Gao v. Barr

Decision Date20 February 2020
Docket NumberNo. 19-1694,19-1694
Citation950 F.3d 147
Parties YONG GAO, Petitioner, v. William P. BARR, Attorney General, Respondent.
CourtU.S. Court of Appeals — First Circuit

Adedayo O. Idowu, Silver Spring, MD, for petitioner.

Elizabeth K. Fitzgerald-Sambou, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and Bernard A. Joseph, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Before Kayatta, Selya, and Stahl, Circuit Judges.

STAHL, Circuit Judge.

Yong Gao, a native and citizen of the People's Republic of China ("China"), petitions this court for review of a Board of Immigration Appeals ("BIA") order affirming an Immigration Judge ("IJ")'s denial of his applications for asylum, withholding of removal, and protection under Article III of the United Nations Convention Against Torture ("CAT"). After careful consideration of Gao's claims, the BIA's order, and the underlying findings of the IJ, we deny Gao's petition for review.

I. Factual Background and Procedural History

In China, Gao worked for a construction supply house, where he oversaw deliveries and dispatches. In 2011, a customer named Auntie Li gave Gao a Bible from a church of so-called "Shouters," which China considers to be a cult. Subsequently, Gao attended church meetings at Auntie Li's house. Gao also brought the Bible to his place of work and read it during his breaks.

In June or July of 2011, Gao's supervisor caught him reading the Bible at work. The supervisor confiscated the Bible and called the police, who arrested Gao at the supply house. The police took Gao to the public security bureau and questioned him from about 8 or 9 p.m. until midnight. The police then placed Gao in a separate room overnight. The next day, a different officer questioned Gao, pushed his head against the top of a desk, and threatened to beat him. Gao ultimately admitted to the police that Auntie Li had given him the Bible. During his approximately twenty-three hours of detention, Gao was denied food and water. He was released around 7 p.m. on the second day of detention, after his family had paid a 5000-yuan fine to the police. Gao subsequently attempted to return to his place of employment but was informed that he had been terminated because of his alleged cult affiliation. He later visited Auntie Li's house and saw that the door had been barred, leading him to conclude she had also been arrested.

In March 2012, Gao acquired a visa to travel to the United States. Obtained through a private agency in China, the visa falsely stated that Gao would attend the Juilliard School in New York.1 On March 27, 2012, he was admitted to the United States as a nonimmigrant and was authorized to remain in the country until September 26 of that year. On August 21, 2012, Gao applied for asylum, withholding of removal, and protection under the CAT. On September 29, 2014, the United States Department of Homeland Security issued Gao a Notice to Appear and placed him in removal proceedings because he had overstayed his visa. Gao conceded removability.

On January 18, 2018, an IJ denied Gao's applications and ordered his removal. Regarding Gao's asylum application, the IJ determined that he failed to demonstrate past persecution and a well-founded fear of future persecution in China. Specifically, the IJ reasoned that the harm Gao suffered did not constitute persecution because he did not experience more than ordinary harassment, mistreatment, or suffering. In coming to that conclusion, the IJ considered the severity, duration, and frequency of Gao's physical abuse and whether his harm was systematic. The IJ found that Gao was arrested once in China and detained for approximately twenty-three hours. The IJ noted Gao's testimony that he was interrogated twice, beaten once, and denied food and water. The IJ also observed that Gao did not indicate he required professional medical treatment or sustained any lasting injuries as a result of his encounter with police.

The IJ determined that because Gao did not demonstrate past persecution, he was not entitled to a presumption that he would face future persecution. See 8 C.F.R. § 1208.13(b)(1). The IJ did state that Gao could nevertheless prevail on his asylum claim by proving a well-founded fear of future persecution on account of a protected ground that was both subjectively and objectively reasonable. The IJ added that Gao needed to demonstrate that he could not safely relocate in China to avoid future persecution. See 8 C.F.R. § 1208.13(b)(2)-(3). The IJ then found that Gao had remained in China without police encounters for nine months following his arrest and that he was then given a visa to leave China and go to the United States.2

After reviewing the United States Department of State 2016 International Religious Freedom Report for China, which Gao had submitted into evidence, the IJ found that Gao could nevertheless "relocate somewhere safely in China." Accordingly, the IJ determined that Gao had not established a well-founded fear of future persecution and denied his asylum application.

