Not for Publication in West's Federal Reported

United States Court of Appeals

For the First Circuit

No. 09-1243

HUA LI,

Petitioner,

v.

ERIC HOLDER, JR., Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

 Torruella, Boudin and Lipez,

Circuit Judges.

Theodore N. Cox on brief for petitioner.

Jennifer R. Khouri, Trial Attorney, Tony West, Assistant

Attorney General, and Barry J. Pettinato, Assistant Director, on

brief for respondent.

December 11, 2009
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Per Curiam. This is a petition for review of a removal

order. The petitioner, Hua Li, a Chinese citizen who entered the

United States illegally and was subsequently ordered removed, seeks

review of the denial of his application for asylum and withholding

of removal. For the reasons discussed below--essentially, that Li

failed to meet his burden of proving that he had an objectively

reasonable fear of future persecution if removed to China--we deny

the petition.

Given the uncontested finding that Li did not suffer past

persecution, he cannot benefit from the presumption that he would

suffer future persecution on a protected ground. 8 C.F.R.

§ 208.13(b)(1); see also Jorgji v. Mukasey, 514 F.3d 53, 57 (1st

Cir. 2008). Rather, it was his burden to show that he had an

objectively reasonable fear of future persecution. 8 C.F.R.

§ 1208.13(b)(1); see also Sugiarto v. Holder, 2009 WL 3738792, at

*3 (1st Cir. Nov. 10, 2009). To show that a fear is objectively

reasonable, the applicant must show "a reasonable possibility of

suffering such persecution" upon return to his country. 8 C.F.R.

§ 1208.13(b)(2)(i)(b); see also Castillo-Diaz v. Holder, 562 F.3d

23, 26 (1st Cir. 2009).

Our review of the Board of Immigration Appeals'

determination that Li did not satisfy that burden is deferential.

Jorgji, 514 F.3d at 57. That determination must be upheld "unless

the record 'points unerringly in the opposite direction.'" Lopez
According to a 2006 State Department report submitted as an 1

exhibit in this case, "Falun Gong blends aspects of Taoism,

Buddhism, and the meditation techniques and physical exercises of

qigong (a traditional Chinese exercise discipline) with the

teachings of Falun Gong leader Li Hongzhi." 

Li defined the "village cadre" as the "head of the village." 2

From the context here and in previous cases, see, e.g., Zheng v.

Gonzales, 416 F.3d 97, 99 (1st Cir. 2005), it appears that the

cadres (Li used the term "cadre" as a singular rather than a

collective noun) are local officials who enforce the law in

conjunction with the local police. 

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de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007) (quoting

Laurent v. Ashcroft, 359 F.3d 59, 69 (1st Cir. 2004)). Under that

standard, this petition fails.

As the BIA acknowledged, Li could have established his

eligibility for asylum if he had demonstrated a well-founded fear

of persecution on account of an imputed affiliation with Falun

Gong. See Lin v. Holder, 561 F.3d 68, 73 n.2 (1st Cir. 2009). 1

However, the BIA was "not persuaded by the unsupported assertion

that the later denouncement [of Li] by the village cadre 'could 2

very well' have led the police to believe that [Li] was more

involved in Falun Gong than they had previously thought."

The BIA's skepticism in that regard is amply supported by

the record. The letter threatening "serious consequences" came not

from the police, the feared persecutors, but from the village cadre

whom, Li admits, was motivated not by Li's alleged Falun Gong

activities but by his refusal to marry the cadre's sister. And

those unspecified consequences were threatened to flow from Li's
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failure to report to the police station on the appointed date, not

from his distribution of Falun Gong leaflets. The police were

already aware of Li's August 2005 leafleting activities and had

addressed them only by requiring him to file a written statement and

report to the police station for reeducation once a week for 10 or

11 weeks. Although, under Chinese law, Falun Gong leafleters may

be imprisoned for up to seven years, there is no evidence that a

person in Li's circumstances, who was not a Falun Gong adherent and

merely leafleted for money on two occasions, would be treated that

harshly. 

Because the record does not compel the conclusion that Li

would be persecuted if he returned to China, we uphold the denial

of his application for asylum and withholding of removal. And,

because he did not seek relief under the Convention Against Torture

before the immigration judge or the BIA, we have no jurisdiction to

review the denial of such relief. Accordingly, the petition for

review is denied. See 1st Cir. R. 27.0(c).