Lizbeth Salcido Mar v. Merrick B. Garland

United States Court of Appeals
For the Eighth Circuit
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No. 20-1328
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Xiaojie He
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland,1 Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: November 17, 2021
Filed: February 4, 2022
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Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
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LOKEN, Circuit Judge.
Xiaojie He, a twenty-eight-year-old native of China, entered the United States
in April 2012 without inspection. The Department of Homeland Security (DHS)
1Merrick B. Garland has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).

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initiated removal proceedings. He conceded removability and applied for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT),
claiming past persecution and a well-founded fear of future persecution and torture in
China because of his Christian faith. After a hearing at which He testified, the
Immigration Judge (IJ) denied relief. The Board of Immigration Appeals (BIA)
affirmed with an opinion. He seeks judicial review of the final order of removal. See
8 U.S.C. § 1252. He does not challenge the denial of his application for relief under
the CAT. We deny the petition for review.
I. The Administrative Proceedings
At the May 24, 2018 removal hearing, He testified that he had two encounters
with local Chinese officials that are central to his claim of religious persecution. The
first occurred in October 2011 when He first attended a house-church meeting at a
friend’s invitation. Four or five police officers soon charged in, said the gathering was
illegal, and took He and the other seven or eight attendees to a police station, where an
officer punched He in the chest once and kicked He in the knees and shins. He did not
seek medical attention for these minor injuries. The police detained He for
approximately 15 days, then warned him “not to participate in illegal gatherings
anymore.” He was not given enough to eat while in detention. In January 2012, He
attended a house-church service for the second time. Again police broke up the
meeting, this time detaining He for approximately 30 days, but inflicting no physical
harm. On release, officers advised He to report weekly. Instead, his father arranged
for “snakeheads” to transport He to Mexico’s border with the United States (via Russia
and Cuba, using a Chinese passport), where he illegally entered the United States to
seek asylum.
The IJ found He’s testimony credible. In denying relief, the IJ’s Decision
summarized He’s testimony in detail, further noting: (i) He does not know the
denomination of the faith that was practiced during the two gatherings he attended.
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“He thinks that it was a Christian faith because his friend told him that it was.” (ii)
In between the two gatherings, He talked to his friend about going to church but did
not go because of the first detention. In his hometown He knew there were Christian
churches, but He did not attend any because “after being beaten up he was afraid,”
because “he had heard that if you go to these churches you do not learn anything,” and
because “he just planned with his dad on how to come to the United States.” (iii) He
does not know anyone who attended a Catholic church in China. He has heard of
people “encountering problems” when they attend Christian gatherings in a home but
has never heard of anyone getting in trouble for attending a Christian government-
authorized church.
The administrative record includes a lengthy United States Department of State
report titled “China (Includes Tibet, Hong Kong, and Macau) 2016 International
Religious Freedom Report.” The Report estimated there were 657 million religious
believers in China at that time, including over 70 million Christians. The People’s
Republic of China constitution permits “freedom of religious belief but limits
protections for religious practice to ‘normal religious activities’ and does not define
‘normal.’” Catholic and Protestant are two of the five “patriotic religious associations”
that may register with the government and hold officially permitted worship services.
But some Chinese Christians practice their faith in unregistered “home churches” that
are not recognized by the Chinese government. “Religious affairs officials and security
organs” scrutinize and restrict the religious activities of registered and unregistered
religious groups. There were continued reports of detention, physical abuse,
imprisonment, and harassment of religious group adherents for activities related to their
beliefs and practices. “Local authorities pressured religious believers to affiliate with
patriotic associations and used administrative detention . . . to punish members of
unregistered religious or spiritual groups.” The State Administration for Religious
Affairs says that family and friends may worship together at home without registering,
but “authorities still regularly harassed and detained small groups that did so.”
