Liu, Mei D. v. Ashcroft, John

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-3870

MEI DAN LIU,

Petitioner,

v.

JOHN D. ASHCROFT, Attorney General

of the United States,

Respondent.

____________

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A78-863-174

____________

ARGUED JUNE 4, 2004—DECIDED AUGUST 17, 2004

____________

Before FLAUM, Chief Judge, and DIANE P. WOOD and

EVANS, Circuit Judges.

FLAUM, Chief Judge. This matter is a Petition for Review of

an Order of Removal issued by the Board of Immigration

Appeals (“BIA”) brought by Petitioner Mei Dan Liu, a

native and citizen of the People’s Republic of China. Mei

Dan fled China at the age of sixteen because, according to

her, the local government officials believed that she was a

follower of Falun Gong, the Chinese health and spiritual

movement that was outlawed by the Chinese government in

1999. As a result of her imputed membership in Falun

2 No. 03-3870

Gong, Mei Dan claims that she was arrested, jailed, phy-

sically abused, interrogated, threatened, expelled from school,

and her home was ransacked.

Upon arriving in the United States after a long journey,

Mei Dan was detained and placed in removal proceedings.

At that time, she requested political asylum and was re-

ferred to the Immigration Court in Chicago, Illinois. An

Immigration Judge (“IJ”) denied Mei Dan’s applications for

asylum under § 208(a) of the Immigration and Nationality

Act (“INA”), 8 U.S.C. § 1158(a), withholding of removal un-

der § 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and for

relief under the United Nations Convention Against Torture,

as implemented in 8 C.F.R. § 208.16(c). The BIA dismissed

Mei Dan’s appeal of the Immigration Judge’s (“IJ”) decision.

Mei Dan then petitioned this Court for review of her asylum

claim. For the reasons stated in this opinion, we deny the

petition for review and affirm the decision of the BIA.

I. Background

The BIA found that even if it accepted Mei Dan’s testi-

mony as true, she failed to establish her eligibility for asylum.

In reviewing the BIA’s decision, we too accept the facts as Mei

Dan presented them at her asylum hearing.

*****

Mei Dan testified as follows: Until she fled China at age

sixteen, Mei Dan lived with her parents and younger

brother in Tin Tou Village in Fuzhou City, in the Fujian

Province, China. Her father worked as a rock miner and her

mother was a homemaker who also cleaned other people’s

houses and babysat children. Mei Dan was a student, but

often worked odd jobs to supplement the family’s income. In

November 2001, a neighbor sympathetic to Mei Dan’s

family’s financial situation gave Mei Dan books to sell in

the local park. As it turned out, a number of the books were

No. 03-3870 3

associated with Falun Gong. While Mei Dan was selling the

books along with the neighbor in the park, a group of local

government officials came by to inspect the vendors. The

neighbor ran away, but the officials apprehended Mei Dan,

confiscated her books, and took her forcibly to the Village

Committee Office.

At the Village Committee Office, the police interrogated

Mei Dan and accused her of being a follower of Falun Gong.

Although Mei Dan had seen some Falun Gong practitioners

in the park before, she was not familiar with the movement

and had never herself been a follower. The police pressured

her to confess to an involvement in Falun Gong, but she

refused and insisted that she was only selling books. The

police then pulled Mei Dan’s hair, which caused her to cry,

and pushed her backwards off of her chair and onto the

ground. After the interrogation, the police placed Mei Dan

in a jail cell. During her detention, the police and guards

continued to pressure Mei Dan to confess. At one point, a

guard pushed her to the ground, pulled her hair, and

taunted her when she refused to confess. Mei Dan was

released after two days in detention when her parents paid

5,000 yuan as bail. The police issued Mei Dan an “arrest

certificate,” and advised her to think about what happened.

The police reported her arrest to her school, and as a result

Mei Dan was expelled.

One month later, the police searched and ransacked Mei

Dan’s family’s apartment while Mei Dan and her mother

were home alone. The police came into the apartment and

began questioning Mei Dan and her mother about Mei Dan’s

affiliation with Falun Gong. The police told Mei Dan’s mother

that they did not believe Mei Dan’s denials. The police

pushed Mei Dan’s mother to the floor and warned Mei Dan

that they had ransacked the apartment as “a lesson for

you . . . to think about.” Frightened by this incident, Mei

Dan’s family decided that for her safety she should flee

China and stay with a cousin in the United States.

