Jing He v. Eric Holder, Jr.

Filing

OPINION: Ms. He's petition for review of the BIA's decision is DENIED, pursuant to FRAP 34(a)(2)(C), decision not for publication. Alice M. Batchelder, Chief Circuit Judge; Deborah L. Cook, Circuit Judge and Kathleen McDonald O'Malley, Circuit Judge for the United States Court of Appeals for the Federal Circuit, sitting by designation.

Case: 12-4331

Document: 006111771439

Filed: 08/01/2013

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0705n.06

FILED

No. 12-4331
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JING HE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.

)
)
)
)
)
)
)
)
)
)

Aug 01, 2013
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
FROM THE BOARD OF
IMMIGRATION APPEALS

Before: BATCHELDER, Chief Judge; COOK and O’MALLEY, Circuit Judges.*

O’MALLEY, Circuit Judge. Jing He, a Chinese citizen, petitions for judicial review of a
Board of Immigration Appeals (“BIA” or “Board”) order dismissing her appeal of an Immigration
Judge’s (“IJ”) denial of her application for asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”). Although Ms. He requested argument, this panel
unanimously agrees that oral argument is not necessary in this case. Fed. R. App. P. 34(a). For the
following reasons, we DENY Ms. He’s petition for review.
I. BACKGROUND
Ms. He fled China on June 19, 2008. She claims she did so to avoid persecution by
authorities due to her association with Falun Gong, “a spiritual discipline comprised of meditation
*

The Honorable Kathleen M. O’Malley, Circuit Judge for the United States Court of Appeals for
the Federal Circuit, sitting by designation.

Case: 12-4331

Document: 006111771439

Filed: 08/01/2013

Page: 2

No. 12-4331
He v. Holder
exercises with moral components, including cultivation of virtue and character.” Lin v. Holder, 565
F.3d 971, 974 (6th Cir. 2009). The practice of, and belief in, Falun Gong is outlawed in China, and
followers have been imprisoned and tortured. Although Ms. He was not a member of Falun Gong
while in China, she became interested in the practice there because of her persistent health problems.
As a favor to a friend, Ms. He asserts that she distributed pamphlets in her hometown in February
2008 which described the benefits of Falun Gong and urged the government to stop persecuting
Falun Gong members. Ms. He stopped distributing pamphlets when her friend was arrested. Ms.
He testified that she distributed the pamphlets after dark and had no encounter with Chinese
authorities regarding that activity, but claims the police came looking for her at her parents’ house
on April 28, 2008. Ms. He was in the hospital at the time, and, because her parents told her not to
return home, she stayed at a friend’s house. According to Ms. He, her parents informed her that the
police returned to look for her multiple times. Ms. He left China on June 19, 2008. She was neither
harmed nor mistreated while in China and encountered no problems leaving China using her Chinese
passport.
Ms. He entered the United States without inspection on August 26, 2008. A Notice to
Appear was issued on November 12, 2008. At her February 17, 2009 appearance, Ms. He conceded
removability and requested relief in the form of asylum, withholding of removal, and protection
under CAT. At a merits hearing on December 8, 2010, Ms. He testified that she could not return
to China because she started practicing Falun Gong in the United States, and the police continued
to search for her at her parents’ home in China. With respect to her practices in the United States,
Ms. He explained that she practiced Falun Gong off and on for a few months at a park in Los

2

Case: 12-4331

Document: 006111771439

Filed: 08/01/2013

Page: 3

No. 12-4331
He v. Holder
Angeles, California in 2009, and did so alone at her home in Arkansas after moving there in April
2009. While Ms. He presented some photos of herself practicing in front of the Chinese Consulate
and distributing Falun Gong pamphlets in the United States, she conceded the photos were taken by
friends just prior to the hearing in an effort to document her activities.
On December 27, 2010, the IJ denied relief, finding both that Ms. He’s testimony was not
credible and that, even if accepted, her evidence regarding her activities and fear of persecution was
not sufficient to establish a well-founded fear of future persecution. The BIA dismissed Ms. He’s
appeal, agreeing with the IJ that, even crediting her testimony, Ms. He had not proven past
persecution, a well-founded fear of persecution, or that she is more likely than not to be tortured if
returned to China. Ms. He timely petitioned for review. We have jurisdiction pursuant to
8 U.S.C. § 1252.
II. DISCUSSION
“Where the BIA reviews the immigration judge’s decision and issues a separate opinion,
rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision
as the final agency determination. To the extent the BIA adopted the immigration judge’s reasoning,
however, this Court also reviews the immigration judge’s decision.” Khalili v. Holder, 557 F.3d
429, 435 (Fed. Cir. 2009) (internal quotation marks and citations omitted). “In order to reverse the
Board’s factual determinations, we must find that the evidence ‘not only supports a contrary
conclusion, but indeed compels it.’” Koliada v. INS, 259 F.3d 482, 486 (6th Cir. 2001) (emphasis
in original) (quoting Klawitter v. INS, 970 F.2d 149, 152 (6th Cir. 1992)). We may not reverse
simply because we would have come to a different conclusion. Klawitter, 970 F.2d at 151-52 (citing

