NOT RECOMMENDED FOR PUBLICATION
File Name: 12a1068n.06
No. 12-3152 FILED
Oct 10, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
XUEFANG HE, )
)
Petitioner-Appellant, ) ON PETITION FOR REVIEW OF
) THE DECISION OF THE BOARD
v. ) OF IMMIGRATION APPEALS
)
ERIC H. HOLDER, JR., Attorney General, ) OPINION
)
Respondent-Appellee. )
)
Before: SILER and COOK, Circuit Judges; STEEH, District Judge*
GEORGE C. STEEH, District Judge. This case arises from the denial of an asylum
application for He Xuefang,1 a twenty-four year old native of China who seeks asylum on religious
grounds. On appeal, Ms. He challenges the Board of Immigration Appeals’ affirmation of the denial
of her application for asylum on grounds that the immigration judge (IJ) violated her due process
rights; in addition, she asserts that the IJ’s findings on persecution and religious practice are not
supported by substantial evidence. We disagree, and DENY the petition for review.
*
The Honorable George C. Steeh, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
Traditionally, for Chinese names, the family name precedes the given name. In this case,
“He” is the family name and “Xuefang” is the given name.
No. 12-3152
He v. Holder
I. FACTS AND PROCEDURAL HISTORY
He Xuefang is a twenty-four year old native and citizen of the People’s Republic of China.
In October 2006, Ms. He began attending a house church in China; she was formally baptized into
the Christian faith on January 28, 2007. The house church she attended was not sanctioned by the
Chinese government, thus exposing the church and its members to governmental repression.
On May 9, 2007, local police officers arrested Ms. He and her mother, alleging that both were
members of an unsanctioned church and were illegally proselytizing their faith. The officers seized
two Bibles and various Christian posters from their home. Ms. He and her mother were detained at
the local police station for eight days.
During her detention, Ms. He was interrogated twice. The first interrogation lasted for
approximately one hour. At that time, Ms. He was asked to prepare a letter confessing to the charges
leading to her arrest and naming other members of her house church. She refused; as a result, police
officers verbally harassed her, pulled her hair and slapped her twice across the face. The second
interrogation lasted for approximately an hour and a half. Police officers reiterated their demand for
a confession letter. Upon her repeated refusal to do so, the officers forced Ms. He to kneel for
approximately ten minutes and kicked her in the back and legs seven or eight times. She suffered
bruises from this assault, but required no medical attention.
A police chief, serving as the intermediary of the director of the local Public Security Bureau
(PSB), offered Ms. He a quid pro quo: she would be released if she married the director’s son. Ms.
He was not enamored with the director’s son; she perceived that he had a hodgepodge of deficiencies
ranging from a lack of work ethic to physical ailments that made him unsuitable for marriage.
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He v. Holder
Initially refusing to engage in this exchange, Ms. He later acquiesced for the sake of obtaining
release. Shortly thereafter, she began making plans to leave China.
Upon Ms. He’s release, the director’s wife pressured Ms. He into marrying her son as soon
as possible. Ms. He’s parents resisted, claiming that she was too young to be legally wed. Her
parents also rejected the idea of a customary marriage in lieu of a legal one to circumvent legal
concerns regarding Ms. He’s age. The director’s wife then coupled her entreaties with threats to
send Ms. He and her mother back to jail. After being repeatedly subjected to these demands, Ms.
He submitted and was engaged on October 1, 2007.
Once Ms. He’s engagement was formalized, the director’s son began harassing Ms. He at her
home every two or three days. On October 17, 2007, the son appeared at her home and attempted
to touch and kiss her; in response, Ms. He yelled angrily, attracting the attention of her neighbors.
When the neighbors arrived, the son fled the scene.
As part of her plans to leave the country, Ms. He prepared for and passed the TOEFL
examination. In addition, she applied for an educational visa to the United States, which was granted
in March 2008. On April 29, 2008, Ms. He departed China and was unhindered by Chinese officials
in her departure. Her destination was Montana.
Ms. He enrolled at the University of Montana at Missoula. She studied at the university for
about three months. During this three-month period, Ms. He attended three or four services at the
Missoula Valley Church. She left Montana for Los Angeles in search of a large Chinese community.
