In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1691
Z HOU JI N I,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A72-368-644
A RGUED D ECEMBER 8, 2010—D ECIDED M ARCH 25, 2011
Before FLAUM and E VANS, Circuit Judges, and
M C C USKEY, District Judge.
F LAUM, Circuit Judge. Nearly three decades ago, Chinese
authorities detained Zhou Ji Ni’s parents for three days.
Like him, Ni’s parents were Christians. They experienced
firsthand the Chinese government’s unease with the
Hon. Michael P. McCuskey, of the Central District of Illinois,
sitting by designation.
2 No. 10-1691
notion of an authority higher than it. For the three days
that Ni’s parents were held, authorities beat and threat-
ened them on account of their religious beliefs.
The base treatment that his parents suffered is dated,
however, as the incident occurred in roughly 1982,
several years before Ni came to America. Relying on the
incident, as well as a handful of others, Ni contends that
he holds a well-founded fear of persecution. He there-
fore seeks to curb the U.S. government’s efforts to
deport him: he seeks asylum and withholding of deporta-
tion under the Immigration and Nationality Act. The
Board of Immigration Appeals (the “Board”) concluded
that Ni failed to establish both that he himself had been
the victim of past persecution and that he was exposed
to an individualized risk of future persecution. Because
the Board’s determination was supported by substantial
evidence, we deny Ni’s petition for review.
I. Background
Ni is thirty-eight years old. The details of his arrival
in the United States are a bit sketchy, although he
estimates that he came to this country toward the tail-end
of 1990. He testified that he flew from Beijing to Belize
and then drove to Mexico. After paying $28,000 to a
smuggler, he was secreted across the U.S. border. In 1994,
Ni went to authorities and filed an asylum application
in an effort to purge the taint of his illegal entry. The
No. 10-1691 3
Government 1 denied Ni’s application and issued an
order to show cause why he was not subject to deportation
under the Immigration and Nationality Act. Ni never
entered an appearance, and the case was administra-
tively closed in 1995.
Some years later, Ni found himself before an immigra-
tion judge in New York City, as the Government renewed
its efforts to deport him for being an illegal alien.
He conceded, then as now, that he was deportable, see
8 U.S.C. § 1227(a)(1)(B), but sought asylum or with-
holding of deportation on the ground that he has a well-
founded fear of religious persecution in China.2 The
case was transferred to an immigration judge in Chicago,
where a hearing was held.
Most of the evidence at Ni’s hearing was documentary
in form and related to country conditions in China. The
1
Ni filed his application with the since-disbanded Immigra-
tion and Naturalization Service, most of whose functions are
now carried out by agencies within the Department of Home-
land Security. We refer to the agencies collectively as the “Gov-
ernment.”
2
Ni’s primary argument before the immigration judge was
that he could be sterilized for violating China’s one-child policy,
and he also argued that deporting him would violate the
United Nations Convention Against Torture. See 8 C.F.R.
§ 208.16(c). He abandoned his sterilization argument before
appealing to the Board. In his opening brief with us, he has
included essentially no argument regarding the Convention
Against Torture. That leaves us with only his arguments for
asylum and withholding of deportation based on religious
persecution.
4 No. 10-1691
most important were reports authored by the United
States Department of State. The reports show, among
other things, that the Chinese government “seeks to
restrict religious practices to government-sanctioned
organizations and registered places of worship” to ensure
that the Communist Party retains its firm grip on
Chinese society. E.g., United States Department of State,
C OUNTRY R EPORTS ON H UMAN R IGHTS P RACTICES 2007:
C HINA 16 (Mar. 11, 2008) (hereinafter C HINA R EPORT)
(discussing efforts to “control and regulate” religious
groups). Few Christian churches are officially permitted
to operate—those that do must hew to certain teachings,
such as a tenet that communism and Christianity are
compatible. Churches that do not register with Chinese
authorities, out of conscience or fear, experience every-
thing from quiet toleration to outright repression.
