United States Court of Appeals Fifth Circuit F I L E D REVISED DECEMBER 21, 2006 November 22, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 05-60379

XUE ZHEN CHEN

Petitioner

v.

ALBERTO R. GONZALES, U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A77 977 370

Before KING, GARWOOD, and JOLLY, Circuit Judges.

KING, Circuit Judge:

Xue Zhen Chen petitions for review of an order of the Board

of Immigration Appeals denying her application for asylum,

withholding of removal, and relief under the United Nations

Convention Against Torture. I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Xue Zhen Chen is a native and citizen of China,

where she was born and lived in the Fujian Province. In August

2001, Chen left China illegally and entered the United States

with the paid assistance of smugglers, known as “snakeheads.”

Upon arriving at the Los Angeles International Airport from

Vietnam, Chen presented a United States passport issued to Jenny

Susan Chong. Immigration officials determined Chen’s true No. 05-60379 -2-

identity and she was subsequently charged as being subject to

removal on grounds that she falsely represented that she was a

United States citizen and she did not have any documentation

authorizing her presence in the United States.

Chen conceded removability in removal proceedings, but

applied for asylum, withholding of removal, and for protection

under the United Nations Convention Against Torture (“Convention

Against Torture”) on April 30, 2002. Chen asserted in her

application that she could not return to China because: (1) she

feared physical harm from snakeheads and money lenders as

retribution for the debt she owed them; (2) local officials were

corrupt and profited from illegal smuggling operations and

therefore would not protect her from snakeheads and money

lenders; (3) her mother was forcibly sterilized and Chen

disagreed with China’s coercive family planning policy; and (4)

she would be jailed because she left China illegally, and once

jailed, would be subject to mental and physical torture.

In the two-year intervening period between Chen’s

application for relief and her removal hearing, Chen lived in

Mount Pleasant, Texas, and worked at her uncle’s restaurant.

While working at the restaurant, Chen became acquainted with

members of a nearby Nazarene church who offered to help her

improve her English. Chen began taking English lessons at the

church, became interested in Christianity, and then took Bible

classes and was baptized at the church. At her removal hearing

before the immigration judge (“IJ”) on March 29, 2004, Chen

stated, as part of her argument for relief, that she had No. 05-60379 -3-

converted to Christianity since her arrival in the United States

and that she feared persecution on the basis of religion if she

returned to China.

The IJ issued an oral decision and accepted Chen’s testimony

as “basically plausible and credible.” The IJ, however, denied

Chen’s application on all three bases for relief. The IJ

concluded that if Chen were to be jailed as a result of her

illegal departure from China, the evidence did not support a

reasonable fear of harm constituting persecution or a likelihood

of torture. The IJ likewise concluded that it was unlikely that

snakeheads or money lenders would cause any harm to Chen, and

that based on the evidence of the Chinese government’s

“substantial effort” to detect, arrest, and prosecute corrupt

public officials, it was unlikely that the government of China

would acquiesce in any harm from snakeheads or money lenders.

The IJ further concluded that the substantial period between

Chen’s mother’s forced sterilization, the lack of evidence about

Chen’s interest in motherhood, and the government’s declining

efforts to enforce the one-child policy barred relief on the

basis of China’s family policy. Finally, the IJ concluded that

the evidence did not show that it was likely that Chen would

suffer harm amounting to persecution on the basis of her

conversion to Christianity.

The Board of Immigration Appeals (“BIA”) affirmed the IJ’s

decision without an opinion and Chen timely appealed.

II. STANDARD OF REVIEW

When the BIA affirms the IJ’s decision without an opinion, No. 05-60379 -4-

as is the case here, the IJ’s decision is the final agency

decision for purposes of judicial review on appeal. Soadjede v.

Ashcroft,

(5th Cir. 2003). The agency’s

administrative “findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary . . . .”

