UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 18, 2006
Decided April 25, 2006
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-2733
CHUN LIN ZHAO, Petition for Review of an Order
Petitioner, of the Board of Immigration
Appeals
v.
ALBERTO R. GONZALES, Attorney General No. A77 651 202
of the United States
Respondent.
ORDER
Chun Lin Zhao, a Chinese citizen, petitions for review of the Board of
Immigration Appeals' decision affirming the Immigration Judge's denial of his
application for asylum, withholding of removal, and relief under the Convention
Against Torture. Because the BIA found that Zhao's asylum application was
untimely, we do not have jurisdiction to consider Zhao's arguments about his
No. 05-2733 Page 2
asylum claim. We also deny Zhao's petition with respect to his claims for
withholding of removal and relief under the Convention Against Torture because
the evidence does not compel a conclusion that it is more likely than not that Zhao
will be persecuted on account of a protected ground or will be tortured if he returns
to China.
Zhao asserts that he has suffered persecution on account of his political
opinion based on events that happened when he was the "director" of the security
department at the Li He Trading Company in Shenyang, China. The owner of the
company, Zhi Jun Huang, was a Falun Gong practitioner. Although Zhao testified
that he is not himself a Falun Gong practitioner, he says that he supported Huang's
efforts to practice Falun Gong and suggested that Huang hold early morning group
practice sessions in the company's courtyard. Zhao provided security for these
sessions, which in time grew to include more than 100 people.
According to Zhao, these practice sessions attracted the attention of Chinese
authorities, and in 1999 several officials from the public security bureau tried to
enter the courtyard where a session was taking place. Zhao and some fellow
security guards stopped the officials from entering. Zhao says a scuffle ensued,
after which the officials accused him of serving as a "protection umbrella" for the
group and warning him that if the Falun Gong practitioners were ever put on trial,
he would be the "first person . . . to be tried." About a month later, officials forcibly
took Zhao from work to the local public security bureau office. They asked him to
monitor Huang's activities and plant a bugging device on the premises of the
No. 05-2733 Page 3
company. When Zhao refused, the officials handcuffed him to a pipe and slapped
him on the face, drawing blood. Zhao also said that they "cut some lines" on his
back with a knife. He testified that one cut was "pretty deep" but the others were
"not that much." The officials released him after several hours and told him to
report to them periodically on Huang's activities. Zhao says he made one such
report in which he falsely said that Huang had not participated in any political
activities. Zhao, concerned that his continued refusal to cooperate with authorities
placed him in danger, left China for the United States. Huang has since dissolved
the Li He Trading Company and has also left China.
The IJ found that Zhao was ineligible for asylum because he filed his
application more than a year after entering the United States and that no changed
circumstances in China justified the delay. The IJ also denied Zhao's claims for
withholding of removal and relief under the Convention Against Torture. She
determined that Zhao was not persecuted on account of his political opinion but was
targeted solely because officials thought he would be a useful source of information
on Huang. The IJ also determined that the treatment Zhao suffered during his
questioning (being handcuffed, slapped, and cut with a knife) was not severe
enough qualify as persecution; she noted that Zhao's written application never
mentioned being cut with a knife, and that Zhao himself testified that he did not
think the knife cut was "a big thing." Finally, she concluded that Zhao failed to
show that it was likely that he would be persecuted or tortured after returning to
China because he is not a Falun Gong practitioner and the government's only
No. 05-2733 Page 4
interest in him—as a source of information on Huang—no longer existed because
Huang left the country and closed his company. The BIA adopted the IJ's decision.
The BIA agreed with the IJ's analysis of all of Zhao's claims, although it added that
Zhao was not entitled to relief under the Convention Against Torture because he
had not shown that the treatment he endured was sufficiently severe to constitute
torture.
