[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12988 FEB 3, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A089-250-183
FENG YING LIN,
lllllllllllllllllllllPetitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllllRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 3, 2011)
Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Feng Ying Lin, a native and citizen of China, entered the United States
without a valid entry document on February 14, 2004. In August 2007, while
pregnant with her second child,1 Lin filed an application for asylum, withholding
of removal under the Immigration and Nationality Act (“INA”), and protection
under the Convention Against Torture (“CAT”). She represented in her
application that her mother and other family members as well as friends had been
forced to submit to sterilization pursuant to China’s family planning policy, and
that if returned to China after her child was born, she would be sterilized.
On February 10, 2009, at a removal proceeding commenced by the
Department of Homeland Security (“DHS”), the Immigration Judge (“IJ”) denied
Lin’s application in full and ordered Lin removed to China. The Board of
Immigration Appeals (“BIA”) dismissed her appeal on June 2, 2010, and she now
petitions this court for review, contending that the BIA erred in concluding that
she failed to prove that she had a well-founded fear that, if returned to China, she
would be sterilized and subjected to economic persecution in the form of severe
fines as well.
1
Lin married her husband in the United States on July 17, 2007. Together, they have
two children born in the United States.
2
As an initial matter, Lin’s brief does not set forth an argument concerning
the denial of CAT relief. Therefore, Lin has abandoned this issue on appeal. See
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (holding
that, “when an appellant fails to offer an argument on an issue [such as CAT
relief], that issue is abandoned”).
We review only the BIA’s decision, except to the extent that the BIA
expressly adopted the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). We review the BIA’s legal determinations de novo. Nreka v.
U.S. Att’y Gen., 408 F.3d 1361, 1368 (11th Cir. 2005). The BIA’s factual
determinations are reviewed under the substantial-evidence test, meaning that we
will not disturb those determinations “if . . . supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” De Santamaria v.
U.S. Att’y Gen., 525 F.3d 999, 1006 (11th Cir. 2008) (quotation omitted). We will
not reverse a factual determination “unless the record compels a contrary
conclusion.” Id.
An alien who arrives in or is present in the United States may apply for
asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). To be eligible for asylum, the
applicant must prove that she is a “refugee” within the meaning of the INA. INA
§ 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). To establish asylum eligibility, the
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alien must, with specific and credible evidence, establish (1) past persecution on
account of a statutorily listed factor, or (2) a “well-founded fear” that the
statutorily listed factor, in this case political opinion, will cause such future
persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287.
A well-founded fear of future persecution may be established by showing
(1) past persecution that creates a rebuttable presumption of a well-founded fear of
future persecution based on a protected ground, (2) a reasonable possibility of
personal persecution based on a protected ground, or (3) a pattern or practice in
the subject country of persecuting members of a statutorily defined group of which
the alien is a part. 8 C.F.R. § 208.13(b)(1), (b)(2)(i) and (iii). To establish the
possibility of personal persecution, the alien must present “specific, detailed facts
showing a good reason to fear that he or she will be singled out for persecution.”
Huang v. U.S. Att’y Gen., 429 F.3d 1002, 1009 (11th Cir. 2005) (quotation
omitted). In establishing any of the above, the alien must demonstrate that her fear
“is subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289.
“The subjective component is generally satisfied by the applicant’s credible
testimony that he or she genuinely fears persecution.” Id. “In most cases, the
objective prong can be fulfilled either by establishing past persecution or that he
or she has a good reason to fear future persecution.” Id.
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Along with seeking asylum, the alien may also seek withholding of removal.
See INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). As the more-likely-than-not burden
of proving eligibility for withholding of removal is more stringent than the
well-founded-fear standard of proving eligibility for asylum, ineligibility for
asylum generally precludes withholding of removal eligibility. Al Najjar, 257
F.3d at 1292-93.
The INA does not expressly define “persecution” for purposes of qualifying
as a “refugee.” See INA § 101(a)(42); 8 U.S.C. § 1101(a)(42). It does, however,
provide that:
For purposes of determinations under this chapter, 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.
INA § 101(a)(42)(B); 8 U.S.C. § 1101(a)(42)(B).
The BIA has held that in order to qualify for asylum based on a violation of
China’s population control policy, the alien must show: (1) that the birth(s)
“violated family planning policies in that alien’s local province, municipality, or
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other locally-defined area,” and (2) “that current local family planning
enforcement efforts would give rise to a well-founded fear of persecution because
of the violation.” In re J-H-S-, 24 I. & N. Dec. 196, 197-98 (BIA 2007).
Lin gave credible testimony as to her genuine fear of forced sterilization,
but the record does not compel the conclusion that she had an objectively
reasonable fear of sterilization. The letters from Lin’s friends and families were
not sufficiently reliable because the authors were interested parties and not subject
to examination under oath. Other documents Lin presented were unauthenticated,
and the reports she introduced failed to conclusively show that in the area of China
where she planned to live the government practiced coercive sterilizations.
Lin also failed to show that her economic situation in China would be such that
severe fines would amount to persecution.
For the foregoing reasons, the petition for review is
DENIED.
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