                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0705n.06

                                           No. 12-4331                                 FILED
                                                                                   Aug 01, 2013
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

JING HE,                                     )
                                             )
       Petitioner,                           )
                                             )       ON PETITION FOR REVIEW
v.                                           )       FROM THE BOARD OF
                                             )       IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney                )
General of the United States,                )
                                             )
       Respondent.                           )


       Before: BATCHELDER, Chief Judge; COOK and O’MALLEY, Circuit Judges.*


       O’MALLEY, Circuit Judge. Jing He, a Chinese citizen, petitions for judicial review of a

Board of Immigration Appeals (“BIA” or “Board”) order dismissing her appeal of an Immigration

Judge’s (“IJ”) denial of her application for asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”). Although Ms. He requested argument, this panel

unanimously agrees that oral argument is not necessary in this case. Fed. R. App. P. 34(a). For the

following reasons, we DENY Ms. He’s petition for review.

                                       I. BACKGROUND

       Ms. He fled China on June 19, 2008. She claims she did so to avoid persecution by

authorities due to her association with Falun Gong, “a spiritual discipline comprised of meditation


*
  The Honorable Kathleen M. O’Malley, Circuit Judge for the United States Court of Appeals for
the Federal Circuit, sitting by designation.
No. 12-4331
He v. Holder

exercises with moral components, including cultivation of virtue and character.” Lin v. Holder, 565

F.3d 971, 974 (6th Cir. 2009). The practice of, and belief in, Falun Gong is outlawed in China, and

followers have been imprisoned and tortured. Although Ms. He was not a member of Falun Gong

while in China, she became interested in the practice there because of her persistent health problems.

As a favor to a friend, Ms. He asserts that she distributed pamphlets in her hometown in February

2008 which described the benefits of Falun Gong and urged the government to stop persecuting

Falun Gong members. Ms. He stopped distributing pamphlets when her friend was arrested. Ms.

He testified that she distributed the pamphlets after dark and had no encounter with Chinese

authorities regarding that activity, but claims the police came looking for her at her parents’ house

on April 28, 2008. Ms. He was in the hospital at the time, and, because her parents told her not to

return home, she stayed at a friend’s house. According to Ms. He, her parents informed her that the

police returned to look for her multiple times. Ms. He left China on June 19, 2008. She was neither

harmed nor mistreated while in China and encountered no problems leaving China using her Chinese

passport.

       Ms. He entered the United States without inspection on August 26, 2008. A Notice to

Appear was issued on November 12, 2008. At her February 17, 2009 appearance, Ms. He conceded

removability and requested relief in the form of asylum, withholding of removal, and protection

under CAT. At a merits hearing on December 8, 2010, Ms. He testified that she could not return

to China because she started practicing Falun Gong in the United States, and the police continued

to search for her at her parents’ home in China. With respect to her practices in the United States,

Ms. He explained that she practiced Falun Gong off and on for a few months at a park in Los


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He v. Holder

Angeles, California in 2009, and did so alone at her home in Arkansas after moving there in April

2009. While Ms. He presented some photos of herself practicing in front of the Chinese Consulate

and distributing Falun Gong pamphlets in the United States, she conceded the photos were taken by

friends just prior to the hearing in an effort to document her activities.

       On December 27, 2010, the IJ denied relief, finding both that Ms. He’s testimony was not

credible and that, even if accepted, her evidence regarding her activities and fear of persecution was

not sufficient to establish a well-founded fear of future persecution. The BIA dismissed Ms. He’s

appeal, agreeing with the IJ that, even crediting her testimony, Ms. He had not proven past

persecution, a well-founded fear of persecution, or that she is more likely than not to be tortured if

returned to China. Ms. He timely petitioned for review. We have jurisdiction pursuant to

8 U.S.C. § 1252.

                                          II. DISCUSSION

       “Where the BIA reviews the immigration judge’s decision and issues a separate opinion,

rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision

as the final agency determination. To the extent the BIA adopted the immigration judge’s reasoning,

however, this Court also reviews the immigration judge’s decision.” Khalili v. Holder, 557 F.3d

429, 435 (Fed. Cir. 2009) (internal quotation marks and citations omitted). “In order to reverse the

Board’s factual determinations, we must find that the evidence ‘not only supports a contrary

conclusion, but indeed compels it.’” Koliada v. INS, 259 F.3d 482, 486 (6th Cir. 2001) (emphasis

in original) (quoting Klawitter v. INS, 970 F.2d 149, 152 (6th Cir. 1992)). We may not reverse

simply because we would have come to a different conclusion. Klawitter, 970 F.2d at 151-52 (citing


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He v. Holder

DiCicco v. U.S. Dep’t of Justice INS, 873 F.2d 910, 912 (6th Cir. 1989)). We review legal

conclusions de novo. Bi Xia Qu v. Holder, 618 F.3d 602, 606 (6th Cir. 2010).

