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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11529
Non-Argument Calendar
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Agency No. A088-471-309
TAO CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 28, 2017)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Tao Chen petitions for review of the Board of Immigration Appeals’
(“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of his
application for asylum, withholding of removal, and relief under the United
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Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”). Chen’s application is based on the protest he
staged in front of a Chinese city government after he received unfair treatment in a
court case seeking relief for an injury he sustained in a traffic accident by a drunk
driver. On appeal, Chen argues that because he established past persecution, a
well-founded fear of future persecution, and it is more likely than not that he will
be tortured if he returns to China, the BIA erred in denying his petition for asylum,
withholding of removal, and CAT relief. After thorough review, we deny the
petition.
We review the BIA’s decision as the final judgment, unless the BIA
expressly adopted the IJ’s decision. Lyashchynska v. U.S. Att’y Gen., 676 F.3d
962, 966-67 (11th Cir. 2012). When the BIA explicitly agrees with the findings of
the IJ, we will review the decision of both the BIA and the IJ as to those issues.
Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010). We do not engage
in fact-finding on appeal, nor do we weigh evidence that was not previously
considered below. Al Najjar v. Ashcroft, 257 F.3d 1262, 1278 (11th Cir. 2001).
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, 1026-27 (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.” Najjar,
257 F.3d at 1283-84 (quotation omitted). In order to reverse administrative factual
findings, we must determine that the record “compels” reversal, not that it merely
supports a different conclusion. Farquharson v. U.S. Atty. Gen., 246 F.3d 1317,
1320 (11th Cir. 2001).
The Attorney General has the authority to grant asylum to an alien who
meets the Immigration and Nationality Act’s (“INA”) definition of “refugee.” 8
U.S.C. § 1158(b)(1)(A). A refugee is:
any person who is outside any country of such person’s nationality . . .
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.
Id. § 1101(a)(42)(A). The applicant bears the burden of proving that he is a
refugee. Id. § 1158(b)(1)(B)(i). The applicant must present specific and credible
evidence demonstrating that he (1) was persecuted in the past based on one of the
protected grounds or (2) has a well-founded fear that he will be persecuted in the
future based on one of the protected grounds. Ruiz v. U.S. Att’y Gen., 440 F.3d
1247, 1257 (11th Cir. 2006).
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We have held 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 v. U.S. Att’y Gen., 401
F.3d 1226, 1231 (11th Cir. 2005) (quotations omitted); see also Djonda v. U.S.
Att’y Gen., 514 F.3d 1168, 1171 (11th Cir. 2008); Kazemzadeh v. U.S. Att’y Gen.,
577 F.3d 1341, 1352-53 (11th Cir. 2009). Minor beatings and threats are not
enough to compel a finding of persecution. See Diallo v. U.S Att’y Gen., 596 F.3d
1329, 1333 (11th Cir. 2010); see also Sepulveda, 401 F.3d at 1231 (holding that
three phone calls threatening the receiver with death if she did not stop her political
activities did not compel a finding of persecution).
Fines or economic sanctions may constitute persecution if they cause a
“severe economic disadvantage” to the alien, considering his net worth, his sources
of income, and the condition of the local economy. Mu Ying Wu v. U.S. Att’y
Gen., 745 F.3d 1140, 1156 (11th Cir. 2014). To satisfy this standard, the
persecution must reduce the alien’s standard of living to an impoverished
existence. Id. 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).
If the petitioner cannot demonstrate past persecution, he must demonstrate
that he has a well-founded fear of future persecution by showing that there is a
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reasonable possibility of his suffering persecution if he returned to his home
country. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007). The fear
of persecution must be “subjectively genuine and objectively reasonable.” Al
Najjar, 257 F.3d at 1289. The subjective component is typically fulfilled by
credible testimony that the petitioner genuinely fears persecution, and the objective
component generally can be satisfied by establishing either past persecution or that
the petitioner has good reason to fear future persecution. Id. To show an
objectively reasonable fear of future persecution, the alien must present specific,
detailed facts showing a good reason to fear that he 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).
An applicant for withholding of removal 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, 401 F.3d at 1232. The standard for
withholding of removal is more stringent than for asylum, and if an applicant is
unable to prove his entitlement to asylum relief, he is generally precluded from
qualifying for withholding of removal. Id. at 1232-33.
