[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16022 ELEVENTH CIRCUIT
JUNE 15, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A098-889-540
JIAN QIN JIANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 15, 2010)
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Jian Qin Jiang, a citizen of the People’s Republic of China appearing
through counsel, seeks review following entry of the Board of Immigration
Appeals’s (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of
his application for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture (“CAT”). Jiang argues that the BIA erred in
finding that: (1) he had not suffered past persecution, (2) he did not establish a
well-founded fear of future persecution based on his practice of Falun Gong, and
(3) Jiang was ineligible for withholding of removal and CAT relief. Upon review
of the record, and consideration of the parties’ briefs, we deny Jiang’s petition.
I.
When “the BIA issues its own opinion, we review only the decision of the
BIA, except to the extent the BIA expressly adopts the IJ’s decision.” Rodriguez
Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007) (per curiam). Here,
the BIA reversed the IJ’s adverse credibility determination pertaining to Jiang’s
practice of Falun Gong. However, it dismissed Jiang’s appeal and agreed with the
IJ’s findings that: (1) Jiang failed to establish past persecution or a well-founded
fear of persecution based on China’s coercive population control program, and (2)
Jiang failed to establish a well-founded fear of future persecution based on his
practice of Falun Gong. Thus, we review the decisions of both the IJ and the BIA
concerning those issues. See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350
(11th Cir. 2009).
2
We review de novo conclusions of law by the IJ and the BIA, “but review
findings of fact for substantial evidence to support them.” Id. at 1350–51 (citation
omitted). Under the substantial evidence test, we “view the record evidence in the
light most favorable to the agency’s decision and draw all reasonable inferences in
favor of that decision.” Id. at 1351 (citation and quotation omitted). Our review
for substantial evidence is highly deferential. Id. “To reverse factual findings by
the Board, we must find that the record not only supports reversal, but compels it.”
Id. (alteration omitted) (citation and quotation omitted).
II.
Jiang argues that the BIA erred in finding that he had not suffered past
persecution because he had not shown “other resistance” to China’s coercive
population control program. He also argues that the BIA erred in finding that the
mistreatment Jiang suffered did not rise to the level of persecution. Finally, Jiang
argues that the BIA erred in finding that he had not suffered past persecution
because it failed to consider the cumulative effect of the economic persecution, the
fact that he incurred a huge fine and wanted more children. These arguments are
without merit.
The INA gives the Attorney General or the Secretary of Homeland Security
discretion to grant asylum to any non-citizen who meets the definition of
3
“refugee.” INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). A refugee is defined
as:
any person who is outside any country of such person’s nationality . . .
and 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 . . .
religion . . . or political opinion.
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the
burden of proving statutory refugee status, and thereby establishing asylum
eligibility. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (per
curiam). The applicant must establish that one of the protected grounds “was or
will be at least one central reason for persecuting the applicant.” INA §
208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i).
“To establish asylum [eligibility] based on past persecution, the applicant
must prove (1) that [he] was persecuted, and (2) that the persecution was on
account of a protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236
(11th Cir. 2006); see also 8 C.F.R. § 208.13(b). We have held that “persecution is
an extreme concept, requiring more than a few isolated incidents of verbal
harassment or intimidation, and that mere harassment does not amount to
persecution.” Sepulveda v. U.S. Att’y Gen, 401 F.3d 1226, 1231 (11th Cir. 2005)
(per curiam) (alterations omitted) (citation and quotation omitted).
4
“To establish eligibility for asylum based on a well-founded fear of future
persecution, the applicant must prove (1) a subjectively genuine and objectively
reasonable fear of persecution that is (2) on account of a protected ground.” Silva,
448 F.3d at 1236 (internal citation and quotation omitted). A showing of past
persecution creates a rebuttable presumption of a well-founded fear of future
persecution. Sepulveda, 401 F.3d at 1231 (citation and quotation omitted). “An
applicant may also establish a well-founded fear of persecution without proving
past persecution. To do so, an applicant must establish a fear of persecution in his
country of nationality on account of a protected ground, a reasonable possibility of
suffering persecution if the applicant returns to that country, and that he is unable
or unwilling to return because of his fear.” Kazemzadeh, 577 F.3d at 1352
(internal citation and internal quotation marks omitted).
