Gao v. Barr

United States Court of Appeals
For the First Circuit

No. 19-1694

YONG GAO,

Petitioner,

v.

WILLIAM P. BARR,
ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before

Kayatta, Selya, and Stahl,
Circuit Judges.

Adedayo O. Idowu for petitioner.
Elizabeth K. Fitzgerald-Sambou, Trial Attorney, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, with whom Joseph H. Hunt, Assistant Attorney General,
Civil Division, and Bernard A. Joseph, Senior Litigation Counsel,
Office of Immigration Litigation, were on brief, for respondent.

February 20, 2020
 STAHL, Circuit Judge. Yong Gao, a native and citizen

of the People's Republic of China ("China"), petitions this court

for review of a Board of Immigration Appeals ("BIA") order

affirming an Immigration Judge ("IJ")'s denial of his applications

for asylum, withholding of removal, and protection under Article

III of the United Nations Convention Against Torture ("CAT").

After careful consideration of Gao's claims, the BIA's order, and

the underlying findings of the IJ, we deny Gao's petition for

review.

I. Factual Background and Procedural History

In China, Gao worked for a construction supply house,

where he oversaw deliveries and dispatches. In 2011, a customer

named Auntie Li gave Gao a Bible from a church of so-called

"Shouters," which China considers to be a cult. Subsequently, Gao

attended church meetings at Auntie Li's house. Gao also brought

the Bible to his place of work and read it during his breaks.

In June or July of 2011, Gao's supervisor caught him

reading the Bible at work. The supervisor confiscated the Bible

and called the police, who arrested Gao at the supply house. The

police took Gao to the public security bureau and questioned him

from about 8 or 9 p.m. until midnight. The police then placed Gao

in a separate room overnight. The next day, a different officer

questioned Gao, pushed his head against the top of a desk, and

threatened to beat him. Gao ultimately admitted to the police

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that Auntie Li had given him the Bible. During his approximately

twenty-three hours of detention, Gao was denied food and water.

He was released around 7 p.m. on the second day of detention, after

his family had paid a 5000-yuan fine to the police. Gao

subsequently attempted to return to his place of employment but

was informed that he had been terminated because of his alleged

cult affiliation. He later visited Auntie Li's house and saw that

the door had been barred, leading him to conclude she had also

been arrested.

In March 2012, Gao acquired a visa to travel to the

United States. Obtained through a private agency in China, the

visa falsely stated that Gao would attend the Juilliard School in

New York.1 On March 27, 2012, he was admitted to the United States

as a nonimmigrant and was authorized to remain in the country until

September 26 of that year. On August 21, 2012, Gao applied for

asylum, withholding of removal, and protection under the CAT. On

September 29, 2014, the United States Department of Homeland

Security issued Gao a Notice to Appear and placed him in removal

1
Though the IJ stated that Gao had testified that he
obtained a "business visa . . . . to attend Julliard [sic] School
in New York," it is unclear whether the visa was intended for
study, work, or both. The issued visa was a nonimmigrant B-2 visa
that was good until September 26, 2012. Gao testified before the
IJ that the "business visa" was obtained on the pretense of
"[i]nterview[ing] for the school." He also testified that the
visa application falsely stated that he had both studied and worked
at the Shanghai Conservatory of Music.
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proceedings because he had overstayed his visa. Gao conceded

removability.

On January 18, 2018, an IJ denied Gao's applications and

ordered his removal. Regarding Gao's asylum application, the IJ

determined that he failed to demonstrate past persecution and a

well-founded fear of future persecution in China. Specifically,

the IJ reasoned that the harm Gao suffered did not constitute

persecution because he did not experience more than ordinary

harassment, mistreatment, or suffering. In coming to that

conclusion, the IJ considered the severity, duration, and

frequency of Gao's physical abuse and whether his harm was

systematic. The IJ found that Gao was arrested once in China and

detained for approximately twenty-three hours. The IJ noted Gao's

testimony that he was interrogated twice, beaten once, and denied

food and water. The IJ also observed that Gao did not indicate

he required professional medical treatment or sustained any

lasting injuries as a result of his encounter with police.

