Case: 18-60842      Document: 00515408858         Page: 1    Date Filed: 05/07/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 18-60842                              May 7, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 18-60842

      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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                                       No. 18-60842

       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, 

, 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

an immigration court’s findings of fact for substantial
evidence.

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.”

       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 

.

       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, 

, 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, 

, 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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                                      No. 18-60842

       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

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, 

, 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, 

, 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, 

, 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

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, 

, 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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