[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13610 FEBRUARY 4, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
Agency No. A95-710-331
XIAO LI JIANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 4, 2009)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Xiao Li Jiang (“Jiang”), a native and citizen of China, petitions this court for
review of the final order of the Board of Immigration Appeals (“BIA”) affirming
the Immigration Judge’s (“IJ”) denial of her claims for asylum and withholding of
removal under the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1101 et
seq., and relief under the United Nations Convention Against Torture and Other
Cruel, Inhuman and Degrading Treatment or Punishment (“CAT”).1 After review,
we DENY the petition.
I. BACKGROUND
On 7 June 2005, the Department of Homeland Security (formerly the
Immigration and Naturalization Service) issued Jiang a Notice to Appear (“NTA”)
charging her with removability under INA § 212(a)(7)(A)(i)(I) as an alien who
arrived in the United States without a valid entry document. Administrative
Record (“AR”) at 252.2 On 1 January 2006, Jiang filed an application for asylum
and withholding of removal based on political opinion and membership in a
particular social group. Id. at 229. Specifically, Jiang alleged that Chinese
officials were aware of her involvement with Falun Gong, a spiritual movement
banned by the government in 1999, and had come to her family’s home on two
1
Jiang does not raise any challenge to the BIA’s denial of CAT relief in her appellate
brief and thus has abandoned this claim on appeal. See Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005) (per curiam) (“When an appellant fails to offer argument on an
issue, that issue is abandoned.”).
2
At an initial hearing, Jiang appeared before the IJ, admitted the allegations in the NTA,
and conceded removability. See AR at 66.
2
separate occasions in order to arrest her for distributing Falun Gong literature. Id.
at 94-95, 225-33. Jiang fled to the United States following the police’s second
attempt to arrest her and was warned by her family not to return to China. Id. at
234.
At her July 2006 removal hearing, Jiang testified that she began practicing
Falun Gong in March 2004 and helped her friend distribute leaflets containing
information about the movement. Id. at 72, 78-79. After the police arrested her
friend for participating in Falun Gong in July 2004, Jiang went into hiding in a
rural area of Fuzhou City. Id. at 72-73, 79-80. While Jiang was in hiding, police
officers came to her family’s home to arrest her for distributing Falun Gong
literature. Id. at 72-73. When Jiang returned to visit her family in February 2005,
the police again came to her parents’ home to arrest her. Id. at 73. Jiang escaped
to the neighbor’s house and subsequently fled to the United States in June 2005. Id.
at 73-74.
Jiang testified that she would be arrested, beaten, and imprisoned if she were
returned to China and that she could not live safely in another part of the country
because the police were actively pursuing her as recently as one month before the
asylum hearing. Id. at 77-78. Jiang admitted that she had been able to leave China
using her own passport, but only after she bribed customs officials. Id. at 82.
When asked specifically about her knowledge of Falun Gong, Jiang explained only
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that it “is a kind of exercise. It’s good to health, and health and body. So . . . it
help[s] to be a good person.” Id. at 79. She related that her practice of Falun Gong
consisted of sitting in her room, meditating, and doing simple exercises. Id. at 81-
82.
In addition to Jiang’s testimony, the IJ also considered a letter affidavit from
Jiang’s mother, dated 8 January 2006, which restated the facts contained in Jiang’s
asylum application, and the U.S. Department of State’s 2005 Country Report on
Human Rights for China (“Country Report”) and Profile of Asylum Claims and
Country Conditions for China (“Profile”). According to the Country Report,
although Falun Gong practitioners have received punishments ranging from loss of
employment to imprisonment, most practitioners are punished administratively,
and the “vast majority” of practitioners who were detained have been released. Id.
at 170-71. Those identified by the government as “core leaders,” however, have
been “singled out for particularly harsh treatment.” Id. The Profile reported that
Falun Gong practitioners who refused to renounce Falun Gong “were sent to
reeducation-through-labor camps, where in some cases, beatings and torture were
used to force them to recant.” Id. at 95. Since 1999, several hundred of the
movement’s adherents had died in detention due to torture, abuse, and neglect, and
“[t]here [were] numerous credible reports of police involvement in beatings,
detention under extremely harsh conditions, torture, and other abuses of Falun
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Gong practitioners detained in prison or re-education-through-labor camps.” Id.
