In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2505
WEIPING CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A089‐671‐522
____________________
ARGUED FEBRUARY 18, 2014 — DECIDED MARCH 10, 2014
____________________
Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Weiping Chen petitions for review
of the denials of his requests for asylum, withholding of re‐
moval, and protection under the Convention Against Torture
(CAT). We dismiss the petition for review of the asylum
claim for lack of jurisdiction and deny the petition for review
of the withholding of removal and the CAT claims.
2 No. 13‐2505
I. Background
Chen is a native and citizen of China who entered the
U.S. in October 2004 as a nonimmigrant visitor with authori‐
zation to stay until April 2005. He overstayed and later filed
an application for asylum, withholding of removal, and pro‐
tection under the CAT. A Notice to Appear (NTA) was issued
charging him with removability for staying longer than his
visa permitted. See 8 U.S.C. § 1227(a)(1)(B). He has admitted
the NTA’s allegations and conceded removability.
At the hearing before the immigration judge (IJ), Chen
testified that he left China in 2004 because he was “persecut‐
ed by the Chinese government[,] [b]ecause [he] participated
in the demonstration against the Chinese government using
violence to force people to … demolish the housing and to
force people to move.” He said that he was detained, beaten,
harassed, threatened, and arrested by the police. Chen
claimed that he purchased a shop in a market to make more
money to pay for medical treatment for his son. He said that
not long after he opened his store in April 2004, the govern‐
ment made plans to develop the area. Chen stated that he
and the other merchants in the market complained to the
district level government that the developers were trying to
take over the market without giving them “proper compen‐
sation.” But the issue was not resolved. Chen testified that he
and other merchants were afraid that the developers would
tear down their stores, so they stayed overnight in their
shops “on April 20th.” (He later testified this happened on
May 20, which was consistent with his written statement,
and he denied (in the same hearing) that he had said it had
happened on April 20.)
No. 13‐2505 3
According to Chen, their fears came true. Later that
night, he and the other merchants were forcibly removed
from their shops and taken out of the city. He claimed that
they walked back to the market and found that it had been
torn down and their merchandise had been taken away.
Chen stated that he and the other merchants went “to the
municipality to … petition.” Over one hundred merchants
and family members sat in front of the municipal building,
“asking [the] government for compensation.” Chen claimed
that they sat quietly for more than one hour, and then the
police arrived to break up the crowd with a “high pressure
water gun” and batons. However, Chen and a dozen other
merchants refused to leave, so they were forcibly taken to
the police station where Chen was beaten, denied food, and
handcuffed to a chair. After three days, Chen “was unable to
sustain” the mistreatment and signed an agreement stating
that he would not approach the government asking for com‐
pensation. The police told Chen that he had “interrupted the
social order” and asked him to pay a fine and be subjected to
monitoring or supervision. Chen was released, but he was
required to report to the police station, first on a weekly ba‐
sis and then on a monthly basis. He said that he reported as
required until he left for the United States in October 2004.
Other than that one sit‐in protest of the demolition of the
market shops, Chen has not participated in any other anti‐
government demonstration. And he has never been a mem‐
ber of any political organization. Indeed, Chen had a hard
time articulating his political opinion, but claimed that the
government seeks to persecute him because he participated
in the protest and opposed the government.
4 No. 13‐2505
The IJ found that Chen did not apply for asylum until
March 2008, more than three years after his arrival in the
United States. She therefore concluded that his asylum ap‐
plication was untimely. The IJ considered Chen’s arguments
as to why he believed extraordinary circumstances excused
his late filing—he did not speak English, he did not under‐
stand the law, and he did not have money to hire an attorney
(he sent all the money he made home to pay for his son’s
medical treatment)—but she found that these did not
amount to extraordinary circumstances to excuse the un‐
timely filing.
Turning to withholding of removal, the IJ determined
that Chen’s situation was best characterized as a personal
dispute rather than an expression of his political opinion.
She found that additional evidence in the record indicated
that Chen had not shown that he would be persecuted on
account of his political opinion: the fact that after his deten‐
tion, he satisfied his check‐in obligations with the police
without incident and his family has lived with his mother‐
in‐law and have reported no incidents with the police or
other difficulty, other than with the son’s medical condition.
