Li Hua Zheng v. ALBERTO GONZALES, Attorney General of the United States

Alberto Gonzales was sworn in as Attorney General of the United *
States on February 3, 2005. We have substituted him for John
Ashcroft, previous holder of that office, as the respondent. See
Fed. R. App. P. 43(c)(2).
United States Court of Appeals
For the First Circuit
No. 04-2421
LI HUA ZHENG,
Petitioner,
v.
ALBERTO GONZALES,*
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.
Henry Zhang on brief for petitioner.
Jennifer C. Boal, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, on brief for
respondent.
August 4, 2005

-- 1 of 9 --

Zheng admitted at her hearing that this visa was fraudulent and 1
was obtained for her by a smuggler. Zheng was not charged with
fraud in the notice to appear. The IJ used the fraud as a factor
in discretionarily denying Zheng voluntary departure, and the BIA
affirmed this holding on other grounds. Zheng has not raised
voluntary departure in her petition to this court; any such claim
has been waived.
-2-
LYNCH, Circuit Judge. Li Hua Zheng, a Roman Catholic,
asserts that she is a religious refugee from China. An Immigration
Judge (IJ) denied her claims for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). The
Board of Immigration Appeals (BIA) affirmed, finding that even
taking Zheng's testimony as true, she had demonstrated neither past
persecution nor a well-founded fear of future persecution. Zheng
petitioned for review of the BIA's order; we deny the petition,
holding that the BIA's findings are supported by substantial
evidence.
I.
Zheng was admitted to the United States in New York City
on July 8, 2001, using a non-immigrant visa that authorized her to
remain until October 7, 2001. Zheng did not leave by that date, 1
but instead applied for asylum in March 2002, based on alleged
persecution due to her religion. On August 30, 2002, the INS sent
Zheng a Notice to Appear, charging her with being removable based
on overstaying her visa. See 8 U.S.C. § 1227(a)(1)(B). Zheng
conceded removability but claimed, in accordance with her earlier

-- 2 of 9 --

The Report states that there have been some instances of 2
government officials -- particularly local officials -- harassing,
intimidating, or imprisoning unregistered Christian leaders, and
there have been a few instances in which unregistered houses of
worship have been destroyed. However, the Report also stressed
that there is no widespread policy along these lines: unregistered
Catholic churches are often and in many places tolerated by
officials.
-3-
application, that she was eligible for asylum, withholding of
removal, and relief under the CAT.
A hearing on the merits of Zheng's claims was held before
an IJ on June 3, 2003. The lone witness was Zheng herself. Zheng
testified that she comes from a long-time Roman Catholic family,
that she herself has been Roman Catholic since birth in 1967, and
that she was baptized in 1980. She stated that her husband and
child are also Catholic, and that she was a member and leader of
the "Youth Catholic Class."
According to the U.S. Department of State International
Religious Freedom Report for 2002, while many Chinese Catholics
belong to the "registered" Church, which is officially recognized
by the Chinese government and which refuses to acknowledge the
Vatican's supremacy in areas where the Vatican's teachings conflict
with Chinese government policy, others belong to an "unregistered"
Church which is not recognized by the Chinese government. Zheng 2
testified that she was a member of the unregistered Church; she
indicated that the registered Church is too subject to government
control for her liking.

-- 3 of 9 --

-4-
Zheng's claim of persecution, according both to her
testimony and to an affidavit that she filed along with her asylum
application, is based on a single incident that she claims occurred
on August 15, 2000. According to her testimony, that evening, a
congregation of 300 gathered at her village church for mass.
During the ceremony, approximately ten government officials or
police officers broke into the church and attempted to arrest the
priest, a distant relative of hers, who was leading the mass.
Zheng did not see the officials carrying guns or other weapons, and
she did not state that the officials were attempting to arrest her.
Zheng testified that she led the priest out of the church through
a passageway in the basement, and thus the priest was able to elude
the officials.
Zheng initially took the priest to her grandmother's
house in a nearby village, where they stayed for two days, but
Zheng was concerned that she might cause trouble for her
grandmother if they remained at her house, so Zheng and the priest
quickly moved on to another province, Guandong, where Zheng had a
cousin. Once there, the priest left on the second morning because
"he had his job to do," but Zheng remained. According to Zheng's
affidavit (although this was not in her oral testimony), her
Guandong cousin called her village, and Zheng's mother-in-law
allegedly told him that "police and village cadres [had been] to
[her] house several times, looking for [her]." She became "very

-- 4 of 9 --

-5-
scared" and did not return from Guandong to her home village before
leaving for the United States. She stated that if she returns to
China now, she believes the Chinese government will arrest her for
protecting the priest.
Zheng testified that her husband and son remain in China.
Her son, who transferred to a different government school when she
left, continues to live in the same province. Her husband moved to
a different province because the "Chinese government harassed him";
"[h]e couldn't live in his hometown and he had to leave to find a
job." Zheng also testified that her village church, which was
built in 1999 with money donated from parishioners (including
herself and her husband) was torn down about two months after the
August 15, 2000 incident.
The IJ found Zheng's testimony to be "unconvincing and
unpersuasive" because the story about the escape from the village
church seemed unlikely and because Zheng had lived most of her life
as a practicing unregistered Christian without incident. However,
the IJ refused to make an adverse credibility finding because such
a finding perhaps required "more specifics than I have been able to
offer." The IJ found that "the reason for my not buying into the
respondent's story is not because I am declaring her to be a non-
credible witness but rather because I find her testimony to be
unconvincing and non-persuasive because it is not logical or
plausible that such an event would have occurred." Based on the