With respect to coercive family planning, section 101(a)(42)(B) of the INA
provides asylum eligibility for the following persons:
[A] person who has been forced to abort a pregnancy or to undergo
involuntary sterilization, or who has been persecuted for failure or
refusal to undergo such a procedure or for other resistance to a
coercive population control program, shall be deemed to have been
persecuted on account of political opinion, and a person who has a well
founded fear that he or she will be forced to undergo such a procedure
or subject to persecution for such failure, refusal, or resistance shall be
deemed to have a well founded fear of persecution on account of
political opinion.
8 U.S.C. § 1101(a)(42)(B) (emphasis added).
5
We recently decided to what extent this provision applies to spouses of those
targeted by such policies:
[Section 101(a)(42)(B)] does not confer automatic refugee status on
an individual merely because his . . . spouse . . . underwent a forced
abortion or sterilization. Rather, the person who did not physically
undergo the forced procedure, or is not subject to a well-founded fear
of one, must establish actual persecution for resisting a country’s
coercive family planning policy, or a well-founded fear of future
persecution for doing so. In simple terms, persecution, or the fear
thereof, must be personally endured by the applicant.
Yu v. U.S. Att’y Gen., 568 F.3d 1328, 1332–33 (11th Cir. 2009) (per curiam)
(internal citations and quotation omitted) (emphasis added). “Resistance” that
could confer refugee status on a spouse includes “expressions of general
opposition, attempts to interfere with enforcement of government policy in
particular cases, and other overt forms of resistance to the requirements of the
family law.” Id. at 1334 (quotation omitted).
In Yu, the applicant claimed that the Chinese government persecuted him by
forcing his wife to insert an IUD following the birth of their first child and by
forcing her to abort a second pregnancy that occurred despite the IUD. Id. at 1329.
We concluded that substantial evidence supported the BIA’s finding that Yu failed
to show that he personally suffered any past persecution or that he had a
well-founded fear of future persecution. Id. at 1334. The only evidence of
persecution Yu cited was his wife’s forced abortion and sterilization and the fine.
6
Yu did not assert any “other resistance” claim, and we concluded that to the extent
Yu’s hiding from authorities constituted other resistance, he did not show that he
was persecuted because of that resistance. In sum, “[t]he fact that authorities fined
Yu and tried to arrest him, but never detained or physically harmed him, is
insufficient to establish past persecution.” Id. Moreover, we concluded that Yu’s
professed fear of future persecution (which stemmed solely from his wife’s forced
procedures and payment of the fine) was insufficient to establish a well-founded
fear of persecution because he did not assert that if he returned to China, he would
face persecution by being forced to undergo a sterilization himself or for otherwise
resisting China’s population control program. Id.
Substantial evidence supports the IJ’s and BIA’s conclusion that Jiang failed
to establish past persecution or a well-founded fear of future persecution due to
China’s coercive population control program. Although Jiang testified that he tried
to stop the authorities from taking his wife, he notably did not claim before the IJ
or BIA that he was physically harmed, threatened, or punished for doing so. Nor
did he present any evidence that the government fined him because he resisted his
wife’s sterilization or expressed general opposition to the family planning policies,
attempted to interfere with enforcement of government policy in other cases, or
otherwise overtly resisted the birth limitation laws.
7
Moreover, Jiang proffered no evidence that the amount of the fine, in
relation to his financial circumstances, rose to the level of persecution. The fact
that the authorities fined him was insufficient to establish past persecution. See id.