Although the IJ found inconsistencies between Chen’s
testimony and his written statement, she did not find him
incredible. But because of the inconsistencies, she did not
find that his testimony was sufficiently persuasive and re‐
quired him to provide corroborative evidence. Chen failed to
provide anything other than one U.S. State Department Re‐
port for China (“country conditions report”). Although the IJ
found that Chen’s claim was plausible in light of the report,
the report did not address his particular experiences. The IJ
decided that Chen provided insufficient corroborative evi‐
No. 13‐2505 5
dence, noting that he had time to obtain an affidavit from his
wife, with whom he was in contact just two months before
the hearing. And the IJ did not believe that it would have
been beyond Chen’s reasonable ability to obtain such an af‐
fidavit. She therefore concluded that he had not met his bur‐
den of proving that it is more likely than not that he will be
persecuted because of his political opinion if removed to
China. As for the CAT, the IJ found that since Chen had not
met his burden of proving that he would be persecuted if
removed to China, he could not show that it is more likely
than not that he would suffer harm that meets the definition
of torture. The IJ ordered Chen removed to China.
On appeal, the Board agreed with the IJ that Chen failed
to timely file for asylum and failed to show extraordinary
circumstances or changed circumstances justifying the de‐
layed filing. It also agreed that Chen failed to provide suffi‐
cient credible evidence to establish a clear probability of per‐
secution or torture, noting that since he was still in contact
with his wife, an affidavit from her was presumably availa‐
ble. And the Board concurred with the IJ’s determination
that Chen had not shown a likelihood of future persecution
on a protected ground, upholding the finding that Chen’s
situation was a personal dispute rather than an expression of
political opinion. Finally, the Board agreed that Chen had
insufficient evidence to establish that he more likely than not
would be tortured upon return to China. It therefore dis‐
missed the appeal, and Chen petitioned for review.
II. Discussion
Chen first challenges the Board’s decision affirming the
IJ’s determinations that he was not eligible for asylum be‐
cause his asylum application was not filed within one year of
6 No. 13‐2505
his arrival in the United States and that he failed to establish
extraordinary circumstances justifying the untimely filing.
Generally, an asylum application must be filed within one
year after the alien’s arrival in the United States, 8 U.S.C.
§1158(a)(2)(B), but an untimely application may be consid‐
ered if the alien “demonstrates … extraordinary circum‐
stances relating to the delay’ in filing … within the pre‐
scribed one‐year period.” Bitsin v. Holder, 719 F.3d 619,
625 (7th Cir. 2013) (quoting 8 U.S.C. § 1158(a)(2)(D)). How‐
ever, we lack “jurisdiction to review a determination regard‐
ing the timeliness of an alien’s application for asylum or the
existence of … extraordinary circumstances to excuse his late
filing.” Id.; see also 8 U.S.C. § 1158(a)(3). We dismiss for lack
of jurisdiction Chen’s petition to review the determinations
that his asylum application was untimely and that he failed
to establish extraordinary circumstances. The petition was
clearly late and the circumstances were typical rather than
extraordinary anyway.
Chen also challenges the determination that he did not
qualify for withholding of removal. “When the Board agrees
with the decision of the immigration judge, adopts that deci‐
sion and supplements that decision with its own reasoning,
as it did here, we review the immigration judge’s decision as
supplemented by the Board.” Cece v. Holder, 733 F.3d 662,
675 (7th Cir. 2013) (en banc). The IJ’s “findings of fact are
conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); see also Gutierrez‐Berdin v. Holder, 618 F.3d
647, 651 (7th Cir. 2010). We review the decision for substan‐
tial evidence. Bitsin, 719 F.3d at 628. Under this standard, the
decision “‘must be upheld if supported by reasonable, sub‐
stantial, and probative evidence on the record considered as
No. 13‐2505 7
a whole,’ and we will ‘reverse[ ] only if the evidence present‐
ed … was such that a reasonable factfinder would have to
conclude’ that the petitioner had met his burden.” Id. (quot‐
ing INS v. Elias–Zacarias, 502 U.S. 478, 481 (1992)).
“An applicant is eligible for withholding of removal if he
‘demonstrate[s] a clear probability of persecution on account
of’” a protected ground, in this case, political opinion. Bitsin,
719 F.3d at 628 (quoting Tariq v. Keisler, 505 F.3d 650, 656 (7th
Cir. 2007)). Persecution is defined to include “detention, ar‐
rest, interrogation, prosecution, imprisonment, illegal
searches, confiscation of property, surveillance, beatings, tor‐
ture, behavior that threatens the same, and non‐life‐
threatening behavior such as torture and economic depriva‐
tion if the resulting conditions are sufficiently severe.” Yi
Xian Chen v. Holder, 705 F.3d 624, 629 (7th Cir. 2013) (quota‐
tion omitted).