-- 5 of 9 --

-6-
unpersuasiveness of Zheng's story, the IJ held that Zheng had shown
neither past persecution nor a well-founded fear of future
persecution. The IJ denied Zheng's claims for asylum, withholding
of removal, and relief under the CAT.
Zheng appealed to the BIA, which affirmed on different
grounds on September 28, 2004. The BIA wisely shied away from the
IJ's credibility finding, which it labeled "murky." Instead, the
BIA held that even assuming Zheng's testimony were true, she had
demonstrated neither past persecution nor a well-founded fear of
future persecution. On past persecution, the BIA stated that the
"single event forming the basis of [Zheng's] claim; namely being
sought by authorities for helping the priest escape a raid on their
Catholic church, simply does not rise to the level of persecution."
The BIA noted that Zheng was never "detained or explicitly
threatened." As for a well-founded fear of future persecution, the
BIA acknowledged some evidence -- from the U.S. Department of State
reports -- that the Chinese government has "placed some
restrictions on religious activity and has cracked down on
unregistered religious groups," but stressed that, according to
these reports, "religious adherents in China are generally able to
practice their faith." The BIA also emphasized that Zheng's
husband and son, who are Catholic, are still able to live, work,
and attend school in China, and noted that no warrant had been
issued for Zheng's arrest.

-- 6 of 9 --

-7-
II.
Zheng filed a timely petition with this court, appealing
the BIA's denials of her asylum, withholding of removal, and CAT
claims. Her sole argument on appeal is that the BIA's findings
with respect to past and future persecution are not supported by
substantial evidence.
Zheng has the burden of establishing eligibility for
asylum. Diab v. Ashcroft, 397 F.3d 35, 39 (1st Cir. 2005); 8
C.F.R. § 1208.13(a). Applicants can meet this burden by proving
either (1) a well-founded fear of future persecution or (2) past
persecution (which entitles the applicant to a rebuttable
presumption of a well-founded fear of future persecution) on
account of race, religion, nationality, membership in a particular
social group, or political opinion. 8 C.F.R. § 1208.13(b). The
BIA's findings are reviewed under the deferential substantial
evidence standard, INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992);
Bocova v. Gonzales, 412 F.3d 257, 2005 WL 1491490, at *2, *5 (1st
Cir. 2005); Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir. 2005),
and must be upheld "unless any reasonable adjudicator would be
compelled to conclude to the contrary," 8 U.S.C. § 1252(b)(4)(B).
Throughout our discussion, we will utilize the BIA's assumption
that Zheng's testimony is true.
As to past persecution, the BIA cited our decision in
Nelson v. INS, 232 F.3d 258 (1st Cir. 2000), where we noted that

-- 7 of 9 --

-8-
"[t]o qualify as persecution, a person's experience must rise above
unpleasantness, harassment, and even basic suffering." Id. at 263;
see also Bocova, 2005 WL 1491490, at *4 ("[M]istreatment ordinarily
must entail more than sporadic abuse in order to constitute
persecution."). Here, the BIA's conclusion is amply supported;
indeed, there is no real evidence that Zheng suffered any
mistreatment at all. The primary incident that Zheng relies upon,
the storming of the village church by unarmed officials, was
apparently targeted at the priest and seemed to have had nothing to
do with Zheng. The fact that Zheng fled after that incident does
not indicate persecution -- there is no evidence that her flight
was spurred by government action. Nor, without more, does the fact
that her village church was torn down. And the BIA reasonably
explained that the fact that village officials or police came to
Zheng's house to look for her, without any evidence of threats of
harm or arrest, did not amount to persecution. Given that Zheng
was never detained or harmed, nor even ever threatened with
detainment or harm, we are hardly compelled to find, contrary to
the BIA, that she was subject to past persecution.
As to a well-founded fear of future persecution, the
standard is whether Zheng can show a fear which is both "genuine
and objectively reasonable." Aguilar-Solis v. INS, 168 F.3d 565,
572 (1st Cir. 1999). The BIA seemed to assume that the subjective
prong was met, but held that the objective prong was not. Zheng

-- 8 of 9 --

On the CAT and withholding of removal claims, our review is 3
again only for substantial evidence. See, e.g., Sharari, 407 F.3d
at 473-75. To show entitlement to withholding of removal, Zheng
must show that she is "more likely than not to face persecution" on
account of one of the protected grounds if she is returned to
China. See id. at 474. Since this is a higher standard than
asylum, the BIA supportably determined that Zheng has not met it.
To show entitlement to protection under the CAT, Zheng must show
that it is "more likely than not that [she] would be tortured if
removed." See id. (quoting 8 C.F.R. § 208.16(c)(2)). The BIA
supportably found, based on the evidence already discussed, that
Zheng has not met this standard.
-9-
argues that the BIA did not consider the State Department reports
that Zheng presented, but it is clear that the BIA did address this
material. The BIA's interpretation of these reports -- that while
some localized restrictions and crackdowns on unregistered
Catholics had occurred, the climate was generally not particularly
oppressive -- is well supported. And as the BIA stressed, Zheng's
husband and son, who are both unregistered Catholics, still live
and work in China. Although Zheng testified that her husband had
to move because of "harassment," she does not explain what this
entailed. There is no evidence that anyone would seek to arrest or
harm Zheng should she return to China. As such, we are not
compelled to find, contrary to the BIA, that Zheng has a well-
founded fear of future persecution.
Zheng's asylum claim therefore fails; her withholding of
removal and CAT claims also fail.3
III.
The BIA is affirmed; the petition for review is denied.

-- 9 of 9 --