on other church
members since the arrest and that he was no longer in contact with the other
members. He also stated that he was surveilled by police following his arrest
but managed to obtain a visa to leave China. The IJ then engaged in a colloquy
with Li, wherein the IJ asked Li about his practice of Christianity and noted
an inconsistency in Li’s testimony regarding his mother’s profession and
retirement. The IJ also asked Li about the presence of other churches in China,
and Li testified that he had attended a government sanctioned church, apart
from his own church, but that attending the sanctioned church made him
uncomfortable because he believed “they put the communist party above God.”
At the colloquy, Li testified that people in his church in China no longer met
for prayer.
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                                   No. 14-60897
      Following the merits hearing, the IJ rendered his oral decision, denying
Li’s applications for asylum, withholding of removal, and protection under the
CAT. The IJ found that, based on the evidence submitted and the testimony
in the record, Li’s testimony as to his arrest and religious persecution was not
credible.   The IJ noted inconsistencies in Li’s testimony, including the
testimony on when Li’s mother lost her job, in which month Easter fell in
2006, 1 how Li’s church went around preaching, and how Li was able to obtain
a visa while being under government surveillance. The IJ also noted that Li
had submitted only one corroborative document from his father, which was
partly inconsistent with his narrative and did not discuss his religious
activities. The IJ found that the background information submitted by Li and
Li’s own testimony demonstrated that there was “a wide variety of Christian
religious activity in China that is not officially sanctioned by the government
which is . . . sometimes quietly tolerated.” Noting that the level of government
repression depended on the local conditions and that unregistered church
groups were generally allowed, the IJ observed that Li did not reside in a
province where such repression had been reported. The IJ found that the
testimony taken in tandem with the background information failed to meet Li’s
burden of proof to demonstrate past persecution. Because the IJ concluded
that Li’s testimony was not credible and that Li failed to meet his burden of
proof in other ways, the IJ denied Li’s application for asylum. Based on this
failure and Li’s lack of credibility, the IJ also denied Li’s applications for
withholding from removal and protection under the CAT. Li subsequently
appealed the IJ’s decision to the Board of Immigration Appeals (BIA).




      1  Li had testified that he had first been baptized on Easter Sunday in 2006 but
indicated that Easter 2006 was in March when it was, in fact, on April 16, 2006.
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                                   No. 14-60897
      The BIA dismissed Li’s appeal on November 9, 2014. In its decision, the
BIA assumed, arguendo, that Li was credible in his testimony, but ultimately
agreed with the IJ that Li still failed to meet his burden of proof for relief. The
BIA reasoned that Li’s arrest, detention, and beatings did not amount to
persecution, stating that his one-time detention “did not rise to the level of
extreme conduct necessary to compel a finding of past persecution” based on
previous Fifth Circuit caselaw.       The BIA then held that Li also failed to
demonstrate a well-founded fear of future persecution because Li’s testimony
demonstrated that his church appeared to have disbanded and that he would
not attend another unregistered church group.                Because Li failed to
demonstrate past or future persecution, the BIA concluded that Li failed to
meet his burden of proof to be eligible for asylum. The BIA also concluded that
Li failed to meet the related standards for withholding of removal and CAT
protection. One Board Member of the BIA panel dissented, however, arguing
that Li’s detention and harassment by police cumulatively rose to the level of
past persecution. The Board Member further argued that the disbanding of
Li’s church following his arrest supported, rather than undermined, Li’s claim
of persecution, as he could no longer practice his religion. Li timely filed his
petition for review of the BIA’s order on December 19, 2014.
                         II. STANDARD OF REVIEW
      On petition for review of the BIA’s order, we examine “the BIA’s decision
and only consider the IJ’s decision to the extent that it influenced the BIA.”
Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir. 2009); see also Ahmed v.
Gonzales, 447 F.3d 433, 437 (5th Cir. 2006) (“When . . . the BIA affirms the
[IJ’s decision] and relies on the reasons set forth in the [IJ]’s decision, this court
reviews the decision of the [IJ] as well as the decision of the BIA.”). As the BIA
adopted the IJ’s factual findings, other than the credibility determination, and
the IJ’s determination that Li did not meet his burden of proof, we may
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                                        No. 14-60897
consider the IJ’s decision on these points. “We review factual findings of the
Board to determine if they are supported by substantial evidence in the
record.” Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997); see also Eduard v.
Ashcroft, 379 F.3d 182, 187–88 (5th Cir. 2004) (evaluating the BIA’s decision
that petitioner failed to show past persecution under substantial evidence
review). 2   “Under the substantial evidence standard, reversal is improper
unless we decide ‘not only that the evidence supports a contrary conclusion,
but also that the evidence compels it.’” Chen v. Gonzales, 470 F.3d 1131, 1134
(5th Cir. 2006) (quoting Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005)).
“In other words, the alien must show that the evidence was so compelling that
no reasonable factfinder could conclude against it.” Chun v. INS, 40 F.3d 76,
78 (5th Cir. 1994) (per curiam); see also Arkansas v. Oklahoma, 503 U.S. 91,
113 (1992) (“A court reviewing an agency’s adjudicative action should accept
the agency’s factual findings if those findings are supported by substantial
evidence on the record as a whole.”).
                              III. PAST PERSECUTION
       Based on the record and our deferential standard of review, we conclude
that the BIA’s decision—that Li failed to establish past persecution for the
purposes of asylum—is supported by substantial evidence.                         Pursuant to