United States Department of State, C HINA: P ROFILE OF
A SYLUM C LAIMS AND C OUNTRY C ONDITIONS 5, 7 (May
2007) (hereinafter C HINA P ROFILE). In some places, local
security officials make threats, demolish unregistered
property, interrogate or arrest adherents, and commit
severe physical abuse. Id. In other places, however,
“house churches” with hundreds of members meet
openly “with full knowledge of local authorities, who
characterized the meetings as informal gatherings.” C HINA
R EPORT at 17. We reviewed the voluminous record, and
if any item of documentary evidence sheds light on
conditions where Ni lived—the Dongqi section of
Fuzhou City, in the Fujian Province—neither party
No. 10-1691 5
has identified it for us.3
The only testimonial evidence at the hearing was
offered by Ni. He testified that he is a practicing Chris-
tian, although he currently lacks time to attend religious
services. He left China because the government “sup-
pressed and bullied the public” and prohibited his
parents from attending services or practicing their
religion at home. In fleshing out his weariness of the
Chinese government, Ni pointed to a handful of incidents
carried out by Chinese authorities. First, officials threat-
ened his parents and warned them on three separate
occasions not to secretly practice their Christian faith.
Second, authorities came to the family’s house in the
late 1970s, removing a cross from their home and
ordering them not to attend religious services. Third, Ni’s
parents were arrested and detained for three days in the
early 1980s, when Ni was approximately ten years old,
after they failed to bend to intimidation. During the
detention, his parents were beaten and threatened.
Fourth, Ni himself was warned by officials and school
teachers, when he was seven or eight years old, not to
practice Christianity. He indicated that people at school
“would look at us in a very weird way.” The immigra-
tion judge concluded that the testimony was credible.
3
State Department reports discuss forced sterilizations in
the Fujian Province, a punishment doled out to some who
violate China’s one-child policy. Ni has fathered more than
one child, but has abandoned his efforts to procure asylum
on that basis.
6 No. 10-1691
Although the immigration judge accorded “full eviden-
tiary weight” to Ni’s testimony, he concluded that it
was not particularly hefty. Specifically, the immigration
judge reasoned that Ni did not provide much detail
about the actions of Chinese officials, and the generalities
he did offer painted a picture of harassment rather than
persecution—at least with respect to Ni. (The immigra-
tion judge intimated, and the Board agreed, that the
outcome might have been different had Ni’s parents been
seeking asylum.) Likewise, the evidence did not establish
a well-founded fear of future persecution based on an
individualized risk to Ni. The Board dismissed his appeal,
agreeing with (though not explicitly adopting) the immi-
gration judge’s ruling. The dismissal order echoed much
of the analysis in the immigration judge’s decision,
adding that Ni had not established that the Chinese
government engages in a pattern or practice of per-
secuting Christians.
Ni then filed his petition for review with us.
II. Discussion
Under the Immigration and Nationality Act, the
Attorney General has discretion to grant asylum to an
alien who meets the statutory definition of a refugee.
8 U.S.C. § 1158(a). A refugee is defined as a person who
is outside the country of his nationality and is unable or
unwilling to return “because of persecution or a well-
founded fear of persecution on account of” various traits
and beliefs, including religion. 8 U.S.C. § 1101(42).
The term persecution, however, is not defined in the Im-
No. 10-1691 7
migration and Nationality Act. Consistent with the
Board and other courts, we describe persecution as
“punishment or the infliction of harm for political, reli-
gious, or other reasons that this country does not recog-
nize as legitimate.” Tamas-Mercea v. Reno, 222 F.3d 417, 424
(7th Cir. 2000). Although the concept of persecution is
hardly rigid, we have distinguished it from “mere harass-
ment.” Bereza v. INS, 115 F.3d 468, 472 (7th Cir. 1997)
(quotation marks omitted). A person seeking asylum
bears the burden of establishing eligibility for it. 8 C.F.R.
§ 208.13(a).
In this case, the Board concluded that Ni was ineligible
for asylum, analyzing both routes for obtaining refugee
status—past persecution or a well-founded, objectively
reasonable fear of future persecution. Lin v. Holder, 620
F.3d 807, 810 (7th Cir. 2010). (We review the Board’s
order because it did not adopt the immigration judge’s
decision. E.g., Vahora v. Holder, 626 F.3d 907, 912 (7th
Cir. 2010).) We will uphold the Board’s determination
so long as it was supported by substantial evidence. INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (explaining that
the agency’s determination can be reversed “only if the
evidence . . . was such that a reasonable factfinder
would have to conclude that the requisite fear of persecu-
tion existed”); Martinez-Buendia v. Holder, 616 F.3d 711,
715 (7th Cir. 2010). In this case, substantial evidence
supported the Board’s asylum determination with
respect to both past persecution and a well-founded fear
of future persecution.
