United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 24, 2012

*

Decided October 24, 2012

Before

FRANK H. EASTERBROOK, Chief Judge

RICHARD D. CUDAHY, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 12-1687

MINGHONG SUN,

Petitioner,

v.

ERIC H. HOLDER, JR.,

Attorney General of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A088-345-058

O R D E R

Minghong Sun, a Chinese citizen, petitions for review of an order of the Board of

Immigration Appeals upholding an immigration judge’s denial of his applications for

asylum, withholding of removal, and relief under the Convention Against Torture. He

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

After examining the briefs and the record, we have concluded that oral argument is

*

unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.

34(a)(2)(C).
No. 12-1687 Page 2

asserts that he will be persecuted if removed to China based on his opposition to China’s

family-planning policy. We deny the petition.

At his hearing before the IJ, Sun gave the following account. In early 2007, his

girlfriend, Duanrong Zhang became pregnant in violation of a provincial (Fujian) policy

prohibiting out-of-wedlock births. At 21, Sun was a year too young to marry under Chinese

law, but the couple made plans to marry when Sun was old enough. Zhang’s parents

opposed the union, however, citing the couple’s incompatible astrological signs. Zhang

soon moved in with Sun and his parents, but Zhang’s father, who was a government

official in a neighboring village, reported her pregnancy to local authorities.

Family-planning officials visited Sun’s home the following month, telling his father that

Zhang would need to abort her pregnancy. The officials returned the next month intending

to take Zhang away to have an abortion, but she and Sun escaped through the back door

while his father fought off the officials. Sun’s father then paid a friend $40,000 to help

smuggle the couple out of the country, and they reached the United States by way of

France, Central America, and Mexico. Due to the advanced stage of her pregnancy, Zhang

stayed behind in Mexico while Sun crossed the border near Hidalgo, Texas, where he was

apprehended. Sun later learned that Zhang had returned to China, telling her family that

she had miscarried in Mexico. Sun fears returning home because Zhang’s father has

publicized his intention to have Sun prosecuted for abducting Zhang.

The IJ denied Sun’s applications for asylum, CAT relief, and withholding of

removal. The IJ found Sun’s testimony “extremely confusing and vague” and noted that

Sun failed to meet his burden under the REAL ID Act to produce reliable corroborating

evidence because his account was inconsistent with affidavits that had been submitted by

his father and Zhang. And if Sun’s story were assumed true, the IJ added, Sun failed to

establish that he had been persecuted based on his resistance to China’s family-planning

policy. Even a married man, the IJ stated, does not suffer per se persecution based on the

forced abortion of his unborn child, and Sun was not personally harmed in the run-in with

family-planning officials. Sun also failed to establish a well-founded fear of future

persecution, the IJ concluded, because he did not show that any threats made by Zhang’s

father would be attributable to the government. The IJ was unable to determine from Sun’s

“weak and confusing” testimony whether Zhang’s father’s had sufficient clout to follow

through on his threat to have Sun prosecuted for kidnapping, and in any event the reaction

of Zhang’s father apparently stemmed from personal animus rather than any protected

ground. The Board of Immigration Appeals upheld the IJ’s decision in all respects, finding

Sun’s story not credible and concluding that even if his account were fully credited Sun

failed to establish past or fear of future persecution.
No. 12-1687 Page 3

In this petition, Sun first assails the IJ’s determination that he did not establish past

persecution. He takes issue with the IJ’s statement at his hearing that “only a couple that’s

married that is faced with a possible abortion may argue they’ve been persecuted” and

equates his committed relationship with Zhang with a legal marriage. He maintains that he

is entitled to asylum “as a partner of a victim directly affected by family planning laws”

and suggests that family planning officials’ attempt to force Zhang to have an abortion

constituted harm sufficient to establish persecution.

Sun waived this argument, however, by failing to raise it before the Board. See

Sarmiento v. Holder, 680 F.3d 799, 803–04 (7th Cir. 2012). In any event, as the IJ noted, even

the husbands of women who have been subjected to coercive population-control measures

are no longer considered per se victims of persecution; the Attorney General abrogated the

“spousal bootstrapping” rule in 2008. See Jin v. Holder, 572 F.3d 392, 396–97 (7th Cir. 2009)

(discussing Matter of J-S-, 24 I. & N. Dec. 520, 536–38 (A.G. 2008)). And substantial evidence

supports the Board’s conclusion that Sun did not establish that he was persecuted on

account of resistance to the family-planning policy. Persecution “involves . . . the use of

significant physical force against a person’s body, or the infliction of comparable physical

harm without direct application of force . . . or nonphysical harm of equal gravity,”

Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011), but Sun left China before he was

detained, arrested, or otherwise harmed. See Qiu v. Holder, 611 F.3d 403, 404, 406 (7th Cir.

2010). Nor was the harm to his father sufficient to compel a finding that Sun was

persecuted; an asylum applicant cannot establish past persecution based on harm to

another person unless that harm is for the purpose of punishing the applicant. See Zhou Ji

Ni v. Holder, 635 F.3d 1014, 1018 (7th Cir. 2011); Gatimi v. Holder, 578 F.3d 611, 617 (7th Cir.

2009).

Sun further argues that, even if he did not show past persecution, his fear of Zhang’s

father is sufficient to establish a well-founded fear of future persecution. He asserts that 

the IJ’s and Board’s disregard of the father’s influence reflects a “cultural ignorance of the

powerful reach of cadres in rural China” and highlights his own father’s warning that the

police have threatened to punish him for his crimes if he returns to China. But Sun did not

present evidence that Zhang’s father had authority or clout sufficient to trigger Sun’s

prosecution. Moreover, to be eligible for asylum Sun must fear persecution on account of

race, religion, nationality, membership in a particular social group, or political opinion, see

8 U.S.C. § 1158(b)(1)(B)(i); Bueso-Avila v. Holder, 663 F.3d 934, 937 (7th Cir. 2011), and as the

Board and IJ pointed out, Sun’s account suggests that Zhang’s father dislikes him only

because Sun absconded with his daughter to Mexico.
No. 12-1687 Page 4

Finally, Sun maintains that the Board erred by discounting his testimony because

parts of it conflicted with the affidavits he submitted to the IJ. These

inconsistencies—ranging from the date of the family-planning officials’ second visit to the

location of his family’s home—are in his view either immaterial or attributable to

translation errors. But this argument is beside the point; the IJ and the Board both found

that even if Sun’s account were credited, he nevertheless failed to establish either past

persecution or a well-founded fear of future persecution.

DENIED.