Zhao concedes that he did not file his asylum application within the one-year
deadline, but he argues that this delay was justified because the Falun Gong was
not officially declared illegal until 2002. This event, he says, is a changed country
condition which justifies his late filing under 8 U.S.C. § 1158(a)(2)(D) because it
increased the risk that he would be targeted by the Chinese government. However,
the BIA rejected Zhao's changed country conditions argument and, as the
government points out, we do not have jurisdiction to review a determination that
an asylum application is untimely and that a delay in filing is not justified. 8
U.S.C. § 1158(a)(3); Lhanzom v. Gonzales, 430 F.3d 833, 841–42 (7th Cir. 2005);
Vladimirova v. Ashcroft, 377 F.3d 690, 695 (7th Cir. 2004); Zaidi v. Ashcroft, 377
F.3d 678, 680–81 (7th Cir. 2004). Therefore, we lack jurisdiction to review Zhao's
arguments regarding his asylum claim.
The one-year deadline does not apply to applications for withholding of
removal or relief under the Convention Against Torture, so we may review Zhao's
arguments regarding those claims. Lhanzom, 430 F.3d at 842. To qualify for
withholding of removal Zhao must show that his "life or freedom would be
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threatened" on account of his political opinion, 8 U.S.C. § 1231(b)(3)(A); Firmansjah
v. Gonzales, 424 F.3d 598, 604–05 (7th Cir. 2005). This is a higher burden than the
asylum standard, Kobugabe v. Gonzales, 440 F.3d 900 (7th Cir. 2006), and we
review the BIA's determination on this issue for substantial evidence, Firmansjah,
424 F.3d. at 604.
Although Zhao does not explicitly say so, he seems to be making an argument
that the public security officials imputed a political opinion to him based on his
connection to Huang's Falun Gong activities. Zhao argues that the BIA and IJ
erred in finding that he did not express a political opinion and that the treatment
he suffered was based on his relationship with Huang. Zhao asserts that the
mistreatment he suffered "was based on his providing cover for Falun Gong
practitioners and his refusal to cooperate with authorities." Zhao also argues that
he "expressed his political opinion by his act of providing protection to the former
student leader and the other Falun Gong practitioners and by his refusal to
cooperate with the government authorities in its endeavor to persecute the student
leader and the Falun Gong practitioners."
To succeed on a claim of imputed political opinion, Zhao must show that his
persecutors attributed a political opinion to him, Lwin v. INS, 144 F.3d 505, 509
(7th Cir. 1998), and that this attributed opinion is their motive for harming him, see
INS v. Elias Zacarias, 502 U.S. 478, 482–83 (1992). We have suggested that
individuals can establish a claim of imputed political opinion if they show a risk of
persecution at the hands of authorities who erroneously believe they are Falun
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Gong practitioners. See Liu v. Ashcroft, 380 F.3d 307, 314–15 (7th Cir. 2004).
Other courts have also taken the position that imputed support of Falun Gong can
be the basis of a claim of persecution on account of political opinion. Zhou v.
Gonzales, 437 F.3d 860, 868–69 (9th Cir. 2006); Gao v. Gonzales, 424 F.3d 122,
129–30 (2d Cir. 2005).
The problem is that Zhao has provided little evidence to suggest that the
public security bureau officials really believed him to be a Falun Gong practitioner
or were motivated by this consideration. The main incident of alleged persecution
identified by Zhao in his brief is his interrogation and beating at the public security
bureau office. But, as both the IJ and the BIA pointed out, the interrogation of
Zhao focused primarily on what he could tell them about Huang's activities rather
than on his own behavior or views about Falun Gong. This evidence is consistent
with the BIA's and IJ's conclusion that Zhao was mistreated because he refused to
be an informant rather than because he was viewed as a Falun Gong practitioner.
See Lwin, 144 F.3d at 509 (no persecution on account of imputed political opinion
where petitioner was pressured to reveal whereabouts of his politically active son;
interrogations focused on son's whereabouts not petitioner's views of son's political
opinions). The fact that public security bureau officials wanted Zhao to inform on
Huang does not necessarily show that they thought Zhao shared Huang's views.
