IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60842

Summary Calendar

YONG-KOOK KIM, also known as Yong-Kock Kim; FENGLIAN LU,

Petitioners,

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A087 879 344

BIA No. A089 114 719

Before KING, GRAVES, and WILLETT, Circuit Judges.

PER CURIAM:*

Married Chinese citizens Yong-Kook Kim and Fenglian Lu entered the 

United States in 2009 without having been admitted or paroled. They have 

filed a petition seeking review of the order from the Board of Immigration 

Appeals (BIA) denying their applications for asylum, withholding of removal, 

and protection under the Convention Against Torture (CAT).

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 7, 2020

Lyle W. Cayce

Clerk

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Kim and Lu are Chinese natives of Korean descent. Kim testified that 

he was arrested after he got into a physical altercation with developers trying 

to buy his farmland. According to Kim, the police said that Korean minorities 

“always pick a fight” and are “always the troublemakers.” The police then beat 

Kim for about 15 minutes, banging his head against a desk and striking him 

with a baton. They accused him of being uncooperative and held him in a cell 

for five days.

After Kim confessed and agreed to sell his land to the developers, the 

police fined him 5,000 yuan, released him, and directed him to report to them 

weekly. Kim decided to leave China for “a few years” in the hope that things 

would “settle[] down.”

According to Lu, when Kim failed to report to the police as required 

following his release from custody, the police came to their house looking for 

Kim to sign papers to convey the property as he had agreed. Lu told them that 

she did not know where Kim was, and the police took her into custody.

Lu testified that the police bound her legs and hands to a chair and said 

many “ugly[,] dirty words” to her. She claimed that the police slapped her and 

cursed at her. They also “kind of shocked [her]” using electric shocks. Every 

time Lu tried to fall asleep, the police put her in ice water and “put a big light 

in [her] face [so] that [she] couldn’t sleep.” Lu testified that she was detained 

for two days. Once Lu signed the land over to the developers, she was paid 

5,000 yuan and released without conditions.

Lu testified that she had to leave China because she lost “all the 

farmland” due to her Korean ethnicity. She claimed that she could not return 

to China because Kim would be detained by the government for refusing to 

cooperate with them, and they would “most likely” prosecute her for conspiring 

with her husband.

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We have authority to review only the order of the BIA unless the 

underlying decision of the immigration judge (IJ) influenced the BIA’s decision. 

Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). Here, the BIA approved of 

and relied on some of the IJ’s findings. Accordingly, this court will review both 

decisions. See id.

We review an immigration court’s findings of fact for substantial 

evidence. Id. Under this deferential standard, this court may not reverse an 

immigration court’s factual findings unless “the evidence was so compelling 

that no reasonable factfinder could conclude against it.” Id. at 536-37.

As an initial matter, the BIA did not reach the issue of whether the police 

mistreatment that Kim and Lu experienced rose to the level of past 

persecution. Instead, the BIA focused its analysis on the fact that Kim and Lu 

had failed to show a nexus between the harm they experienced and a 

statutorily protected ground.1 As such, we need not address the arguments 

that Kim and Lu make on the issue of whether their mistreatment in China 

amounted to persecution. Yet even if we did, the evidence Kim and Lu 

presented does not compel the conclusion that the police took them into custody 

and mistreated them due to their Korean ethnicity or because of their political 

opinions, imputed or otherwise.2 See Wang, 569 F.3d at 536-37.

1 Kim and Lu reiterate their claim that they “were arguably harmed or could be 

harmed” on account of their membership in two particular social groups, which they 

presented to the BIA for the first time on appeal: (1) members of the rural class of the “hukou” 

system and (2) family (i.e., Lu’s membership in Kim’s family). This court has held that the 

BIA is not required to consider a particular social group on appeal that was never presented 

to the immigration judge. Cantarero-Lagos v. Barr, 924 F.3d 145, 151-52 (5th Cir. 2019).

Because the BIA chose not to consider Kim and Lu’s claim, it is not properly before us on 

review.

2 As the BIA noted, Kim was arrested only after he got into a physical altercation with 

the developers. Lu was arrested because she remained on the property after Kim had agreed 

to transfer it to the developers. This court has rejected claims of past persecution where the 

alien was involved in a facially legitimate law enforcement encounter. Tesfamichael v. 

Gonzales, 469 F.3d 109, 117 (5th Cir. 2006). And even if the police used ethnic slurs during 

Kim’s detention, that does not by itself compel the conclusion that they sought to punish him 

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Substantial evidence supports the BIA’s finding that Kim and Lu had 

failed to independently carry their burden to demonstrate a well-founded fear 

of future persecution. See id. at 536. As the BIA observed, none of their 

relatives in China—who shared their Korean ethnicity—had encountered 

problems with the police since Kim and Lu left China. Further, the fact that 

Kim and Lu did not experience any harm at the hand of the Chinese 

government until they became involved in a dispute with the developers over 

the price of their land weakens their argument that their fear of harm on 

account of their Korean ethnicity or any other protected ground is objectively 

reasonable. See Chen v. Gonzales, 470 F.3d 1131, 1135 (5th Cir. 2006).

Because substantial evidence supports the denial of the couple’s asylum 

claim, it follows that the BIA’s determination that they are likewise ineligible 

for withholding of removal should also be upheld. See Majd v. Gonzales, 446 

F.3d 590, 595 (5th Cir. 2006).

Though Kim argues that he would likely be subject to future torture 

given that he was under police supervision when he left China and because he 

violated China’s exit laws, we have previously rejected similar CAT claims. 

See Zhang v. Gonzales, 432 F.3d 339, 345 (5th Cir. 2005). In Lu’s case, the 

evidence similarly does not compel the conclusion that it is more likely than 

not that the Chinese government would go so far as to torture her merely 

because she unlawfully departed China in 2009. See id.

Based on the foregoing, the petition for review is DENIED.

based on his Korean ethnicity, especially where nothing else in the record shows that he was 

singled out by the authorities or subjected to disproportionate treatment while in custody 

because of his ethnicity. See INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992) (requiring 

petitioner to show compelling “direct or circumstantial” evidence of a discriminatory motive 

behind the government’s persecution). Finally, although Kim depicts himself as a victim of 

the Chinese government’s “land grabs,” he cites no evidence that he had any political or 

principled objection to transferring the farmland, and he admitted that he would have readily 

sold it to the developers for 10,000 yuan.

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