The IJ found that while Jiang’s testimony was consistent with her asylum
application, “credibility [could] . . . be determined by looking through the amount
of detail . . . provided during the course of the testimony,” and Jiang’s “extremely
general testimony regarding Falun Gong and [its] practice . . . belie[d] her claim
that she was actively involved in the practice.” Id. at 52, 55-56. The IJ further
found that the fact that Jiang was able to leave China using her own passport
undermined her claim that she was being actively sought by Chinese officials. Id.
at 56-57. Given Jiang’s generic testimony and the absence of corroborating
evidence, the IJ concluded that Jiang failed to meet her burden of showing past
persecution or a well-founded fear of future persecution. Id. at 57-58. Inasmuch
as Jiang failed to satisfy the lower burden of proof required to establish eligibility
for asylum, her claim for withholding of removal necessarily failed. Id. at 57.
The BIA adopted and affirmed the IJ’s decision, concluding that Jiang’s
“vague testimony and the meager supporting documentation fail[ed] to adequately
meet the [ ] burden of proof” for establishing eligibility for asylum. Id. at 2. Jiang
now petitions us for review of the IJ’s and BIA’s denial of relief.
II. DISCUSSION
On appeal, Jiang argues that: (1) her lack of specific testimony about Falun
Gong did not impair her credibility, which was corroborated by the letter from her
5
mother; (2) her knowledge about the practice of Falun Gong was irrelevant under
the imputed political opinion doctrine; and (3) the IJ erred by failing to consider
the Country Report on China, which indicates that the Chinese government
continues to punish Falun Gong practitioners. Jiang argues additionally that her
credibility must be presumed because the IJ did not make an adverse credibility
finding.
“We review only the [BIA’s] decision, except to the extent that it expressly
adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). To the extent that the BIA does adopt the IJ’s reasoning, we review the IJ’s
reasoning as well. Id. Because the BIA in this case adopted the IJ’s findings and
articulated additional reasoning of its own, we review both the IJ’s and the BIA’s
decisions.
We review de novo the BIA’s and IJ’s legal conclusions. See Lopez v. U.S.
Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007). Factual findings, including
credibility determinations, are reviewed under the substantial evidence test, which
requires us to affirm the BIA’s 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) (quotation marks and
citation omitted). Under this highly deferential standard, we view the record in the
light most favorable to the BIA’s decision and are bound by that decision unless a
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reasonable adjudicator would be compelled to conclude to the contrary. Adefemi
v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). Accordingly,
“even if the evidence could support multiple conclusions, we must affirm the
agency’s decision unless there is no reasonable basis for that decision.” Id. at
1029.
We note as an initial matter that the IJ did not make an adverse credibility
determination in this case. IJs must make “clean determinations of credibility.”
Yang v. U.S. Att’y. Gen., 418 F.3d 1198, 1201 (11th Cir. 2005) (quotation marks
and citation omitted). Where an IJ wishes to make an adverse credibility
determination, he must do so explicitly and must support such a determination with
specific, cogent reasons. See De Santamaria v. U.S. Att’y Gen., 525 F.3d 999,
1011 n.10 (11th Cir. 2008); Yang, 418 F.3d at 120. Although the IJ noted that
Jiang’s generic testimony contradicted her claim that she was actively involved
with Falun Gong, this finding falls well short of a clean and explicit determination
that she was not credible. See Yang, 418 F.3d at 1201 (IJ’s finding that
petitioner’s claims were a “ridiculous fabrication,” “extremely inconsistent,” and
“[made] absolutely no sense whatsoever,” did not constitute explicit adverse
credibility). Accordingly, we must accept the facts set forth in Jiang’s asylum
application and testimony as true for purposes of evaluating her asylum claim. See
De Santamaria, 525 F.3d at 1011 n.10; Mejia v. U.S. Att’y Gen., 498 F.3d 1253,
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1257 (11th Cir. 2007).
To establish asylum eligibility, the petitioner bears the burden of proving
with “credible, direct, and specific evidence in the record” that she suffered past
persecution, or has a “well-founded fear” of future persecution, on account of
“race, religion, nationality, membership in a particular social group, or political
opinion.” Forgue, 401 F.3d at 1287 (citation omitted); 8 C.F.R. § 208.13(b). To
qualify for withholding of removal under the INA, an applicant must show that it is
“more likely than not” that he will be persecuted or tortured upon returning to his
home country. Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002)
(per curiam); see 8 C.F.R. § 208.16(b)(2). Because “[t]his standard is more
stringent than the ‘well-founded fear of future persecution’ required for asylum,”
Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006), an applicant who
fails to establish eligibility for asylum cannot make out a claim for withholding of
removal.
