Zhu v. Gonzales

• Decision Date: 29 September 2006
• Docket Number: No. 05-3186.,05-3186.
• Citation: 465 F.3d 316
• Parties: Hao ZHU, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

465 F.3d 316

Hao ZHU, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 05-3186.

United States Court of Appeals, Seventh Circuit.

Argued February 21, 2006.

Decided September 29, 2006.

Pengtian Ma (argued), Chicago, IL, for Petitioner.

Jill E. Zengler (argued), Office of U.S. Attorney, Indianapolis, IN, Karen Lundgren, Department of Homeland Security Office of the District Counsel, Chicago, IL, Joshua E. Braunstein, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, KANNE, and ROVNER, Circuit Judges.

BAUER, Circuit Judge.

Hao Zhu, a citizen of the People's Republic of China, appeals the denial of his request for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We deny Zhu's petition for review.

I. Background

The government commenced removal proceedings against Zhu after he attempted to enter the United States at Chicago's O'Hare International Airport on September 16, 2000. At a January 14, 2003 hearing Zhu submitted an application for asylum, a request for withholding of removal under the Immigration and Nationality Act (INA), and a request for deferral of removal under the CAT. Zhu indicated in his I-589 form that his asylum request was based on political opinion.

Although the immigration judge (IJ) did not credit portions of Zhu's testimony, he stated that "on aspects related to his relationship with his girlfriend, Yun Dong, [Zhu's testimony] should be full[y] credited." Because of the IJ's credibility determination, the facts are undisputed. Zhu impregnated Dong in early 2000. On April 7, he admitted to school officials that he was responsible for her pregnancy. When the family planning commission ordered Dong to appear at the hospital on April 8, she decided to travel to Shan Ming City to hide. That day, family planning officials came to Zhu's home looking for Dong. They kicked and struck Zhu with fists in an attempt to bring him to the police station. Zhu also was hit on the head with a brick, an injury that required seven stitches. When Zhu started bleeding, the officials asked him to turn himself in after seeking treatment. They did not detain him. Zhu later traveled to Shan Ming City to find Dong, who, unbeknownst to him, had already returned home, been discovered, and forced to abort the pregnancy. After returning home and speaking with Dong, Zhu decided to leave for the United States. Upon his arrival at O'Hare, he stated that he left China because of the coercive birth control policy. He also stated that he would possibly be jailed if he returned.

The IJ ruled that Zhu failed to establish either past persecution or a well-founded fear of future persecution, and denied his request for asylum, withholding, and deferral of removal. After the BIA affirmed the IJ's decision, Zhu petitioned for review.

II. Discussion

When the BIA summarily affirms, we review the IJ's decision. Nakibuka v. Gonzales, 421 F.3d 473, 476 (7th Cir.2005). We review the BIA's factual determinations under the highly deferential substantial evidence standard. Dandan v. Ashcroft, 339 F.3d 567, 572 (7th Cir.2003). We will not grant the petition for review unless the petitioner demonstrates that "the evidence not only supports [reversal of the BIA's decision], but compels it." Liu v. Ashcroft, 380 F.3d 307, 312 (7th Cir.2004) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (emphasis in original)).

A. Asylum

To establish eligibility for asylum, an applicant must demonstrate that she is a "refugee" within the meaning of the INA by proving that she was persecuted in the past or has a well-founded fear of future persecution on account of her race, religion, nationality, membership in a social group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A); Liu, 380 F.3d at 312. The applicant bears the burden of demonstrating persecution. See 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a). We have previously defined persecution as "punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate." Nakibuka, 421 F.3d at 476 (citing Liu, 380 F.3d at 312). Although an asylum applicant need not show that her life or freedom were threatened, the harm suffered must rise above the level of "mere harassment" and result from more than unpleasant or even dangerous conditions in her home country. Id.