       2 The question of whether an asylum petitioner’s evidence (if presumed credible) meets
the burden of proof to demonstrate past persecution can be construed as a mixed question of
law and fact, but we repeatedly have reviewed such questions under the substantial evidence
standard. See Gharti-Magar v. Holder, 551 F. App’x 197, 198–99 (5th Cir. 2014);
Tesfamichael v. Gonzales, 469 F.3d 109, 117 (5th Cir. 2006); Ozdemir v. INS, 46 F.3d 6, 8 (5th
Cir. 1994) (per curiam). Our standard of review comports with that of other circuits. See,
e.g., Ordonez-Quino v. Holder, 760 F.3d 80, 87 (1st Cir. 2014) (“We review [the BIA’s] findings
of fact—including whether persecution occurred on account of a protected ground—‘under
the familiar and deferential substantial evidence standard.’” (quoting Ivanov v. Holder, 736
F.3d 5, 11 (1st Cir. 2013)); Haile v. Holder, 658 F.3d 1122, 1125 (9th Cir. 2011) (noting, on
petition of a BIA decision, that the court “review[ed] factual findings and determinations of
mixed questions of law and fact for substantial evidence”); Borca v. INS, 77 F.3d 210, 214
(7th Cir. 1996) (“We review the BIA’s factual findings that [petitioner] failed to establish past
persecution . . . under the ‘substantial evidence’ standard.”).
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                                 No. 14-60897
Section 208(b) of the Immigration and Nationality Act (INA), an alien may be
granted asylum if he demonstrates that he is a refugee.               8 U.S.C.
§ 1158(b)(1)(A). An alien qualifies as a refugee by proving that “he is ‘unable
or unwilling to return to . . . [his home] 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.’”        Majd v.
Gonzales, 446 F.3d 590, 595 (5th Cir. 2006) (quoting 8 U.S.C. § 1101(a)(42)(A)).
Upon a showing of past persecution, an asylum petitioner not only
demonstrates refugee status but also is entitled to a rebuttable presumption
that he has a well-found fear of persecution. 8 C.F.R. § 208.13(b)(1). While we
have noted that, to establish persecution, “the alien’s ‘harm or suffering, need
not be physical,’” we also have noted that “[persecution] does not encompass
all treatment that our society regards as unfair, unjust or even unlawful or
unconstitutional.” Tesfamichael, 469 F.3d at 114 (citations omitted). Instead,
we have held that “[p]ersecution must be extreme conduct to qualify for asylum
protection.” Majd, 446 F.3d at 595 (quoting Al-Fara v. Gonzales, 404 F.3d 733,
739 (3d Cir. 2005)). As relevant here, Li asserted in his applications for
asylum, withholding of removal, and protection under the CAT that he was
entitled to relief because of his past persecution in China as a result of his
Christian religious beliefs.
      On petition of the BIA’s order, Li does not challenge the BIA’s denial of
his applications for withholding of removal and CAT protection; rather, he only
argues that he demonstrated past persecution and therefore qualifies for
asylum. Accordingly, Li has waived any claims related to these other two
applications. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (per
curiam) (treating an issue involving the merits of a petitioner’s immigration
appeal as abandoned when it was not briefed). Specifically, Li argues the BIA
and IJ erred in holding that he was not credible and that he did not establish
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                                  No. 14-60897
past persecution by the Chinese government on account of his religion. But
because the BIA did not adopt the IJ’s adverse credibility determination and
assumed credibility, we need not and cannot address this first argument. See
Shaikh, 588 F.3d at 863. Our inquiry then is whether, assuming arguendo Li’s
credibility, substantial evidence supported the BIA’s finding that Li failed to
demonstrate past persecution. We conclude that substantial evidence supports
the BIA’s determination.
      Li argues that his allegations of physical abuse during his four-day
detention, continued surveillance, and threats from authorities in China, as
well as his inability to attend his unregistered church cumulatively rose to the
level of past persecution. However, while “a reasonable factfinder could have
found these incidents sufficient to establish persecution,” on substantial
evidence review, we cannot say “that a factfinder would be compelled to do so.”
Mikhael, 115 F.3d at 304.      Like in Mikhael, we are “constrained by our
standard of review to conclude that [Li] has not presented evidence so
compelling that no reasonable factfinder could fail to find otherwise.” Id.
      Seeking to distinguish the alleged persecution here, Li and the
dissenting BIA Board Member pointed to the restrictions on Li’s religious
practices as additional support for why Li demonstrated past persecution.
Citing Bucur v. INS, 109 F.3d 399, 405 (7th Cir. 1997), the dissenting BIA
Board Member argued that Li had made a stronger case for past persecution
because Li alleged that he was restricted from practicing Christianity when
his church stopped meeting following Li’s 2008 arrest. But Bucur is inapposite.
In Bucur the Seventh Circuit noted that “it is virtually the definition of
religious persecution that the votaries of a religion are forbidden to practice
it,” but the court there was referring to one of the petitioner’s allegations that
his country of origin categorically forbade Jehovah’s Witnesses from practicing
their religion. Id. at 405. By contrast, the IJ here noted that the background
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information submitted by Li demonstrated a wide variety of Christian activity
in China, some of which was quietly tolerated by the government depending
on the local conditions. See Chen, 470 F.3d at 1136–38 (finding that similar
country conditions reports on the status of Christians in China failed to
demonstrate persecution).   Although another factfinder might have found
differently as to the issue of past persecution on this evidence, we cannot
conclude—based on our deferential standard of review—that Li’s “evidence
[was] so compelling that no reasonable factfinder could reach a contrary
conclusion.” Zhao, 404 F.3d at 306. We hold that the BIA’s finding that Li did
not demonstrate past persecution is supported by substantial evidence.
                            IV. CONCLUSION
      For the foregoing reasons, the petition for review of the BIA’s order is
DENIED.




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