4 No. 03-3870

Assisted financially by a relative, Mei Dan fled China in

March 2002. She left China with a valid Chinese passport

and travel papers. She traveled to Hong Kong; then to

Thailand; and then to Holland, where she stayed for several

weeks. While in Holland, someone took Liu’s Chinese

passport and gave her a Japanese one, instructing her to

use it in the United States.

*****

On May 24, 2002, having spent two months in transit,

Mei Dan arrived by plane at Chicago’s O’Hare International

Airport, presented her invalid Japanese passport, and was

immediately detained. Although she admitted her true name

and country of origin, she represented to immigration offi-

cials that she was an adult and fled China because she was

arrested for living with her boyfriend. She later testified

that she misrepresented these facts because people in China

warned her that she would be immediately deported to

China if she admitted to being a minor. She was also told

that saying she was arrested for living with her boyfriend

would help her obtain asylum. Believing that she was an

adult, immigration officials placed Mei Dan in an adult jail.

Four months later, upon discovering that she was in fact a

minor, officials transferred her to a juvenile facility. She

was placed back in the general population of the McHenry

County Jail on her eighteenth birthday.

Mei Dan’s case was referred to an IJ for an asylum-only

proceeding. Mei Dan obtained from her parents copies of the

arrest certificate and receipt for her bail, as well as a letter

from the neighbor who gave Mei Dan the Falun Gong books.

A hearing was held before the IJ at which Mei Dan testi-

fied. Following the hearing, the IJ issued an oral decision

denying relief on the ground that in his view Mei Dan was

not a credible witness. The IJ found that Mei Dan’s testi-

mony regarding the mistreatment she endured was not

“worthy of belief,” that the various misstatements she

No. 03-3870 5

offered regarding her age and the basis of her asylum claim

“undercut[ ] her credibility,” and that the unauthenticated

documents she provided were not “credible or reliable.” In

his decision, the IJ indicated that he believed Mei Dan had

fled China to attend college in the United States and that

the Chinese government would not treat a minor in the

manner that Mei Dan described.

Mei Dan appealed to the BIA. The BIA affirmed on the

ground that Mei Dan’s testimony, if accepted as true, failed

to demonstrate that she was persecuted, or that she held a

well-found fear of future persecution. Mei Dan then peti-

tioned this Court to review that determination.

II. Analysis

A. Scope of Review

The first issue presented is whether we should review the

BIA’s order standing alone or as supplementary to the IJ’s

decision. In cases where the BIA’s opinion merely sup-

plements the opinion of the IJ, the IJ’s opinion as supple-

mented by the BIA’s opinion becomes the basis for review.

See Niam v. Ashcroft, 354 F.3d 652, 655-56 (7th Cir. 2004).

When the BIA issues its own opinion rather than adopting

or merely supplementing the opinion of the IJ, the Court

reviews only the decision of the BIA, not that of the IJ. See

Begzatowski v. INS, 278 F.3d 665, 669 n.5 (7th Cir. 2002).

Mei Dan contends that the BIA’s opinion merely supple-

ments the IJ’s decision, whereas the Attorney General argues

that the BIA issued a freestanding opinion that provides a

reasoned explanation of the decision to deny asylum.

We agree with the Attorney General. The BIA’s decision

rested on grounds that were in the alternative to the ones

the IJ used in dismissing Mei Dan’s petition. The BIA

clearly stated that even if it accepted that the IJ erred in its

credibility determination, the evidence Mei Dan presented

6 No. 03-3870

failed to satisfy her burden of proving eligibility for asylum.

The BIA did not make its determination based on the facts

as the IJ found them to be, but rather purported to view the

facts in the light most favorable to Mei Dan. The BIA

conducted its own analysis of the evidence and declined to

adopt, affirm, or even address the adverse credibility determi-

nation that was the basis of the IJ’s opinion. Consequently,

we are limited in our review to the findings and conclusions

of the BIA, which do not include an evaluation of the IJ’s

credibility determination.

