[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14191 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 10, 2009
________________________ THOMAS K. KAHN
CLERK
Agency No. A98-895-564
JIAN FENG CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 10, 2009)
Before BIRCH, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Jian Feng Chen, a native and citizen of China, seeks review of the Board of
Immigration Appeals’ (“BIA”) decision to affirm the Immigration Judge’s (“IJ”)
denial of his application for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”), and relief under Article 3 of the United
Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or
Degrading Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R.
§ 208.16. On appeal, Chen argues that the BIA: (1) erred in determining that he
had not suffered past persecution; (2) applied the erroneous legal framework to his
claim of a well-founded fear of future persecution; (3) failed to consider evidence
he had submitted; and (4) considered evidence not in the record. After thorough
review, we deny the petition.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). To the extent that the BIA adopts the IJ’s
reasoning, we review the IJ’s decision as well. Id. Here, because the BIA affirmed
the IJ’s decision but did so on alternative grounds that the IJ did not address, we
review the decision of the BIA only. Id.
When evaluating a petition to review a decision by the BIA to deny an
application for asylum and withholding of removal, we review findings of fact
under the “substantial evidence test,” and must affirm the decision “if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.
2005) (quotations omitted). Under the substantial evidence test, “we consider only
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whether there is substantial evidence for the findings made by the BIA, not
whether there is substantial evidence for some other finding that could have been,
but was not, made.” Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004)
(quotations omitted). We review the record evidence in the light most favorable to
the agency’s decision and may not overturn findings of fact unless the record
compels it. Forgue, 401 F.3d at 1286-87. The BIA is “entitled to rely heavily”
upon the State Department country reports. Djonda v. U.S. Att’y Gen., 514 F.3d
1168, 1175 (11th Cir. 2008) (quotations omitted).
An alien who arrives in or is present in the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). The Attorney General or the Secretary of
Department of Homeland Security has discretion to grant asylum if the alien meets
the INA’s definition of a “refugee.” 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.
8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving
statutory “refugee” status. Al Najjar, 257 F.3d at 1284. To establish asylum
eligibility, the alien must, with specific and credible evidence, establish (1) past
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persecution on account of a statutorily listed factor, or (2) a “well-founded fear”
that the statutorily listed factor will cause such future persecution. 8 C.F.R.
§ 208.13(a), (b); Al Najjar, 257 F.3d at 1287.
We have held that “persecution,” as used to illustrate that an alien has
suffered “past persecution,” is an “extreme concept, requiring more than a few
isolated incidents of verbal harassment or intimidation, and . . . mere harassment
does not amount to persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1231 (11th Cir. 2005) (quotations and alterations omitted). If the alien establishes
past persecution, it is presumed that his life or freedom would be threatened upon
return to the country of removal unless the government shows by a preponderance
of the evidence that the country’s conditions have changed such that the applicant’s
life or freedom would no longer be threatened or that the alien could relocate
within the country and it would be reasonable to expect him to do so. 8 C.F.R. §§
208.13(b)(1), 208.16(b)(1).
An alien who has not shown past persecution may still be entitled to asylum
if he can demonstrate a future threat to his life or freedom on a protected ground. 8
C.F.R. §§ 208.13(b)(2), 208.16(b)(2). To establish a “well-founded fear,” an
applicant must show that she has a fear of persecution in her home country and that
“[t]here is a reasonable possibility of suffering such persecution if he or she were
to return to that country.” 8 C.F.R. § 208.13(b)(2)(i). Furthermore, an applicant
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must establish “that there is ‘a reasonable possibility he or she would be singled
out individually for persecution,’ or that he is a member of, or is identified with, a
group that is subjected to a pattern or practice of persecution.” Djonda, 514 F.3d at
1174 (quoting 8 C.F.R. § 208.13(b)(2)(iii)). When a petitioner fails to “establish a
claim of asylum on the merits, he necessarily fails to establish eligibility for
withholding of removal or protection under CAT.” Forgue, 401 F.3d at 1288 n.4.
For petitioners basing their asylum claims on the application of a coercive
family planning policy, the following applies:
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). Interpreting this provision, we have held that “[i]n
addition to meeting the nexus requirement based on ‘resistance’ to the family
planning law, an applicant claiming persecution based on an unmarried partner’s
abortion must demonstrate that he has suffered harm amounting to persecution on
account of that resistance.” Yang v. U.S. Att’y Gen., 494 F.3d 1311, 1318 (11th
Cir. 2007) (quotations omitted), cert. denied, 128 S.Ct. 2466 (2008).