Ms. He remained in Los Angeles for six months. While living in the city, she attended services at
the House of Christians church, which provided Chinese-language worship services. In January
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2009, Ms. He left Los Angeles for Franklin, Tennessee, where she now works and resides. She
sporadically attended English-language services at Brentwood Baptist Church two or three times a
month.
On October 22, 2008, Ms. He filed an application for asylum, withholding of removal, and
protection under the U.N. Convention Against Torture. The Department of Homeland Security
initiated removal proceedings by issuing a Notice to Appear on November 26, 2008. At a
preliminary proceeding held on December 17, 2008, Ms. He conceded to removability and
acknowledged all factual allegations contained in the Notice.
In support of her application for asylum, Ms. He provided a copy of her I-589, a narrative
statement, an I-94, a copy of her passport, a copy of her I-120, her household registration booklet,
her diplomas, her photos, and background materials on conditions in China. In addition, she
provided a letter from her mother, a letter from her neighbor in China, a letter from a fellow
congregant in Los Angeles, flyers from the Brentwood Baptist Church, and photographs taken at the
Brentwood Church.
On March 17, 2010, the immigration judge (IJ) denied Ms. He’s application for asylum,
withholding of removal, and protection under the Convention Against Torture, ordering Ms. He’s
removal from the United States to China. While finding the applicant’s testimony credible, the IJ
found that Ms. He failed to meet her burden of proof under the REAL ID Act. The main reason for
the IJ’s finding was Ms. He’s failure to provide corroborative evidence of her claim, namely in the
form of letters from church officials confirming her affiliation with churches in China and the United
States. In the IJ’s opinion, it would have been “quite simple to get letters from pastors of the
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churches here in the United States”—thus, there was “really . . . no explanation as to why [Ms. He]
did not pursue this form of corroborative evidence.” The IJ also found that Ms. He did not
adequately demonstrate past persecution. In doing so, the IJ explained that Ms. He’s detention was
“unfortunate,” but “only once fold” and without residual consequences. The IJ emphasized Ms. He’s
ability to leave China on a valid passport and visa to study in the United States without hindrance
from Chinese officials. With respect to the forced marriage, the IJ observed that the imbroglio with
the director’s son did not “even remotely suggest that it rises to the level of persecution under the
[INA] and presiding case law.” Finally, the IJ found that there was no demonstration of a fear of
future persecution, as Ms. He’s sporadic church attendance in the United States was unlikely to gain
the attention of the Chinese government upon her return. Thus, Ms. He’s application for asylum was
denied.
Ms. He appealed to the Board of Immigration Appeals (BIA). In doing so, she asserted that
the letters from her mother, neighbor, and fellow churchgoer were sufficient to provide corroborative
evidence of her practice of faith. In the alternative, she asked that the case be remanded for further
fact-finding as to the availability of corroborating letters from her pastor in China.
The BIA dismissed the appeal, adopting and affirming the IJ’s decision. The BIA concluded
that the IJ was correct in determining that the harm suffered by Ms. He did not rise to the level of
persecution and that Ms. He failed to demonstrate a well-founded fear of persecution on account of
her religion. In addressing the forced marriage, the BIA stated that the claim was “not on account
of [Ms. He’s] religion or any other protected ground” and thus could not be used to satisfy the burden
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of proof necessary to establish asylum. Hence, the IJ’s decision was affirmed. This petition for
review followed.
II. ANALYSIS
The Immigration and Nationality Act empowers the Secretary of Homeland Security and the
Attorney General with the discretion to grant asylum to a “refugee.” 8 U.S.C. § 1158(b)(1)(A)
(2006). “A refugee is defined as a person who is unable or unwilling to return to his home country
‘because of persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.’” Pilica v. Ashcroft, 388
F.3d 941, 950 (6th Cir. 2004) (quoting 8 U.S.C. § 1101(a)(42)(A)). “Disposition of an application
for asylum requires a two-step inquiry: first, whether the petitioner is a ‘refugee’ within the meaning
of the statute, and second, whether the petitioner merits a favorable exercise of discretion by the
Attorney General.” Id. (quoting Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994)).
Ms. He raises three challenges to the proceedings below. First, she argues that the IJ violated
due process by failing to ask her why corroborative evidence was unavailable. Second, she
challenges the IJ’s finding that insufficient corroboration was provided regarding Ms. He’s practice
of faith. Finally, Ms. He contends that substantial evidence does not support the IJ’s finding that the
harm suffered by Ms. He did not rise to the level of persecution. In doing so, she asserts that the BIA
failed to properly consider her forced marriage and improperly considered her possession of a valid
Chinese passport.
