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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14190
Non-Argument Calendar
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Agency No. A095-794-661
BIN HUANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 17, 2014)
Before TJOFLAT, JORDAN, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Bin Huang, a native and citizen of China, appeals the decision of the Board
of Immigration Appeals (“BIA”) to dismiss his appeal from the Immigration
Judge’s (“IJ”) denial of his application for asylum, 8 U.S.C. § 1158(a), withholding
of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1231(b)(3), and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R.
§ 208.16(c). In his petition, Huang argues that substantial evidence does not
support the BIA’s denial of his application for asylum, withholding of removal,
and CAT relief.
“We review only the [BIA’s] decision, except to the extent that it expressly
adopts the IJ’s opinion. Insofar as the [BIA] adopts the IJ’s reasoning, we will
review the IJ’s decision as well.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001) (citation omitted). To the extent that the BIA agreed with the IJ’s
reasoning, we should review the decisions of both the IJ and the BIA. Id.
Factual determinations are reviewed under the substantial evidence test,
which requires us to “view the record evidence in the light most favorable to the
agency’s decision and draw all reasonable inferences in favor of that decision.”
Adefemi v. Ashcroft, 386 F.3d 1022, 1026-29 (11th Cir. 2004) (en banc). The
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substantial evidence test is “deferential” and “we may not ‘re-weigh the evidence’
from scratch.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir.
2001). We “must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.”
D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004). “To reverse
the . . . fact findings, we must find that the record not only supports reversal, but
compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003)
(emphasis added).
An applicant for asylum must meet the INA’s definition of a “refugee.”
INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, 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 race, religion,
nationality, membership in a particular social group, 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. 8 C.F.R. § 208.13(a); Al Najjar, 257
F.3d at 1284. An applicant for withholding of removal and CAT relief bears the
burden of establishing that it is “more likely than not” that he will be persecuted or
tortured upon being returned to his country. Sepulveda v. U.S. Att’y Gen, 401 F.3d
1226, 1232 (11th Cir. 2005).
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To establish asylum eligibility, the alien must, with specific and credible
evidence, demonstrate (1) that he suffered past persecution on account of a
protected ground, or (2) that he has a “well-founded fear” of future persecution on
account of a protected ground. 8 C.F.R. § 208.13(b); Al Najjar, 257 F.3d at 1287.
The applicant must demonstrate that one of those enumerated grounds “was or will
be at least one central reason for persecuting” him or her. INA § 208(b)(1)(B)(i),
8 U.S.C. § 1158(b)(1)(B)(i). “Persecution on account of … political opinion … is
persecution on account of the victim’s political opinion, not the persecutor’s.”
Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437-38 (11th Cir. 2004) (emphasis in
original). The question is whether the persecutor is acting because of the alien’s
political opinion, not whether the alien has a political opinion. See id. at 438. An
alien may also base an asylum claim on an imputed political opinion theory,
whether correctly or incorrectly attributed to the applicant. Carrizo v. U.S. Att’y
Gen., 652 F.3d 1326, 1331 (11th Cir. 2011).
An alien must demonstrate a sufficient nexus between his political opinion
and the alleged persecution. Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884,
890 (11th Cir. 2007) (quotations omitted). On appeal, the record that “compels” is
a high standard. In Rodriguez Morales, we determined that Morales failed to
demonstrate a sufficient nexus between his political opinion and his alleged
persecution, after a guerilla group attempted to recruit him to provide dental
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services for their members and to help spread their political views. Id. at 891. We
said that the guerrillas’ desire to help spread their political views did not constitute
the needed evidence that they persecuted Morales because of his political opinion.
Id. Furthermore, the record supported the inference that he was threatened merely
for his refusal to provide dental services, not for any political opinion he had or
was believed to have. Id. An alien may establish persecution if it is, in part,
motivated by a protected ground. Cardona Rivera v. U.S. Att’y Gen., 487 F.3d
815, 821 (11th Cir. 2007). Still, in Cardona Rivera, we determined that a family’s
decision to pay no war tax to a guerilla group did not establish persecution on
account of a political opinion. Id. at 823. The IJ’s finding that the guerillas’
motive for persecuting the petitioners’ family was to raise funds for its war against
the Columbian government, and not because the family supported a rival political
party, was no reversible error. Id.
