[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 08-13436 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
JANUARY 27, 2009
________________________
THOMAS K. KAHN
CLERK
Agency No. A98-560-092
FENGGUI ZHENG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 27, 2009)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Petitioner Fenggui Zheng, a native and citizen of China, seeks review of the
Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s
(IJ) order of removal and denial of her application of asylum, withholding of
removal, and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) and denying
her motion to remand. On appeal, Zheng argues that the BIA and IJ’s credibility
finding was not supported by substantial evidence. She submits that she
adequately explained a discrepancy in her testimony and that the BIA and IJ
should have weighed any testimonial inconsistency in light of its significance to
the total context of her asylum claim.
“We review only the BIA’s decision, except to the extent that it expressly
adopts the IJ’s opinion.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). Where, as here, the BIA expressly adopts and affirms the IJ’s decision and
adds its own analysis, we review the IJ’s decision as supplemented by the BIA.
Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1312 (11th Cir. 2006).
“To the extent that the BIA and IJ’s decision was based on a legal
determination, this court’s review is de novo.” D-Muhumed v. U.S. Att’y Gen.,
388 F.3d 814, 817 (11th Cir. 2004). The BIA and IJ’s factual determinations,
including credibility determinations, are reviewed under the substantial evidence
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test, which requires us to “view the record evidence in the light most favorable to
the [agencies’] decision and draw all reasonable inferences in favor of that
decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
We will affirm the BIA and IJ’s decision “if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.”
D-Muhumed, 388 F.3d at 818 (citation omitted). “To reverse the [agencies’] 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). Petitioners
abandon an issue by failing to raise it in their initial brief on appeal. Ruiz v. U.S.
Att’y Gen., 440 F.3d 1247, 1256 n.6 (11th Cir. 2006).
The BIA and IJ must offer specific and cogent reasons for an adverse
credibility finding. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th
Cir. 2005). The applicant has the burden to show that the BIA and IJ’s “credibility
decision was not supported by specific, cogent reasons or was not based on
substantial evidence.” Id. (internal quotation marks and citation omitted). “A
credibility determination, like any fact finding, may not be overturned unless the
record compels it.” Id. (internal quotation marks and citation omitted).
“Indications of reliable testimony include consistency on direct examination,
consistency with the written application, and the absence of embellishments.”
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Ruiz, 440 F.3d at 1255. Pursuant to 8 U.S.C. § 1158(b)(1)(B)(iii), as amended by
the REAL ID Act § 101(a)(3), a credibility determination may be based on “any
inaccuracies or falsehoods in [the applicant’s] statements, without regard to
whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim, or any other relevant factor.” Chen v. U.S. Att’y Gen., 463 F.3d
1228, 1233 (11th Cir. 2006) (emphasis omitted). Generally, tenable explanations
for implausibilities in an applicant’s testimony will not compel a reasonable fact
finder to reverse a credibility determination without the support of corroborating
evidence. Id.
Substantial evidence in the record here supports the BIA and IJ’s adverse
credibility determination because Zheng’s testimony was inconsistent and
implausible, and her explanations were not supported by corroborating evidence.
Zheng further argues that the BIA and IJ erred in denying her application
because she suffered past persecution and had a well-founded fear of persecution.
She asserts that the local family planning committee forced her to undergo a
gynecological examination, pursuant to the government’s family planning policy,
against her will. She submits that she ignored its initial request for an
examination, that officials forcibly took her to the hospital, and that she
considered the examination humiliating, painful, and obtrusive.
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Any alien who is physically present in the United States may apply for
asylum. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007). The
Attorney General may grant asylum if an alien is a refugee. Id. The INA defines
“refugee” as:
[A]ny 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 alien bears the burden to demonstrate “(1) past
persecution on account of a statutorily protected ground or (2) a well-founded fear
of future persecution on account of a protected ground.” Mejia, 498 F.3d at 1256.
A well-founded fear of persecution requires “a reasonable possibility of
suffering such persecution if he or she were to return to that country.” Id.
(emphasis omitted) (quoting 8 C.F.R. § 208.13(b)(2)(i)(B)). Proof of past
persecution creates a presumption of a well-founded fear of future persecution. Id.
at 1257. An alien must show that his fear of future persecution is “subjectively
genuine and objectively reasonable.” Ruiz, 440 F.3d at 1257. A well-founded fear
of persecution can be established by “specific, detailed facts showing a good
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reason to fear that he will be singled out for persecution” on account of a protected
ground. Id. at 1258 (citation omitted). As an alternative to demonstrating that he
would be singled out for persecution, an alien may show 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)(2)(iii)(A).
“An applicant does not have a well-founded fear of persecution if [he] could
avoid persecution by relocating to another part of [his] country of nationality, . . .
if under all the circumstances it would be reasonable to expect the applicant to do
so.” 8 C.F.R. § 1208.13(b)(2)(ii). Where “the persecutor is a government or is
government-sponsored, . . . it shall be presumed that internal relocation would not
be reasonable, unless the [government] establishes by a preponderance of the
evidence that, under all the circumstances, it would be reasonable for the applicant
to relocate.” 8 C.F.R. § 1208.13(b)(3)(ii).