The IJ determined that because Gao did not demonstrate

past persecution, he was not entitled to a presumption that he

would face future persecution. See 8 C.F.R. § 1208.13(b)(1). The

IJ did state that Gao could nevertheless prevail on his asylum

claim by proving a well-founded fear of future persecution on

account of a protected ground that was both subjectively and

objectively reasonable. The IJ added that Gao needed to

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demonstrate that he could not safely relocate in China to avoid

future persecution. See 8 C.F.R. § 1208.13(b)(2)-(3). The IJ

then found that Gao had remained in China without police encounters

for nine months following his arrest and that he was then given a

visa to leave China and go to the United States.2

After reviewing the United States Department of State

2016 International Religious Freedom Report for China, which Gao

had submitted into evidence, the IJ found that Gao could

nevertheless "relocate somewhere safely in China." Accordingly,

the IJ determined that Gao had not established a well-founded fear

of future persecution and denied his asylum application.

As to Gao's withholding of removal application, the IJ

determined that Gao did not meet the requisite clear probability

of persecution standard because he failed to meet the less

stringent standard for asylum. The IJ also denied Gao CAT

protection because Gao did not establish that Chinese officials

would more likely than not torture him upon his repatriation.

Gao appealed to the BIA on February 12, 2018, arguing

that the IJ erred in concluding that his experience did not

constitute past persecution and that he did not have a well-founded

fear of future persecution. On June 28, 2019, the BIA affirmed

2
Though the IJ stated that Gao "was given a visa to
leave China," the record does not describe any visa other than the
nonimmigrant B-2 entry visa that Gao obtained from the United
States.
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the IJ's decision, agreeing that Gao's single instance of harm did

not constitute past persecution. The BIA also determined that Gao

"ha[d] not challenged the Immigration Judge's determination that

he could avoid future harm by relocating" in China. The BIA

further determined that Gao could not satisfy the more stringent

standard for withholding of removal and that he did not raise

specific arguments relating to the IJ's denial of CAT protection.

Gao timely petitioned this court for review of the BIA's order.

II. Discussion

Where, as here, "the BIA adopts and affirms the IJ's

ruling but also examines some of the IJ's conclusions, this Court

reviews both the BIA's and IJ's opinions." Loja-Paguay v. Barr,

939 F.3d 11, 15 (1st Cir. 2019) (quoting Perlera-Sola v. Holder,

699 F.3d 572, 576 (1st Cir. 2012)). We review legal conclusions

de novo, "with appropriate deference to the agency's

interpretation of the underlying statute in accordance with

administrative law principles." Ramírez-Pérez v. Barr, 934 F.3d

47, 50 (1st Cir. 2019) (quoting Rivas-Durán v. Barr, 927 F.3d 26,

30 (1st Cir. 2019)). We review administrative factual findings

"under the deferential 'substantial evidence standard,' meaning

that we will not disturb such findings if they are 'supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.'" Id. (quoting Rivas-Durán, 927 F.3d at

30). Under this standard, "administrative findings of fact are

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conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

Gao now contends that the IJ and the BIA erred in

concluding that he did not suffer past persecution and was not

entitled to asylum, withholding of removal, or protection under

the CAT. We address each argument in turn, and conclude that none

has merit.

A. Asylum

Under our immigration laws, the Attorney General may

grant asylum to an applicant if the applicant demonstrates that he

is a "refugee." 8 U.S.C. § 1158(b)(1)(A), (B)(i); see 8 C.F.R.

§ 1240.8. A refugee is defined as a person who is unable or

unwilling to return to the country of his nationality because of

past persecution or a well-founded fear of future persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A).

A showing of past persecution creates a rebuttable presumption

that the applicant's fear of future persecution is well-founded.

8 C.F.R. § 1208.13(b)(1).

"Persecution" is not defined by statute, and "what

constitutes persecution is resolved on a case-by-case basis."

Panoto v. Holder, 770 F.3d 43, 46 (1st Cir. 2014). Generally, it

involves a discriminatory harm caused by government action or

allowed by government acquiescence that "surpasses

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'unpleasantness, harassment, and even basic suffering.'" Id.

(quoting Sombah v. Mukasey, 529 F.3d 49, 51 (1st Cir. 2008)).

"The severity, duration, and frequency of physical abuse are

factors relevant to this determination, as is whether harm is

systematic rather than reflective of a series of isolated

incidents." Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir. 2014)

(quoting Barsoum v. Holder, 617 F.3d 73, 79 (1st Cir. 2010)). We

also consider the severity and frequency of the applicant's alleged

harassment in light of "the nature and extent of an applicant's

injuries." Martínez-Pérez v. Sessions, 897 F.3d 33, 40 (1st Cir.

2018) (quoting Vasili v. Holder, 732 F.3d 83, 89 (1st Cir. 2013)).