8 No. 10-1691
A. Past Persecution
Past conduct by the Chinese government toward Ni and
his family, the Board ruled, did not establish that Ni was
subject to past persecution. The finding matters. When a
petitioner can establish that he was the victim of past
persecution, it gives rise to a rebuttable presumption
that he has a well-founded fear of persecution in the
future. 8 C.F.R. § 208.13(b)(1).
In general, an asylum applicant cannot rely on “deriva-
tive persecution” to establish that he was subjected
to persecution in the past. E.g., Firmansjah v. Gonzales,
424 F.3d 598, 605 (7th Cir. 2005); Ambati v. Reno, 233
F.3d 1054, 1060 (7th Cir. 2000); Tamas-Mercea, 222 F.3d at
424 (upholding the agency’s finding that petitioner was
not subject to past persecution when his father, grandfa-
ther, and uncle were arrested and beaten for opposing
government policies); Bereza, 115 F.3d at 475-76 (mother’s
imprisonment did not amount to persecution of petitioner).
Perhaps a better term for that unlikely-to-persuade argu-
ment, however, would be persecution by proxy, for we
have observed that a different outcome may be warranted
in some circumstances. In limited cases, the harm visited
on one person is harm visited on another. In that sense
persecution is “derivative” but may nonetheless support an
asylum claim based on past persecution. For example, “If
. . . your child [is] killed . . . in order to harm you, the fact
that you are not touched does not mean that those acts
cannot constitute persecution of you.” Gatimi v. Holder, 578
F.3d 611, 617 (7th Cir. 2009); see also Shu Wen Sun v. Bd. of
Immigration Appeals, 510 F.3d 377, 381 & n.5 (2d Cir. 2007);
No. 10-1691 9
Tamas-Mercea, 222 F.3d at 425 (acknowledging the possi-
bility that “having one’s children forcibly taken, killed,
or kidnapped might rise to the level of persecution” if the
acts were on account of petitioner’s statutorily protected
characteristics or beliefs).
The wrinkle is useful as a conceptual matter but unhelp-
ful to Ni, as he did not argue that his family was
seized and beaten on account of his Christianity in an
effort to persecute him (unlikely given his age at the
time of his parents’ arrest). The Board therefore com-
mitted no error in concluding that Ni was not persecuted
when his parents were arrested. Likewise, the Board
did not err in concluding that the other acts that Ni de-
scribes—the threats to his family, the visit by officials to
his house, the removal of a cross from his home,
and the warnings Ni himself received—did not rise to
the level of persecution, at least on the generality-
heavy record before it. After all, Ni himself was never
arrested, and the acts against him are better characterized
as harassment. E.g., Santosa v. Mukasey, 528 F.3d 88, 92-93
(1st Cir. 2008) (isolated bullying incidents when peti-
tioner was a child did not establish past persecution);
Mitreva v. Gonzales, 417 F.3d 761, 764 (7th Cir. 2005) (child-
hood incidents, including “a child’s toy set on fire in
[petitioner’s] family’s backyard . . . and several incidents
in which street toughs threw rocks through [the] family’s
windows . . . are better characterized as harassment and
discrimination” rather than persecution). To be sure, a
threat may be more severe, all other things being equal,
when its target is a child, but in most cases “threats in
and of themselves will not compel a finding of past perse-
10 No. 10-1691
cution.” Bejko v. Gonzales, 468 F.3d 482, 486 (7th Cir. 2006);
see also Kantoni v. Gonzales, 461 F.3d 894, 898 (7th Cir. 2006)
(a credible threat of “very severe measures” that causes
a person to give up religious views is persecution); Boykov
v. INS, 109 F.3d 413, 416 (7th Cir. 1997) (acknowledging
that threats “of a most immediate and menacing nature”
might constitute persecution). We look to the entire
factual picture surrounding Ni’s asylum application,
Bejko, 468 F.3d at 486, and nothing takes his case out
of the general rule. The unfriendly looks shot by his
classmates and warnings from officials were doubtless
unpleasant, particularly given his age, but the record
does not compel a finding of persecution.