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First, we find no merit to Chen’s claim that the BIA’s finding that he did not
suffer past persecution was not supported by substantial evidence. Our review of
the record shows that Chen did not say whether he was injured during his physical
altercation with family planning officials; there is nothing in the record to
determine whether the 5,000 yuan fine was overly oppressive, as the record does
not indicate Chen’s salary or net worth at the time; and Chen’s detainment at the
hospital did not appear to be for a significant duration of time. Nor do the threats
compel a finding of past persecution because threats standing alone do not
generally amount to persecution. See Sepulveda, 401 F.3d at 1231 (holding that
threats do not rise to the level of past persecution compelling the reversal of the
IJ’s decision); see also Lin v. U.S. Att’y Gen., 154 F. App’x 809, 811 (11th Cir.
2005) (unpublished).1 In addition, the cumulative effect of the mistreatment did
not rise to the level of persecution. See De Santamaria v. U.S. Att’y Gen., 525
F.3d 999, 1008 (11th Cir. 2008) (describing cases that compelled the finding of
past persecution where the facts included severe beatings and prolonged detention);
1
Notably, the legislative history surrounding the enactment of the statutory provision
establishing asylum claims based on the application of a coercive family planning policy
provides that this kind of persecution is to be analyzed like any other type of persecution. See
H.R. Rep. No. 104-469(I), at 174 (1996) (“Determining the credibility of the applicant and
whether the actual or threatened harm rises to the level of persecution is a difficult and complex
task, but no more so in the case of claims based on coercive family planning than in cases based
on other factual situations. Asylum officers and immigration judges are capable of making such
judgments.”).
6
Yang, 494 F.3d at 1319. Based on this record, we are not compelled to hold that
Chen suffered past persecution. Forgue, 401 F.3d at 1286-87.2
Next, we are unpersuaded that the BIA erred by requiring Chen to show a
“pattern or practice” of persecution to establish his future persecution claim. The
BIA said that “the evidence does not show a pattern and practice of forced
sterilizations or abortions for Chinese nationals returning from abroad, nor does the
evidence establish a reasonable possibility that the respondent would be forced to
under go such procedures if returned to China.” (Emphasis added). An
examination of the BIA’s decision thus shows that it did not require Chen to show
both a “pattern or practice” and that he was specifically targeted for persecution.
Rather, the BIA applied the correct legal framework for determining if a well-
founded fear of future persecution existed. See Djonda, 514 F.3d at 1174.3
We also are unpersuaded that the BIA failed to consider an expert affidavit
Chen submitted. When the BIA “has given reasoned consideration to the petition,
2
Nor are we convinced that the BIA failed to consider whether Chen established “other
resistance” to China’s coercive population control policy. For starters, because Chen failed to
show that he was persecuted on account of his other resistance, the establishment of other
resistance is not a basis for a grant of asylum. Yang, 494 F.3d at 1318. Moreover, the BIA
explained in its decision that it was determining whether Chen “suffered past persecution due to
his resistance to the Chinese family planning laws.” It is thus clear that the BIA considered
whether he suffered past persecution on account of his other resistance to China’s coercive
population control policy.
3
Moreover, Chen waived any challenge to the BIA’s determination that the evidence
was insufficient to establish a well-founded fear of future persecution. Sepulveda, 401 F.3d at
1228 n.2 (“When an appellant fails to offer argument on an issue, that issue is abandoned.”).
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and made adequate findings, we will not require that it address specifically each
claim the petitioner made or each piece of evidence the petitioner presented.” Tan
v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2008) (quotations omitted). In
Tan, we held that the IJ did not give reasoned consideration to the petitioner’s
application because: (1) “the Immigration Judge misstated the contents of the
record”; (2) the IJ failed to explain why an attack on the petitioner was not based
on the petitioner’s race; and (3) the IJ’s “reasoning was unresponsive to any
argument reflected in the record.” Id. at 1375-76. Here, however, the BIA said
that it considered the “expert affidavit” submitted by Chen. So even though the
BIA did not give a detailed discussion of the affidavit, it did not fail to consider the
affidavit or give reasoned consideration to the affidavit. Id. at 1374.
Finally, we reject Chen’s claim that the BIA violated his right to due process
by impermissibly incorporating the 2007 U.S. State Department’s Country Report
into the record without notice by citing to its prior decisions. Although the BIA did
cite to its previous decisions, it also considered the evidence in the record, did not
cite to the 2007 U.S. State Department’s Country Report, and did not rely on its
own decisions as evidence. In addition, it is clear that the BIA cited to its prior
decisions in order to demonstrate that it had previously considered similar
documentary evidence and reached the same conclusion that it reached in Chen’s
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application. The BIA therefore did not err by incorporating the 2007 U.S. State
Department’s Country Report into its decision.
Accordingly, we deny Chen’s petition for review.4
DENIED.
4
Since Chen failed to establish a claim of asylum on the merits, he also failed to establish
eligibility for withholding of removal or protection under CAT. Forgue, 401 F.3d at 1288 n.4.
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