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Zhou Ji Ni v. Eric H. Holder

March 25, 2011


Petition for Review of an Order of the Board of Immigration Appeals. No. A72-368-644

The opinion of the court was delivered by: FLAUM,Circuit Judge.


Before FLAUM and EVANS, Circuit Judges, and MCCUSKEY, District Judge.*fn1

Nearly three decades ago, Chinese authorities detained Zhou Ji Ni's parents for three days. Like him, Ni's parents were Christians. They experienced firsthand the Chinese government's unease with the notion of an authority higher than it. For the three days that Ni's parents were held, authorities beat and threatened them on account of their religious beliefs.

The base treatment that his parents suffered is dated, however, as the incident occurred in roughly 1982, several years before Ni came to America. Relying on the incident, as well as a handful of others, Ni contends that he holds a well-founded fear of persecution. He therefore seeks to curb the U.S. government's efforts to deport him: he seeks asylum and withholding of deportation under the Immigration and Nationality Act. The Board of Immigration Appeals (the "Board") concluded that Ni failed to establish both that he himself had been the victim of past persecution and that he was exposed to an individualized risk of future persecution. Because the Board's determination was supported by substantial evidence, we deny Ni's petition for review.

I. Background

Ni is thirty-eight years old. The details of his arrival in the United States are a bit sketchy, although he estimates that he came to this country toward the tail-end of 1990. He testified that he flew from Beijing to Belize and then drove to Mexico. After paying $28,000 to a smuggler, he was secreted across the U.S. border. In 1994, Ni went to authorities and filed an asylum application in an effort to purge the taint of his illegal entry. The*fn2 order to show cause why he was not subject to deportation under the Immigration and Nationality Act. Ni never entered an appearance, and the case was administratively closed in 1995.

Some years later, Ni found himself before an immigration judge in New York City, as the Government renewed its efforts to deport him for being an illegal alien. He conceded, then as now, that he was deportable, see 8 U.S.C. § 1227(a)(1)(B), but sought asylum or withholding of deportation on the ground that he has a well-founded fear of religious persecution in China. The*fn3 case was transferred to an immigration judge in Chicago, where a hearing was held.

Most of the evidence at Ni's hearing was documentary in form and related to country conditions in China. The Government denied Ni's application and issued an most important were reports authored by the United States Department of State. The reports show, among other things, that the Chinese government "seeks to restrict religious practices to government-sanctioned organizations and registered places of worship" to ensure that the Communist Party retains its firm grip on Chinese society. E.g., United States Department of State, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES 2007:

CHINA 16 (Mar. 11, 2008) (hereinafter CHINA REPORT) (discussing efforts to "control and regulate" religious groups). Few Christian churches are officially permitted to operate-those that do must hew to certain teachings, such as a tenet that communism and Christianity are compatible. Churches that do not register with Chinese authorities, out of conscience or fear, experience everything from quiet toleration to outright repression. United States Department of State, CHINA: PROFILE OF

ASYLUM CLAIMS AND COUNTRY CONDITIONS 5, 7 (May 2007) (hereinafter CHINA PROFILE). In some places, local security officials make threats, demolish unregistered property, interrogate or arrest adherents, and commit severe physical abuse. Id. In other places, however, "house churches" with hundreds of members meet openly "with full knowledge of local authorities, who characterized the meetings as informal gatherings." CHINA REPORT at 17. We reviewed the voluminous record, and if any item of documentary evidence sheds light on conditions where Ni lived-the Dongqi section of Fuzhou City, in the Fujian Province-neither party has identified it for us.*fn4

The only testimonial evidence at the hearing was offered by Ni. He testified that he is a practicing Christian, although he currently lacks time to attend religious services. He left China because the government "suppressed and bullied the public" and prohibited his parents from attending services or practicing their religion at home. In fleshing out his weariness of the Chinese government, Ni pointed to a handful of incidents carried out by Chinese authorities. First, officials threatened his parents and warned them on three separate occasions not to secretly practice their Christian faith. Second, authorities came to the family's house in the late 1970s, removing a cross from their home and ordering them not to attend religious services. Third, Ni's parents were arrested and detained for three days in the early 1980s, when Ni was approximately ten years old, after they failed to bend to intimidation. During the detention, his parents were beaten and threatened. Fourth, Ni himself was warned by officials and school teachers, when he was seven or eight years old, not to practice Christianity. He indicated that people at school "would look at us in a very weird way." The immigration judge concluded that the testimony was credible.

Although the immigration judge accorded "full evidentiary weight" to Ni's testimony, he concluded that it was not particularly hefty. Specifically, the immigration judge reasoned that Ni did not provide much detail about the actions of Chinese officials, and the generalities he did offer painted a picture of harassment rather than persecution-at least with respect to Ni. (The immigration judge intimated, and the Board agreed, that the outcome might have been different had Ni's parents been seeking asylum.) Likewise, the evidence did not establish a well-founded fear of future persecution based on an individualized risk to Ni. The Board dismissed his appeal, agreeing with (though not explicitly adopting) the immigration judge's ruling. The dismissal ...

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