In arguing that he will be persecuted, Chen points to the
demolition of his store, his arrest, physical beating, and oth‐
er mistreatment in police custody as well as his allegations
that his wife told him that the police came looking for him
every month and that she had to move to a remote rural area
to avoid trouble. He also asserts that the police think he is
opposed to the government. Based on Chen’s testimony that
he met his check‐in obligations with the police without inci‐
dent and that his family reported no incidents with the po‐
lice, the IJ found that he had not demonstrated a clear prob‐
ability that he will be persecuted if removed to China. These
facts support the IJ’s finding. At most, the record might sup‐
port Chen’s claim that he is likely to be persecuted. Yet the
evidence must not only support but compel the conclusion
that he will be persecuted. Liu v. Holder, 692 F.3d 848, 852
8 No. 13‐2505
(7th Cir. 2012); Balogun v. Ashcroft, 374 F.3d 492, 507 (7th Cir.
2004). It does not.
Next, Chen argues that the Board erred when it affirmed
the IJ’s determination that he was required to produce or ad‐
equately explain the absence of evidence corroborating his
claims and that he failed to do so. “[W]hen an immigration
judge requires an applicant to produce corroborating evi‐
dence, that evidence is required (unless it cannot be reason‐
ably obtained), even if the judge finds the applicant credi‐
ble.” Raghunathan v. Holder, 604 F.3d 371, 379 (7th Cir. 2010)
(citation omitted); see also 8 U.S.C. § 1158(b)(1)(B)(ii) (“The
testimony of the applicant may be sufficient to sustain the
applicant’s burden without corroboration, but only if the ap‐
plicant satisfies the trier of fact that the applicant’s testimony
is credible, is persuasive, and refers to specific facts sufficient
to demonstrate that the applicant is a refugee.”) “‘No court
shall reverse a determination made by a trier of fact with re‐
spect to the availability of corroborating evidence … unless
the court finds … that a reasonable trier of fact is compelled
to conclude that such corroborating evidence is unavaila‐
ble.’” Raghunathan, 604 F.3d at 379 (quoting Pub. L. No. 109‐
13, § 101, 119 Stat. 231, 304 (2005)); see 8 U.S.C. § 1252(b)(4).
Chen points to no evidence that compels the conclusion that
corroborating evidence is unavailable.
Instead, he suggests that the IJ found his testimony cred‐
ible and persuasive. The record refutes this claim: the IJ ex‐
plicitly stated she “cannot find that [Chen’s] testimony was
sufficiently persuasive to meet his burden for withholding
without corroborative evidence.” Having found that his tes‐
timony was not sufficiently persuasive, the IJ was well with‐
in her discretion in requiring him to corroborate his claims.
No. 13‐2505 9
See Raghunathan, 604 F.3d at 379 (stating that “an immigra‐
tion judge exercises ‘substantial leeway to demand corrobo‐
ration of [an alien’s] allegations whether or not the judge
finds the [alien] credible’”) (quoting Krishnapillai v. Holder,
563 F.3d 606, 618 (7th Cir. 2009)). Unless Chen can prove that
he could not have reasonably obtained corroborating evi‐
dence, his failure to produce such evidence is “fatal to [his]
claims.” Id.
Chen asserts that he did provide some corroborating evi‐
dence, presumably the country conditions report, but as the
IJ noted, the report does not address Chen’s particular expe‐
riences and thus was insufficient corroboration. See Krish‐
napillai, 563 F.3d at 619 (noting that a United Nations report
“did not materially corroborate the events to which [the peti‐
tioner] testified“ where it addressed “the types of human
rights abuses that occur in Sri Lanka but says nothing about
what did or did not happen to [the petitioner]”). The IJ did
not err in reaching this conclusion. Chen also asserts that he
provided a reasonable explanation for not having other cor‐
roboration, referring to his testimony about why he did not
have a doctor’s corroboration for his injuries. But he offers
no explanation why he could not have reasonably obtained
evidence corroborating other aspects of his claims, for ex‐
ample, that he owned the store, that it was demolished, that
he participated in the protest, or that he was detained. An
affidavit from his wife or other merchants could have cor‐
roborated these facts, and Chen offered no explanation why
he could not have reasonably obtained his wife’s affidavit.
(Nor does he attempt to explain in this court the lack of cor‐
roboration from other merchants, but we know from his tes‐
timony before the IJ that he claimed he had lost contact with
them.) Indeed, he testified that he had spoken with his wife
10 No. 13‐2505
two months before the hearing before the IJ. The record does
not compel the conclusion that Chen could not have reason‐
ably obtained corroborating evidence; therefore, his failure
to produce such evidence when required dooms his claims.