B. Fear of Future Persecution
Ni’s effort to independently establish a well-founded
fear of future persecution fares no better. The Government
does not appear to question whether Ni holds a subjec-
tive fear of future persecution. Rather, his effort founders
on the reasonableness component of his asylum claim,
despite some evidence in favor of his position. Not only
did Chinese officials hound him, but his parents were
arrested for being Christian and were detained for three
days. During that time, they were beaten and threatened.
Because of Ni’s close association with them, it adds
credence to his fears that he could be subjected to
similar treatment. Mabasa v. Gonzales, 455 F.3d 740, 746
(7th Cir. 2006) (persecution of an applicant’s family is
relevant to determining whether an asylum applicant’s
fear is well-founded).
No. 10-1691 11
That does not end the analysis, however. First, the acts
that Ni relies upon occurred between roughly 1977 and
1982 and are not viewed as particularly severe under the
governing case law. Cf. Skalak v. INS, 944 F.2d 364,
365 (7th Cir. 1991). And Ni remained in China for roughly
eight more years, apparently without incident. The eight-
year silence is unhelpful to his asylum claim. Ambati,
233 F.3d at 1060-61 (reasoning that the absence of harm
over a five-year period undermined the petitioner’s
application for asylum). Similarly, Ni has offered no
evidence that, since his departure from the country,
Chinese officials have continued to target his family.
If his family continued to practice Christianity, yet
suffered no further incidents, then his claim is signif-
icantly weakened. Id. Indeed, the absence of evidence
on this score is puzzling. Ni’s parents were visiting Chi-
cago on the day of his hearing, but did not attend,
offer testimony, or furnish other evidence. Of course, Ni
had the burden of establishing asylum eligibility and
the “fail[ure] to present reasonably available corrobora-
tive evidence” bolsters the Board’s determination. Kyaw
Zwar Tun v. INS, 445 F.3d 554, 568 (2d Cir. 2006).
Returning from the evidentiary void to the material
that was offered, the handful of dated incidents from
Ni’s childhood left the Board with the country-conditions
evidence. Ni argues that the Board failed to consider
the reports “adequately,” but the record does not
support that position. The Board correctly noted that the
State Department reports on Chinese repression of Chris-
tianity tell an uneven story: in some places adherents
experience persecution, but in other places they do not.
12 No. 10-1691
Given the absence of evidence or argument related to
conditions where Ni lived, he did not meet the exacting
standards for establishing persecution based on a pattern
or practice of persecution. E.g., Pathmakanthan v. Holder,
612 F.3d 618, 624-25 (7th Cir. 2010) (acknowledging that
in limited circumstances persecution may be directed at
an entire subset of a population but reiterating that a
high standard applies to such claims).
Nor did Ni match up the country-conditions evidence
with other record evidence to establish that he faced an
individualized risk of persecution. For instance, we do not
know anything about conditions in the area to which
Ni presumably will return, nor do we know if Ni would
be able to organize his affairs in a way that would allow
him to avoid persecution at relatively little cost. See
8 C.F.R. § 208.13(b)(2)(ii) (“An applicant does not have a
well-founded fear of persecution if the applicant could
avoid persecution by relocating to another part of the
applicant’s country . . . if under all the circumstances it
would be reasonable to expect the applicant to do so.”). In
a similar vein, the State Department reports say that
members of sanctioned churches do not experience perse-
cution, e.g., C HINA R EPORT at 7, but we do not know if
Ni’s former or intended church is among their number.
And although Ni intimates that the Board did not
consider evidence that would have proved helpful to his
claim, he does not identify what evidence was overlooked.
In sum, because the events that Ni relied on do not
rise to the level of persecution and occurred long in the
past, the Board was not required to lend them partic-
No. 10-1691 13
ular weight. That left Ni with the country-conditions
evidence, which, untethered from facts establishing an
individualized risk of persecution, did not further his
case. Thus, the Board’s asylum-eligibility determination
was supported by substantial evidence. Finally, given
the conclusion that Ni has not established eligibility for
asylum, he necessarily cannot satisfy the more stringent
standard for withholding of deportation. See Bhatt v.
Reno, 172 F.3d 978, 982 (7th Cir. 1999).
III. Conclusion
For the reasons set forth above, Ni’s petition for review
is D ENIED.
3-25-11