B. Standard of Review

We review the BIA’s decision under the “highly deferen-

tial version of the substantial evidence test, which requires

us to affirm if the [BIA]’s decision to deny asylum is ‘supported

by reasonable, substantial, and probative evidence on the

record considered as a whole.’ ” Karapetian v. INS, 162 F.3d

933, 936 (7th Cir. 1998) (quoting INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992)). We will not grant the petition for

review unless the petitioner shows that “the evidence not

only supports [reversal of the BIA’s decision], but compels

it.” Elias-Zacarias, 502 U.S. at 481 n.1 (emphasis in

original).

C. Asylum

To establish eligibility for asylum, an applicant must dem-

onstrate that she is a “refugee” under the INA. See Bace v.

Ashcroft, 352 F.3d 1133, 1137 (7th Cir. 2003). To establish

that she is a refugee, Mei Dan must show 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. 8 U.S.C.

§ 1101(a)(42)(A). It is Mei Dan’s burden to prove that she is

a refugee and is eligible for asylum. 8 C.F.R. § 208.13(a).

No. 03-3870 7

Under the view we take of the facts, the Attorney General

does not challenge that Mei Dan’s “persecution” would be

“on account of” one of the statutory grounds. See 8 U.S.C.

§ 1101(a)(42)(A). While neither Mei Dan nor her family

were ever followers of the Falun Gong movement, member-

ship was imputed to her by the Chinese authorities. See

Lwin v. INS, 144 F.3d 505, 509 (7th Cir. 1998) (explaining

that one way an applicant can establish a political opinion

is by showing that it was attributed to the applicant by her

persecutors). Rather, at issue in this case is whether the

type of treatment Mei Dan experienced in the past qualifies

as “persecution” and whether she has a “well-founded fear

of persecution” if she returns to China.

Whether past or future, persecution is defined as “pun-

ishment or the infliction of harm for political, religious, or

other reasons that this country does not recognize as legit-

imate.” Roman v. INS, 233 F.3d 1027, 1034 (7th Cir. 2000)

(citations omitted). This Court has “recognized the hard truth

that unpleasant and even dangerous conditions do not neces-

sarily rise to the level of persecution.” Mitev v. INS, 67 F.3d

1325, 1331 (7th Cir. 1995). Although to suffer persecution

an asylum seeker need not have been the victim of actions

as severe as threats to life or freedom, the harm experi-

enced must constitute more than mere harassment. See

Bace, 352 F.3d at 1137-38.

If an applicant is found to have suffered past persecution,

she is entitled to a presumption of a well-founded fear of

future persecution. 8 C.F.R. § 208.13(b)(1); see also Dandan

v. Ashcroft, 339 F.3d 567, 573 (7th Cir. 2003). In the absence

of such a finding, the applicant must prove that she genuinely

fears she will be persecuted based on a protected ground if

returned to her native country, and that her fears are

objectively reasonable. See INS v. Cardoza-Fonseca, 480

U.S. 421, 430-31 (1987); Tesfu v. Ashcroft, 322 F.3d 477, 481

(7th Cir. 2003). The subjective component can be satisfied by

the applicant’s “candid, credible, and sincere testimony,”

8 No. 03-3870

whereas the objective element can be proven through “credi-

ble, direct and specific evidence in the record of facts that

would support a reasonable fear that the petitioner faces

persecution.” Ahmad v. INS, 163 F.3d 457, 461 (7th Cir. 1999)

(citations omitted); see also Useinovic v. INS, 313 F.3d 1025,

1030 (7th Cir. 2002); Bhatt v. Reno, 172 F.3d 978, 982 (7th Cir.

1999).

The BIA concluded that, even accepting that Mei Dan was

a credible witness, the incidents she recounted, “cumula-

tively, do not rise to the level of persecution.” To summa-

rize, Mei Dan describes two encounters with the Chinese

authorities. In the first, she was detained for two days after

selling books about Falun Gong in the local park and she

was released upon payment by her parents. While in de-

tention, officials twice pushed Mei Dan to the ground and

pulled her hair. Shortly after this incident, she was expelled

from school. The second encounter occurred approximately

one month later, when officials came to Mei Dan’s home and

again accused her of following Falun Gong. The officials

overturned furniture and pushed her mother to the ground.

As we indicated above, some actions that are less severe

than life-threatening may rise to the level of persecution.

