UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

BINBIN HE, 

 Petitioner, 

v. 

LORETTA E. LYNCH, 

United States Attorney General,*

 Respondent. 

No. 14-9586 

(Petition for Review)

 

ORDER AND JUDGMENT**

 

Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges. 

 

 Binbin He, a native and citizen of China, petitions for review of a final order 

of the Board of Immigration Appeals (BIA) denying his application for asylum and 

restriction on removal under the Immigration and Nationality Act, as well as his 

 

 * In accordance with Rule 43(c)(2) of the Federal Rules of Appellate 

Procedure, Loretta E. Lynch is substituted for Eric H. Holder, Jr., as the respondent 

in this action. 

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

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 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 

April 28, 2015

Elisabeth A. Shumaker 

Clerk of Court
- 2 - 

request for protection under the United Nations Convention Against Torture (CAT). 

We have jurisdiction under 8 U.S.C. § 1252(a). We deny the petition. 

I. BACKGROUND 

Petitioner entered the United States in May 2009 at age nineteen with the 

stated intention of attending the University of Montana. He never registered for 

school. Instead, in November 2009, petitioner filed an application for asylum, 

withholding of removal, and protection under the CAT. Petitioner stated that he 

feared returning to China because of an incident that occurred in June 2008. 

According to petitioner, police raided the “house church” to which he belonged 

during a bible-study meeting. The police accused the group of holding an illegal 

gathering, and after confiscating their religious materials, they arrested petitioner and 

his fellow attendees. 

Petitioner testified he was detained for seven days, during which he was 

interrogated three times. During the first interrogation, he was slapped in the face 

twice and kicked in the stomach once; during the second, he was kicked in the 

stomach three or four times; and during the third, he was kicked in his lower back, 

thigh, and leg. Eventually, petitioner gave in to the demands of the police and signed 

a “guarantee letter” in which he promised to have no further participation in the 

“house church.” Petitioner was released after his father paid a fine. 

 In January 2009, petitioner made arrangements to exit China and come to the 

United States. He paid a middleman to arrange a student visa to attend the University 
- 3 - 

of Montana. According to petitioner, he did not feel safe living anywhere in China 

because the government had launched a nationwide crackdown on underground 

churches. He acknowledged that his grandmother (who is also a Christian) attends a 

government-sanctioned church without interference, but he was not interested in 

joining a government-sponsored church. Petitioner further admitted that his parents 

still worship, without interference, at the same “house church” where he was a 

member. 

In further support of his application, petitioner submitted a letter from his 

father, who stated that petitioner told him he had been beaten three times during his 

detention. Petitioner also submitted a letter from his grandmother, who stated that 

petitioner was released from custody after his father paid a fine. Finally, petitioner 

submitted a letter from his “house church” pastor, who stated that although he was 

not present at the time of the raid, petitioner later told him he had been interrogated 

and beaten during his detention. 

 The Immigration Judge (IJ) denied petitioner’s requests for relief. The IJ 

found that although petitioner’s testimony was credible, he failed to prove past 

persecution because of the lack of corroborating evidence. The IJ further found that 

petitioner failed to demonstrate a reasonable likelihood of future persecution. 

Because petitioner failed to meet the burden of proof required for asylum, the IJ 

found that he failed to satisfy the more stringent standard for restriction on removal, 
- 4 - 

and there was no evidence of the likelihood of torture upon removal to China. The 

BIA affirmed the IJ’s decision.1

 

II. STANDARD OF REVIEW 

A single member of the BIA affirmed the IJ’s decision in a brief order. Under 

these circumstances, “[a]lthough we review the BIA’s opinion, we also may consult 

the IJ’s explanation.” Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011). 

 We decide legal questions de novo and look to see if the agency’s findings of 

fact are supported by substantial evidence. Id. “Under this standard of review, 

agency findings of fact are conclusive unless any reasonable adjudicator would be 

compelled to conclude to the contrary.” Id. (internal quotation marks omitted). 

Whether petitioner has shown past persecution or a well-founded fear of future 

persecution is a question of fact. See id. 