3

Case: 12-4331

Document: 006111771439

Filed: 08/01/2013

Page: 4

No. 12-4331
He v. Holder
DiCicco v. U.S. Dep’t of Justice INS, 873 F.2d 910, 912 (6th Cir. 1989)). We review legal
conclusions de novo. Bi Xia Qu v. Holder, 618 F.3d 602, 606 (6th Cir. 2010).
To obtain asylum, one must first show that she is a refugee, defined generally as a person
“who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the
protection of, [his or her] 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.”
8 U.S.C. § 1101(a)(42)(A). Thus, Ms. He needed to establish either past persecution or a wellfounded fear of future persecution on one of the protected grounds. Pilica v. Ashcroft, 388 F.3d 941,
950 (6th Cir. 2004).
On appeal, Ms. He does not challenge the Board’s decision that she did not suffer past
persecution in China. Instead, she argues that the Board failed to properly consider her claim of
future persecution.

To establish a well-founded fear of future persecution, Ms. He must

demonstrate: (1) a fear of persecution due to race, religion, nationality, membership in a particular
social group, or political opinion; (2) a reasonable possibility of suffering such persecution; and (3)
inability or unwillingness to return to China. Id.; 8 C.F.R. § 208.13. This Court has recognized that
“[a] well-founded fear of persecution thus has both a subjective and an objective component: an
alien must actually fear that [s]he will be persecuted upon return to [her] country, and [s]he must
present evidence establishing an ‘objective situation’ under which [her] fear can be deemed
reasonable.” Pilica, 388 F.3d at 950.
The Board agreed with the IJ that Ms. He failed to establish a well-founded fear of
persecution or that she is likely to be persecuted if she returns to China. In reaching this conclusion,

4

Case: 12-4331

Document: 006111771439

Filed: 08/01/2013

Page: 5

No. 12-4331
He v. Holder
the Board noted that: (1) Ms. He was not arrested, questioned, “or in any way harmed prior to
leaving China”; (2) there was no evidence that her “activities and profile were so well-known” that
she had a “well-founded fear of persecution in China upon her return”; and (3) Ms. He failed to
provide any “corroboration from her parents of the Chinese authorities’ alleged continued interest
in her whereabouts.” Joint Appendix at 4 (BIA Decision at 2).
Ms. He argues that the Board improperly focused solely on her past activities in China and
failed to consider her activities in the United States. The Board did not limit its analysis to Ms. He’s
activities in China, however. Instead, the Board affirmed the IJ’s finding that Ms. He failed to
provide any evidence establishing that authorities in China were aware of her current activities or
corroborating her claim that the Chinese government has shown a continuing interest in her. The
Board, like the IJ noted the absence of any affidavit or even letter from her parents confirming
continued interest in Ms. He beyond June of 2008. In other words, the Board agreed with the IJ that
there simply was insufficient evidence that the Chinese authorities were aware of her activities, past
or otherwise, and would target her upon her return to China.1
Next, Ms. He argues that the Board erred when it determined that only “well-known” Falun
Gong practitioners can demonstrate a well-founded fear of persecution. Ms. He takes the Board’s
statement out of context. The Board did not say that only famous or widely-known Falun Gong
practitioners can have a fear of persecution. Instead, the Board simply stated that there was no

1

Ms. He argues that the Board’s use of the past tense in its decision implies that it did not consider
her activities in the United States. Because the Board’s decision is not limited to Ms. He’s past
activities, and instead refers to her activities generally, we find her argument unpersuasive.
5

Case: 12-4331

Document: 006111771439

Filed: 08/01/2013

Page: 6

No. 12-4331
He v. Holder
record evidence that Ms. He and her activities were known to the Chinese government such that she
would have a well-founded fear of persecution in China upon her return. Ms. He’s own testimony
makes clear that her Falun Gong activities in the United States were limited and largely conducted
in isolation. Importantly, as the government points out, the mere fact that Ms. He “may practice
Falun Gong in the United States does not automatically render her eligible for asylum” particularly
since there is “nothing in the record to show that she has an individualized risk of future harm.”
Respondents’ Br. 22.
Because the record does not compel a conclusion contrary to that of the BIA on Ms. He’s
asylum claim, her petition is dismissed as to that claim. In addition, because we find no error in the
BIA’s decision to affirm the denial of Ms. He’s asylum claim, we need not address her withholding
of removal and CAT claims, which both require more substantial showings. See Mikhailevitch v.
INS, 146 F.3d 384, 391 (6th Cir. 1998) (citing INS v. Cardoza-Fonesca, 480 U.S. 421, 431-32
(1987)) (“An application seeking withholding of deportation faces a more stringent burden of proof
than one for asylum.”); see also 8 C.F.R. § 1208.16(c)(2) (withholding of removal under the CAT
requires a finding that the applicant will “more likely than not” be tortured if removed).
III. CONCLUSION
For the foregoing reasons, we DENY Ms. He’s petition for review of the BIA’s decision.

6