(b)(4)(B). This standard of

review essentially codifies the substantial evidence test

established by the Supreme Court in INS v. Elias-Zacarias,

, 481 & n.1 (1992). We apply this standard in reviewing

an IJ’s factual conclusion that an applicant is not eligible for

asylum, Zhao v. Gonzales,

(5th Cir. 2005),

withholding of removal, Zamora-Morel v. INS,

(5th Cir. 1990), and relief under the Convention Against Torture,

Ontunez-Tursios v. Ashcroft,

(5th Cir. 2002).

Under the substantial evidence standard, reversal is

improper unless we decide “not only that the evidence supports a

contrary conclusion, but also that the evidence compels it.”

Zhao,

(quoting Chun v. INS,

(5th

Cir. 1994)). The applicant has the burden of showing that the

evidence is so compelling that no reasonable factfinder could

reach a contrary conclusion.

III. DISCUSSION

Chen contends that the IJ erred by denying her application

for asylum, withholding of removal, and relief under the

Convention Against Torture. We review her claims of error

according to each basis for relief.

A. Asylum No. 05-60379 -5-

The Attorney General has the authority to grant asylum to

any applicant who qualifies as a refugee under

(a)(42)(A).

(b). The statute defines a

refugee as

any person . . . who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .

(a)(42)(A). Being classified as a refugee on the

basis of past persecution or a well-founded fear of persecution,

however, does not automatically entitle a refugee to asylum.

Mikhael v. INS,

(5th Cir. 1997). The Attorney

General’s statutory power to grant asylum is discretionary.

(noting that the provision’s language is precatory, giving the

Attorney General discretion to grant asylum).

Because Chen converted to Christianity after her arrival in

the United States, her asylum application rests on a well-founded

fear of persecution based on religion rather than past

persecution. To establish a well-founded fear of future

persecution, an applicant must demonstrate “a subjective fear of

persecution, and that fear must be objectively reasonable.”

Eduard v. Ashcroft,

(5th Cir. 2004) (quoting

Lopez-Gomez v. Ashcroft,

(5th Cir. 2001)).

Because the IJ credited Chen’s testimony, her subjective fear of

persecution is not at issue and our review focuses on the

objective reasonableness of her fear. The objective prong

requires the applicant to establish that “‘a reasonable person in No. 05-60379 -6-

[her] circumstances would fear persecution’” if deported.

(quoting Faddoul v. INS,

(5th Cir. 1994)).

Although the Immigration and Nationality Act does not define

“persecution,” we have relied on a description of persecution as:

The infliction or suffering of harm, under government sanction, upon persons who differ in a way regarded as offensive (e.g., race, religion, political opinion, etc.), in a manner condemned by civilized governments. The harm or suffering need not be physical, but may take other forms, such as the deliberate imposition of severe economic disadvantage, or the deprivation of liberty, food, housing, employment, or other essentials of life.

Abdel-Masieh v. INS,

(5th Cir. 1996) (quoting

Matter of Laipenieks,

(BIA 1983)).

The well-founded fear standard does not require an applicant to

demonstrate that he will be persecuted if returned to his native

country, but rather, requires that he establish persecution as a

“reasonable possibility.” INS v. Cardoza-Fonseca,

(1987); see also Eduard,

(relying on Cardoza-

Fonseca for the proposition that the applicant must establish,

“to a reasonable degree,” that return to his native country would

be intolerable).

To establish the objective reasonableness of a well-founded

fear of persecution, an applicant must prove that

(1) he possesses a belief or characteristic a persecutor seeks to overcome by means of punishment of some sort; (2) the persecutor is already aware, or could become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and, (4) the persecutor has the inclination to punish the alien.

Zhoa,

(citing Eduard,

). No. 05-60379 -7-

Chen asserts that the IJ erred by holding that she did not

have a well-founded fear of persecution based on her religion.

She argues that the IJ’s conclusion that her fear of persecution

was not objectively reasonable was based on two erroneous

assumptions: that Chen’s Nazarene faith was not at a level of

sophistication such that she would be subjected to persecution

and that only a small percentage of Christians are persecuted in

China.