See e.g., Bace, 352 F.3d at 1138 (finding persecution where

applicant was beaten successively by multiple assailants,

was attacked and cut with a razor, his home was broken into,

his father beaten, and his wife raped in front of him and his

family); Asani v. INS, 154 F.3d 719, 725 (7th Cir. 1998)

(finding that persecution likely occurred where applicant

was detained for two weeks, beaten resulting in the loss of

two teeth, deprived of food and water, kept in a cell with no

room to sit, and chained to a radiator); Vaduva v. INS, 131

F.3d 689, 690 (7th Cir. 1997) (acknowledging past persecution

where applicant was punched, his face was bruised, and his

finger broken). Indeed, we have recognized that actions

such as “detention, arrest, interrogation, prosecution,

imprisonment, illegal searches, confiscation of property,

No. 03-3870 9

surveillance, beatings, or torture might cross the line from

harassment to persecution.” Ciorba v. Ashcroft, 323 F.3d

539, 545 (7th Cir. 2003) (citations omitted). However, rec-

ognizing that these sorts of activities might rise to the level of

persecution is not the equivalent of saying that they always

do. Persecution claims cannot simply be evaluated against

a generic checklist. Review of an applicant’s past experience

must be carried out on the most specific level—it is the

details that reveal the severity of the particular situation.

Here, Mei Dan’s detainment was relatively short. As

physical brutality goes, hair-pulling and pushing rank on the

less serious end. The search and ransack was a singular

event and it is unclear if the officials caused any serious,

permanent damage to her home. Taken as a whole, it was

not improper for the BIA to determine that these and the

other incidents of which Mei Dan complained are more akin

to abusive or harassing treatment than persecution. See,

e.g., Dandan, 339 F.3d at 574 (holding that three-day

detention which included interrogations, beatings, and de-

privation of food and water, did not compel a conclusion of

past persecution); Zalega v. INS, 916 F.2d 1257, 1260 (7th

Cir. 1990) (upholding BIA’s determination that alien had not

been persecuted despite four years of intermittent searches,

arrests, and detainments); Kubon v. INS, 913 F.2d 386, 388

(7th Cir. 1990) (finding that brief confinement for political

opposition to a totalitarian regime did not constitute pers-

ecution). While the treatment of Mei Dan in China was

undoubtedly deplorable, substantial evidence supports the

BIA’s determination that it did not amount to “persecution”

within the meaning of the INA.

Mei Dan argues that even if the treatment she suffered

would not ordinarily rise to the level of persecution, it does

in her case because she was a minor at the time of the

events in question. Mei Dan contends that the BIA failed to

give adequate consideration to this factor. We do not

disagree with Mei Dan that age can be a critical factor in

10 No. 03-3870

the adjudication of asylum claims and may bear heavily on

the question of whether an applicant was persecuted or

whether she holds a well-founded fear of future persecution.

The Guidelines for Children’s Asylum Claims advises that

“harm a child fears or has suffered . . . may be relatively less

than that of an adult and still qualify as persecution.” See

Guidelines for Children’s Asylum Claims, INS Policy and

Procedural Memorandum from Jack Weiss, Acting Director,

Office of International Affairs to Asylum Officers, Immigra-

tion Officers, and Headquarters Coordinators (Asylum and

Refugees) 14, (Dec. 10, 1998), available at 1998 WL 34032561.

Indeed, other courts have used age as a determinative

factor in deciding whether an applicant is eligible for

asylum. See, e.g., Abay v. Ashcroft, 368 F.3d 634, 640 (6th Cir.

2004) (overturning, on the basis of age, the immigration

judge’s finding that a nine-year-old applicant had not

adequately expressed a fear of future persecution).

We do, however, disagree with Mei Dan’s position that the

BIA failed to sufficiently address her age in its analysis and

that its findings are not supported by substantial evidence.

Although the BIA’s order does not specifically mention Mei

Dan’s age, it does discuss her expulsion from school. From

this acknowledgment we can reasonably infer that the BIA

was aware of Mei Dan’s age. A more direct and fulsome

treatment of age was not required in this case. There may

be situations where children should be considered victims

of persecution though they have suffered less harm than

would be required for an adult. But this is not such a case.