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A. Standard of Review
“Where, as here, the BIA affirms an IJ’s ruling and adds its own comments, we review both
the IJ’s decision and the [BIA’s] additional remarks.” Lateef v. Holder, 683 F.3d 275, 279 (6th Cir.
2012) (internal quotation marks omitted). Constitutional questions are reviewed de novo. Stserba
v. Holder, 646 F.3d 964, 971 (6th Cir. 2011). Factual determinations in a decision denying asylum
are reviewed under a substantial evidence standard. Lin v. Holder, 565 F.3d 971, 976 (6th Cir.
2009). Administrative findings of fact made in the proceedings below “are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Mere disagreements with these findings are insufficient to warrant reversal. See Gishta v. Gonzales,
404 F.3d 972, 978 (6th Cir. 2005). Thus, the BIA’s decision may only be reversed if it is “manifestly
contrary to the law.” Bi Xia Qu v. Holder, 618 F.3d 602, 605 (6th Cir. 2010).
B. Due Process Claim
A claim that an IJ failed to develop the record is one of procedural due process. See K.E. v.
Gonzales, 233 F. App’x 442, 446-47 (6th Cir. 2007). “Although an alien’s due process challenge
generally does not require exhaustion[,] . . . the alien must raise correctable procedural errors to the
BIA.” Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir. 2006). “[T]he issue must be reasonably
developed in the petitioner’s brief to the BIA.” Khalili v. Holder, 557 F.3d 429, 433 (6th Cir. 2009).
Otherwise, the issue is forfeited. See id.
Ms. He’s contends that the IJ failed to develop the record by denying her the opportunity to
explain the lack of corroborative evidence; while she does not label it as such, her argument is one
of due process. We lack jurisdiction over this claim, however, because Ms. He failed to properly
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raise it in the prior administrative proceeding. See Perkovic, 33 F.3d at 619. There is no express
assertion of a due process claim in her appeal before the BIA; the BIA brief merely notes in passing
that “[t]he record did not show anyone asking . . . whether it would be possible for her to get a letter
from the ‘pastor’ in China.” Failing to discern a “reasonably developed” allegation of error raised
before the BIA, we deem the issue to be forfeited. See Khalili, 557 F.3d at 433.
C. The IJ’s Finding that Ms. He Provided No Corroborative Evidence Regarding the
Practice of Her Faith
Under the REAL ID Act of 2005, an IJ may determine that an applicant “should provide
evidence [that] corroborates otherwise credible testimony,” and the “evidence must be provided
unless the applicant demonstrates that the applicant does not have the evidence and cannot
reasonably obtain the evidence.” 8 U.S.C. § 1229a(c)(4)(B). The failure to provide such
corroborating evidence “can lead to a finding that an applicant has failed to meet her burden of
proof.” Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir. 2004). An agency finding as to the
availability of corroborative evidence may not be reversed “unless the court finds . . . that a
reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.”
Urbina-Mejia v. Holder, 597 F.3d 360, 367 (6th Cir. 2010); see also 8 U.S.C. § 1252(b)(4)(B).
Ms. He claims that she provided corroborative evidence of her faith by proffering letters from
her mother, a neighbor in China, and a fellow churchgoer in Los Angeles. The IJ found that, despite
these presentations, Ms. He failed to meet her burden of proof; corroborative evidence in the form
of letters from churches in China and the United States could still be obtained, yet were not
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produced. No reasonable explanation was provided for their absence, which cemented the IJ’s
finding on the burden of proof.
We see no reason to disturb the IJ’s findings. Despite her testimony regarding the frequency
of her church attendance in China and the role of her mother as a conduit for continued
communication with the Chinese church, Ms. He failed to obtain a corroborating letter from a church
official. Instead, she procured letters from her mother and a neighbor, which were of questionable
probative value. In addition, Ms. He failed to produce any letters from church officials corroborating
her attendance at churches in the United States, despite the absence of the religious suppression that
may prevent her Chinese church from doing the same. Instead, she produced a letter from a fellow
congregant in Los Angeles that failed to attest to the frequency of her church attendance and did not
reveal much more than that they “went to church services together and [that] she is a very devout
Christian.” The letter provides little probative value.