1. Past Persecution

Substantial evidence supported the IJ's and BIA's

conclusions that Gao's harm did not constitute past persecution.

Gao's sole detention was neither systematic nor frequent, and "a

single detention, even one accompanied by beatings and

threats . . . does not necessarily rise to the level of

persecution." Jinan Chen v. Lynch, 814 F.3d 40, 45 (1st Cir.

2016); see Anacassus v. Holder, 602 F.3d 14, 19-20 (1st Cir. 2010)

("[I]solated beatings, even when rather severe, do not establish

systematic mistreatment needed to show persecution." (quoting

Wiratama v. Mukasey, 538 F.3d 1, 7 (1st Cir. 2008))). Gao also

fails to establish that the twenty-three-hour duration of his

detention was persecutory. See Jinan Chen, 814 F.3d at 45-46

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(finding no persecution where petitioner was detained for nine

days, beaten, and threatened by Chinese police); Topalli v.

Gonzales, 417 F.3d 128, 132 (1st Cir. 2005) (finding no persecution

where petitioner's multiple detentions coupled with beatings

"never exceeded 24 hours").

Gao also does not demonstrate that his ordeal was

sufficiently severe to constitute persecution under this court's

precedent. The record does not show that Gao sustained any

injuries during his twenty-three-hour detention. See Jinan Chen,

814 F.3d at 45-46 (finding no persecution where petitioner's

injuries following nine-day detention with beatings "did not

exceed bruising"); Thapaliya, 750 F.3d at 58-60 (finding no

persecution where petitioner was beaten "fairly severely" and

"suffered injuries to his head and chin, as well as bruising all

over his body"). Moreover, Gao did not indicate that he sought

or required medical treatment following his release. See

Jinan Chen, 814 F.3d at 46 (citing Topalli, 417 F.3d at 132;

Vasili, 732 F.3d at 89) (recognizing as relevant that petitioner

"did not require hospitalization or conventional, allopathic

medical care" following detention); Cabas v. Holder, 695 F.3d 169,

174 (1st Cir. 2012) (finding no persecution where petitioner's

"single incident of physical harm was an isolated event and the

resulting injuries were not sufficiently severe to require medical

attention").

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 Gao additionally contends that the IJ and the BIA failed

to consider the 5000-yuan fine his family paid to obtain his

release from detention and his loss of employment.3 This argument

is unpersuasive. "[E]conomic disadvantage must be severe and

deliberate to rise to the level of persecution." Yong Xiu Lin v.

Holder, 754 F.3d 9, 16 (1st Cir. 2014) (alteration in original)

(quoting Wu v. Holder, 741 F.3d 211, 215 (1st Cir. 2013)). Gao

has not demonstrated that these harms caused him severe financial

difficulty or prevented him from obtaining other employment.4 See

Jinan Chen, 814 F.3d at 43-46 (finding no persecution where

petitioner's father paid "a lot of money" to Chinese police to

secure petitioner's release from detention); Alexandrescu v.

Mukasey, 537 F.3d 22, 25 (1st Cir. 2008) (finding no economic

persecution where petitioner "lost his job, not his ability to

make a living"). Gao's argument that he suffered post-detention

persecution is further undermined by his continued, uneventful

3In his petition for review, Gao asserts for the first
time that he was required to report to Chinese police on a weekly
basis after his detention. We will not consider this assertion
because it was not raised below. See 8 U.S.C. § 1252(b)(4)(A)
("[T]he court of appeals shall decide the petition only on the
administrative record on which the order of removal is
based . . . .").

4In an affidavit accompanying his initial applications
for asylum, withholding of removal, and CAT protection, Gao stated
that he "gave up a steady job in China" around the time he departed
for the United States. The record does not otherwise describe
Gao's employment in China beyond the position that he lost
following his detention.
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residence in China for approximately nine months until his

departure on his own passport to the United States. See

Jinan Chen, 814 F.3d at 43-46 (finding no persecution where

petitioner remained in China without police mistreatment for

approximately three months following detention until departing on

his own passport); Topalli, 417 F.3d at 132 (finding no persecution

where petitioner remained in Albania without police mistreatment

for approximately three years following arrest). In sum, the IJ's

and BIA's conclusions that Gao's harm did not constitute past

persecution, even when looking at all the evidence in aggregate,

were supported by substantial record evidence.

2. Future Persecution

Because he did not establish past persecution, Gao is

not presumed to have a well-founded fear of future persecution.

