Shan Dong Lin v. Loretta Lynch

Filing

OPINION filed: We DENY Lin s petition for review, decision not for publication. Alice M. Batchelder, Julia Smith Gibbons, and Deborah L. Cook (authoring), Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0464n.06
Case No. 16-4253
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
SHAN DONG LIN,

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Petitioner,
v.
JEFFERSON B. SESSIONS, III, Attorney
General of the United States,
Respondent.

Aug 09, 2017
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD
OF
IMMIGRATION
APPEALS

BEFORE: BATCHELDER, GIBBONS, and COOK, Circuit Judges.
COOK, Circuit Judge. Petitioner Shan Dong Lin, a native and citizen of the People’s
Republic of China, seeks reversal of the Board of Immigration Appeals’s (BIA) denial of his
application for asylum. For the reasons articulated below, we deny Lin’s petition for review.
I.
Lin left China for the United States after Chinese government officials twice forced his
wife to undergo abortions. Leaving his wife and daughter behind, he entered the United States
without inspection in April 2007. That autumn, Lin filed an application for asylum, withholding
of removal, and relief under the Convention Against Torture. He claimed that he and his family
“suffered persecution from [the] Chinese government” because they violated family-planning
policies, and he feared additional persecution if he returned to China.

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On January 27, 2009, Lin joined the U.S.-based China Democracy Party (“CDP USA”)
because he “hate[d the] Chinese communist party.” At his merits hearing before an Immigration
Judge (IJ) only two weeks later, Lin abandoned his claim of past persecution and testified to his
fear of returning to China due to his membership in the CDP USA. The IJ found Lin’s new
political affiliation bona fide and granted him asylum.1
The Department of Homeland Security (DHS) appealed to the BIA. The BIA sustained
the appeal and vacated the grant of asylum, finding that Lin did not establish a well-founded fear
of future persecution. Lin petitioned this court for review. We vacated the BIA’s decision and
remanded the case for clarification as to what burden of proof the BIA applied to Lin. Lin v.
Holder, 454 F. App’x 472, 475 (6th Cir. 2012). The BIA again sustained DHS’s appeal,
explaining that Lin failed to show a “reasonable possibility” of suffering persecution if returned
to China.
Lin petitioned for review once more, but we granted the Attorney General’s unopposed
motion to remand the case to the BIA to, among other things, consider the necessity of
remanding to the Immigration Court for further fact-finding. Lin v. Holder, No. 12-4112 (6th
Cir. Apr. 8, 2013) (Order). The BIA did just that: it remanded the case so that the parties could
present additional evidence and the IJ could make any necessary fact findings before determining
whether Lin had a well-founded fear of persecution.
Lin testified before the IJ on April 30, 2015. He also submitted new evidence in support
of his asylum claim, including various articles he wrote for the CDP USA website, telephonic
testimony and a written statement from Professor Myron Cohen, an affidavit from the CDP USA

1

The IJ denied withholding-of-removal and Convention Against Torture relief. Lin does
not appeal those decisions.
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chairman, and several government publications.

Although the IJ found Lin credible, she

determined that Lin “has not demonstrated that he is genuinely a member of the CDP in the
United States” because of a “lack of corroboration of his involvement in CDP activities from
2010 through 2013.” According to the IJ, even assuming the authenticity of Lin’s membership
in the CDP USA, Lin did not demonstrate that he would be persecuted on that basis. Thus,
because she “[could not] find that [Lin] has demonstrated a well-founded fear of return to
China,” the IJ denied Lin’s application for asylum. The BIA dismissed Lin’s appeal, and Lin
now seeks review.
II.
A.
Where, as here, “the BIA reviews the [IJ]’s decision and issues a separate opinion, rather
than summarily affirming the [IJ]’s decision, we review the BIA’s decision as the final agency
determination. To the extent the BIA adopted the [IJ]’s reasoning, however, this Court also
reviews the [IJ]’s decision.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (internal
citations omitted).

