Minghong Sun v. ERIC H. HOLDER, JR., Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 24, 2012*
Decided October 24, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12-1687
MINGHONG SUN,
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. A088-345-058
O R D E R
Minghong Sun, a Chinese citizen, petitions for review of an order of the Board of
Immigration Appeals upholding an immigration judge’s denial of his applications for
asylum, withholding of removal, and relief under the Convention Against Torture. He
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
After examining the briefs and the record, we have concluded that oral argument is*
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).

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No. 12-1687 Page 2
asserts that he will be persecuted if removed to China based on his opposition to China’s
family-planning policy. We deny the petition.
At his hearing before the IJ, Sun gave the following account. In early 2007, his
girlfriend, Duanrong Zhang became pregnant in violation of a provincial (Fujian) policy
prohibiting out-of-wedlock births. At 21, Sun was a year too young to marry under Chinese
law, but the couple made plans to marry when Sun was old enough. Zhang’s parents
opposed the union, however, citing the couple’s incompatible astrological signs. Zhang
soon moved in with Sun and his parents, but Zhang’s father, who was a government
official in a neighboring village, reported her pregnancy to local authorities.
Family-planning officials visited Sun’s home the following month, telling his father that
Zhang would need to abort her pregnancy. The officials returned the next month intending
to take Zhang away to have an abortion, but she and Sun escaped through the back door
while his father fought off the officials. Sun’s father then paid a friend $40,000 to help
smuggle the couple out of the country, and they reached the United States by way of
France, Central America, and Mexico. Due to the advanced stage of her pregnancy, Zhang
stayed behind in Mexico while Sun crossed the border near Hidalgo, Texas, where he was
apprehended. Sun later learned that Zhang had returned to China, telling her family that
she had miscarried in Mexico. Sun fears returning home because Zhang’s father has
publicized his intention to have Sun prosecuted for abducting Zhang.
The IJ denied Sun’s applications for asylum, CAT relief, and withholding of
removal. The IJ found Sun’s testimony “extremely confusing and vague” and noted that
Sun failed to meet his burden under the REAL ID Act to produce reliable corroborating
evidence because his account was inconsistent with affidavits that had been submitted by
his father and Zhang. And if Sun’s story were assumed true, the IJ added, Sun failed to
establish that he had been persecuted based on his resistance to China’s family-planning
policy. Even a married man, the IJ stated, does not suffer per se persecution based on the
forced abortion of his unborn child, and Sun was not personally harmed in the run-in with
family-planning officials. Sun also failed to establish a well-founded fear of future
persecution, the IJ concluded, because he did not show that any threats made by Zhang’s
father would be attributable to the government. The IJ was unable to determine from Sun’s
“weak and confusing” testimony whether Zhang’s father’s had sufficient clout to follow
through on his threat to have Sun prosecuted for kidnapping, and in any event the reaction
of Zhang’s father apparently stemmed from personal animus rather than any protected
ground. The Board of Immigration Appeals upheld the IJ’s decision in all respects, finding
Sun’s story not credible and concluding that even if his account were fully credited Sun
failed to establish past or fear of future persecution.

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No. 12-1687 Page 3
In this petition, Sun first assails the IJ’s determination that he did not establish past
persecution. He takes issue with the IJ’s statement at his hearing that “only a couple that’s
married that is faced with a possible abortion may argue they’ve been persecuted” and
equates his committed relationship with Zhang with a legal marriage. He maintains that he
is entitled to asylum “as a partner of a victim directly affected by family planning laws”
and suggests that family planning officials’ attempt to force Zhang to have an abortion
constituted harm sufficient to establish persecution.
Sun waived this argument, however, by failing to raise it before the Board. See
Sarmiento v. Holder, 680 F.3d 799, 803–04 (7th Cir. 2012). In any event, as the IJ noted, even
the husbands of women who have been subjected to coercive population-control measures
are no longer considered per se victims of persecution; the Attorney General abrogated the
“spousal bootstrapping” rule in 2008. See Jin v. Holder, 572 F.3d 392, 396–97 (7th Cir. 2009)
(discussing Matter of J-S-, 24 I. & N. Dec. 520, 536–38 (A.G. 2008)). And substantial evidence
supports the Board’s conclusion that Sun did not establish that he was persecuted on
account of resistance to the family-planning policy. Persecution “involves . . . the use of
significant physical force against a person’s body, or the infliction of comparable physical
harm without direct application of force . . . or nonphysical harm of equal gravity,”
Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011), but Sun left China before he was
detained, arrested, or otherwise harmed. See Qiu v. Holder, 611 F.3d 403, 404, 406 (7th Cir.
2010). Nor was the harm to his father sufficient to compel a finding that Sun was
persecuted; an asylum applicant cannot establish past persecution based on harm to
another person unless that harm is for the purpose of punishing the applicant. See Zhou Ji
Ni v. Holder, 635 F.3d 1014, 1018 (7th Cir. 2011); Gatimi v. Holder, 578 F.3d 611, 617 (7th Cir.
2009).
Sun further argues that, even if he did not show past persecution, his fear of Zhang’s
father is sufficient to establish a well-founded fear of future persecution. He asserts that
the IJ’s and Board’s disregard of the father’s influence reflects a “cultural ignorance of the
powerful reach of cadres in rural China” and highlights his own father’s warning that the
police have threatened to punish him for his crimes if he returns to China. But Sun did not
present evidence that Zhang’s father had authority or clout sufficient to trigger Sun’s
prosecution. Moreover, to be eligible for asylum Sun must fear persecution on account of
race, religion, nationality, membership in a particular social group, or political opinion, see
8 U.S.C. § 1158(b)(1)(B)(i); Bueso-Avila v. Holder, 663 F.3d 934, 937 (7th Cir. 2011), and as the
Board and IJ pointed out, Sun’s account suggests that Zhang’s father dislikes him only
because Sun absconded with his daughter to Mexico.

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No. 12-1687 Page 4
Finally, Sun maintains that the Board erred by discounting his testimony because
parts of it conflicted with the affidavits he submitted to the IJ. These
inconsistencies—ranging from the date of the family-planning officials’ second visit to the
location of his family’s home—are in his view either immaterial or attributable to
translation errors. But this argument is beside the point; the IJ and the Board both found
that even if Sun’s account were credited, he nevertheless failed to establish either past
persecution or a well-founded fear of future persecution.
DENIED.

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