III. ASYLUM 

To be eligible for a discretionary grant of asylum, petitioner had to show that 

he “suffered past persecution or has a well-founded fear of [future] persecution on 

account of race, religion, nationality, membership in a particular social group, or 

political opinion.” Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) 

(footnote omitted) (internal quotation marks omitted). “Even without past 

 1

 Alternatively, the IJ found that even if the claim had been corroborated, the 

harm suffered by petitioner did not rise to the level of persecution. The BIA did not 

address this finding, and instead affirmed on the ground that the claim was not 

corroborated. 
- 5 - 

persecution, [an applicant can] still qualify for asylum by establishing a well-founded 

fear of future persecution. Such a fear must be both subjectively genuine and 

objectively reasonable.” Id. at 1281 (citation omitted) (internal quotation marks 

omitted). 

A. Past Persecution 

 During the hearing the IJ asked petitioner for evidence to corroborate his 

testimony about past persecution: 

IJ: Sir, when you were arrested, did they give you any paperwork when 

you were bonded out of jail? 

 PETITIONER: Yes. I had to write a guarantee letter. 

 

IJ: Yes, I know that. But I mean, did the police give you any 

charges? Did the police give you any paperwork? 

 

PETITIONER: No. 

 

 IJ: Now, there were seven people . . . arrested with you. You 

said you still keep in contact with them. Did you get one of them or any 

of them to write you a letter regarding this incident? 

 

PETITIONER: No, I did not. 

 IJ: Okay. Now when you, you said that during the time you were 

in jail they beat you. When you got out of jail, did you go to a hospital 

or to a clinic? 

 PETITIONER: Yes I did. I went to just a very small clinic to 

check. 

 IJ: Do you have any paperwork from that clinic saying that you 

were beat or anything to that [e]ffect? 

 PETITIONER: No, I don’t. 
- 6 - 

Admin. R. at 122-23. 

 The IJ asked petitioner’s attorney if he had any follow up questions, and the 

attorney responded “No.” Id. at 123. 

 Although the IJ found petitioner credible, he concluded that “his testimony 

regarding his detention and physical abuse is simply not detailed and specific enough 

to sustain his burden of proving past persecution absent corroborating evidence or an 

explanation of why he is not in possession of such evidence.” Id. at 64. The IJ 

acknowledged the letters from petitioner’s father and pastor, but noted the absence of 

any statements that they observed any signs of physical abuse or that petitioner was 

treated at a clinic. The IJ also found it significant that petitioner did not produce a 

copy of the letter he was forced to sign to secure his release, nor did he submit any 

paperwork from the police, the medical clinic, or statements from those who were 

arrested with him. 

 Petitioner admits the IJ asked him for corroborating evidence and invited his 

counsel to explore the matter further. But he argues the IJ also was required to ask 

him why he didn’t have it. We disagree. Although an applicant’s testimony “may be 

sufficient to sustain [his] burden [of proof] without corroboration,” this is true “only 

if the applicant satisfies the trier of fact that [his] testimony is credible, is persuasive, 

and refers to specific facts sufficient to demonstrate that [he] is a refugee.” 8 U.S.C. 

§ 1158(b)(1)(B)(ii). In instances “[w]here the trier of fact determines that the 

applicant should provide evidence that corroborates otherwise credible testimony, 
- 7 - 

such evidence must be provided unless the applicant does not have the evidence and 

cannot reasonably obtain [it].” Id. Nothing in the statute affirmatively obligates the 

IJ, as the trier of fact, to request corroborating evidence, let alone inquire why such 

evidence is unavailable. 

 Petitioner argues he had explanations for the lack of corroborating evidence if 

only the IJ had asked. For example, he says “it was not the policy of the police at 

that particular branch to give paperwork to released prisoners.” Pet. Opening Br. at 

6. Also, petitioner “might have explained that the small clinic where he was treated 

did/does not give paperwork to patients.” Id. at 7. As to the lack of letters from his 

fellow-arrestees, petitioner now says that “even though he has called them or some of 

them ‘once in a while’ . . . both his former church mates and he were afraid to 

correspond with one another by mail for fear that the correspondence could be 

found/intercepted by the authorities.” Id. But none of these explanations are part of 

the record evidence. 