        To obtain asylum, one must first show that she is a refugee, defined generally as a person

“who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the

protection of, [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). Thus, Ms. He needed to establish either past persecution or a well-

founded fear of future persecution on one of the protected grounds. Pilica v. Ashcroft, 388 F.3d 941,

950 (6th Cir. 2004).

        On appeal, Ms. He does not challenge the Board’s decision that she did not suffer past

persecution in China. Instead, she argues that the Board failed to properly consider her claim of

future persecution.    To establish a well-founded fear of future persecution, Ms. He must

demonstrate: (1) a fear of persecution due to race, religion, nationality, membership in a particular

social group, or political opinion; (2) a reasonable possibility of suffering such persecution; and (3)

inability or unwillingness to return to China. Id.; 8 C.F.R. § 208.13. This Court has recognized that

“[a] well-founded fear of persecution thus has both a subjective and an objective component: an

alien must actually fear that [s]he will be persecuted upon return to [her] country, and [s]he must

present evidence establishing an ‘objective situation’ under which [her] fear can be deemed

reasonable.” Pilica, 388 F.3d at 950.

         The Board agreed with the IJ that Ms. He failed to establish a well-founded fear of

persecution or that she is likely to be persecuted if she returns to China. In reaching this conclusion,


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He v. Holder

the Board noted that: (1) Ms. He was not arrested, questioned, “or in any way harmed prior to

leaving China”; (2) there was no evidence that her “activities and profile were so well-known” that

she had a “well-founded fear of persecution in China upon her return”; and (3) Ms. He failed to

provide any “corroboration from her parents of the Chinese authorities’ alleged continued interest

in her whereabouts.” Joint Appendix at 4 (BIA Decision at 2).

        Ms. He argues that the Board improperly focused solely on her past activities in China and

failed to consider her activities in the United States. The Board did not limit its analysis to Ms. He’s

activities in China, however. Instead, the Board affirmed the IJ’s finding that Ms. He failed to

provide any evidence establishing that authorities in China were aware of her current activities or

corroborating her claim that the Chinese government has shown a continuing interest in her. The

Board, like the IJ noted the absence of any affidavit or even letter from her parents confirming

continued interest in Ms. He beyond June of 2008. In other words, the Board agreed with the IJ that

there simply was insufficient evidence that the Chinese authorities were aware of her activities, past

or otherwise, and would target her upon her return to China.1

        Next, Ms. He argues that the Board erred when it determined that only “well-known” Falun

Gong practitioners can demonstrate a well-founded fear of persecution. Ms. He takes the Board’s

statement out of context. The Board did not say that only famous or widely-known Falun Gong

practitioners can have a fear of persecution. Instead, the Board simply stated that there was no



1
  Ms. He argues that the Board’s use of the past tense in its decision implies that it did not consider
her activities in the United States. Because the Board’s decision is not limited to Ms. He’s past
activities, and instead refers to her activities generally, we find her argument unpersuasive.


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No. 12-4331
He v. Holder

record evidence that Ms. He and her activities were known to the Chinese government such that she

would have a well-founded fear of persecution in China upon her return. Ms. He’s own testimony

makes clear that her Falun Gong activities in the United States were limited and largely conducted

in isolation. Importantly, as the government points out, the mere fact that Ms. He “may practice

Falun Gong in the United States does not automatically render her eligible for asylum” particularly

since there is “nothing in the record to show that she has an individualized risk of future harm.”

Respondents’ Br. 22.

       Because the record does not compel a conclusion contrary to that of the BIA on Ms. He’s

asylum claim, her petition is dismissed as to that claim. In addition, because we find no error in the

BIA’s decision to affirm the denial of Ms. He’s asylum claim, we need not address her withholding

of removal and CAT claims, which both require more substantial showings. See Mikhailevitch v.

INS, 146 F.3d 384, 391 (6th Cir. 1998) (citing INS v. Cardoza-Fonesca, 480 U.S. 421, 431-32

(1987)) (“An application seeking withholding of deportation faces a more stringent burden of proof

than one for asylum.”); see also 8 C.F.R. § 1208.16(c)(2) (withholding of removal under the CAT

requires a finding that the applicant will “more likely than not” be tortured if removed).

                                        III. CONCLUSION

       For the foregoing reasons, we DENY Ms. He’s petition for review of the BIA’s decision.




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