                             UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                              Argued April 18, 2006
                              Decided April 25, 2006

                                      Before

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

                   Hon. TERENCE T. EVANS, Circuit Judge

                   Hon. DIANE S. SYKES, Circuit Judge

No. 05-2733

CHUN LIN ZHAO,                                     Petition for Review of an Order
    Petitioner,                                    of the Board of Immigration
                                                   Appeals
              v.

ALBERTO R. GONZALES, Attorney General              No. A77 651 202
of the United States
       Respondent.


                                     ORDER

      Chun Lin Zhao, a Chinese citizen, petitions for review of the Board of

Immigration Appeals' decision affirming the Immigration Judge's denial of his

application for asylum, withholding of removal, and relief under the Convention

Against Torture. Because the BIA found that Zhao's asylum application was

untimely, we do not have jurisdiction to consider Zhao's arguments about his
No. 05-2733                                                                 Page 2

asylum claim. We also deny Zhao's petition with respect to his claims for

withholding of removal and relief under the Convention Against Torture because

the evidence does not compel a conclusion that it is more likely than not that Zhao

will be persecuted on account of a protected ground or will be tortured if he returns

to China.

      Zhao asserts that he has suffered persecution on account of his political

opinion based on events that happened when he was the "director" of the security

department at the Li He Trading Company in Shenyang, China. The owner of the

company, Zhi Jun Huang, was a Falun Gong practitioner. Although Zhao testified

that he is not himself a Falun Gong practitioner, he says that he supported Huang's

efforts to practice Falun Gong and suggested that Huang hold early morning group

practice sessions in the company's courtyard. Zhao provided security for these

sessions, which in time grew to include more than 100 people.

      According to Zhao, these practice sessions attracted the attention of Chinese

authorities, and in 1999 several officials from the public security bureau tried to

enter the courtyard where a session was taking place. Zhao and some fellow

security guards stopped the officials from entering. Zhao says a scuffle ensued,

after which the officials accused him of serving as a "protection umbrella" for the

group and warning him that if the Falun Gong practitioners were ever put on trial,

he would be the "first person . . . to be tried." About a month later, officials forcibly

took Zhao from work to the local public security bureau office. They asked him to

monitor Huang's activities and plant a bugging device on the premises of the
No. 05-2733                                                             Page 3

company. When Zhao refused, the officials handcuffed him to a pipe and slapped

him on the face, drawing blood. Zhao also said that they "cut some lines" on his

back with a knife. He testified that one cut was "pretty deep" but the others were

"not that much." The officials released him after several hours and told him to

report to them periodically on Huang's activities. Zhao says he made one such

report in which he falsely said that Huang had not participated in any political

activities. Zhao, concerned that his continued refusal to cooperate with authorities

placed him in danger, left China for the United States. Huang has since dissolved

the Li He Trading Company and has also left China.

      The IJ found that Zhao was ineligible for asylum because he filed his

application more than a year after entering the United States and that no changed

circumstances in China justified the delay. The IJ also denied Zhao's claims for

withholding of removal and relief under the Convention Against Torture. She

determined that Zhao was not persecuted on account of his political opinion but was

targeted solely because officials thought he would be a useful source of information

on Huang. The IJ also determined that the treatment Zhao suffered during his

questioning (being handcuffed, slapped, and cut with a knife) was not severe

enough qualify as persecution; she noted that Zhao's written application never

mentioned being cut with a knife, and that Zhao himself testified that he did not

think the knife cut was "a big thing." Finally, she concluded that Zhao failed to

show that it was likely that he would be persecuted or tortured after returning to

China because he is not a Falun Gong practitioner and the government's only
No. 05-2733                                                               Page 4

interest in him—as a source of information on Huang—no longer existed because

Huang left the country and closed his company. The BIA adopted the IJ's decision.

The BIA agreed with the IJ's analysis of all of Zhao's claims, although it added that

Zhao was not entitled to relief under the Convention Against Torture because he

had not shown that the treatment he endured was sufficiently severe to constitute

torture.

