                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2009

Li v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1598




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 08-1598
                                     ___________

                                   YOU GUANG LI,
                                                      Petitioner,
                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                         On a Petition For Review of an Order
                         of the Board of Immigration Appeals
                               Agency No. A98-712-893
                          Immigration Judge: Daniel Meisner
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 22, 2009
           Before: SLOVITER, STAPLETON and COWEN, Circuit Judges

                             (Opinion filed: April 23, 2009)
                                     ___________

                                      OPINION
                                     ___________


PER CURIAM

      Petitioner You Guang Li, a native and citizen of China, arrived in the United

States through Mexico on November 30, 2004 without being inspected, admitted or

paroled. He is thus removable under Immigration and Nationality Act (“INA”) §

212(a)(6)(A)(i), 8 U.S.C. § 1182 (a)(6)(A)(i). Li applied for asylum under INA § 208(a),
8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. §

1231(b)(3), and for protection under the Convention Against Torture, 8 C.F.R. §§

1208.16(c), 1208.18, claiming that he had been persecuted by the Chinese government on

account of his practice of the outlawed Falun Gong religion or spiritual movement.1 The

asylum application included a personal statement.

       At his merits hearing, Li testified that he started practicing Falun Gong in April of

2003. He was introduced to it by a friend, Zhi Hong Zhu, and he was interested in it

because he thought it might improve his poor health. Li and his friend practiced in a

scenic area on a hill in the Gu Shan district at 5 a.m., three or four times a week until

September of 2004. On September 6, 2004, three police officers came to Li’s restaurant,

told him that practicing Falun Gong was illegal, and arrested him. He was taken to the

police station and interrogated with respect to others who might be practicing the

outlawed Falun Gong. He was struck in the head twice with an open hand because he

told police that no one practiced with him. The officers laughed at him when he asked for

food; they said that someone practicing Falun Gong should be powerful enough not to

have to eat. After 24 hours, Li was released when his parents found someone to bring

5,000 RMB to post bail. Li was told to report to the police station once a week.

       Following his release, Li reported only once to the police, and on that occasion he

   1
    Falun Gong is a spiritual movement that blends aspects of Taoism, Buddhism, and
the meditative techniques and physical exercises of qigong – a traditional Chinese
exercise discipline – with the teachings of its founder. See generally Lin v. Att’y Gen. of
U.S., 543 F.3d 114, 117 n.3 (3d Cir. 2008).

                                              2
was questioned briefly and released. Then, fearing for his safety, he went to stay with his

maternal uncle, Shu Chuan Li, who lived approximately three or four hours away by car.

He stayed there for three or four months until he left China in November. During that

time, the police came to Li’s home on numerous occasions to ask his parents about his

whereabouts. Since departing China, the police have paid visits to his parents and have

told them that, if he ever returned, he would be arrested.

       Since Li’s arrival in the United States, he has practiced Falun Gong several times a

week in his dormitory. Li related that he practiced the five sets of Falun Gong, one by

one. He described to the Immigration Judge the names of the five sets, their meaning,

and the number of movements in each set. He further related the principles of Falun

Gong, and he added that Falun Gong had been founded by Hongzhi Li, who had fled to

the United States. Li asserted that he would continue to practice Falun Gong if he

returned to China.

       Following the hearing, the IJ found that Li had failed to meet his burden of

establishing either a well-founded fear of future persecution due to his practice of Falun

Gong, or past persecution on the basis of it. Accordingly, Li’s applications were denied.

The IJ found that Li was not credible on the basis of inconsistencies between his

application and testimony, and, even if his claims were to be believed, his proof of

persecution was insufficient. In his asylum application, Li stated that he left China on

October 14, 2004, but this was not consistent with his testimony that he remained at his



                                             3
uncle’s house for three or four months before leaving China in November 2004. When

confronted with the inconsistency, Li responded that, in actuality, he stayed with his uncle

for two months, and left China in November of 2004. In addition, Li submitted no

affidavits or declarations from persons to support his claim that he practiced Falun Gong

in China, or here in the United States.2 For example, he had no statement from either of

his parents who had been instrumental in obtaining his release. He submitted no

background information from the U.S. State Department or non-governmental agencies.

But, the IJ concluded, even assuming a favorable credibility determination, Li’s proof was

insufficient to show past persecution. He was arrested one time and released after 24

hours. He was struck twice during his interrogation, but he testified that he was not

injured. Importantly, the police made no attempt to locate him at his uncle’s home even

though he was under an obligation to report on a weekly basis. The IJ also found that Li

was not tortured in the past, and there was no indication from his evidence that he would

be tortured if he returned to China.

       Li appealed, but, on January 31, 2008, the Board of Immigration Appeals affirmed,

citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994). Without addressing the IJ’s

adverse credibility finding, the Board concluded that “even if credible,” Li’s

circumstances did not demonstrate either past persecution or a well-founded fear of future



   2
    It appears from the administrative record that removal proceedings were transferred
from Texas to New York City because Li went to live with his aunt, a resident of Corona,
New York.