As to Gao's withholding of removal application, the IJ determined that Gao did not meet the requisite clear probability of persecution standard because he failed to meet the less stringent standard for asylum. The IJ also denied Gao CAT protection because Gao did not establish that Chinese officials would more likely than not torture him upon his repatriation.

Gao appealed to the BIA on February 12, 2018, arguing that the IJ erred in concluding that his experience did not constitute past persecution and that he did not have a well-founded fear of future persecution. On June 28, 2019, the BIA affirmed the IJ's decision, agreeing that Gao's single instance of harm did not constitute past persecution. The BIA also determined that Gao "ha[d] not challenged the Immigration Judge's determination that he could avoid future harm by relocating" in China. The BIA further determined that Gao could not satisfy the more stringent standard for withholding of removal and that he did not raise specific arguments relating to the IJ's denial of CAT protection. Gao timely petitioned this court for review of the BIA's order.

II. Discussion

Where, as here, "the BIA adopts and affirms the IJ's ruling but also examines some of the IJ's conclusions, this Court reviews both the BIA's and IJ's opinions." Loja-Paguay v. Barr, 939 F.3d 11, 15 (1st Cir. 2019) (quoting Perlera-Sola v. Holder, 699 F.3d 572, 576 (1st Cir. 2012) ). We review legal conclusions de novo, "with appropriate deference to the agency's interpretation of the underlying statute in accordance with administrative law principles." Ramírez-Pérez v. Barr, 934 F.3d 47, 50 (1st Cir. 2019) (quoting Rivas-Durán v. Barr, 927 F.3d 26, 30 (1st Cir. 2019) ). We review administrative factual findings "under the deferential ‘substantial evidence standard,’ meaning that we will not disturb such findings if they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ " Id. (quoting Rivas-Durán, 927 F.3d at 30 ). Under this standard, "administrative 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).

Gao now contends that the IJ and the BIA erred in concluding that he did not suffer past persecution and was not entitled to asylum, withholding of removal, or protection under the CAT. We address each argument in turn, and conclude that none has merit.

A. Asylum

Under our immigration laws, the Attorney General may grant asylum to an applicant if the applicant demonstrates that he is a "refugee."

8 U.S.C. § 1158(b)(1)(A), (B)(i) ; see 8 C.F.R. § 1240.8. A refugee is defined as a person who is unable or unwilling to return to the country of his nationality because of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). A showing of past persecution creates a rebuttable presumption that the applicant's fear of future persecution is well-founded. 8 C.F.R. § 1208.13(b)(1).

"Persecution" is not defined by statute, and "what constitutes persecution is resolved on a case-by-case basis." Panoto v. Holder, 770 F.3d 43, 46 (1st Cir. 2014). Generally, it involves a discriminatory harm caused by government action or allowed by government acquiescence that "surpasses ‘unpleasantness, harassment, and even basic suffering.’ " Id. (quoting Sombah v. Mukasey, 529 F.3d 49, 51 (1st Cir. 2008) ). "The severity, duration, and frequency of physical abuse are factors relevant to this determination, as is whether harm is systematic rather than reflective of a series of isolated incidents." Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir. 2014) (quoting Barsoum v. Holder, 617 F.3d 73, 79 (1st Cir. 2010) ). We also consider the severity and frequency of the applicant's alleged harassment in light of "the nature and extent of an applicant's injuries." Martínez-Pérez v. Sessions, 897 F.3d 33, 40 (1st Cir. 2018) (quoting Vasili v. Holder, 732 F.3d 83, 89 (1st Cir. 2013) ).

1. Past Persecution

Substantial evidence supported the IJ's and BIA's conclusions that Gao's harm did not constitute past persecution. Gao's sole detention was neither systematic nor frequent, and "a single detention, even one accompanied by beatings and threats ... does not necessarily rise to the level of persecution." Jinan Chen v. Lynch, 814 F.3d 40, 45 (1st Cir. 2016) ; see Anacassus v. Holder, 602 F.3d 14, 19-20 (1st Cir. 2010) ("[I]solated beatings, even when rather severe, do not establish systematic mistreatment needed to show persecution." (quoting Wiratama v. Mukasey, 538 F.3d 1, 7 (1st Cir. 2008) )). Gao also fails to establish that the twenty-three-hour duration of his detention was...

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