Religious regulations vary by province. “[I]n some areas, members of unregistered
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churches said they had more freedom than in the past to conduct religious services, as
long as they gathered only in private and kept congregation numbers low,” but in some
areas, “authorities also shut down churches that tried to maintain a low profile.”
The IJ found that He is not eligible for asylum because he failed to establish
either past persecution or a well-founded fear of future persecution. Specifically, the
IJ found that the evidence of the harm He described during the two detentions, “taken
together” and including “the assault by the policeman,” “does not rise to the level of
persecution as contemplated by the [Immigration and Nationality Act].” The IJ further
found that He failed to demonstrate a well-founded fear of future persecution. He’s
statement that he will not attend a Christian church in China because “you do not learn
much there . . . is pure conjecture as he has never attended a Christian church in China
and he only heard this from a friend.” His assertion that “the Chinese government will
continue to look for him if he is returned” is speculation. He “was allowed to leave
China in 2012 with a Chinese passport,” has been away from China for over six years
at the time of the hearing, and “presented no evidence that . . . anyone associated with
the Chinese government is looking for him, or that he would be harmed or persecuted
. . . if he practices his Christian religion in China.” Nor has He “shown that he could
not reasonably relocate within China to avoid any future harm if necessary to do so.”
The BIA adopted and affirmed the IJ’s decision in a two-page opinion. The BIA
agreed with the IJ that the harm to He from his two detentions “did not rise to the level
of persecution”; that He “did not meet his burden of establishing a well-founded fear
of persecution on account of his religion” based on information in the above-
summarized State Department 2016 Report; and that, “[e]ven if Chinese government
officials have asked about [him] following his departure 7 years ago, [He] has not
shown that a reasonable person in his circumstances would fear persecution, rather
than discrimination or harassment, if he is returned to China.” The BIA added, “Nor
does the evidence show a ‘pattern or practice’ of persecution of adherents to
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unregistered Christian house churches,” citing Woldemichael v. Ashcroft, 448 F.3d
1000, 1004 (8th Cir. 2006).
He petitions for review of the BIA’s final decision. Relying for the most part
on decisions from other circuits, he argues the BIA erred in ruling that he failed to
demonstrate past persecution and a well-founded fear of future persecution, making
him eligible for exercise of the Attorney General’s discretion under the Immigration
and Nationality Act (INA) to grant asylum to a noncitizen who qualifies as a refugee.
See 8 U.S.C. § 1158(b)(1).
II. Discussion
A. The Standard of Review. The INA defines refugee as a noncitizen 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.” 8 U.S.C. § 1101(a)(42)(A).
“Persecution is the infliction or threat of death, torture, or injury to one’s person or
freedom on account of a statutory ground such as religion.” Rife v. Ashcroft, 374 F.3d
606, 612 (8th Cir. 2004) (quotation omitted). At the outset, He argues that we review
the BIA’s persecution determinations de novo because they are questions of law.
Though there are circuit court decisions supporting this contention, it is contrary to
controlling Supreme Court precedents.
In INS v. Cardoza Fonseca, 480 U.S. 421 (1987), the Court noted that
§ 1101(a)(42) was added to the INA in the Refugee Act of 1980, which codified the
procedures for granting asylum and established that eligibility “depends entirely on the
Attorney General’s determination that an alien is a ‘refugee’ . . . . Thus, the
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‘persecution or well-founded fear of persecution’ standard governs the Attorney
General’s determination whether an alien is eligible for asylum.” Id. at 427-28.2
In INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (emphasis added), the Court
addressed and resolved this standard of review issue:
The BIA’s determination that Elias-Zacarias was not eligible for asylum
must be upheld if ‘supported by reasonable, substantial, and probative
evidence on the record considered as a whole.’ 8 U.S.C. § 1105a(a)(4).
It can be reversed only if the evidence presented by Elias-Zacarias was
such that a reasonable factfinder would have to conclude that the requisite
fear of persecution existed.