“We review ‘any legal conclusions de novo and factual findings and

credibility determinations for substantial evidence.’” Khozhaynova v. Holder, 641 F.3d 187, 191
(6th Cir. 2011) (quoting Zhao v. Holder, 569 F.3d 238, 246 (6th Cir. 2009)). We uphold the
BIA’s decision if it is “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998) (quoting
INS v. Elias–Zacarias, 502 U.S. 478, 481 (1992)). “As such, the petitioner must show that the
evidence presented was so compelling that no reasonable factfinder could fail to find the
requisite . . . fear of persecution.” Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003) (citing Elias–
Zacarias, 502 U.S. at 483–84).

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B.
“To establish eligibility for asylum, an applicant must establish he is a ‘refugee’ within
the meaning of” the Immigration and Nationality Act. Lin v. Holder, 565 F.3d 971, 976 (6th Cir.
2009). To establish his refugee status, Lin must prove “a well-founded fear of persecution”
motivated by a protected ground, such as “political opinion.” 8 U.S.C. § 1101(a)(42)(A). Lin’s
asylum claim hinges on his fear of future persecution if returned to China, rather than on any past
persecution.
“A well-founded fear of future persecution ‘must be both subjectively genuine and
objectively reasonable.’” Akhtar v. Gonzales, 406 F.3d 399, 404 (6th Cir. 2005) (quoting Abay
v. Ashcroft, 368 F.3d 634, 637 (6th Cir. 2004)). “To prove a well-founded fear of future
persecution, an applicant must actually fear that he will be persecuted upon return to his country,
and he must present evidence establishing an ‘objective situation’ under which his fear can be
deemed reasonable.” Allabani v. Gonzales, 402 F.3d 668, 674 (6th Cir. 2005) (quoting INS v.
Cardoza-Fonseca, 480 U.S. 421, 440–41 (1987)). The Attorney General concedes that Lin has
satisfied the subjective component of the well-founded fear analysis.

We must determine

whether Lin has satisfied the objective component. That is, Lin bears the burden of proving that
there is a reasonable possibility he will be singled out for persecution, or that there is a pattern or
practice of persecution of an identifiable group to which he belongs. Akhtar, 406 F.3d at 404
(citing Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir. 2004)).
III.
A.
Lin has not offered any evidence establishing that the Chinese government is likely to
target him personally because of his political activities in the United States.

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Conclusory

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statements unsupported by specific evidence, like the ones on which Lin relies, are insufficient to
support a petitioner’s fear of future persecution. See Dieng v. Holder, 698 F.3d 866, 872 (6th
Cir. 2012) (“The fear of future persecution must be based on reasonably specific information
showing a real threat to individual persecution, not mere assertions of fear of possible
persecution or speculative conclusions.”) (citing Mapouya v. Gonzales, 487 F.3d 396, 412 (6th
Cir. 2007)). Simply because he has attended meetings of, passed out flyers for, and participated
in demonstrations by the CDP USA does not establish that Chinese authorities have pegged him
for persecution, let alone know of Lin’s involvement in the organization.

Lin holds no

leadership role within the CDP USA. His wife has not been questioned about his activism on
behalf of the CDP USA, nor have Chinese authorities given her any problems. And although Lin
wrote in his affidavit that he has been “blacklist[ed]” on account of his CDP USA activities and
“would definitely [be] arrest[ed]” if returned to China, he could not provide the IJ any details
supporting that avowal. Similarly, Lin could not explain what the CDP USA chairman meant
when he wrote in his February 2009 “Certification” that Lin’s identity has been “locked” by the
Chinese government.
That Lin wrote six articles for the CDP USA website did not persuade the BIA or IJ
otherwise. He provided view totals for only two of his articles—one published on January 27,
2015, with 401 views, and the other published on August 20, 2014, with 210 views. But those
view totals are irrelevant at best and misleading at worst. Lin offered no evidence regarding
readers of his articles. Likewise, he has not adduced evidence that Chinese authorities are even
aware of the articles’ existence. See Jinan Chen v. Lynch, 814 F.3d 40, 46 (1st Cir. 2016)
(holding that petitioner did not establish well-founded fear of future persecution, as he “was not
an officer or a director in the CDP [USA] and, although he had attended rallies and classes, his

