### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 2505

W EIPING C HEN

,

Petitioner

,

v.

E RIC H. H OLDER

, J R

., Attorney General of the United States,

Respondent

.

____________________ Petition for Review of an Order

of the Board of Immigration Appeals.

No. A089

‐ 671

‐ 522

____________________

A RGUED F EBRUARY 18, 2014

— D ECIDED M ARCH 10, 2014

____________________

Before R OVNER

, W ILLIAMS

, and T INDER

, Circuit Judges

.

T INDER

, Circuit Judge

. Weiping Chen petitions for review

of the denials of his requests for asylum, withholding of re

‐

moval, and protection under the Convention Against Torture

(CAT). We dismiss the petition for review of the asylum

claim for lack of jurisdiction and deny the petition for review

of the withholding of removal and the CAT claims.2 No. 13

‐ 2505

I. Background

Chen is a native and citizen of China who entered the

U.S. in October 2004 as a nonimmigrant visitor with authori

‐

zation to stay until April 2005. He overstayed and later filed

an application for asylum, withholding of removal, and pro

‐

tection under the CAT. A Notice to Appear (NTA) was issued

charging him with removability for staying longer than his

visa permitted. See 8 U.S.C. § 1227(a)(1)(B). He has admitted

the NTA’s allegations and conceded removability.

At the hearing before the immigration judge (IJ), Chen

testified that he left China in 2004 because he was “persecut

‐

ed by the Chinese government[,] [b]ecause [he] participated

in the demonstration against the Chinese government using

violence to force people to

... demolish the housing and to

force people to move.” He said that he was detained, beaten,

harassed, threatened, and arrested by the police. Chen

claimed that he purchased a shop in a market to make more

money to pay for medical treatment for his son. He said that

not long after he opened his store in April 2004, the govern

‐

ment made plans to develop the area. Chen stated that he

and the other merchants in the market complained to the

district level government that the developers were trying to

take over the market without giving them “proper compen

‐

sation.” But the issue was not resolved. Chen testified that he

and other merchants were afraid that the developers would

tear down their stores, so they stayed overnight in their

shops “on April 20th.” (He later testified this happened on

May 20, which was consistent with his written statement,

and he denied (in the same hearing) that he had said it had

happened on April 20.)No. 13

‐ 2505 3

According to Chen, their fears came true. Later that

night, he and the other merchants were forcibly removed

from their shops and taken out of the city. He claimed that

they walked back to the market and found that it had been

torn down and their merchandise had been taken away.

Chen stated that he and the other merchants went “to the

municipality to

... petition.” Over one hundred merchants

and family members sat in front of the municipal building,

“asking [the] government for compensation.” Chen claimed

that they sat quietly for more than one hour, and then the

police arrived to break up the crowd with a “high pressure

water gun” and batons. However, Chen and a dozen other

merchants refused to leave, so they were forcibly taken to

the police station where Chen was beaten, denied food, and

handcuffed to a chair. After three days, Chen “was unable to

sustain” the mistreatment and signed an agreement stating

that he would not approach the government asking for com

‐ pensation. The police told Chen that he had “interrupted the

social order” and asked him to pay a fine and be subjected to

monitoring or supervision. Chen was released, but he was

required to report to the police station, first on a weekly ba

‐

sis and then on a monthly basis. He said that he reported as

required until he left for the United States in October 2004.

Other than that one sit

‐ in protest of the demolition of the

market shops, Chen has not participated in any other anti

‐

government demonstration. And he has never been a mem

‐

ber of any political organization. Indeed, Chen had a hard

time articulating his political opinion, but claimed that the

government seeks to persecute him because he participated

in the protest and opposed the government.4 No. 13

‐ 2505

The IJ found that Chen did not apply for asylum until

March 2008, more than three years after his arrival in the

United States. She therefore concluded that his asylum ap

‐ plication was untimely. The IJ considered Chen’s arguments

as to why he believed extraordinary circumstances excused

his late filing—he did not speak English, he did not under

‐

stand the law, and he did not have money to hire an attorney

(he sent all the money he made home to pay for his son’s

medical treatment)—but she found that these did not

amount to extraordinary circumstances to excuse the un

‐ timely filing.

Turning to withholding of removal, the IJ determined

that Chen’s situation was best characterized as a personal

dispute rather than an expression of his political opinion.

She found that additional evidence in the record indicated

that Chen had not shown that he would be persecuted on

account of his political opinion: the fact that after his deten

‐

tion, he satisfied his check

‐ in obligations with the police

without incident and his family has lived with his mother

‐

in

‐ law and have reported no incidents with the police or

other difficulty, other than with the son’s medical condition.