In other words, the Court determined that the ultimate question of past persecution or
well-founded fear of future persecution, as well as the findings underlying that
determination, are judicially reviewed under the substantial evidence standard that
applies to agency findings of fact. As the Court subsequently observed, “[w]ithin
broad limits the law entrusts the agency to make the basic asylum eligibility decision
here in question.” INS v. Orlando Ventura, 537 U.S. 12, 16 (2002).
Though a well-founded fear was the persecution standard at issue in Elias-
Zacarias, the Court expressly adopted the substantial evidence standard of review for
both of the asylum eligibility standards identified in Cardoza Fonseca -- “persecution
or well-founded fear of persecution.” It is irrelevant that the BIA, for internal agency
2The Court further noted that the Attorney General has discretion to deny asylum
to an alien who meets the definition of refugee. Id. at 428 n.5. That is not at issue.
He was denied asylum and withholding of removal based on the BIA’s finding that he
is not eligible for the exercise of discretion.
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reasons, reviews the IJ’s determination of past persecution de novo.3 Thus, as the
majority of Eighth Circuit opinions have recognized, our standard of review is whether
“substantial evidence in the administrative record supports the BIA’s finding that [He]
failed to prove past persecution,” as well as the finding that He failed to establish a
well-founded fear of future persecution. Martin Martin v. Barr, 916 F.3d 1141, 1144-
45 (8th Cir. 2019).
B. Past Persecution. It is well-established that “[p]ersecution is an extreme
concept that involves the infliction or threat of death, torture, or injury to one’s person
or freedom, on account of a protected characteristic.” Id. at 1144 (quotation omitted);
see Alavez-Hernandez v. Holder, 714 F.3d 1063, 1065-67 (8th Cir. 2007) (religiously-
motivated physical attacks in a village not “severe enough to rise to the level of
persecution”). “Low-level intimidation and harassment does not rise to the level of
persecution.” Eusebio v. Ashcroft, 361 F.3d 1088, 1090-91 (8th Cir. 2004). Neither
do brief detentions accompanied by beatings. See Njong v. Whitaker, 911 F.3d 919,
923 (8th Cir. 2018), and cases cited. “Threats alone constitute persecution in only a
small category of cases, and only when the threats are so menacing as to cause
significant actual suffering or harm.” Padilla-Franco v. Garland, 999 F.3d 604, 608
(8th Cir. 2021) (quotation omitted). Likewise, religious or ethnic discrimination
generally does not qualify as persecution. See Fisher v. INS, 291 F.3d 491, 494-95,
497 (8th Cir. 2002).
Here, the BIA adopted the IJ’s finding that the evidence of He’s two detentions,
taken together and including the initial assault by a policeman, “does not rise to the
3In Xue v. Lynch, 846 F.3d 1099, 1105-06 n.11 (10th Cir. 2017), the Tenth
Circuit suggested that this is an important new administrative procedure that casts
doubt on “the Supreme Court’s twenty-plus-year-old decision in” Elias-Zacarias. With
all due respect, we conclude that is not a proper basis for a circuit court to ignore
controlling Supreme Court precedent.
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level of persecution.” That determination is consistent with our prior past persecution
decisions. He properly notes that his detentions -- fifteen and thirty days -- were longer
than the detentions in Eusebio and Njong. Length of detention is certainly relevant and
in this case seems excessive. But the totality of the circumstances is determinative.
The 2016 International Religious Freedom Report stated that use of “administrative
detention” to pressure religious believers to affiliate with patriotic associations was not
uncommon. He presented no evidence of what efforts were made to gain his release,
and without more the IJ could reasonably find that the detentions fell in the category
of low-level intimidation and harassment. Thus, as in Yang v. Gonzales, 413 F.3d
757, 759-60 (8th Cir. 2005), He’s “vague claim that he was detained and interrogated
for one month . . . does not describe conduct severe enough to establish past
persecution.”