We have written that “persecution is an extreme concept, requiring more
than a few isolated incidents of verbal harassment or intimidation, and that [m]ere
harassment does not amount to persecution.” Sepulveda, 401 F.3d at 1231
(quotations omitted); see also Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1171
(11th Cir. 2008) (concluding that no persecution occurred when an alien was
detained for 36 hours after participating in a political rally, and during his
detention, police officers beat him severely enough to warrant a two-day hospital
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stay, several medications, and 2 weeks of rest). “In determining whether an alien
has suffered past persecution, the [factfinder] must consider the cumulative effects
of the incidents.” Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007).
To establish a well-founded fear of future persecution, the applicant must
show that there is a “reasonable possibility” of suffering persecution if he returns
to his home country. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir.
2007). The fear of future persecution must be “subjectively genuine and
objectively reasonable” and on account of a protected ground. De Santamaria v.
Att’y Gen., 525 F.3d 999, 1007 (11th Cir. 2008). “The subjective component is
generally satisfied by the applicant’s credible testimony that he or she genuinely
fears persecution[,]” and “[i]n 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.” Al Najjar, 257 F.3d at 1289 (quotation omitted). To show an
objectively reasonable fear of future persecution, the alien must present “specific,
detailed facts showing a good reason to fear that he or she will be singled out for
persecution on account of [a protected ground].” Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1286 (11th Cir. 2005) (quotation omitted).
If an applicant is unable to prove his entitlement to asylum relief, he is
generally precluded from qualifying for withholding of removal. Sepulveda, 401
F.3d at 1232-33. To obtain CAT relief, the torture must “be by or at the instigation
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of or with the consent or acquiescence of a public official or other person acting in
an official capacity.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1239
(11th Cir. 2007) (quotation omitted).
A petitioner must exhaust all remedies on a particular claim; otherwise, we
lack jurisdiction to consider the claim. Amaya-Artunduaga v. U.S. Att’y Gen., 463
F.3d 1247, 1250 (11th Cir. 2006). The exhaustion doctrine requires the petitioner
to raise claims before the agency, to thereby ensure that the agency had a full
opportunity to consider the petitioner’s claims. Id. The BIA’s sua sponte
discussion of an issue is not enough to amount to exhaustion. Id. at 1251-52. The
BIA has noted that it is inappropriate for it to consider an issue not raised before
the IJ. See Matter of J-Y-C-, 24 I. & N. Dec. 260, 261 n.1 (BIA 2007). The BIA
will not engage in factfinding on appeal. 8 C.F.R. 1003.1(d)(3)(iv).
As an initial matter, we lack jurisdiction to consider Huang’s claim that he
established past persecution based on an imputed political opinion, because he did
not sufficiently raise the issue before the BIA or the IJ; thus, it is unexhausted. See
Amaya-Artunduaga, 463 F.3d at 1250. The BIA’s discussion of Huang’s imputed
political opinion claim does not change the result, because the BIA’s sua sponte
discussion of an issue is insufficient to amount to exhaustion. See id. at 1251-52.
While Huang raised the claim that he suffered persecution on account of his
membership in a particular social group before the BIA, it is also unexhausted: he
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failed to raise the claim before the IJ. Although exhaustion usually concerns the
failure to raise a claim before the BIA, the exhaustion doctrine exists to give the
agency a full opportunity to consider the claim; and it requires exhaustion of all
available remedies. This claim was not raised before the IJ because Huang never
checked the box on his asylum application, and he never argued it before the IJ.
Huang’s failure to raise this claim before the IJ meant that he did not “avail
himself” of all agency remedies, and he did not give the BIA a full opportunity to
consider his claim since the BIA cannot address an issue for the first time on
appeal or engage in factfinding. See J-Y-C-, 24 I. & N. Dec. at 261 n.1; 8 C.F.R.
1003.1(d)(3)(iv). Huang contends that the IJ considered the claim that Huang
suffered persecution on account of his membership in a particular social group
because the IJ stated that he failed to show that his mistreatment related “to his
political opinion, or any other protected ground[,]”; this contention lacks merit.