Chen first argues that the IJ erred in relying on her “level

of [religious] sophistication” to determine whether she would be

subjected to persecution because an applicant’s level of

sophistication cannot be used as a proxy for depth of religious

faith. Chen points to the Second Circuit’s recent decision in

Rizal v. Gonzales,

(2d Cir. 2006), for support. In

Rizal, the Second Circuit granted an applicant’s petition for

review because the IJ “erroneously viewed [the applicant’s] lack

of detailed doctrinal knowledge about Christianity as

automatically rendering incredible his claim of religious

persecution, without assessing the genuineness of [his] asserted

Christian self-identification . . . .”

. Rizal,

however, does not resolve the dispositive question presented

here. Whereas in Rizal, the IJ posed doctrinal questions to

determine that the applicant’s testimony regarding his religious

belief was not credible, in Chen’s case, the IJ accepted Chen’s

testimony of religious conversion as credible based on her

demeanor and documents demonstrating that she had completed Bible

classes and had been baptized. Although the IJ did refer to No. 05-60379 -8-

Chen’s level of sophistication, it was in relation to whether

Chen’s understanding of doctrinal distinctions was at a stage

such that, if returned to China, she would have to attend a

Nazarene church in particular, which would necessarily be an

unregistered or underground church, or if she could attend the

state-sponsored Protestant church.1 Chen counters that she would

not attend a state-sponsored church and would be relegated by

both choice and geographical logistics in the Fujian Province to

attend an unregistered or underground church.

Chen’s argument for asylum then actually rests on the

persecution to which adherents in unregistered or underground

churches are subjected. Accordingly, although we do not agree

with Chen that the IJ improperly considered level of

sophistication in her case, the success of her claim rests not on

her first claim of error——the sophistication of her beliefs——but

on her second claim, which is that the judge erred in concluding

that Protestants worshiping in either registered or unregistered

churches in China are not subject to persecution to the extent

necessary to give rise to a well-founded fear of persecution.

We consider it unnecessary to resolve the debate about which

church Chen would attend because the evidence does not compel a

finding of persecution in either case. The IJ found that based

on the evidence in

the country materials and the Religious

1 The IJ stated: “[T]he respondent at this point, I take her at her word, has converted to Christianity, but the Court doesn’t think that her level of sophistication in this regard is such that she would feel it necessary to try to find a Nazarene church as compared with some other Protestant church.” No. 05-60379 -9-

Freedom Report that there are many Christians in China and many of them are members of registered churches who don’t have any particular problems. And to the extent that those who are members of these unregistered churches, again, it would seem[] to the Court that it’s really a relatively small number or percentage of people who suffer any harm on that account.

Consequently, the IJ found Chen’s fear of persecution to be

“highly speculative.”

Chen points to the China Country Report on Human Rights

Practices——2002 (“2002 Country Reports”) as compelling the

opposite conclusion. Our review of the entire record, including

the China 2003 International Religious Freedom Report (“2003

Religious Freedom Report”) and the 2002 Country Report, however,

does not compel the conclusion that Chen faces persecution to a

reasonable degree. Although the 2003 Religious Freedom Report is

troubling in indicating that the Chinese government’s “respect

for freedom of religion . . . remains poor”2 and that

unregistered religious groups continued to experience “varying

degrees of official interference and harassment,”3 the report is

not sufficiently detailed to support conduct amounting to a

pattern of persecution directed at Protestants. Cf. Eduard,

& n.10. The 2003 Religious Freedom Report is

generally vague and its examples tend to focus on official

repression of non-Protestant groups.4 The same report also

, 2003 Religious Freedom Report.

, 2003 Religious Freedom Report.