      Zhao concedes that he did not file his asylum application within the one-year

deadline, but he argues that this delay was justified because the Falun Gong was

not officially declared illegal until 2002. This event, he says, is a changed country

condition which justifies his late filing under 8 U.S.C. § 1158(a)(2)(D) because it

increased the risk that he would be targeted by the Chinese government. However,

the BIA rejected Zhao's changed country conditions argument and, as the

government points out, we do not have jurisdiction to review a determination that

an asylum application is untimely and that a delay in filing is not justified. 8

U.S.C. § 1158(a)(3); Lhanzom v. Gonzales, 430 F.3d 833, 841–42 (7th Cir. 2005);

Vladimirova v. Ashcroft, 377 F.3d 690, 695 (7th Cir. 2004); Zaidi v. Ashcroft, 377

F.3d 678, 680–81 (7th Cir. 2004). Therefore, we lack jurisdiction to review Zhao's

arguments regarding his asylum claim.

      The one-year deadline does not apply to applications for withholding of

removal or relief under the Convention Against Torture, so we may review Zhao's

arguments regarding those claims. Lhanzom, 430 F.3d at 842. To qualify for

withholding of removal Zhao must show that his "life or freedom would be
No. 05-2733                                                              Page 5

threatened" on account of his political opinion, 8 U.S.C. § 1231(b)(3)(A); Firmansjah

v. Gonzales, 424 F.3d 598, 604–05 (7th Cir. 2005). This is a higher burden than the

asylum standard, Kobugabe v. Gonzales, 440 F.3d 900 (7th Cir. 2006), and we

review the BIA's determination on this issue for substantial evidence, Firmansjah,

424 F.3d. at 604.

      Although Zhao does not explicitly say so, he seems to be making an argument

that the public security officials imputed a political opinion to him based on his

connection to Huang's Falun Gong activities. Zhao argues that the BIA and IJ

erred in finding that he did not express a political opinion and that the treatment

he suffered was based on his relationship with Huang. Zhao asserts that the

mistreatment he suffered "was based on his providing cover for Falun Gong

practitioners and his refusal to cooperate with authorities." Zhao also argues that

he "expressed his political opinion by his act of providing protection to the former

student leader and the other Falun Gong practitioners and by his refusal to

cooperate with the government authorities in its endeavor to persecute the student

leader and the Falun Gong practitioners."

      To succeed on a claim of imputed political opinion, Zhao must show that his

persecutors attributed a political opinion to him, Lwin v. INS, 144 F.3d 505, 509

(7th Cir. 1998), and that this attributed opinion is their motive for harming him, see

INS v. Elias Zacarias, 502 U.S. 478, 482–83 (1992). We have suggested that

individuals can establish a claim of imputed political opinion if they show a risk of

persecution at the hands of authorities who erroneously believe they are Falun
No. 05-2733                                                               Page 6

Gong practitioners. See Liu v. Ashcroft, 380 F.3d 307, 314–15 (7th Cir. 2004).

Other courts have also taken the position that imputed support of Falun Gong can

be the basis of a claim of persecution on account of political opinion. Zhou v.

Gonzales, 437 F.3d 860, 868–69 (9th Cir. 2006); Gao v. Gonzales, 424 F.3d 122,

129–30 (2d Cir. 2005).

      The problem is that Zhao has provided little evidence to suggest that the

public security bureau officials really believed him to be a Falun Gong practitioner

or were motivated by this consideration. The main incident of alleged persecution

identified by Zhao in his brief is his interrogation and beating at the public security

bureau office. But, as both the IJ and the BIA pointed out, the interrogation of

Zhao focused primarily on what he could tell them about Huang's activities rather

than on his own behavior or views about Falun Gong. This evidence is consistent

with the BIA's and IJ's conclusion that Zhao was mistreated because he refused to

be an informant rather than because he was viewed as a Falun Gong practitioner.

See Lwin, 144 F.3d at 509 (no persecution on account of imputed political opinion

where petitioner was pressured to reveal whereabouts of his politically active son;

interrogations focused on son's whereabouts not petitioner's views of son's political

opinions). The fact that public security bureau officials wanted Zhao to inform on

Huang does not necessarily show that they thought Zhao shared Huang's views.