Zhao's position as security "director" would make him valuable as an informant
regardless of his personal opinions about Falun Gong. Since Zhao has not shown
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that the officials who interrogated and assaulted him were motivated by a belief
that he was a Falun Gong practitioner, his withholding claim must fail.
There is a possibility that Zhao is also making a vague argument that he was
mistreated on account of his own, rather than an imputed, political opinion. He
seems to suggest that his refusal to cooperate with the authorities by becoming an
informant was itself an expression of a political opinion. Perhaps he is saying that
his refusal was intended as a political statement that he supported Falun Gong and
opposed the intolerant and oppressive tactics of the Chinese government.
We have defined a political opinion as "one that is expressed through political
activities or through some sort of speech in the political arena." Li v. Gonzales, 416
F.3d 681, 685 (7th Cir. 2005). It is not obvious that the mere refusal to cooperate
with government officials and inform on one's boss (unaccompanied by any other
evidence of political activism) falls within this definition. Zhao does not cite any
case law to support such an argument, and the case law we have found does not
tend to support it. For example, we have refused to find that petitioners have been
persecuted on account of their political opinion in situations where they have been
mistreated by the government for refusing to disclose the whereabouts of a
politically active family member. See Djouma v. Gonzales, 429 F.3d 685, 688 (7th
Cir. 2005); Lwin v. INS, 144 F.3d at 509 (7th Cir. 1998). Therefore, this
undeveloped argument is without merit.
There is another problem with Zhao's petition. As the government points out,
he has hardly presented a clear cut case of past persecution. Although Zhao points
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to his detention during which he was handcuffed to a pipe, slapped, and cut with a
knife—serious allegations that are more specific than the vague claims of "beatings"
that this court generally rejects, see, e.g., Dandan v. Ashcroft, 339 F.3d 567, 573–74
(7th Cir. 2003)—he himself admitted that he did not think this incident was "a big
thing," a statement that undermines what is already a questionable case of
persecution.
Without any evidence of past persecution, Zhao has presented little to
challenge the BIA's conclusion that he does not face a clear probability of harm in
the future, if he goes back to China. On this point, Zhao basically repeats
arguments that the BIA rejected. For example, he says that he will be harmed if he
returns because he refused to continue making the periodic reports on Huang to the
public security bureau. Zhao also says that, after he left China, Chinese officials
came twice to the Li He Trading Company to look for him and this is evidence that
they are still interested in harming him. However, both of these arguments ignore
the crucial fact that Huang is no longer in China. The officials' visits to Zhao's
office both occurred before Huang dissolved his company and left the country, when
Zhao still would have been of some use to the authorities as an informant. Now
that Huang is gone, Zhao does not explain why the authorities would still be
interested in him. Zhao seems to think that he will be punished for his past failure
to make reports on Huang, but he does not provide any specifics about why he
thinks this will happen and given the high standard he has to meet to prove his
No. 05-2733 Page 9
eligibility for withholding or removal, this argument does not justify overturning
the BIA's decision.
Zhao's claim for relief under the Convention Against Torture fails for similar
reasons. To be eligible for relief under the Convention Against Torture, Zhao must
show that it is more likely than not that he will be tortured if he returns to China.
8 C.F.R. § 1208.16(c)(2); Mabasa v. Gonzales, 440 F.3d 902, 907 (7th Cir. 2006).
Since Zhao's evidence that he will face harm in the future is irrelevant now that
Huang has left China, he cannot meet this standard. In any event, torture is
defined as "any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person . . . ." 8 C.F.R. § 1208.18(a)(1); Rashiah v.
Ashcroft, 388 F.3d 1126, 1131 (7th Cir. 2004). Zhao does not point to any evidence
that would indicate he would suffer such severe treatment if he returns to China.
For the above reasons, we DISMISS for lack of jurisdiction Zhao's petition to
the extent that it seeks review of the BIA's decision denying him asylum and DENY
the petition in all other respects.