United States Court of Appeals
For the First Circuit
No. 04-2682
NAI QING XU,
Petitioner,
v.
ALBERTO GONZALES, Attorney General,*
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Wei Jia, on brief for petitioner.
Eugenia M. Carris, Assistant United States Attorney,
and Michael J. Sullivan, United States Attorney, on brief for
respondent.
September 16, 2005
*
Alberto Gonzales was sworn in as United States Attorney
General on February 3, 2005. We have therefore substituted Attorney
General Gonzales for John Ashcroft as the respondent. See
Fed.R.Civ.P. 25(d)(1); Fed. R.App. P. 43(c)(2).
STAHL, Senior Circuit Judge. Petitioner Nai Qing Xu seeks
review of a decision of the Board of Immigration Appeals (BIA)
affirming a denial of his application for asylum and withholding of
removal. Finding no error, we affirm.
I. Background
The Immigration Judge (IJ) who heard his initial petition
determined that Xu was not credible and therefore did not rely on
Xu's account in reaching his decision. On appeal, however, the BIA
determined that, "[e]ven if we were to find the respondent
credible, we would nonetheless agree with the Immigration Judge
that the respondent failed to meet his burden of proof." In setting
forth the facts of the case, we, like the BIA, presume Xu's
truthfulness, and recite the facts as he represented them in his
petition.
Xu is a native and citizen of the People's Republic of
China. He was born on November 18, 1980, in Lianjiang, China. After
attending school from 1989 to 1997, he began working as a clerk in
a store in his hometown. He was still employed at the store when,
in June of 2001, he joined other members of his community at a
local voting site where the village leadership was to be elected;
the contest was between the incumbent chief, whom Xu seems to have
supported, and an underworld challenger whose candidacy Xu opposed.
At the site, Xu protested the unfairness of the electoral process,
exclaiming, "What is this all about, this is not an election, let's
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go home." So saying, he and a group of other disaffected voters
left the voting site.
The challenger, apparently displeased by Xu's
performance, expressed that displeasure by sending a squad of thugs
to the store at which Xu worked, where the intruders beat him,
though not severely enough that he required hospitalization, and
threatened to close down the store if he dared to open it again. As
a result of the threat and the beating, Xu was scared to stay in
his hometown, and believed that, because of the trouble he had
caused, he would have difficulty getting the local government to
sign off on certain documentation he needed, with the result that,
wherever in China he went, he "couldn't do anything." Xu fled to an
adjacent town, eventually resolving to come to the United States.
After an abortive attempt to depart via Thailand, Xu returned to
China, finally making his way out of the country on a falsified
passport, traveling from mainland China to Hong Kong, to the
Netherlands, to Suriname, and from there to the United States.
Xu arrived on United States territory on October 20,
2001. Within hours of disembarking from a speedboat on the island
of St. John in the U.S. Virgin Islands, Xu was caught and detained
by agents of what was then the Immigration and Naturalization
Service (INS). The INS commenced removal proceedings against him on
November 15 of the same year. Xu conceded removability but
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requested asylum, withholding of removal, and protection under the
Convention Against Torture (CAT).
On July 17, 2003, an IJ denied all relief. The IJ
determined that Xu was not credible and had presented little
probative evidence beyond his oral testimony. On that basis the IJ
ruled that Xu had not met his burden of proof with respect to any
of the claimed grounds for relief. Xu timely appealed the IJ's
asylum and withholding of removal determinations to the BIA. On
November 16, 2004, the BIA affirmed the IJ's decision, holding that
Xu's account, even if true, did not justify granting asylum or
withholding of removal because he had failed to meet his burden of
proof. Xu petitioned this court for review of the BIA's decision.
II. Discussion
Here, Xu argues 1) that the determination of the IJ that
he was not credible is reviewable by this court and was in error.
He also argues 2) that the BIA erred in its holding that he failed
to meet his burden of proof with respect to whether he held a well-
founded fear of future persecution, contending a) that the BIA
should have considered whether he had suffered from past
persecution, and b) that it erred in finding he had not directly
proved a well-founded fear of future persecution.1
1
Xu's initial petition for relief included a request for
withholding of removal and for protection under the CAT, but Xu did
not appeal the IJ's denial of his CAT claim to the BIA and does not
now challenge the BIA's denial of his request for withholding of
removal. Those issues are not before us, and we consider only Xu's
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A. Standard of Review
We uphold decisions of the BIA with respect to asylum if
“supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Settenda v. Ashcroft, 377 F.3d
89, 93 (1st Cir. 2004) (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)) This standard is
known as the "substantial evidence" standard. It is only by way of
shorthand that we speak of "substantial evidence," however, when
the issue presented, as here, is whether an agency was justified in
finding that a petitioner failed to carry his burden of proof,
since the agency's determination in such a case is based, not on
substantial evidence supporting its decision, but on a petitioner's
failure to provide evidence that would support a holding in his
favor. In these circumstances, what we call "substantial evidence"
review permits us to reverse "only if the petitioner's evidence
would compel a reasonable factfinder to conclude that relief was
warranted." Id.
B. The IJ's Credibility Determination
Xu asks this court to require the BIA to make an express
holding as to an asylum petitioner's credibility, or, where none
has been made, to review the IJ's decision for the reasonableness
of his credibility determination. We cannot and need not review the
credibility determination of the IJ, however, because the BIA has
asylum claim.