                                             4
persecution, quoting parenthetically the definition of persecution from Fatin v.

Immigration & Naturalization Serv., 12 F.3d 1233 (3d Cir. 1993). The Board identified

these circumstances: Li was detained in 2004 because of his practice of Falun Gong, he

was slapped twice and denied food and water, and he was released without further harm.

The Board also concluded that there was no support in the record for Li’s torture claim,

thus making him ineligible for CAT protection. Li now seeks review of the Board’s

decision.

       We have jurisdiction to review a final order of removal under 8 U.S.C. §

1252(a)(1), (b)(1). To the extent the Board deferred to the IJ’s reasoning in part, we

review the Board’s decision but consider the IJ’s as well as a matter of logic. See

Abdulrahman v. Ashcroft, 330 F.3d 587, 591 (3d Cir. 2003). Under INA § 208(b), the

Attorney General has the discretion to grant asylum to "refugees." 8 U.S.C. § 1158(b);

see also Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5

(1987). Section 101(a)(42)(A) of the INA defines a "refugee" as a person unable to

return to her country of "nationality . . . 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).

       The alien bears the burden of proof of establishing that he is a refugee and that he

has suffered past persecution or has a well-founded fear of persecution. See 8 C.F.R. §

1208.13(a); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Persecution has a well-



                                              5
established meaning; it includes threats to life or freedom but it does not include

treatment that fairly may be regarded as unfair or unjust, or even unlawful. Fatin, 12 F.3d

at 1240. If past persecution is established, then the asylum applicant is presumed to have

a well-founded fear of persecution. See 8 C.F.R. § 1208.13(b)(1); Shardar v. U.S.

Attorney Gen., 503 F.3d 308, 312 (3d Cir. 2007). To establish entitlement to withholding

of removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), the alien must

demonstrate a "clear probability" of persecution through the presentation of evidence that

it is more likely than not that he would be subject to persecution if deported. See

Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003).

       The agency’s “findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See also

Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under

this deferential standard, the petitioner must establish that the evidence does not just

support a contrary conclusion but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d

Cir. 2002).

       Li has failed to show that the Board’s conclusion that he failed to demonstrate past

persecution is not supported by reasonable, substantial and probative evidence on the

record considered as a whole. Elias-Zacarias, 502 U.S. at 481. The record evidence

supports the finding that his arrest, detention, interrogation, and the requirement that he

report on a weekly basis did not rise to the level of persecution. The evidence Li



                                              6
submitted shows that he was arrested by local police and held for about 24 hours after he

had started to do Falun Gong exercises. While detained he was denied food and water,

and while interrogated he was slapped twice on the back of his head with an open hand

and laughed at, but he suffered no injury. He was released and ordered to report weekly

to the police, which he did once when he was briefly questioned and again released. He

went to his uncle’s home, where he stayed for several months, during which time police

made no attempt to locate him. After arriving in the United States, police visited his

parents to inquire as to his whereabouts, and, even though his family provided no

information to the police, they suffered no mistreatment or harm. None of these

circumstances rise to the level of persecution. See, e.g., Kibinda v. Att’y Gen. of U.S.,

477 F.3d 113, 119-20 (3d Cir. 2007) (five-day detention resulting in minor injury did not

amount to persecution); Fatin, 12 F.3d at 1240.

       If the alien cannot show past persecution, he may still establish a well-founded fear

of future persecution by demonstrating a subjective fear of persecution, and that a

reasonable person in the alien’s circumstances would fear persecution if returned to the

country in question, Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). However, Li

also failed to show that the Board’s conclusion that he failed to demonstrate a well-

founded fear of future persecution is not supported by reasonable, substantial and

probative evidence. Li failed to provide specific and detailed testimony which would

establish both a subjective and an objective fear of future persecution. The only evidence



                                             7
Li presented was his own testimony that he currently practices Falun Gong and he would

continue to do so in China. Even if he had submitted a State Department Country Report

indicating that some Falun Gong followers have been subject to severe treatment by

Chinese authorities, Li provided no reason to believe either that every follower of Falun

Gong is persecuted or that he would be targeted specifically for such treatment. On the

contrary, his testimony that he was not pursued by the police while he lived with his

maternal uncle undercuts any such assertion. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d

Cir. 2005) (discussing individualized risk of persecution). Furthermore, Li did not assert

a pattern or practice of persecution.

       Since the asylum standard is a more lenient standard, an alien’s failure to establish

eligibility for asylum forecloses eligibility for withholding of removal. Lukwago v.

Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). The Board also correctly determined that

Li’s CAT claim is without merit because he did not demonstrate that it was more likely

than not that he would be tortured, 8 C.F.R. 1208.16(c)(2), in China.

       For the foregoing reasons, we will deny the petition for review.




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