Xuefang He v. Holder

Decision Date10 October 2012
Docket NumberNo. 12-3152,12-3152
PartiesXUEFANG HE, Petitioner-Appellant, v. ERIC H. HOLDER, JR., Attorney General, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit
NOT RECOMMENDED FOR PUBLICATION

File Name: 12a1068n.06

ON PETITION FOR REVIEW OF

THE DECISION OF THE BOARD

OF IMMIGRATION APPEALS

OPINION

Before: SILER and COOK, Circuit Judges; STEEH, District Judge*

GEORGE C. STEEH, District Judge. This case arises from the denial of an asylum application for He Xuefang,1 a twenty-four year old native of China who seeks asylum on religious grounds. On appeal, Ms. He challenges the Board of Immigration Appeals' affirmation of the denial of her application for asylum on grounds that the immigration judge (IJ) violated her due process rights; in addition, she asserts that the IJ's findings on persecution and religious practice are not supported by substantial evidence. We disagree, and DENY the petition for review.

I. FACTS AND PROCEDURAL HISTORY

He Xuefang is a twenty-four year old native and citizen of the People's Republic of China. In October 2006, Ms. He began attending a house church in China; she was formally baptized into the Christian faith on January 28, 2007. The house church she attended was not sanctioned by the Chinese government, thus exposing the church and its members to governmental repression.

On May 9, 2007, local police officers arrested Ms. He and her mother, alleging that both were members of an unsanctioned church and were illegally proselytizing their faith. The officers seized two Bibles and various Christian posters from their home. Ms. He and her mother were detained at the local police station for eight days.

During her detention, Ms. He was interrogated twice. The first interrogation lasted for approximately one hour. At that time, Ms. He was asked to prepare a letter confessing to the charges leading to her arrest and naming other members of her house church. She refused; as a result, police officers verbally harassed her, pulled her hair and slapped her twice across the face. The second interrogation lasted for approximately an hour and a half. Police officers reiterated their demand for a confession letter. Upon her repeated refusal to do so, the officers forced Ms. He to kneel for approximately ten minutes and kicked her in the back and legs seven or eight times. She suffered bruises from this assault, but required no medical attention.

A police chief, serving as the intermediary of the director of the local Public Security Bureau (PSB), offered Ms. He a quid pro quo: she would be released if she married the director's son. Ms. He was not enamored with the director's son; she perceived that he had a hodgepodge of deficiencies ranging from a lack of work ethic to physical ailments that made him unsuitable for marriage.Initially refusing to engage in this exchange, Ms. He later acquiesced for the sake of obtaining release. Shortly thereafter, she began making plans to leave China.

Upon Ms. He's release, the director's wife pressured Ms. He into marrying her son as soon as possible. Ms. He's parents resisted, claiming that she was too young to be legally wed. Her parents also rejected the idea of a customary marriage in lieu of a legal one to circumvent legal concerns regarding Ms. He's age. The director's wife then coupled her entreaties with threats to send Ms. He and her mother back to jail. After being repeatedly subjected to these demands, Ms. He submitted and was engaged on October 1, 2007.

Once Ms. He's engagement was formalized, the director's son began harassing Ms. He at her home every two or three days. On October 17, 2007, the son appeared at her home and attempted to touch and kiss her; in response, Ms. He yelled angrily, attracting the attention of her neighbors. When the neighbors arrived, the son fled the scene.

As part of her plans to leave the country, Ms. He prepared for and passed the TOEFL examination. In addition, she applied for an educational visa to the United States, which was granted in March 2008. On April 29, 2008, Ms. He departed China and was unhindered by Chinese officials in her departure. Her destination was Montana.

Ms. He enrolled at the University of Montana at Missoula. She studied at the university for about three months. During this three-month period, Ms. He attended three or four services at the Missoula Valley Church. She left Montana for Los Angeles in search of a large Chinese community. Ms. He remained in Los Angeles for six months. While living in the city, she attended services at the House of Christians church, which provided Chinese-language worship services. In January2009, Ms. He left Los Angeles for Franklin, Tennessee, where she now works and resides. She sporadically attended English-language services at Brentwood Baptist Church two or three times a month.