, 2003 Religious Freedom Report (“The Government’s respect for religious freedom . . . remained poor, especially for some members of unregistered religious groups and No. 05-60379 -10-

states that the number of religious adherents at official and

underground places of worship continued to grow in China,5 and

that “many religious adherents reported that they are able to

practice their faith in officially registered places of

worship . . . without interference.”6 As for underground

adherents, the report indicates that although there is

governmental pressure for unregistered churches to register, and

notwithstanding the fact that police closed “some Catholic

churches and Protestant ‘house churches,’”7 at the same time

“prayer meetings and Bible study groups held in house churches

are legal and generally are not subject to registration

requirements so long as they remain small and unobtrusive.”8

Moreover, the 2003 Religious Freedom Report indicates that

“[f]oreign and Chinese sources estimate that some 30 million

persons worship in Protestant house churches that are independent

of government control.”9 Although we agree with Chen that the

2003 Religious Freedom Report indicates that in some cases

religious adherents have been persecuted, because the specific

examples of detention or arrest in 2002 that amount to

spiritual movements such as the Falun Gong.”) (emphasis added).

, 2003 Religious Freedom Report.

, 2003 Religious Freedom Report. See also R. 232 (“Overall, the basic policy of permitting religious activity to take place relatively unfettered in government approved sites and under government control remained unchanged.”).

, 2003 Religious Freedom Report (emphasis added).

, 2003 Religious Freedom Report.

, 2003 Religious Freedom Report. No. 05-60379 -11-

persecution appear to be predominantly focused on the Falun Gong,

underground seminaries, and religious leaders, and because the

overall number appears small compared to the enormous number of

unregistered Protestant adherents, we conclude that the 2003

Religious Freedom Report does not compel a finding of persecution

to a reasonable degree.10

The specific passages in the 2002 Country Report to which

Chen points do not require us to conclude otherwise. Chen argues

that the 2002 Country Report generally indicates that the

authoritarian Chinese government seeks to control “every aspect

of people’s lives in China,” including religious thought and

worship through state regulation. However, regulation does not

necessarily amount to persecution. Chen further points to a

passage indicating that legal protections in reeducation-through-

labor camps “are routinely violated,”11 but neither report

indicates a reasonable possibility that Chen will be subjected to

detention for her Protestant beliefs. Although the 2002 Country

Report indicates that there are religious adherents who have

experienced conduct amounting to persecution, like the 2003

Religious Freedom Report, the 2002 Country Report is vague with

respect to how many and which religious adherents in particular

experience any level of government intimidation or suppression,

and for those who do, at what degree and frequency such

intimidation or suppression occurs such as to constitute

, 2003 Religious Freedom Report.

, China Country Reports on Human Rights Practices——2002 (“2002 Country Report”). No. 05-60379 -12-

persecution. Accordingly, we conclude that the IJ’s denial of

Chen’s application for asylum is supported by substantial

evidence.

B. Withholding of Removal

To be eligible for withholding of removal, an applicant must

demonstrate a “clear probability” of persecution on the basis of

race, religion, nationality, membership in a particular social

group, or political opinion. See, e.g., Zhang v. Gonzales, 432

F.3d at 344; Faddoul,

; see also Efe v. Ashcroft,

(5th Cir. 2002) (writing that an applicant for

withholding of removal must show “‘it is more likely than not’

that his life or freedom would be threatened by persecution”

(quoting

(b)(1))). Although the standard for

withholding of removal is in one regard less stringent than that

required to establish eligibility for asylum, where an applicant

must also show a subjective fear of persecution, the requirement

of “clear probability” of persecution requires the applicant to

show a higher objective likelihood of persecution than that

required for asylum. Efe,

; Faddoul,

. Because the evidence does not compel us to conclude that

Chen’s fear of persecution on the basis of religion is well-

founded under the lower objective standard for asylum, we

necessarily conclude that she is not eligible for withholding of

removal under the higher objective standard. See, e.g., Efe,

; Faddoul,

n.7.

C. Relief Under the Convention Against Torture

The Convention Against Torture provides that No. 05-60379 -13-

1. No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.12

Claims based on the Convention Against Torture differ from those

based on eligibility for asylum or withholding of removal because

the claim need not be based on race, religion, nationality,

membership in a particular social group, or political opinion.

Zhang, 432 F.3d at 344 (citing Efe,

). Claims

brought under the Convention Against Torture further differ

because “proof of torture, not simply persecution” is required.