He further argues that he suffered past persecution “per se” because the Chinese
government, by making him sign a paper in which he promised to abandon his
religious practice (a paper he did not read), forbade him from openly and freely
practicing his religion. Consistent with the fact-specific teaching of Elias-Zacarias, we
have not recognized per se persecution. Moreover, the facts of this case would not
support the claim even if we did. He testified that he made two attempts to sample a
new faith -- one that he could only identify as Christian based on what a friend told
him. Both gatherings were forcibly interrupted by local police, government
interference that would be intolerable in this country. But it was also at least facially
contrary to the Chinese government’s constitution and laws, and He made no further
attempt to attend one of the many Christian churches, registered and unregistered, that
approximately 70,000,000 Chinese were attending. Instead, he packed his bags and
entered this country illegally to seek asylum. On these thin facts, we have no difficulty
concluding that substantial evidence on this administrative record supports the BIA’s
past persecution determination.
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C. Well-Founded Fear of Future Persecution. He next contends that the BIA
erred in finding he lacked a well-founded fear of future persecution. This eligibility
criterion has both an objective and subjective component. See Singh v. Gonzales, 495
F.3d 553, 556 (8th Cir. 2007). Neither the IJ nor the BIA questioned He’s subjective
fear of being returned to China.
Having failed to establish past persecution, He is not entitled to a presumption
that he has a well-founded fear. See 8 C.F.R. § 1208.16(b)(1)(i). “Without the aid of
the presumption, an asylum applicant may prove a well-founded fear of future
persecution by showing an objectively reasonable fear of particularized persecution,”
or by showing a pattern or practice of persecution. Woldemichael, 448 F.3d at 1004,
citing 8 C.F.R. § 208.13(b)(2)(iii).
The IJ found that He failed to establish an objective well-founded fear because
his fear of religious persecution if he returns to China is “speculative.” The BIA
agreed, citing portions of the 2016 International Religious Freedom Report -- that there
are more than 70,000,000 Catholic and Protestant adherents in China, and that house
church groups in some areas “had more freedom than in the past to conduct religious
services, as long as they gathered only in private and kept congregation numbers low.”
The BIA found that a letter from He’s father stating that Chinese police were searching
for He within months of the May 2018 hearing, six years after his departure, did not
show “that a reasonable person in his circumstances would fear persecution, rather
than discrimination or harassment, if he is returned to China.”
He argues that other statements in the 2016 Report contradict the sentence the
BIA relied on, and that his prior arrests and detentions for attending house-church
gatherings show that “[i]t is more than objectively reasonable to expect that he would
face the same treatment if he returns to China,” as evidenced by his father’s letter. But
that is not our governing standard of review. Rather, “to obtain judicial reversal of the
BIA’s determination, [He] must show that the evidence he presented was so
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compelling that no reasonable factfinder could fail to find the requisite fear of
persecution. That he has not done.” Elias-Zacarias, 502 U.S. at 483-84. As in Yan
Zhang v. Sessions, a factually similar case, “[s]ubstantial evidence supports the BIA’s
and IJ’s finding that [He] failed to establish fear of future persecution.” 681 F. App’x
554, 560 (8th Cir. 2017).
The BIA also found, based on the 2016 Report, that He did not show a pattern
or practice of persecution of “adherents to unregistered Christian house churches,” only
harassment and brief detentions of some group gatherings at unregistered churches,
actions that do not rise to the level of persecution. “A pattern or practice of persecution
must be systemic, pervasive, or organized.” Ngure v. Ashcroft, 367 F.3d 975, 991 (8th
Cir. 2004). He argues the 2016 Report combined with his prior detentions support a
finding of pattern or practice. Once again, however, that contrary finding is not
compelled by the evidence in the administrative record.
As He failed to establish eligibility for asylum, he “necessarily cannot meet the
more rigorous standard of proof for withholding of removal.” Martin Martin, 916 F.3d
at 1145 (quotation omitted). Accordingly, we deny the petition for review.
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