On October 22, 2008, Ms. He filed an application for asylum, withholding of removal, and protection under the U.N. Convention Against Torture. The Department of Homeland Security initiated removal proceedings by issuing a Notice to Appear on November 26, 2008. At a preliminary proceeding held on December 17, 2008, Ms. He conceded to removability and acknowledged all factual allegations contained in the Notice.

In support of her application for asylum, Ms. He provided a copy of her I-589, a narrative statement, an I-94, a copy of her passport, a copy of her I-120, her household registration booklet, her diplomas, her photos, and background materials on conditions in China. In addition, she provided a letter from her mother, a letter from her neighbor in China, a letter from a fellow congregant in Los Angeles, flyers from the Brentwood Baptist Church, and photographs taken at the Brentwood Church.

On March 17, 2010, the immigration judge (IJ) denied Ms. He's application for asylum, withholding of removal, and protection under the Convention Against Torture, ordering Ms. He's removal from the United States to China. While finding the applicant's testimony credible, the IJ found that Ms. He failed to meet her burden of proof under the REAL ID Act. The main reason for the IJ's finding was Ms. He's failure to provide corroborative evidence of her claim, namely in the form of letters from church officials confirming her affiliation with churches in China and the United States. In the IJ's opinion, it would have been "quite simple to get letters from pastors of thechurches here in the United States"—thus, there was "really . . . no explanation as to why [Ms. He] did not pursue this form of corroborative evidence." The IJ also found that Ms. He did not adequately demonstrate past persecution. In doing so, the IJ explained that Ms. He's detention was "unfortunate," but "only once fold" and without residual consequences. The IJ emphasized Ms. He's ability to leave China on a valid passport and visa to study in the United States without hindrance from Chinese officials. With respect to the forced marriage, the IJ observed that the imbroglio with the director's son did not "even remotely suggest that it rises to the level of persecution under the [INA] and presiding case law." Finally, the IJ found that there was no demonstration of a fear of future persecution, as Ms. He's sporadic church attendance in the United States was unlikely to gain the attention of the Chinese government upon her return. Thus, Ms. He's application for asylum was denied.

Ms. He appealed to the Board of Immigration Appeals (BIA). In doing so, she asserted that the letters from her mother, neighbor, and fellow churchgoer were sufficient to provide corroborative evidence of her practice of faith. In the alternative, she asked that the case be remanded for further fact-finding as to the availability of corroborating letters from her pastor in China.

The BIA dismissed the appeal, adopting and affirming the IJ's decision. The BIA concluded that the IJ was correct in determining that the harm suffered by Ms. He did not rise to the level of persecution and that Ms. He failed to demonstrate a well-founded fear of persecution on account of her religion. In addressing the forced marriage, the BIA stated that the claim was "not on account of [Ms. He's] religion or any other protected ground" and thus could not be used to satisfy the burdenof proof necessary to establish asylum. Hence, the IJ's decision was affirmed. This petition for review followed.

II. ANALYSIS

The Immigration and Nationality Act empowers the Secretary of Homeland Security and the Attorney General with the discretion to grant asylum to a "refugee." 8 U.S.C. § 1158(b)(1)(A) (2006). "A refugee is defined as a person who is unable or unwilling to return to his home 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.'" Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004) (quoting 8 U.S.C. § 1101(a)(42)(A)). "Disposition of an application for asylum requires a two-step inquiry: first, whether the petitioner is a 'refugee' within the meaning of the statute, and second, whether the petitioner merits a favorable exercise of discretion by the Attorney General." Id. (quoting Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994)).

Ms. He raises three challenges to the proceedings below. First, she argues that the IJ violated due process by failing to ask her why corroborative evidence was unavailable. Second, she challenges the IJ's finding that insufficient corroboration was provided regarding Ms. He's practice of faith. Finally, Ms. He contends that substantial evidence does not support the IJ's finding that the harm suffered by Ms. He did not rise to the level of persecution. In doing so, she asserts that the BIA failed to properly consider her forced marriage and improperly considered her possession of a valid Chinese passport.

A. Standard of Review

"Where, as here, the BIA affirms an IJ's ruling and adds its own comments, we...

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