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explicitly disclaimed that the IJ's adverse credibility
determination was part of the basis for the its holding. The BIA
opinion is explicit that its holding that Xu did not meet his
burden of proof would stand even if it had accepted Xu's story as
true. (As we noted above, the BIA determined that, "[e]ven if we
were to find the respondent credible, we would nonetheless agree
with the Immigration Judge that the respondent failed to meet his
burden of proof.") Because the BIA's decision did not turn on Xu's
credibility, the BIA did not have to, and did not, make its own
determination of Xu's credibility. Where the BIA does not adopt an
IJ's opinion but instead makes an independent, superceding
decision, we review the decision of the BIA, and not that of the
IJ. Njenga v. Ashcroft, 386 F.3d 335, 338 (1st Cir. 2004). Because
the BIA made no determination of Xu's credibility in reaching its
decision, Xu's credibility is not an issue here.
C. Fear of Persecution
A petitioner hoping to receive asylum in the United
States bears the burden of establishing his eligibility by proving
that he qualifies as a refugee. 8 U.S.C. § 1158(b)(1). This may be
done in either of two ways: "(1) by demonstrating a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion, or
(2) by proving past persecution on account of one of the
aforementioned grounds, which entitles an applicant to a
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presumption of a well-founded fear of persecution." Diab v.
Ashcroft, 397 F.3d 35, 39 (1st Cir. 2005) (citing 8 U.S.C. §
1101(a)(42)(A); 8 C.F.R. § 208.13(b)). The BIA did not address the
question whether Xu proved past persecution, but found that Xu had
failed to directly prove a well-founded fear of future persecution.
Xu now claims that the BIA erred both in failing to address past
persecution, and in finding him to have fallen short of proving a
well-founded fear of future persecution.
i. Past Persecution
The IJ considered only whether Xu had established
directly that he suffered a well-founded fear of future
persecution, and did not address the sufficiency of Xu's claims of
past persecution to establish a presumption that his fear of future
persecution was well-founded. The BIA did not address the omission,
and Xu now claims that it should have. The BIA was under no such
obligation, however, because Xu did not argue the point to the BIA
in his appeal from the IJ's decision, and so waived the issue.
"Issues not raised before the Board may not be raised for
the first time upon judicial review of the Board's decisions."
Ravindran v. I.N.S., 976 F.2d 754, 761 (1st Cir. 1992). In
determining whether an appeal of a particular issue from the BIA's
decision has been preserved, we read the record "in the light most
favorable to petitioner." Id.
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Xu presented the BIA with the question, "Whether
Respondent has a well-founded fear for [sic] future persecution?"
While noting that a well-founded fear could be established either
directly or presumptively through evidence of past persecution, Xu
never argued to the BIA that in his case his past persecution
justified a presumption that his fear of persecution on his return
was well-founded. Mere notation of the applicable law, without any
argumentation as to how it applies to a petitioner's case, does not
raise the issue of its application. Xu's contention as to the legal
effect of any persecution he experienced in the past was therefore
not raised before the BIA, and so may not be raised here.
ii. Direct Demonstration of a Fear of Persecution
All that remains is whether the BIA properly determined
that Xu had not offered sufficient direct proof that he had a well-
founded fear of persecution in China that would justify offering
him asylum. We consider both whether the BIA's opinion was
sufficiently clear to support our review, and the not-unrelated
question whether the BIA's decision, if reviewable, was supported
by the record or whether the petitioner's evidence should have
compelled it to hold otherwise.
Although the BIA's opinion was brief and summary in tone,
we find it sufficiently clear to permit meaningful review. We
recently reiterated that "we may remand ... if the BIA's opinion
fails to state with sufficient particularity and clarity the
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reasons for denial of asylum." Halo v. Gonzales, No. 05-1076, 2005
WL 1970795, at *3 (1st Cir. Aug. 17, 2005) (quoting Gailius v. INS,
147 F.3d 34, 46 (1st Cir. 1998) (internal quotation marks omitted).
In Halo, the BIA affirmed an IJ's denial of asylum in an opinion
markedly similar to the one it issued here, disclaiming reliance on
the IJ's adverse credibility determination and briefly indicating
that the petitioner had nevertheless failed to satisfy his burden
of proof. The BIA must indeed set forth the basis for its
determination "with such clarity as to be understandable," id.
(quoting Gailius, 147 F.3d at 44), and here as in Halo the BIA
opinion was brief and summary. When considering whether the clarity
of an administrative decision is sufficient to support our review,
however, we are not blind to the context in which the decision is
made or oblivious of the record on which it is based.
We held in Halo that, where the administrative record of
a case could easily be thought to compel a conclusion contrary to
the one reached by the BIA, it is incumbent on the agency to give
some reasoned explanation for the conclusion it reached. Here,
because the danger Xu claimed he feared at home was so slight, the
facts speak for themselves, and could not easily be thought to
compel the BIA to find that Xu feared persecution at home. The
BIA's short opinion satisfied our procedural requirements.
For the same reason, the facts did not compel the BIA to
rule differently than it did in Xu's case, and so Xu's substantive
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claim that his case compels reversal of the BIA's decision fails.
In order to demonstrate a well-founded fear of persecution on one
of the relevant grounds by direct proof, a petitioner must satisfy
the BIA both that his fear is genuine, and that it is reasonable.
Mediouni v. I.N.S., 314 F.3d 24, 27 (1st Cir. 2002). Xu himself
admitted that he could return to his country without any fear of
being hunted down, and the BIA cited that admission in determining
that he was not, in fact, afraid: "We specifically note the
respondent's testimony stating that no one will look for him if he
returns and that one of the reasons he left was because he could
not receive 'documentation.' These statements contradict the
respondent's alleged fear of harm." Because the BIA's opinion is
not deficient, and because Xu's evidence would not "compel a
reasonable factfinder to conclude that relief was warranted,"
Mediouni, 314 F.3d at 27, we will not disturb the determination of
the BIA.
III. Conclusion
For the reasons stated above, we affirm the decision of
the BIA.
The petition for review is denied.
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