Accordingly, with regard to the conduct complained of,

applicants seeking relief under the Convention Against Torture

must satisfy a more rigorous standard than that for asylum. Efe,

. Torture is defined as:

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

12 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. III, Feb. 4, 1985, 1465 U.N.T.S. 85. No. 05-60379 -14-

(a)(1). Finally, an applicant for relief under

the Convention Against Torture has the burden of demonstrating

“that it is more likely than not that he or she would be tortured

if removed to the proposed country of removal.”

§ 208.16(c)(2) (emphasis added).

Chen asserts that the IJ erred in two respects that

independently qualify her for relief under the Convention Against

Torture. First, Chen argues that she will be detained as a

result of leaving China illegally and that conditions in Chinese

detention facilities rise to the level of torture. As an initial

matter, we note that “the normal incidents of lawful sanctions do

not constitute torture.” Zhang, 432 F.3d at 345;

(a)(3) (“Torture does not include pain or suffering

arising only from, inherent in or incidental to lawful sanctions.

Lawful sanctions include judicially imposed sanctions and other

enforcement actions authorized by law, including the death

penalty, but do not include sanctions that defeat the object and

purpose of the Convention Against Torture to prohibit torture.”).

Chen has provided, as evidence that she is more likely than not

to be tortured if returned, what the Seventh Circuit has called a

“huge mass of evidence bearing on the . . . issue.” Lian v.

Ashcroft,

(7th Cir. 2004) (considering the same

body of evidence as that which Chen’s counsel proffers in this

case).

Chen argues that because she has proffered the same evidence

as the petitioner in Lian——and in Lian, the Seventh Circuit

remanded the case to the IJ after the IJ concluded that the No. 05-60379 -15-

petitioner would not be subject to torture——Lian then supports a

conclusion that Chen has satisfied the standard for relief under

the Convention Against Torture. Although Lian is instructive to

our inquiry in its contemplation of the significance of the

record, Lian does not hold that all applicants who leave China

illegally are eligible for relief under the Convention Against

Torture because of conditions in Chinese detention facilities.

In Lian, the court remanded the petitioner’s case after

concluding that the IJ denied relief on the basis of reasons not

supported in the record and without considering the evidence

offered by the petitioner.

. In doing so, the court

stated “[t]his is not to say that Lian has proved his case under

the torture convention.”

.

Unlike Lian, in Chen’s case the IJ did not rely on erroneous

assumptions to deny relief. Furthermore, the IJ in Chen’s case

expressly considered the record to conclude that although it was

“likely that [Chen] would be detained and required to pay some

type of bail or fine and certainly the conditions in the Chinese

jails are not what they would be here,” Chen nevertheless failed

to show that it was more likely than not that those conditions

would subject her to torture. Accordingly, our inquiry is

different from that in Lian, and we review the record to

determine if the evidence compels a contrary conclusion.

Like the evidence regarding persecution, Chen’s evidence

regarding Chinese prisons and detention facilities is troubling.

The 2002 Country Report indicates that “conditions in penal

institutions for both political prisoners and common criminals No. 05-60379 -16-

generally were harsh and frequently degrading,” and that “police

and other elements of the security apparatus employed torture and

degrading treatment in dealing with some detainees and

prisoners”13 with reports from some individuals that they were

subject to electric shock, solitary confinement, beatings,

shackles, and other forms of abuse. The 2002 Country Report

further states that “[c]onditions in administrative detention

facilities, such as reeducation-through-labor camps . . . were

similar to those in prisons.”14 The 2002 Country Report

indicates that several deaths occurred in one reeducation-

through-labor camp in Sichuan Province in 2000 as a result of

overwork, poor medical care, and beatings by guards.

A careful review of the record indicates that there appears

to be no question that some individuals in China have been

subjected to acts constituting torture in either prisons or

detention centers, and that some illegal emigrants are sent to

reeducation-through-labor camps. Although the gravity of this

reality does not escape us, the information in the record does

not indicate with any certainty that illegal emigrants are more

likely than not sent to reeducation-through-labor camps, and then

subjected to torture. Cf. Lian,

(“How one

translates all this vague information into a probability that

[the petitioner] will be tortured (remember the test is “more

likely than not”) is a puzzler.”). Consequently, Chen’s evidence

does not compel us to conclude that she will more likely than not

, 2002 Country Report.