Zhao's position as security "director" would make him valuable as an informant

regardless of his personal opinions about Falun Gong. Since Zhao has not shown
No. 05-2733                                                               Page 7

that the officials who interrogated and assaulted him were motivated by a belief

that he was a Falun Gong practitioner, his withholding claim must fail.

      There is a possibility that Zhao is also making a vague argument that he was

mistreated on account of his own, rather than an imputed, political opinion. He

seems to suggest that his refusal to cooperate with the authorities by becoming an

informant was itself an expression of a political opinion. Perhaps he is saying that

his refusal was intended as a political statement that he supported Falun Gong and

opposed the intolerant and oppressive tactics of the Chinese government.

      We have defined a political opinion as "one that is expressed through political

activities or through some sort of speech in the political arena." Li v. Gonzales, 416

F.3d 681, 685 (7th Cir. 2005). It is not obvious that the mere refusal to cooperate

with government officials and inform on one's boss (unaccompanied by any other

evidence of political activism) falls within this definition. Zhao does not cite any

case law to support such an argument, and the case law we have found does not

tend to support it. For example, we have refused to find that petitioners have been

persecuted on account of their political opinion in situations where they have been

mistreated by the government for refusing to disclose the whereabouts of a

politically active family member. See Djouma v. Gonzales, 429 F.3d 685, 688 (7th

Cir. 2005); Lwin v. INS, 144 F.3d at 509 (7th Cir. 1998). Therefore, this

undeveloped argument is without merit.

      There is another problem with Zhao's petition. As the government points out,

he has hardly presented a clear cut case of past persecution. Although Zhao points
No. 05-2733                                                               Page 8

to his detention during which he was handcuffed to a pipe, slapped, and cut with a

knife—serious allegations that are more specific than the vague claims of "beatings"

that this court generally rejects, see, e.g., Dandan v. Ashcroft, 339 F.3d 567, 573–74

(7th Cir. 2003)—he himself admitted that he did not think this incident was "a big

thing," a statement that undermines what is already a questionable case of

persecution.

      Without any evidence of past persecution, Zhao has presented little to

challenge the BIA's conclusion that he does not face a clear probability of harm in

the future, if he goes back to China. On this point, Zhao basically repeats

arguments that the BIA rejected. For example, he says that he will be harmed if he

returns because he refused to continue making the periodic reports on Huang to the

public security bureau. Zhao also says that, after he left China, Chinese officials

came twice to the Li He Trading Company to look for him and this is evidence that

they are still interested in harming him. However, both of these arguments ignore

the crucial fact that Huang is no longer in China. The officials' visits to Zhao's

office both occurred before Huang dissolved his company and left the country, when

Zhao still would have been of some use to the authorities as an informant. Now

that Huang is gone, Zhao does not explain why the authorities would still be

interested in him. Zhao seems to think that he will be punished for his past failure

to make reports on Huang, but he does not provide any specifics about why he

thinks this will happen and given the high standard he has to meet to prove his
No. 05-2733                                                                Page 9

eligibility for withholding or removal, this argument does not justify overturning

the BIA's decision.

      Zhao's claim for relief under the Convention Against Torture fails for similar

reasons. To be eligible for relief under the Convention Against Torture, Zhao must

show that it is more likely than not that he will be tortured if he returns to China.

8 C.F.R. § 1208.16(c)(2); Mabasa v. Gonzales, 440 F.3d 902, 907 (7th Cir. 2006).

Since Zhao's evidence that he will face harm in the future is irrelevant now that

Huang has left China, he cannot meet this standard. In any event, torture is

defined as "any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person . . . ." 8 C.F.R. § 1208.18(a)(1); Rashiah v.

Ashcroft, 388 F.3d 1126, 1131 (7th Cir. 2004). Zhao does not point to any evidence

that would indicate he would suffer such severe treatment if he returns to China.

      For the above reasons, we DISMISS for lack of jurisdiction Zhao's petition to

the extent that it seeks review of the BIA's decision denying him asylum and DENY

the petition in all other respects.