A. Past Persecution
“To establish asylum based on past persecution, the applicant must prove (1)
that she was persecuted, and (2) that the persecution was on account of a protected
ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006).
Although the INA does not expressly define “persecution,” we have repeatedly
stated that “persecution is an extreme concept, requiring more than a few isolated
8
incidents of verbal harassment or intimidation, and that mere harassment does not
amount to persecution.” Sepulveda, 401 F.3d at 1231 (quotation marks and
citation omitted); see also Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000)
(persecution “must rise above unpleasantness, harassment, and even basic
suffering”). Moreover, “[n]ot all exceptional treatment is persecution.” Gonzalez
v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000); see, e.g., Djonda v. U. S. Att’y
Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (minor beating, even in conjunction
with threats, did not compel finding of persecution); Zheng v. U. S. Att’y Gen.,
451 F.3d 1287, 1289-92 (11th Cir. 2006) (per curiam) (no persecution where
petitioner was dragged by his arms to a detention yard, detained for five days, and
forced to watch reeducation videos, stand in the sun for two hours, and sign pledge
not to practice his religion).
The incidents to which Jiang testified, namely that the Chinese police twice
came to her home and attempted to arrest her for distributing Falun Gong literature,
were neither sufficiently severe nor pervasive to constitute persecution. The
record, which contains no evidence that Jiang ever was detained or physically
injured either during or as a result of these events, or that any members of her
family ever were mistreated, thus does not compel a conclusion contrary to that
reached by the BIA in this case.
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B. Well-founded Fear of Future Persecution
An alien who has not shown past persecution may still be entitled to asylum
if she can prove that she has “(1) a subjectively genuine and objectively reasonable
fear of persecution that is (2) on account of a protected ground.” Silva, 448 F.3d at
1236 (quotation marks and citation omitted). The alien may satisfy the subjective
component by offering credible testimony that she genuinely fears persecution and
may satisfy the objective component by presenting “specific, detailed facts
showing a good reason to fear that [s]he . . . will be singled out for persecution” on
account of a statutorily listed factor. Al Najjar, 257 F.3d at 1289-90 (quotation
marks, alteration, and citation omitted); 8 C.F.R. § 208.13(b)(2); see Mejia, 498
F.3d at 1256 (alien “need only show that there is a reasonable possibility of
suffering such persecution if he or she were to return to that country”) (quotation
marks, alteration, and citation omitted).
Viewed in the light most favorable to the BIA’s decision, the record reflects
that Jiang’s fear of persecution, though it may be subjectively genuine, is not
objectively reasonable. The Country Report, which the IJ considered, indicates
that the “vast majority” of Falun Gong practitioners who are imprisoned are
subsequently released, and that the harshest treatment is reserved only for “core
leaders” of the Falun Gong movement. See AR at 170. Jiang, however, has never
claimed to be a leader of the Falun Gong movement. See Zheng, 451 F.3d at 1291-
10
92. The evidence further shows that Jiang was able to leave China using her own
passport and that her parents continue to live peacefully and without incident in the
same village in Fuzhou City. Thus, even assuming the veracity of Jiang’s
testimony that Chinese police were actively pursuing her as of the time of the
asylum hearing, the record does not compel a finding that Jiang has a well-founded
fear of future persecution. See Adefemi, 386 F.3d at 1027 (“[T]he mere fact that
the record may support a contrary conclusion is not enough to justify a reversal of
the administrative findings.”).
Insofar as the evidence does not compel a finding that Jiang has a
well-founded fear of persecution on account of a protected ground, it also does not
compel the conclusion that Jiang has satisfied the more stringent standard
applicable to a claim for withholding of removal. See Forgue, 401 F.3d at 1288
n.4 (noting that where petitioner fails to establish claim of asylum on merits, his
claim for withholding of removal necessarily fails).
III. CONCLUSION
Jiang seeks review of the BIA’s denial of asylum and withholding of
removal. Because the evidence does not compel a finding that Jiang suffered past
persecution or has a well-founded fear of future persecution on account of her
political opinion or any other protected ground, we DENY the petition.
PETITION DENIED.
11