Finally, we decline to consider Jiang’s “cumulative effect of economic
persecution” argument because he did not raise it before the BIA. Accordingly, we
conclude that the IJ and BIA correctly determined that Jiang failed to establish that
he suffered past persecution.
With regard to Jiang’s future persecution claims, he did not establish a well-
founded fear based on his resistance to the coercive policies. The record indicates
that his professed fear appears to rest solely on his wife’s sterilization and the fine.
None of the evidence showed that, upon returning to China, he: (i) will be unable
to pay the remainder of the fine, (ii) will be arrested and imprisoned or otherwise
punished, or (iii) will face future persecution because of his past resistance or for
acts of resistance he intends to make upon returning. Accordingly, we also
conclude that the IJ and the BIA correctly determined that Jiang failed to establish
a well-founded fear of future persecution based on China’s enforcement of its
population control program.
III.
Jiang argues that the BIA erred in finding that he did not establish a
well-founded fear of future persecution based on his practice of Falun Gong.
8
Although the BIA found that the Chinese government did not currently know about
Jiang’s practice of Falun Gong, he argues that it failed to address the fact that if he
returns to China he will continue to practice and they will find out about it. Jiang
asserts that based on his testimony and the background material, he has established
a well-founded fear of persecution. We find these arguments unpersuasive.
In Zheng v. U.S. Att’y Gen., we concluded that one’s status as a Falun Gong
practioner does not require a finding of past persecution or a well-founded fear of
persecution. 451 F.3d 1287, 1292 (11th Cir. 2006) (per curiam). In Zheng,
Chinese government officials detained a Falun Gong follower for five days and
forced him to watch anti-Falun Gong materials, stand in the sun for two hours, and
sign a pledge not to practice Falun Gong. Id. at 1289. After his release, the
individual was fired from his job, and because he could not secure other
employment, he went to a rural village to live with his parents. Over a three-year
period, local officials watched him and occasionally searched his parents’ home for
Falun Gong materials. Id.
We concluded that those circumstances did not rise to the level of
persecution. Moreover, the petitioner in Zheng could not show a well-founded fear
of future persecution because, according to the 2002 Country Report, the Chinese
government generally released Falun Gong followers from detention and reserved
the harshest punishments for core leaders. Id. at 1291–92. Because the petitioner
9
was not a core leader and he had lived with his parents for three years without
harm or detention, we concluded that he failed to meet his burden of showing a
reasonable possibility of future persecution upon his return to China. Id. at 1292.
Here, substantial evidence supports the IJ’s and BIA’s conclusion that Jiang
failed to establish eligibility for asylum based on his practice of Falun Gong. Jiang
did not claim that he had ever been persecuted or threatened on account of his
practice of Falun Gong. He did not assert that he was a core leader or that the
Chinese authorities were aware he had become a Falun Gong practitioner while
living in the United States. Although Jiang testified that if he returned to China,
the government would imprison and beat him, he offered no supporting evidence
other than the background material, which indicated that, because of the
government crackdown, public Falun Gong activity was negligible. Furthermore,
he did not claim before the IJ or BIA that he intended to practice publicly or to
avow openly his Falun Gong affiliation, or show that if the government learned of
his Falun Gong beliefs, it would punish him more severely than it punished Zheng,
who was unable to establish either past persecution or a well-founded fear of
persecution. See Zheng, 451 F.3d at 1290, 1291–92. Accordingly, substantial
evidence supported the finding that Jiang failed to show eligibility for a grant of
asylum on the basis of his adherence to Falun Gong.
10
Finally, although Jiang mentions withholding of removal and CAT relief in
the “burden of proof” section of his brief, he does not argue that he showed
eligibility for withholding of removal or CAT relief. Jiang has therefore
abandoned those claims. See Kazemzadeh, 577 F.3d at 1352. Accordingly, we
deny Jiang’s petition to the extent it challenges the BIA’s determination that he
failed to establish eligibility for withholding of removal or CAT relief.
PETITION DENIED.
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