                                 NONPRECEDENTIAL DISPOSITION
                          To be cited only in accordance with Fed. R. App. P. 32.1




                     United States Court of Appeals
                                   For the Seventh Circuit
                                   Chicago, Illinois 60604
                                    Submitted April 16, 2008*
                                     Decided April 29, 2008


                                               Before

                               FRANK H. EASTERBROOK, Chief Judge

                               DIANE P. WOOD , Circuit Judge

                               ANN C LAIRE WILLIAMS, Circuit Judge


No. 07-2268

FA XING XU,
      Petitioner,                                                 Petition for Review of an Or-
                                                                  der of the Board of Immigra-
               v.                                                 tion Appeals.

MICHAEL B. MUKASEY ,
Attorney General of the United States,
      Respondent.


                                                Order

   Fa Xing Xu, a citizen of China, entered the United States with forged documents and
has been ordered removed. He contends that he is entitled to asylum because, if re-
turned to China, he will be persecuted as one who has distributed handbills on behalf of
Falun Gong, a movement that China has outlawed.

   Xu testified that his mother is a practitioner of Falun Gong, and that, after conclud-
ing that his mother’s meditations as part of Falun Gong practice had ameliorated her


   * Afterexamining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 07-2268                                                                          Page 2

insomnia, he distributed flyers to frail old women informing them where they, too,
could practice Falun Gong. He told the immigration judge that he was arrested for giv-
ing out a leaflet and detained for five days. While detained he was subject to lengthy
interrogation and occasional beatings. At a hospital for treatment of his injuries, Xu
bribed a guard and escaped, staying with his aunt for six months until leaving for the
United States. The immigration judge did not believe Xu’s story and added that, even if
everything he said is true, the events were not serious enough to establish past persecu-
tion or show that future persecution is likely. The IJ noted that Xu is not a practitioner
of Falun Gong and that his mother, who is, has not been arrested or harried.

     The Board of Immigration Appeals thought it likely that this court would reject the
IJ’s credibility findings, which were based on large measure on Xu’s failure to produce
evidence (beyond his own testimony) that he had been arrested and beaten. But in the
Board’s view the IJ’s decision could be sustained on the second ground: that the risk to
which non-practitioners such as Xu is exposed is too low to constitute persecution, and
that Xu could reduce any residual risk by refraining from promoting Falun Gong. He is
not a practitioner, so China’s insistence that Falun Gong not be promoted cannot be
viewed as persecution on account of Xu’s own politics or social group.

    A considerable portion of Xu’s brief in this court is devoted to arguments that were
not presented to the BIA. He contends, for example, that China persecutes citizens who
left by stealth (as he did) and later return. He maintains that local officials issued a
wanted posted with his name and picture on it. He submits that China will persecute his
mother and father because they are related to someone who has announced his desire
to be elsewhere (and to hand out leaflets for Falun Gong). But none of these arguments
was presented to the Board—and, after the agency pointed this out and invoked the
rule that exhaustion of administrative remedies is essential, see Korsunskiy v. Gonzales,
461 F.3d 847 (7th Cir. 2006); Abdelqadar v. Gonzales, 413 F.3d 668, 670–71 (7th Cir. 2005),
Xu did not file a reply brief. We therefore accept the agency’s position that these argu-
ments were not preserved in the administrative process. Failure to exhaust means that
none of these arguments is before us.

    What has been preserved is whether past promotion of Falun Gong exposes Xu to a
enough of a risk, should he return, that he is entitled to asylum. But how much risk is
“enough” is a question for the agency, unless it makes a decision that is arbitrary or not
supported by substantial evidence. Neither the record assembled in this proceeding,
nor general materials such as the State Department’s country reports or the analyses of
groups such as Amnesty International, establishes that promoters (as opposed to practi-
tioners) of Falun Gong are at serious risk of persecution in China. Indeed, this record
shows that at least one practitioner, Xu’s mother, has been left alone. Xu is not obliged
by his political or religious beliefs to promote Falun Gong, so the agency did not act ar-
bitrarily in concluding that the risk he faces if returned to China is tolerable and largely
within his own control. The Board was entitled to take the State Department’s country
No. 07-2268                                                                           Page 3

report into consideration when making that decision. To be sure, the agency is not enti-
tled to ignore other evidence, but it did not do that. No rule of law disables the De-
partment of Justice from listening to the Department of State’s perspective on how a
foreign nation treats its citizens.

   Xu maintains that he suffered detention and injury as a result of his activities. Past
persecution creates a presumption of future persecution. But again how much is too
much—where the line stands between harassment and “persecution”—is for the
agency, unless it acts irrationally or violates a rule of law. Xu does not point to any deci-
sion holding that the agency must find that five days’ detention and abuse by the police
equates to “past persecution”. Quite the contrary, the question whether Xu suffered
past persecution is yet another subject that he did not raise before the BIA and so can-
not pursue in this court.

   The petition for review is denied.