Although the IJ found inconsistencies between Chen’s

testimony and his written statement, she did not find him

incredible. But because of the inconsistencies, she did not

find that his testimony was sufficiently persuasive and re

‐ quired him to provide corroborative evidence. Chen failed to

provide anything other than one U.S. State Department Re

‐

port for China (“country conditions report”). Although the IJ

found that Chen’s claim was plausible in light of the report,

the report did not address his particular experiences. The IJ

decided that Chen provided insufficient corroborative evi

‐No. 13

‐ 2505 5

dence, noting that he had time to obtain an affidavit from his

wife, with whom he was in contact just two months before

the hearing. And the IJ did not believe that it would have

been beyond Chen’s reasonable ability to obtain such an af

‐

fidavit. She therefore concluded that he had not met his bur

‐

den of proving that it is more likely than not that he will be

persecuted because of his political opinion if removed to

China. As for the CAT, the IJ found that since Chen had not

met his burden of proving that he would be persecuted if

removed to China, he could not show that it is more likely

than not that he would suffer harm that meets the definition

of torture. The IJ ordered Chen removed to China.

On appeal, the Board agreed with the IJ that Chen failed

to timely file for asylum and failed to show extraordinary

circumstances or changed circumstances justifying the de

‐ layed filing. It also agreed that Chen failed to provide suffi

‐

cient credible evidence to establish a clear probability of per

‐

secution or torture, noting that since he was still in contact

with his wife, an affidavit from her was presumably availa

‐

ble. And the Board concurred with the IJ’s determination

that Chen had not shown a likelihood of future persecution

on a protected ground, upholding the finding that Chen’s

situation was a personal dispute rather than an expression of

political opinion. Finally, the Board agreed that Chen had

insufficient evidence to establish that he more likely than not

would be tortured upon return to China. It therefore dis

‐

missed the appeal, and Chen petitioned for review.

II. Discussion

Chen first challenges the Board’s decision affirming the

IJ’s determinations that he was not eligible for asylum be

‐

cause his asylum application was not filed within one year of6 No. 13

‐ 2505

his arrival in the United States and that he failed to establish

extraordinary circumstances justifying the untimely filing.

Generally, an asylum application must be filed within one

year after the alien’s arrival in the United States, 8 U.S.C.

§1158(a)(2)(B), but an untimely application may be consid

‐

ered if the alien “demonstrates

... extraordinary circum

‐

stances relating to the delay’ in filing

... within the pre

‐

scribed one

‐ year period.” Bitsin v. Holder

, 719 F.3d 619,

625 (7th Cir. 2013) (quoting 8 U.S.C. § 1158(a)(2)(D)). How

‐

ever, we lack “jurisdiction to review a determination regard

‐ ing the timeliness of an alien’s application for asylum or the

existence of

... extraordinary circumstances to excuse his late

filing.” Id. ; see also 8 U.S.C. § 1158(a)(3). We dismiss for lack

of jurisdiction Chen’s petition to review the determinations

that his asylum application was untimely and that he failed

to establish extraordinary circumstances. The petition was

clearly late and the circumstances were typical rather than

extraordinary anyway.

Chen also challenges the determination that he did not

qualify for withholding of removal. “When the Board agrees

with the decision of the immigration judge, adopts that deci

‐

sion and supplements that decision with its own reasoning,

as it did here, we review the immigration judge’s decision as

supplemented by the Board.” Cece v. Holder

, 733 F.3d 662,

675 (7th Cir. 2013) (en banc). The IJ’s “findings of fact are

conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B); see also Gutierrez

‐ Berdin v. Holder

, 618 F.3d

647, 651 (7th Cir. 2010). We review the decision for substan

‐

tial evidence. Bitsin

, 719 F.3d at 628. Under this standard, the

decision “‘must be upheld if supported by reasonable, sub

‐

stantial, and probative evidence on the record considered asNo. 13

‐ 2505 7

a whole,’ and we will ‘reverse[ ] only if the evidence present

‐

ed

... was such that a reasonable factfinder would have to

conclude’ that the petitioner had met his burden.” Id. (quot

‐ ing INS v. Elias–Zacarias, 502 U.S. 478, 481 (1992)).

“An applicant is eligible for withholding of removal if he

‘demonstrate[s] a clear probability of persecution on account

of’” a protected ground, in this case, political opinion. Bitsin

,

719 F.3d at 628 (quoting Tariq v. Keisler, 505 F.3d 650, 656 (7th

Cir. 2007)). Persecution is defined to include “detention, ar

‐

rest, interrogation, prosecution, imprisonment, illegal

searches, confiscation of property, surveillance, beatings, tor

‐

ture, behavior that threatens the same, and non

‐ life

‐ threatening behavior such as torture and economic depriva

‐

tion if the resulting conditions are sufficiently severe.” Yi

Xian Chen v. Holder

, 705 F.3d 624, 629 (7th Cir. 2013) (quota

‐

tion omitted).