The paucity of substance in the evidence presented by Ms. He supports the IJ’s conclusion
that Ms. He failed to meet her burden of proof by failing to provide sufficient corroboration. Hence,
we uphold the BIA’s decision.
D. The IJ’s Finding that the Level of Harm Did Not Rise to an Extreme Level of
Persecution
To qualify for refugee status, “an alien must establish either that he has suffered actual past
persecution or that he has a well-founded fear of future persecution.” Pilica, 388 F.3d at 950 (citing
Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. 1998); 8 C.F.R. § 208.13(b) (2004)). Persecution
is “an extreme concept that does not include every sort of treatment our society regards as offensive.”
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Ali v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004). A well-founded fear of persecution is comprised
of “both a subjective and an objective component.” Gilaj v. Gonzales, 408 F.3d 275, 283-84 (6th
Cir. 2005).
Persecution requires “more than a few isolated incidents of verbal harassment or intimidation,
unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.”
Mikhailevitch, 146 F.3d at 390. It may present itself in the form of “detention, arrest, interrogation,
prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or
torture.” Gilaj, 408 F.3d at 285 (quoting De Leon v. INS, 99 F. App’x 597, 598 (6th Cir. 2004)).
“[T]he critical factor is the overall context in which the harmful conduct occurred.” Id. As part of
that context, we consider “the gravity of the circumstances presented.” Id.
Isolated incidents of physical abuse may be insufficient to compel a finding of persecution,
even if the harm suffered is severe. See id. at 284 (explaining that a single beating may “offend[]
one’s sense of civilized governmental conduct,” but “does not compel a finding of persecution”).
Ms. He was detained for one period of eight days and was subjected to physical contact on two
occasions: the first was an incident where officials pulled her hair and slapped her face twice; the
second was an incident where she was forced to kneel and was kicked in the legs and back seven or
eight times. However uncivil and distasteful the governmental conduct may have been, the severity
of conduct pales in comparison to other cases where no past persecution was found. See, e.g., Lian
v. Holder, 414 F. App’x 790, 792, 794 (6th Cir. 2011) (concluding that the beating of an asylum
applicant with a wooden club and scarring of the applicant with cuts from a steel blade did not rise
to the level of persecution). Moreover, the fact that Ms. He suffered only minimal injuries and
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required no medical treatment further undermines the conclusion that a finding of past persecution
is compelled. See Biriiac v. Holder, 399 F. App’x 27, 35 (6th Cir. 2010).
Ms. He argues that the IJ should have considered the forced marriage as evidence of mixed-
motive religious persecution. We disagree. To properly conclude that a state action is premised on
mixed motives, the action must be motivated, at least in part, “on account of an enumerated ground.”
See Bi Xia Qu, 618 F.3d at 608. In contrast, Ms. He’s claim is one of post hoc ergo propter hoc:
the physical detention was merely the antecedent event that led to the marriage proposal, and the
religious cause for the initial detention was not the motivation for the marriage to occur. There is
nothing to suggest that the director forced Ms. He into marriage because of her religion and any
negative perceptions attendant to the Christian faith. Indeed, the record suggests that his motives
were entirely personal; the director used the force of his office to make marital arrangements because
his son could not find a spouse on his own.
Even in her own testimony, Ms. He conceded this point. She had two distinct reasons for
departing China: first, “because [of her] participation in [the] underground church”; second,
“because [she] was forced to marry the son of the [PSB director].” We recognize the same
distinction and discern no mixed motive persecution. Leverage obtained from a prior harmful action
motivated by religion but used for a purely personal gain does not create the causal nexus required
for a mixed motive persecution. Hence, the BIA’s findings on the relevance of the marriage were
supported by substantial evidence.
Finally, Ms. He contends that the IJ placed improper emphasis on her possession of a valid
Chinese passport in determining whether she was persecuted and notes that a passport is an
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“unreliable factor to consider in asylum.” We have previously said otherwise, holding that “an
applicant’s ability to obtain a government-issued passport may undermine his eligibility for asylum
and withholding of removal.” Ly v. Holder, 376 F. App’x 512, 518 (6th Cir. 2010). We observe no
error in the IJ’s consideration of this fact. Therefore, the IJ’s conclusion of no persecution is
supported by substantial evidence.
III. CONCLUSION
For the reasons above, the petition for review is DENIED.
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