After examining the briefs and appellate record, this panel has determined *

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

May 28, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LIN GUO LI,

Petitioner, No. 09-9542

v. Board of Immigration Appeals

ERIC H. HOLDER, JR., United States

Attorney General,

Respondent.

ORDER AND JUDGMENT

*

Before HARTZ, SEYMOUR, and ANDERSON, Circuit Judges.

Lin Guo Li attempted to enter the United States at San Francisco,

California, on August 20, 2005, without proper entry documentation. The

Department of Homeland Security issued him a Notice to Appear before an

immigration judge. In response Mr. Li conceded removability but sought political

asylum, restriction on removal, and relief under the Convention Against Torture. 

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At the hearing before the immigration judge (IJ), Mr. Li gave the following

account: In July 1999, when he was 16 years old and living in China, he

impregnated his 17-year-old girlfriend in violation of Chinese law. That

September he and his girlfriend were married in an unofficial ceremony at his

home. The following month, officers came to his home, issued him a summons to

pay a 10,000-Yen fine, and took his wife away for an involuntary abortion. An

altercation broke out between the officers and his family during which he hit one

of the officers on the head with a stick. He fled the scene. After learning from his

father that officers had come to arrest him, he moved to another province, where

he found employment and lived safely for five years. He then returned to visit his

family, but “public security officers” came looking for him the following evening. 

R., Vol. 1 at 144. At that point he decided to pay smugglers to get him to the

United States. 

The IJ denied Mr. Li’s requests for relief and ordered him deported, ruling

(1) that Mr. Li was not credible and (2) that even if he were to be believed, he had

not shown that he had been persecuted or that there was a reasonable chance that

if he returned to China he would be persecuted or tortured. The IJ explained that

China is a big country, with many areas that do not enforce the population-control

laws, and persecution for his attack on an officer would not be persecution under

the immigration laws.

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On appeal to the Board of Immigration Appeals (the BIA), Mr. Li argued

(1) that the IJ’s credibility determination was speculative and (2) that persecution

stemming from his attack on the family-planning officer is a proper ground under

the Immigration and Nationality Act (the INA). The BIA dismissed the appeal. It

ruled that it need not review Mr. Li’s challenge to the IJ’s credibility

determination, because his evidence, even if believed, would not satisfy his

burden of showing that he had been persecuted in the past or was likely to be

persecuted or tortured if he returned to China. The BIA stated that the INA

provides for asylum based only on persecution that the applicant himself has

suffered or must suffer, not on what may have happened or might happen to a

girlfriend, and that he had not shown that he had suffered any past persecution or

could reasonably fear future persecution because he had lived unharmed for six

years in a province other than his home province.

On appeal Mr. Li (1) again challenges the IJ’s determination that he was

not credible; (2) asserts that persecution based on his attack on the officer is

protected under the INA because the attack was resistance to a coercive

population-control policy, see 8 U.S.C. § 1101(a)(42)(B) (“a person . . . who has

been persecuted for . . . resistance to a coercive population control program, shall

be deemed to have been persecuted on account of political opinion”); (3) contends

that his safety in a province other than his home province is irrelevant because

“he should not have been expected to have waited around to have been

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persecuted,” Aplt. Br. at 6; and (4) points out that “a person need not have

actually suffered persecution in the past to qualify for asylum,” id.

We are not persuaded. We review the BIA’s legal determinations de novo

and its findings of fact under a substantial-evidence standard. See Kabba v.

Mukasey, 530 F.3d 1239, 1244 (10th Cir. 2008). To qualify for asylum under the

INA, an applicant bears the burden of showing that he suffered persecution or has

“a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42) (defining refugee); see id. 1158(b)(1)(A) (alien must be a refugee

to be eligible for asylum); 8 C.F.R. § 1208.13(a) (applicant bears the burden of

proving refugee status). To qualify for restriction on removal under the INA, an

applicant must show a “clear probability” that in the country to which he is to be

removed his “life or freedom would be threatened” on account of “race, religion,

nationality, membership in a particular social group, or political opinion.” 

Hayrapetyan v. Mukasey, 534 F.3d 1330, 1336 (10th Cir. 2008) (internal

quotation marks omitted). To qualify for relief under the Convention Against

Torture, an applicant bears the burden of showing that “it is more likely than not

that he or she would be tortured if removed to the proposed country of removal.” 

8 C.F.R. § 1208.16(c)(2). A showing of past persecution creates a rebuttable

presumption of a well-founded fear of future persecution. See id.

§ 1208.13(b)(1). An applicant who can relocate to an area of his country of

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nationality where he could live safely has not established a well-founded fear of

future persecution. See Tulengkey v. Gonzales, 425 F.3d 1277, 1281–82 (10th

Cir. 2005). 

Substantial evidence supports the BIA’s determination that the evidence

presented by Mr. Li, even if believed, did not satisfy his burden of showing prior

persecution, a well-founded fear of future persecution, or the likelihood of

torture.

Accordingly, we AFFIRM the BIA’s dismissal of Mr. Li’s appeal.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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