[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11921 ELEVENTH CIRCUIT
Non-Argument Calendar NOVEMBER 29, 2010
________________________ JOHN LEY
CLERK
Agency No. A098-559-278
SHUI-HAH CHONG,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 29, 2010)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Shui-Hah Chong is a citizen of Malaysia who came to the United States on a
student visa in 1995. Chong continued her studies in this country until 2003. Two
years later, the Department of Homeland Security began removal proceedings
against Chong after she failed to comply with her visa’s conditions. Chong then
filed an application for asylum and withholding of removal under both the
Immigration and Nationality Act (INA) and the United Nations Convention
Against Torture (CAT).
In her application and at a hearing on its merits, Chong claimed that while
living in Malaysia she was once verbally harassed because of her Chinese
ethnicity. She testified that she was also subjected to vulgar sexual remarks
during the same incident. Chong further said that she feared persecution if she
returned to Malaysia because she is a practicing Christian and a woman.
The immigration judge (IJ) denied Chong relief. The IJ ruled that Chong’s
asylum application was untimely and that she had established neither a reasonable
probability of future persecution nor that it was more likely than not that she
would be subjected to torture upon her return to Malaysia. Chong appealed to the
Board of Immigration Appeals (BIA), which affirmed the IJ’s decision without
2
opinion. She now petitions this court for review of the IJ’s decision denying her
withholding-of-removal claims.1
First we must note that we cannot review Chong’s withholding-of-removal
claim under the INA. Although Chong’s notice of appeal to the BIA indicated that
she was appealing both the IJ’s order denying withholding of removal under the
INA and the CAT, her brief before the BIA only addressed her CAT claim. As
such, the INA claim was not exhausted and we are without jurisdiction to review
it. 8 U.S.C. § 1252(d)(1).
In evaluating Chong’s remaining withholding-of-removal claim, we review
the IJ’s decision, which was adopted without elaboration by the BIA. Kazemezdah
v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). We review the IJ’s legal
conclusions de novo, and will not disturb factual findings unless they are so
unsubstantiated by the record that we are compelled to do so. Id. at 1350–51.
To establish withholding of removal under the CAT, Chong must
demonstrate that if she were to return to Malaysia it is “more likely than not” that
she would be tortured “by or at the instigation of[,] or with the consent or
1
Chong concedes that we cannot review the IJ’s asylum ruling because she did not
appeal that decision to the BIA. See 8 U.S.C. § 1252(d)(1) (prohibiting review of unexhausted
claims). Nor may we consider Chong’s due-process claim because it was not raised before the
BIA. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006).
Accordingly, that part of her petition is dismissed.
3
acquiescence of[,] a public official or other person acting in an official capacity.”
8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1).
Chong argues that her testimony alone, which the IJ found credible,
qualifies her for relief. Although in some instances a petitioner’s testimony by
itself will justify relief, see 8 C.F.R. § 1208.16(c)(2), that is not always the case.
Here, Chong did not testify that she had been tortured in the past. See 8 C.F.R.
§ 1208.16(c)(3). Nor did she testify that the verbal harassment she endured was
perpetrated by government officials or at their behest. Even if it had been, mere
harassment is not torture. See id. § 1208.18(a); cf. Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1231 (11th Cir. 2005). And Chong never testified that she feared
being tortured if she returned to Malaysia.
The only evidence of torture Chong submitted was in two reports on human
rights in Malaysia, one written by the State Department and the other by Amnesty
International. The State Department report mostly detailed the abuse of
immigrants in government custody, and the other instances it chronicled, although
still serious, were isolated rather than pervasive. And Amnesty International’s
report only addressed the torture of suspected terrorists. Despite these isolated
instances of torture, Chong presented no evidence of how the reports established
that it was more likely than not that she would be tortured upon her return to
4
Malaysia. Without such evidence we cannot say that IJ should have been
compelled to grant Chong relief in the first place, so we may not grant her relief
either.
PETITION DISMISSED IN PART AND DENIED IN PART.
5