Though a minor, Mei Dan was near the age of major-

ity—she was sixteen—at the time the events took place.

Whatever slight calibration this may warrant in our

analysis is insufficient to transform her experiences with

the Chinese authorities from harassment to persecution.

Next, we turn to the issue of whether Mei Dan has

demonstrated a well-founded fear of being persecuted if she

returns to China. We begin by noting the shortcomings of

the BIA’s analysis of this issue. After claiming that it was

No. 03-3870 11

viewing the facts in the light most favorable to Mei Dan, the

BIA approached its discussion of whether she had a well-

founded fear of future persecution by questioning whether

the government actually imputed membership in Falun

Gong to her. The BIA stated that “[i]t is unclear whether

the government officials actually believed she was a

follower of the Falun Gong, if they were still investigating

her involvement with Falun Gong, or if their actions were

based on retribution for her violating laws on selling illegal

religious materials.” The BIA then noted that there is no

evidence indicating that Mei Dan’s “punishment was

disproportionate to other individuals selling illegal contra-

band.” Considering Mei Dan’s testimony that government

officials repeatedly accused her of following Falun Gong and

refused to believe her and her mother’s denials that she had

no part in the movement, it was inaccurate for the BIA to

find that a question remained about whether membership

was imputed to her by the Chinese authorities and to

suggest that her treatment was mere punishment for

selling illegal books. If the BIA chooses to credit an appli-

cant’s presentation of the facts, it must conduct its analysis

in accordance with a reasonable interpretation of that

presentation.

Despite the BIA’s error, we conclude that substantial evi-

dence supports its ultimate conclusion that Mei Dan did not

prove a well-founded fear of persecution. While the BIA was

without basis to suggest that government officials never

actually believed Mei Dan was a follower of Falun Gong, a

legitimate question remains regarding whether government

officials continue to impute membership in Falun Gong to

Mei Dan. After the search of her apartment, Mei Dan

suffered no further consequences before leaving China three

months later. Indeed, using her own passport, she was

allowed to leave China without any problems. The record

simply does not reflect that the government continues to

impute Falun Gong membership to Mei Dan, thus we

12 No. 03-3870

uphold the BIA’s determination that Mei Dan failed to

demonstrate a fear of future persecution on that basis.

D. Excluded Evidence

Mei Dan argues on appeal that she was prejudiced by the

IJ’s refusal to hear (and consequently, the BIA’s inability to

consider) evidence regarding the alleged past persecution

suffered by her parents, purportedly for contravention of

China’s family planning mandates. According to Mei Dan’s

brief testimony on this matter, after giving birth to Mei

Dan’s brother in 1986, Mei Dan’s mother was detained,

forcibly sterilized, and along with Mei Dan’s father forced

to pay a fine for having a second child. Mei Dan contends

that this evidence was important to demonstrate the state

of mind of her parents. Foreign persons in the United

States are entitled to due process of law, which for an

asylum applicant, includes “a meaningful opportunity to be

heard.” Kerciku v. INS, 314 F.3d 913, 917 (7th Cir. 2003)

(citations omitted). However, an asylum applicant is not

deprived of a meaningful opportunity to be heard where the

IJ limits the extent of testimony to “serve to focus the

proceedings and exclude irrelevant evidence.” Id. at 917-18.

The testimony relating to the Chinese family planning

authorities’ treatment of Mei Dan’s mother was not improp-

erly excluded. The event occurred approximately 15 years

prior to the events at issue in this case and was unrelated

to Mei Dan’s claim of persecution based on her imputed

membership in Falun Gong. Clearly, Mei Dan has not

shown that the testimony excluded by the IJ would, if

admitted at a new hearing, potentially affect the outcome of

her case. See Roman v. INS, 233 F.3d 1027, 1033 (7th Cir.

2000). As it was unnecessary for both the BIA’s and our

analysis to reach the issue of Mei Dan and her family’s

subjective fear, and the excluded evidence adds scant weight

to the question of an objective fear of future persecution

No. 03-3870 13

(which we also did not need to address given our conclusion

about the lack of evidence that the government continues to

impute membership to Mei Dan), Mei Dan suffered no

prejudice from its exclusion.

III. Conclusion

The petition for review of the BIA’s order is hereby

DENIED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-17-04