According to Chen, the Board also erred in affirming the
IJ’s finding that he failed to prove he would be persecuted on
account of his political opinion. He argues that he “went to
the local district government office and complained publicly
regarding the unjust taking of his and other merchants’
property.” In his view, this renders inapposite Liu v. Holder,
692 F.3d 848 (7th Cir. 2012), and Marquez v. INS, 105 F.3d 374
(7th Cir. 1997). But the comparisons to Liu and Marquez are
apt. In Liu, 692 F.3d at 852–53, we held that the record did
not compel the conclusion that the petitioner’s activity in or‐
ganizing coworkers to protest their layoffs at a state‐owned
factory and participating in that protest was political rather
than economic activity. We reasoned that the petitioner did
not engage in any of the “classic” examples of political activ‐
ity, such as “[c]ampaigning against the government, writing
op‐ed pieces, urging voters to oust corrupt officials, … or
speaking out repeatedly … .” Id. at 852. He “never belonged
to a political organization or demonstrated against the Chi‐
nese government.” Id. Rather, he organized his coworkers
“to ask for their jobs and benefits back,” which “was an eco‐
nomic demand, not a protest of government corruption.” Id.
Chen’s protest was similarly non‐political. He did not en‐
gage in any of the classic examples of political activity; in‐
stead, he participated in one sit‐in to protest the taking of his
property without compensation. The sit‐in was public, and
Chen was accompanied by other merchants who complained
about the taking of their property, but that is insufficient to
No. 13‐2505 11
compel the conclusion that political opinion was the reason
for any harm to him. See Marquez, 105 F.3d at 380–81 (defer‐
ring to the Board’s findings that greed and jealousy, not poli‐
tics motivated persecution even though alien spoke out
against military corruption on radio talk show). As the IJ
noted, Chen did not make a broader attack on the govern‐
ment; he therefore is on weaker ground than the alien in
Marquez. See id. at 381 (stating the issue as whether the retal‐
iation was because of alien’s public condemnation and
broader attack on military corruption).
The IJ found, and the Board agreed, that Chen’s situation
should be characterized as a personal property dispute ra‐
ther than an expression of political opinion. As we have said,
“[a] personal dispute, no matter how nasty, cannot support
an alien’s claim of asylum.” Id. at 380. Chen was unable to
articulate any political opinion, and he admitted that he did
not belong to any political organizations, and that other than
this single protest, he participated in no other political activi‐
ties. The record does not compel the conclusion that any
harm to Chen was due to his political opinion. See id. (defer‐
ring to the finding that “greed and jealousy, and not politics,
fed the feud” between bank official and government leader).
Chen v. Holder, 607 F.3d 511 (7th Cir. 2010), does not assist
the petitioner. Contrary to his view, the case does not hold
that a public complaint regarding an unjust taking of proper‐
ty can amount to persecution based on political opinion. The
case involved a remand for a determination whether filing
suit against a unit of government could constitute a form of
political opinion. Id. at 514. Assuming that it could, Weiping
Chen did not sue the government. Nor does Chen v. Gonzales,
489 F.3d 861 (7th Cir. 2007), aid him. Severe economic depri‐
12 No. 13‐2505
vation may amount to persecution, id. at 863, but Chen v.
Gonzales does not address what is at issue here—whether the
persecution is based on political opinion.
Finally, Chen challenges the Board’s and IJ’s conclusion
with respect to his claim for protection under the CAT. Our
review is deferential, and we will “reverse only if a reasona‐
ble factfinder would have to conclude that [Chen] met his
burden.” Bitsin, 719 F.3d at 630–31. “[T]o establish eligibility
for relief under the CAT, [Chen] must show that ‘it is more
likely than not that he … will be tortured’ if he is returned to
[China].” Id. at 631 (quoting Rashiah v. Ashcroft, 388 F.3d 1126,
1131 (7th Cir. 2004)). Since the standard under the CAT is
even higher than that for withholding of removal, it follows
that Chen cannot prevail under the CAT. See, e.g., Restrepo v.
Holder, 610 F.3d 962, 965 (7th Cir. 2010). The record does not
compel a contrary conclusion.
III. Conclusion
Chen’s petition for review is DISMISSED for lack of juris‐
diction with respect to the claim for asylum and DENIED with
respect to the requests for withholding of removal and pro‐
tection under the CAT.