 More to the point, under 8 U.S.C. § 1252(b)(4), which governs the standard of 

review as to the agency’s determination regarding the availability of corroborating 

evidence, this court cannot reverse the IJ’s determination “with respect to the 

availability of corroborating evidence . . . unless [this] court finds . . . that a 

reasonable trier of fact [would be] compelled to conclude that such corroborating 

evidence is unavailable.” Petitioner’s failure to explain to the IJ why any 

corroborating evidence was unavailable defeats his challenge here to the IJ’s finding. 
- 8 - 

B. Future Persecution 

 As to the likelihood of future persecution, the IJ accepted that petitioner had a 

subjective fear of future persecution on account of his religion. But the IJ determined 

that the fear was not objectively reasonable because petitioner failed to demonstrate 

that the authorities are inclined to persecute him based upon his membership in the 

“house church.” The IJ noted the lack of any evidence that the police have been 

looking for him since he left China, or that he would be persecuted because he left 

the country “privately.” Also, the fact that petitioner’s “parents . . . have continued 

to attend the house church without incident . . . undermines the objective 

reasonableness of his fear of persecution.” Admin. R. at 65. The BIA agreed with 

the IJ’s finding that petitioner’s fear was not objectively reasonable. 

 Petitioner essentially asks this court to reweigh the evidence and determine 

that he made an adequate showing that his fear was objectively reasonable. “It is not 

our prerogative to reweigh the evidence. . . . We only determine whether a 

reasonable factfinder could find that [the applicant] did not have a reasonable fear of 

future persecution. Indeed, we only reverse that finding if a reasonable adjudicator 

would be compelled to conclude to the contrary.” Sidabutar v. Gonzales, 503 F.3d 

1116, 1125 (10th Cir. 2007) (internal quotation marks omitted). No reasonable 
- 9 - 

adjudicator would be compelled to find that petitioner’s fear was objectively 

reasonable.2

 

IV. RESTRICTION ON REMOVAL AND CAT RELIEF 

“The showing required for [restriction on] removal is more stringent tha[n] the 

showing required for asylum.” Zhi Wei Pang v. Holder, 665 F.3d 1226, 1233 

(10th Cir. 2012). To obtain such relief, “an applicant must demonstrate that there is a 

clear probability of persecution” on one of five enumerated grounds. Id. (internal 

quotation marks omitted). And to be eligible for protection under the CAT, “an 

individual must establish that it is more likely than not that he or she would be 

tortured if removed to the proposed country of removal.” Id. at 1233-34 (internal 

quotation marks omitted). 

 Having failed to meet the burden required for asylum, petitioner’s claim for 

restriction on removal necessarily fails. See id. at 1234 (holding that an applicant 

who “fails to satisfy the lower burden of proof required for asylum . . . also fails to 

satisfy the higher standard of eligibility for [restriction on] removal.”). 

 2

 Petitioner argued before the BIA that he established eligibility for asylum on 

account of his imputed anti-government political opinion. The BIA determined that 

petitioner’s political-opinion argument was not presented to the IJ and thus the 

argument was waived. Petitioner makes the same argument in this court. However, 

“[o]n a petition for review to this court we will not permit the petitioner to 

circumvent proper procedural requirements of the BIA by presenting contentions that 

were procedurally barred by the [BIA].” Galvez Pineda v. Gonzales, 427 F.3d 833, 

837 (10th Cir. 2005). 
- 10 - 

 The IJ also found that petitioner failed to “demonstrate[] that it is more likely 

than not that he will be tortured if removed to . . . China.” Admin. R. at 66. 

“Specifically, [petitioner] neither alleged past torture nor asserted a fear of torture in 

the future.” Id. Nor was there any “evidence the Chinese government is currently 

engaged in [such practices] or that the government acquiesces to such violations.” 

Id. The BIA affirmed because petitioner’s “reliance on generalized evidence of 

violence and crime not particular to him is not sufficient to establish eligibility for 

protection under the CAT.” Id. at 10. Because no reasonable adjudicator would be 

compelled to find that it is more likely than not that petitioner will be tortured upon 

his return to China, we affirm denial of relief under the CAT. 

The petition for review is denied. We grant petitioner’s motion to proceed in 

forma pauperis. 

 Entered for the Court 

 Scott M. Matheson, Jr. 

 Circuit Judge