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only concrete links to the organization were a few pro-CDP [USA] articles posted on the group’s
website—a website that boasts thousands upon thousands of similar writings”). Plus, those view
totals reflect the count as of November 2015, when Lin submitted a brief in support of his appeal
to the BIA. But eight months earlier, when Lin submitted evidence to the IJ in advance of his
hearing, his articles had just four and 78 views, respectively. As the IJ and BIA noted, there is
no indication that the views increased due to added attention from Chinese government officials.
B.
Nor has Lin demonstrated that there is a practice of persecuting CDP USA members upon
their return to China. “While there was evidence in the record demonstrating that members of
the [CDP] in China had been arrested and imprisoned, there was no evidence establishing that
Chinese authorities persecuted low-level members of organizations such as the CDP [USA]
whose political activities occurred solely outside of China.” Wei Fang v. Holder, 529 F. App’x
641, 642 (6th Cir. 2013) (per curiam).
Though Professor Myron Cohen, an anthropologist who studies “the general
anthropology of China,” testified on Lin’s behalf, his testimony failed to move the IJ and BIA.
He posited that it would be “impossible for [Chinese authorities] not to be aware of” Lin’s
articles because China has “one of the most sophisticated intelligence establishments in the
world.” But Professor Cohen offered no details supporting this broad declaration. He also
admitted that the CDP USA and CDP are “two different entities,” and that he is not familiar with
anybody affiliated with the CDP USA who returned to China and faced persecution.
Lin argues that he presented other evidence corroborating his fear of persecution—the
2012 and 2014 annual reports by the Congressional-Executive Commission on China (CECC),

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plus an affidavit from the CDP USA chairman—but that the BIA ignored it. This argument is
unpersuasive.
Although the 2012 CECC report mentions the “[a]rbitrary detention of activists . . . for
political writings, pro-democracy activity, and petitioning,” these activists lived and protested in
China. The 2014 CECC report is similarly unhelpful to Lin, as it references the detention of
activists based in China. Neither report discusses whether the Chinese government monitors
U.S.-based advocacy against the Communist Party or punishes participating individuals.
Moreover, the IJ did consider these reports, and the BIA cited the exhibit containing the reports
when it mentioned that Lin “has not established any connection between the CDP USA and the
pro-democracy efforts in China.” Thus, it appears that the BIA did, in fact, consider this
evidence.
In his affidavit, Dong Xing Liu, chairman of the CDP USA, expresses his belief that Lin
will be jailed “because of his active participation in the CDP activities if he is forced to return to
China.” No evidence in the record supports crediting this opinion; and Liu did not testify on
Lin’s behalf. See Wei Fang, 529 F. App’x at 642 (crediting the BIA for giving “limited weight
to the statements of [the petitioner’s] wife and the executive chairman of the CDP [USA] that
[the petitioner] had been blacklisted by the Chinese government because there was no evidence
to support their assertions and they were not available for cross-examination”). The affidavit
also mentions three individuals who supposedly joined the CDP USA and were “immediately
detained” upon returning to China, yet it offers no details about their political activity in the
United States or their detention in China. True, the BIA’s decision does not specifically refer to
the affidavit. But “the BIA is not required to parse or refute on the record every individual
argument or document offered by the petitioner.” Stserba v. Holder, 646 F.3d 964, 978 (6th Cir.

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2011) (quoting Guo Ping Wu v. Holder, 339 F. App’x 596, 603 (6th Cir. 2009)). And, in any
event, Liu’s affidavit does not compel us to reach a conclusion contrary to that of the IJ and BIA.
See Ly v. Holder, 421 F. App’x 575, 577 (6th Cir. 2011) (“We . . . will reverse only if the
evidence not only supports a contrary conclusion, but compels it.” (internal quotation marks and
citation omitted)).
IV.
For these reasons, we deny Lin’s petition for review.

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