See 8 C.F.R. § 1208.13(b)(1). In addition, Gao "does not have a

well-founded fear of persecution if [he] could avoid persecution

by relocating to another part of [his] country of nationality . . .

if under all the circumstances it would be reasonable to expect

[him] to do so." Id. § 1208.13(b)(2)(ii); see Chen Qin v. Lynch,

833 F.3d 40, 45 (1st Cir. 2016) (finding no well-founded fear of

future persecution where petitioner could safely relocate to her

brother's home in her native country). The IJ found that Gao

could safely relocate in China upon his return to avoid

persecution. Gao did not dispute that finding in his brief to the

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BIA, and in its order, the BIA determined that Gao had "not

challenged the Immigration Judge's determination that he could

avoid future harm by relocating."

This court "may review a final order of removal only

if . . . the alien has exhausted all administrative remedies

available to the alien as of right." 8 U.S.C. § 1252(d)(1). A

petitioner's "failure to present developed argumentation to the

BIA on a particular theory amounts to a failure to exhaust

administrative remedies as to that theory." Avelar Gonzalez v.

Whitaker, 908 F.3d 820, 828 (1st Cir. 2018) (quoting

Ramirez-Matias v. Holder, 778 F.3d 322, 327 (1st Cir. 2015)).

Before the BIA, Gao failed to present any argumentation regarding

the relocation finding. Accordingly, as Gao failed to exhaust his

administrative remedies regarding that finding, we may not now

review it. Consequently, Gao cannot demonstrate a well-founded

fear of future persecution upon return to China. See 8 C.F.R.

§ 1208.13(b)(2)(ii); Chen Qin, 833 F.3d at 45.

Overall, Gao has not demonstrated past persecution or a

well-founded fear of future persecution, and the denial of his

asylum application was supported by substantial record evidence.

See 8 U.S.C. §§ 1101(a)(42)(A), 1252(b)(4)(B).

B. Withholding of Removal

To be entitled to withholding of removal, Gao must

establish that his "life or freedom would be threatened in [China]

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because of [his] race, religion, nationality, membership in a

particular social group, or political opinion." 8 U.S.C.

§ 1231(b)(3)(A); see 8 C.F.R. § 1208.16(b). To carry this burden

without having demonstrated past persecution, Gao must show that

it is "more likely than not" that he would be persecuted on account

of a protected ground if repatriated. 8 C.F.R. § 1208.16(b)(2);

see Olmos-Colaj v. Sessions, 886 F.3d 168, 176 (1st Cir. 2018)

(describing the standard as "a clear probability of future

persecution" (quoting López-Castro v. Holder, 577 F.3d 49, 54 (1st

Cir. 2009))). This standard is more stringent than that of asylum.

Villalta-Martinez v. Sessions, 882 F.3d 20, 23 (1st Cir. 2018).

Thus, because Gao cannot succeed on his asylum claim, we also

affirm the denial of his claim for withholding of removal.5 See

id. at 26.

C. CAT
In his brief to this court, Gao included a section titled

"Petitioner's application for protection under Article 3 of the UN

Convention Against Torture should also be granted." Thereafter,

5
We note that an applicant for withholding of removal
who has not demonstrated past persecution cannot satisfy the
relevant standard if he "could avoid a future threat to his or her
life or freedom by relocating to another part of the proposed
country of removal and, under all the circumstances, it would be
reasonable to expect the applicant to do so." 8 C.F.R.
§ 1208.16(b)(2). Therefore, Gao cannot succeed in his claim for
withholding of removal because of the IJ's unchallenged relocation
finding, which we cannot now review. See 8 U.S.C. § 1252(d)(1).

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Gao merely cites to Article 3 of the CAT, provides the standard

governing eligibility for CAT protection, see 8 C.F.R.

§ 208.16(c)(2)-(3), and recites the relevant definition of

torture, see id. § 208.18(a)(1). Because Gao has not offered any

developed argumentation relating to his claim, we deem it waived.

See Olmos-Colaj, 886 F.3d at 176 (citing Jiang v. Gonzales, 474

F.3d 25, 32 (1st Cir. 2007) ("[T]heories advanced in skeletal form,

unaccompanied by developed argumentation, are deemed

abandoned.")); Sok v. Mukasey, 526 F.3d 48, 52 (1st Cir. 2008)

(deeming CAT claim waived where petitioner only presented

introductory assertion of entitlement to CAT protection).

III. Conclusion

We deny the petition for review and affirm the decision

of the BIA upholding the IJ's denial of Gao's applications for

asylum, withholding of removal, and protection under the CAT.

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