, 2002 Country Report. No. 05-60379 -17-

be subjected to torture for leaving China illegally.

The 2002 Country Report supports this conclusion, indicating

that “[p]ersons who were trafficked from the country and then

repatriated sometimes faced fines for illegal immigration upon

their return. After a second repatriation, such persons could be

sentenced to a term in a reeducation-through-labor camp.”15

Accordingly, the IJ’s conclusion that Chen may face a fine upon

her return, and that Chen will not likely face torture is

supported by substantial evidence. Even if Chen is detained

after her first repatriation,16 although the 2002 Country Report

and other evidence indicates that some detainees have been

subject to torture, we do not find that the generalized evidence

compels a conclusion that it is more likely than not that

detainees as a whole are subject to torture, or that detainees

detained on account of repatriation as a subgroup——as opposed to

those detained on other grounds——are more likely than not to be

subject to torture. See Lin v. Gonzales,

(2d

Cir. 2005).

Chen’s second claim for relief under the Convention Against

Torture is that she will be tortured by snakeheads and money

lenders upon her return to China and that Chinese officials will

be acquiescent in such torture. Like her first claim under the

Convention Against Torture, Chen must show that the evidence

, 2002 Country Report. 16 Chen’s evidence includes a series of 1999 newspaper articles indicating that in Fujian Province 215 illegal immigrants were detained after being repatriated from Cambodia for the first time. No. 05-60379 -18-

compels a finding that it is more likely than not that she will

be tortured if returned to China. The Convention Against

Torture, however, protects against torture only when it is

“inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an

official capacity.”

(a)(1). In that Chen’s

second claim rests on torture by non-governmental snakeheads and

money lenders, she must also demonstrate that sufficient state

action is involved in that torture. Tamara-Gomez v. Gonzales,

(5th Cir. 2006).

Chen first argues that the IJ applied the wrong legal

standard for “acquiescence” in denying her claim based on a lack

of state action. She asserts that the IJ, in finding that the

Chinese government was making substantial efforts to combat

official corruption, required her to prove that the Chinese

government would be actually acquiescent in——or actually

accept——the torture in order to qualify for relief under the

Convention Against Torture. She argues, based on cases from the

Second and Ninth Circuits, that the level of government

involvement that constitutes “acquiescence” is not actual

acceptance of torture but rather mere awareness or willful

blindness of torture, and a failure to prevent it. Khouzam v.

Aschroft,

(2d Cir. 2004); Zheng v. Ashcroft,

(9th Cir. 2003). Accordingly, she asserts that she

only has to prove that the Chinese government is aware that

snakeheads and money lenders torture people and that the

government fails to prevent that torture. No. 05-60379 -19-

We conclude that the IJ applied the correct legal standard

for government acquiescence and that Chen’s characterization of

the IJ’s conclusion is overstated. First, we observe that Zheng,

the Ninth Circuit case Chen relies on, does not depart from Fifth

Circuit precedent. In Ontunez-Tursios v. Ashcroft, we stated

that the proper inquiry for “acquiescence” is “willful

blindness,” or whether public officials “would turn a blind eye

to torture.”

(5th Cir. 2002). In Zheng,

the Ninth Circuit quoted the Ontunez-Tursios standard with

approval and agreed with it to hold that the petitioner there was

only required to prove that torture by snakeheads would be

carried out with the awareness of Chinese government officials.

. Second, there is no indication that the IJ

denied Chen’s claim by requiring that she show “actual”

government acquiescence to torture. In characterizing Chen’s

claim for relief under the Convention Against Torture, the IJ

stated:

I guess another aspect of this would be whether if the money lenders who have not yet been paid came after her might the government look the other way and therefore be at least complicit in whatever might happen to [her] at the hand of these loan sharks, and perhaps then whatever would happen to [her] that might be seen as torture if the government were aware of any penalties being meted out and took no action to protect the respondent.