Exhaustion is based on what the petitioner raises and not what the agency
addresses sua sponte. Cf. Amaya-Artunduaga, 463 F.3d at 1251-52.
Substantial evidence supports the IJ’s and the BIA’s determination that the
mistreatment Huang suffered was not politically motivated. In fact, Huang’s
testimony before the IJ illustrated that he suffered harm not because of particular
political beliefs, but because he did not want to give up his family’s land to the
government. Therefore, this case is like Rodriguez Morales, 488 F.3d at 886, and
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Cardona Rivera, 487 F.3d at 818, where the petitioners failed to establish a
sufficient nexus between their political opinion and the alleged persecution the
petitioners suffered when they personally refused to cooperate with a guerilla
group.
Huang’s incident involved a personal dispute with the government, where he
was beaten for trying to stop his home’s demolition, not for his taking a general
political stance against corruption. Nor was the genesis of that dispute political, as
Huang’s home was not targeted for demolition because of his politics, but because
it lay in the path of a road project. Huang also did not attempt to petition the
Chinese government about the demolition of his home or other people’s homes.
Given this kind of evidence, the record does not compel a finding that Huang’s
political opinion was a reason for his mistreatment. See Cardona Rivera, 487 F.3d
at 821.
Furthermore, substantial evidence supports the determination that the harm
Huang suffered did not rise to the level of persecution. Huang testified that he was
beaten by government workers and that, as he tried to escape, he fainted. Based on
Huang’s testimony and medical records, Huang was taken to the hospital because
he suffered bruises and cuts to his arm and knee, which required cleaning and
stitches. He also states in his brief that he suffered a broken knee, but that injury
was not supported by the record. Huang was released from the hospital on the
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same day, was prescribed medication, and was advised to rest. Although Huang
suffered physical harm, the record fails to compel a finding that his mistreatment
met the “extreme” threshold level of persecution. See, e.g., Djonda, 514 F.3d at
1174. Huang stated that he lost his home, he had to move in with a friend, he did
not live with his mother anymore, his family could not farm anymore, and the
government did not provide adequate compensation for their home. Huang,
however, did not lose his home because of resistance to the demolition order, and
the record does not compel that this harm is the kind of economic harm that rises to
the level of persecution.
Substantial evidence also supports the decision of the IJ and the BIA that
Huang failed to demonstrate a well-founded fear of future persecution on account
of a protected ground. After being beaten, Huang testified that his mother told him
that the officers from the village government were looking for him and that she
advised him to go into hiding. But Huang lived with a friend in another district
after the demolition of his home without being harmed, and the officers never
came to his friend’s house looking for him. Besides, the Chinese government has
not sought to determine Huang’s location since his leaving China; and his mother
continues to live in China without incident. Several of the newspaper articles
submitted by Huang outlined the struggles of Chinese citizens who petitioned the
central government but were beaten and jailed, and the Country Report discussed
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violent property-related disputes between citizens and the government.
Nevertheless, Huang did not petition the central government, and the record does
not indicate that he is a major proponent or activist in the fight against the Chinese
government’s taking of land. Therefore, the record does not compel a finding that
Huang will be “singled out” for persecution on account of his political opinion.
See Forgue, 401 F.3d at 1286.
Huang could not prove his entitlement to asylum relief; he necessarily
failed to satisfy the more stringent standard that it was “more likely than not” that
he would be persecuted on account of a protected ground if he returned to China.
See Sepulveda, 401 F.3d at 1232-33 (discussing withholding of removal).
Furthermore, the record demonstrates that the IJ and the BIA addressed Huang’s
withholding of removal claim; and the record does not compel a finding that
Huang established that it is “more likely than not” that he would be singled out for
persecution if he returned to China or that the Chinese government has a pattern or
practice of persecuting individuals similarly situated to Huang. Moreover, the
record demonstrates that the IJ and the BIA addressed Huang’s CAT claim; and
substantial evidence supports the finding that it is not “more likely than not” that
he would be tortured if he returned to China.
PETITION DENIED.
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