1. Past Persecution

Zhu first claims that he suffered past persecution, in the form of a beating by family planning officials, on account of his resistance to China's family planning policies. Although the IJ credited Zhu's testimony regarding his mistreatment, he determined that the facts did not warrant a finding of past persecution. The testimony reveals that the officials beat Zhu on this one occasion alone. Past persecution may be demonstrated by a single episode of physical abuse, if it is severe enough. Dandan, 339 F.3d at 573. Zhu's beating required medical attention and, he claims, caused an injury that is comparable to other allegations of serious and specific physical abuse which we have found to constitute past persecution. While a cut requiring seven stitches is doubtless a substantial injury, however, we must consider all of the circumstances of the incident in specific detail, for "it is the details that reveal the severity of" the abuse at issue. Liu, 380 F.3d at 313. A thorough review of the relevant case law reveals that physical injury serious enough to compel a finding of past persecution is typically accompanied by one or more additional factors that are not present here.

For instance, we found that the facts compelled a finding of past persecution where a severe beating resulted in the petitioner's miscarriage, but that petitioner was also physically assaulted on two other occasions, detained twice, and threatened with sexual assault once. See Vladimirova v. Ashcroft, 377 F.3d 690, 692 (7th Cir. 2004). The evidence likewise compelled reversal where the petitioner's face was cut with a razor, but that petitioner was beaten on four separate occasions over the course of two months and was forced to watch his wife being raped. See Bace v. Ashcroft, 352 F.3d 1133, 1138 (7th Cir. 2003). We remanded to the BIA on the question of past persecution where a petitioner's beating resulted in the loss of two teeth, but the petitioner was also detained and handcuffed to a radiator for two weeks in a cell with only enough room to stand, deprived of sufficient food and water, and detained and questioned on a separate occasion. See Asani v. I.N.S., 154 F.3d 719, 723 (7th Cir.1998). Lastly, we held that the evidence compelled reversal where the petitioner sustained injuries requiring three days of medical care; the petitioner was also detained for two weeks, beaten daily, given only minimal food and water, and had salt literally rubbed into his wounds. See Soumahoro v. Gonzales, 415 F.3d 732, 737-38 (7th Cir.2005). In each of these cases, then, there were further incidents of abuse, such as detention, repeated beatings, and other humiliating or harmful acts beyond the resulting physical injury. Zhu endured only the single beating, was never detained, and was never subjected to additional abuse. Although Zhu's physical injury is arguably as substantial as the ones suffered in these cases, the overall experiences endured by these petitioners were at once both more prolonged and more severe than that which Zhu encountered. To be clear, we by no means seek to minimize Zhu's ordeal; we endeavor only to illuminate the distinctions essential to ruling on such a fact-specific determination.

In another group of cases, we have reviewed the BIA's analysis of the petitioner's single episode of physical abuse. First, we upheld the BIA's finding of past persecution where the petitioner suffered a bruised face and broken finger from a single Christmas Eve beating. Vaduva v. I.N.S., 131 F.3d 689, 690 (7th Cir.1997). Although the Christmas Eve beating alone supported the BIA's finding, we incidentally noted that Vaduva was beaten on another occasion and endured "harassing telephone calls, warnings, and at least one interrogation." Id. Vaduva also differs from the present matter in its procedural posture; there, we upheld the BIA's finding of past persecution as supported by substantial evidence, whereas here we are asked to reverse the BIA and hold that the evidence compels such a finding. Id. Under the substantial evidence standard of review, we reverse "only if `no reasonable fact-finder could fail to find' that [the petitioner] had suffered from past persecution." Oforji v. Ashcroft, 354 F.3d 609, 613 (7th Cir.2003) (quoting Georgis v. Ashcroft, 328 F.3d 962, 967-68 (7th Cir.2003)).

In a second case involving "a single episode of detention or physical abuse," we upheld the BIA's finding of no past persecution where the petitioner was beaten until his face was swollen and was detained for three days without food. See Dandan, 339 F.3d at 571. In so ruling, we noted that Dandan did not present the specifics of his injury that would "indicate the severity of the beating and support its claim to be considered persecution." Id. at 574. We distinguished Asani, where the petitioner lost two teeth, and Vaduva, where the petitioner suffered a bruised face and broken finger. See id. Although the specific nature of Zhu's injury, a cut requiring seven stitches, would seem to differentiate his case from Dandan, we also noted that such specifics are not "the sine qua non of persecution." Id. The result, moreover, rested equally on the fact of Dandan's single detention; we noted that "[a]lthough the frequency issue is not dispositive, it does figure significantly in the analysis." Id. at 573. This factor militates against Zhu's position, for he encountered the authorities but once.

In again upholding the BIA's finding of no past persecution, we...