In arguing that he will be persecuted, Chen points to the

demolition of his store, his arrest, physical beating, and oth

‐

er mistreatment in police custody as well as his allegations

that his wife told him that the police came looking for him

every month and that she had to move to a remote rural area

to avoid trouble. He also asserts that the police think he is

opposed to the government. Based on Chen’s testimony that

he met his check

‐ in obligations with the police without inci

‐

dent and that his family reported no incidents with the po

‐

lice, the IJ found that he had not demonstrated a clear prob

‐ ability that he will be persecuted if removed to China. These

facts support the IJ’s finding. At most, the record might sup

‐

port Chen’s claim that he is likely to be persecuted. Yet the

evidence must not only support but compel the conclusion

that he will be persecuted. Liu v. Holder

, 692 F.3d 848, 8528 No. 13

‐ 2505

(7th Cir. 2012); Balogun v. Ashcroft

, 374 F.3d 492, 507 (7th Cir.

2004). It does not.

Next, Chen argues that the Board erred when it affirmed

the IJ’s determination that he was required to produce or ad

‐ equately explain the absence of evidence corroborating his

claims and that he failed to do so. “[W]hen an immigration

judge requires an applicant to produce corroborating evi

‐

dence, that evidence is required (unless it cannot be reason

‐ ably obtained), even if the judge finds the applicant credi

‐

ble.” Raghunathan v. Holder

, 604 F.3d 371, 379 (7th Cir. 2010)

(citation omitted); see also 8 U.S.C. § 1158(b)(1)(B)(ii) (“The

testimony of the applicant may be sufficient to sustain the

applicant’s burden without corroboration, but only if the ap

‐ plicant satisfies the trier of fact that the applicant’s testimony

is credible, is persuasive, and refers to specific facts sufficient

to demonstrate that the applicant is a refugee.”) “‘No court

shall reverse a determination made by a trier of fact with re

‐

spect to the availability of corroborating evidence

... unless

the court finds

... that a reasonable trier of fact is compelled

to conclude that such corroborating evidence is unavaila

‐

ble.’” Raghunathan

, 604 F.3d at 379 (quoting Pub. L. No. 109

‐

13, § 101, 119 Stat. 231, 304 (2005)); see 8 U.S.C. § 1252(b)(4).

Chen points to no evidence that compels the conclusion that

corroborating evidence is unavailable.

Instead, he suggests that the IJ found his testimony cred

‐

ible and persuasive. The record refutes this claim: the IJ ex

‐ plicitly stated she “cannot find that [Chen’s] testimony was

sufficiently persuasive to meet his burden for withholding

without corroborative evidence.” Having found that his tes

‐ timony was not sufficiently persuasive, the IJ was well with

‐

in her discretion in requiring him to corroborate his claims.No. 13

‐ 2505 9

See Raghunathan

, 604 F.3d at 379 (stating that “an immigra

‐

tion judge exercises ‘substantial leeway to demand corrobo

‐

ration of [an alien’s] allegations whether or not the judge

finds the [alien] credible’”) (quoting Krishnapillai v. Holder

,

563 F.3d 606, 618 (7th Cir. 2009)). Unless Chen can prove that

he could not have reasonably obtained corroborating evi

‐

dence, his failure to produce such evidence is “fatal to [his]

claims.” Id.

Chen asserts that he did provide some corroborating evi

‐

dence, presumably the country conditions report, but as the

IJ noted, the report does not address Chen’s particular expe

‐

riences and thus was insufficient corroboration. See Krish

‐ napillai

, 563 F.3d at 619 (noting that a United Nations report

“did not materially corroborate the events to which [the peti

‐

tioner] testified“ where it addressed “the types of human

rights abuses that occur in Sri Lanka but says nothing about

what did or did not happen to [the petitioner]”). The IJ did

not err in reaching this conclusion. Chen also asserts that he

provided a reasonable explanation for not having other cor

‐

roboration, referring to his testimony about why he did not

have a doctor’s corroboration for his injuries. But he offers

no explanation why he could not have reasonably obtained

evidence corroborating other aspects of his claims, for ex

‐ ample, that he owned the store, that it was demolished, that

he participated in the protest, or that he was detained. An

affidavit from his wife or other merchants could have cor

‐

roborated these facts, and Chen offered no explanation why

he could not have reasonably obtained his wife’s affidavit.