(Emphases added.) This recitation, indicating that government

officials would be complicit in torture if they “look[ed] the

other way” or “were aware” of torture and “took no action” is

consistent with the willful blindness standard as set forth in

Ontunez-Tursios. No. 05-60379 -20-

In reviewing the evidence, the IJ subsequently held that

it seems to the Court that it’s very problematic any such harm would occur and moreover that if it did that the government would be acquiescent in it and that it would seem that the government of China would be attempting to arrest and prosecute these snakehead criminal syndicates . . . again the Court’s reading of the Country report suggests that there is a substantial effort on the part of the government of China to detect and arrest and prosecute corrupt public officials.

Consideration of government efforts to combat corruption or abuse

does not raise the legal standard for acquiescence as Chen

suggests, and instead is relevant to the willful blindness

inquiry. In Tamara–Gomez, this court considered, in concluding

that the state action requirement was not met, efforts by the

Columbian government to combat a non-governmental narco-terrorist

guerrilla group from whose torturous conduct the petitioner

sought relief under the Convention Against Torture.

. We concluded that “neither the failure to apprehend the

persons threatening the alien, nor the lack of financial

resources to eradicate the threat or risk of torture constitute

sufficient state action for purposes of the Convention Against

Torture.” Tamara-Gomez,

. The government’s

inability to provide “complete security” to the petitioner from

the guerrilla group did not rise to the level of state action.

Accordingly, it was proper for the IJ here to consider

efforts by the Chinese government to combat alien smuggling rings

and official corruption in the willful blindness inquiry.

Having determined that the IJ did not apply the incorrect

legal standard for governmental “acquiescence,” we turn to Chen’s No. 05-60379 -21-

argument that the IJ’s determination is not supported by

substantial evidence. We review the evidence relevant to both

requirements for relief under the Convention Against Torture:

that Chen demonstrate the probability of sufficient state action

and torture. Regarding state action, we conclude that Chen’s

evidence does not compel a finding that government officials will

acquiesce to torture by snakeheads or money lenders. The 2002

Country Report discusses many forms of human trafficking (e.g.,

internal bride trafficking, sex exploitation, child kidnapping,

and indentured servitude), including alien smuggling.17 The 2002

Country Report indicates that the Chinese government prosecuted

alien smugglers: “Alien smugglers were fined $6,000 and most were

sentenced to up to 3 years in prison, although some have been

sentenced to death.”18 As for corrupt officials, the report

indicates generally that there were reports of official

complicity with alien smuggling, but that the government had

prosecuted and sentenced 18,000 officials on corruption-related

charges in 2000. The 2002 Country Report does not indicate the

form in which official complicity occurs, and whether, for our

purposes, it extends to torturous retribution meted out by alien

smugglers. On balance, although Chen’s evidence demonstrates the

existence of snakeheads and generally describes instances of

official corruption, in light of the government’s prosecution of

alien smugglers and corrupt officials, the evidence does not

compel a conclusion that the government will more probably than

-30, 2002 Country Report.

, 2002 Country Report. No. 05-60379 -22-

not acquiesce in torture.

Turning to the probability of torture, we also do not find

it more likely than not that Chen will be tortured by snakeheads

upon her return to China. Chen testified that she repaid

snakeheads with money her family borrowed from money lenders, and

it is this second debt to money lenders that she is now repaying.

Chen’s testimony indicates both that the snakeheads are

individuals distinct from the money lenders and that her

obligation to the snakeheads has been satisfied. Accordingly, a

conclusion that she will be tortured by snakeheads as retribution

for a debt she has already repaid is not supported by the

evidence. In regard to torture by money lenders, Chen’s argument

focuses entirely on the conduct of snakeheads in China, without

making any connection between snakeheads and money lenders and

without establishing any probability of torture at the hands of

money lenders. As a result, the IJ’s conclusion that Chen is not

likely to be subjected to torture at the hands of money lenders

is supported by substantial evidence.

IV. CONCLUSION

For the foregoing reasons, the petition for review of the

BIA’s order is DENIED.