Neither the INA nor the regulations define persecution. We have described
persecution as an “extreme concept, requiring more than a few isolated incidents
of verbal harassment or intimidation.” Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1231 (11th Cir. 2005) (citation omitted). “[A]ttempted murder is
persecution.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1233 (11th
Cir. 2007). In contrast, menacing telephone threats, without more, do not rise to
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the level of past persecution. See Sepulveda, 401 F.3d at 1231. The “cumulative
effects” of the alleged incidents of persecution must amount to past persecution or
a well-founded fear of future persecution. Delgado v. U.S. Att’y Gen., 487
F.3d 855, 861-62 (11th Cir. 2007).
In Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004) (en banc), the Ninth Circuit
held that a petitioner established past persecution where family planning officials,
after accusing her of cohabitating with her boyfriend and becoming pregnant,
physically forced her to undergo a 30-minute, “rape like” gynecological
examination, threatened her with forced abortion and sterilization if she should
become pregnant, and issued a warrant for her arrest. Id. at 1156. In Huang v.
U.S. Att’y Gen., 429 F.3d 1002 (11th Cir. 2005), unlike the case in Li, family
planning officials required the petitioner to attend a state-ordered, 20-minute
gynecological exam as part of an education program regarding family planning.
Id. at 1009-10. We noted that the “exam was not ordered as the result of some
altercation between [the petitioner] and a village official.” Id. at 1010. Further,
“[a]lthough her . . . exam caused her pain, she did not describe it as ‘rape-like,’”
and “[s]he was not . . . physically restrained by other men or threatened with
abortion or sterilization if she became pregnant.” Id. While the petitioner was
detained for 20 days as a result of her refusal to attend a subsequent examination,
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“[s]he did not indicate that she had, in any way, been forcibly mistreated or
restrained while a gynecological examination was performed.” Id.
“[A]n adverse credibility determination does not alleviate the [BIA and] IJ’s
duty to consider other evidence produced by an asylum applicant.” Forgue, 401
F.3d at 1287. The BIA and IJ “must still consider all evidence introduced by the
applicant.” Id. “If the applicant produces no evidence other than his testimony, an
adverse credibility determination is alone sufficient to support the denial of an
asylum application.” Id. “If, however, the applicant produces other evidence of
persecution, whatever form it may take, the [BIA and] IJ must consider that
evidence, and it is not sufficient for the [BIA and] IJ to rely solely on an adverse
credibility determination in those instances.” Id.
We conclude from the record that substantial evidence supports the BIA and
IJ’s finding that Zheng failed to establish her claim for asylum because she did not
demonstrate past persecution or that she had a well-founded fear of future
persecution. Zheng abandoned her claims for withholding of removal and CAT
relief because she failed to argue the issues in her initial brief on appeal.
Finally, Zheng argues that the BIA abused its discretion by denying her
motion to remand based on the submission of new evidence regarding her recent
marriage to a Chinese refugee and her pregnancy. She asserts that evidence of her
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husband’s refugee status was relevant to her claim for asylum because it showed
that she will face an increased likelihood of persecution if returned to China.
We, like the BIA, treat motions to remand as either part of the appeal or as
motions to reopen. Najjar, 257 F.3d at 1301. “[I]f a motion to remand seeks to
introduce evidence that has not previously been presented, it is generally treated as
a motion to reopen.” Id. We review “the BIA’s denial of a motion to reopen for
an abuse of discretion.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th
Cir. 2005). “[R]eview is limited to determining whether there has been an
exercise of administrative discretion and whether the matter of exercise has been
arbitrary or capricious.” Id. (citation omitted).
“A motion to reopen proceedings shall not be granted unless . . . [the]
evidence sought to be offered is material and was not available and could not have
been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). A
motion to reopen is disfavored especially in removal proceedings “where, as a
general matter, every delay works to the advantage of the [removable] alien who
wishes merely to remain in the United States.” INS v. Doherty, 502
U.S. 314, 323, 112 S. Ct. 719, 724-25, 116 L. Ed. 2d 823 (1992). The movant has
the “heavy burden” of “present[ing] evidence of such a nature that . . . if [the]
proceedings . . . were reopened, with all attendant delays, the new evidence
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offered would likely change the result in the case.” Ali v. U.S. Att’y Gen., 443
F.3d 804, 813 (11th Cir. 2006) (citation omitted). The BIA “has discretion to deny
a motion to reopen even if the party moving has made out a prima facie case for
relief.” 8 C.F.R. § 1003.2(a) (emphasis added).
We conclude from the record that the BIA did not abuse its discretion by
denying Zheng’s motion to remand because the evidence did not support her
claims for asylum, withholding of removal, and CAT relief. Accordingly, we deny
the petition for review.
PETITION DENIED.
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