(Nor does he attempt to explain in this court the lack of cor

‐

roboration from other merchants, but we know from his tes

‐ timony before the IJ that he claimed he had lost contact with

them.) Indeed, he testified that he had spoken with his wife10 No. 13

‐ 2505

two months before the hearing before the IJ. The record does

not compel the conclusion that Chen could not have reason

‐ ably obtained corroborating evidence; therefore, his failure

to produce such evidence when required dooms his claims.

According to Chen, the Board also erred in affirming the

IJ’s finding that he failed to prove he would be persecuted on

account of his political opinion. He argues that he “went to

the local district government office and complained publicly

regarding the unjust taking of his and other merchants’

property.” In his view, this renders inapposite Liu v. Holder

,

692 F.3d 848 (7th Cir. 2012), and Marquez v. INS

, 105 F.3d 374

(7th Cir. 1997). But the comparisons to Liu and Marquez are

apt. In Liu

, 692 F.3d at 852–53, we held that the record did

not compel the conclusion that the petitioner’s activity in or

‐ ganizing coworkers to protest their layoffs at a state

‐ owned

factory and participating in that protest was political rather

than economic activity. We reasoned that the petitioner did

not engage in any of the “classic” examples of political activ

‐ ity, such as “[c]ampaigning against the government, writing

op

‐ ed pieces, urging voters to oust corrupt officials,

... or

speaking out repeatedly

... .” Id. at 852. He “never belonged

to a political organization or demonstrated against the Chi

‐

nese government.” Id. Rather, he organized his coworkers

“to ask for their jobs and benefits back,” which “was an eco

‐

nomic demand, not a protest of government corruption.” Id.

Chen’s protest was similarly non

‐ political. He did not en

‐

gage in any of the classic examples of political activity; in

‐

stead, he participated in one sit

‐ in to protest the taking of his

property without compensation. The sit

‐ in was public, and

Chen was accompanied by other merchants who complained

about the taking of their property, but that is insufficient toNo. 13

‐ 2505 11

compel the conclusion that political opinion was the reason

for any harm to him. See Marquez

, 105 F.3d at 380–81 (defer

‐ ring to the Board’s findings that greed and jealousy, not poli

‐

tics motivated persecution even though alien spoke out

against military corruption on radio talk show). As the IJ

noted, Chen did not make a broader attack on the govern

‐

ment; he therefore is on weaker ground than the alien in

Marquez

. See id. at 381 (stating the issue as whether the retal

‐

iation was because of alien’s public condemnation and

broader attack on military corruption).

The IJ found, and the Board agreed, that Chen’s situation

should be characterized as a personal property dispute ra

‐

ther than an expression of political opinion. As we have said,

“[a] personal dispute, no matter how nasty, cannot support

an alien’s claim of asylum.” Id. at 380. Chen was unable to

articulate any political opinion, and he admitted that he did

not belong to any political organizations, and that other than

this single protest, he participated in no other political activi

‐

ties. The record does not compel the conclusion that any

harm to Chen was due to his political opinion. See id. (defer

‐ ring to the finding that “greed and jealousy, and not politics,

fed the feud” between bank official and government leader).

Chen v. Holder

, 607 F.3d 511 (7th Cir. 2010), does not assist

the petitioner. Contrary to his view, the case does not hold

that a public complaint regarding an unjust taking of proper

‐

ty can amount to persecution based on political opinion. The

case involved a remand for a determination whether filing

suit against a unit of government could constitute a form of

political opinion. Id. at 514. Assuming that it could, Weiping

Chen did not sue the government. Nor does Chen v. Gonzales

,

489 F.3d 861 (7th Cir. 2007), aid him. Severe economic depri

‐12 No. 13

‐ 2505

vation may amount to persecution, id. at 863, but Chen v.

Gonzales does not address what is at issue here—whether the

persecution is based on political opinion.

Finally, Chen challenges the Board’s and IJ’s conclusion

with respect to his claim for protection under the CAT. Our

review is deferential, and we will “reverse only if a reasona

‐

ble factfinder would have to conclude that [Chen] met his

burden.” Bitsin

, 719 F.3d at 630–31. “[T]o establish eligibility

for relief under the CAT, [Chen] must show that ‘it is more

likely than not that he

... will be tortured’ if he is returned to

[China].” Id. at 631 (quoting Rashiah v. Ashcroft, 388 F.3d 1126,

1131 (7th Cir. 2004)). Since the standard under the CAT is

even higher than that for withholding of removal, it follows

that Chen cannot prevail under the CAT. See, e.g.

, Restrepo v.

Holder

, 610 F.3d 962, 965 (7th Cir. 2010). The record does not

compel a contrary conclusion.

III. Conclusion

Chen’s petition for review is D ISMISSED for lack of juris

‐

diction with respect to the claim for asylum and D ENIED with

respect to the requests for withholding of removal and pro

‐

tection under the CAT.