An applicant seeking protection under CAT must establish that it is more
likely than not that he would be tortured if removed to the proposed country of
removal. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir.
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2004). Additionally, the alien must demonstrate a likelihood that he will be
tortured with the acquiescence of the government, meaning that the government
was aware of the torture, yet breached its responsibility to intervene. Rodriguez
Morales v. U.S. Att’y Gen., 488 F.3d 884, 891 (11th Cir. 2007).
Here, the BIA -- and to the extent of the BIA’s agreement, the IJ, see
Lyashchynska, 676 F.3d at 966-67; Ayala, 605 F.3d at 948 -- did not err in
determining that Chen failed to show that he qualified for asylum on the basis of
his political opinion. For starters, the detention and physical mistreatment in
Chen’s case is similar to that in several other cases where this Court has concluded
that the record did not compel a finding of past persecution. As this record shows,
Chen asserted that he was a normal worker in Tianjin City in China when he broke
a vertebra to the point of disability in a traffic accident caused by a drunk driver.
He said that when he sought relief for the accident in the Chinese legal system, he
received an unfair order and judgment because the driver bribed the police officers
and court officials to cover up the fact that he was drunk. Chen claimed that he
attempted to challenge the amount awarded to him in his civil lawsuit but was
unable to, and he then began to receive threatening phone calls from “unknown
persons.” In April 2006, his mother died of a heart attack because, he said, his
mother was angry about the accident and his “unfair treatment.” According to
Chen, he was only able to collect 30,000 RMB of the 70,000 RMB judgment; he
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ultimately sat in front of a government building in protest, police arrested him,
placed him in a cell, and interrogated him. Chen detailed that during the
interrogation, one officer punched him in the face, causing his nose and mouth to
bleed, and another officer hit his arm, feet, legs and back with a baton. Chen then
was detained for four days. Upon his release, Chen paid a penalty -- though it is
unclear whether the penalty was 5,000 RMB or 35,000 RMB -- and was required
to submit to house arrest and report to the police station once a week.
However, like the petitioner in Kazemzadeh, Chen offered no evidence
establishing the severity of his injuries. Notably, he did not testify that he required
medical treatment either while he was detained or upon his release, and
acknowledged that he did not experience any additional physical mistreatment
during the four days he was detained. Nor is there anything in this record that
comes close to the allegations we found insufficient in Kazemzadeh and Djonda.
See Kazemzadeh, 577 F.3d at 1352-53; Djonda, 514 F.3d at 1171. In light of this
case law, Chen’s claims of detention and physical mistreatment do not compel a
finding of past persecution.
As for the threats Chen reported, we’ve consistently concluded that the
receipt of anonymous threatening phone calls, without more, does not compel a
finding of past persecution. See Silva, 448 F.3d at 1237-38. We’ve also held that
minor beatings and threats do not compel a finding of persecution. See Diallo, 596
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F.3d at 1333. As a result, even in combination with threatening phones calls,
Chen’s treatment does not compel a finding of past persecution. Nor did his
treatment, in combination with the economic harm he may have suffered, compel a
finding of past persecution. In order to rise to the level of persecution, we’ve said
that economic injury must cause “severe economic disadvantage,” considering the
alien’s net worth, other sources of income, and the conditions of the local
economy. Mu Ying Wu, 745 F.3d at 1156. Under this standard, the economic
injury “should reduce the alien ‘to an impoverished existence.’” Id. Chen offered
no evidence demonstrating how his economic injuries affected him, nor did he
suggest that his economic injuries reduced him “to an impoverished existence.” Id.
Accordingly, considering the cumulative effects of Chen’s claims, including the
threats he received, his detention and physical mistreatment, his economic injuries,
and the emotional injury he suffered from his mother’s death -- all of which the
BIA properly considered as a whole -- we cannot say the record compels a finding
that Chen’s mistreatment met the “extreme” threshold of persecution, and
substantial evidence supports the decision of the IJ and the BIA.
Moreover, the record does not compel a finding, under our case law, that
Chen demonstrated a well-founded fear of future persecution on account of a
protected ground. According to Chen, he fears that he will be arrested and
persecuted in China because he opposed corruption by government officials. In
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support of his claim, Chen offers that the “public security people” regularly visit
his wife at his home in China, the “police often threaten her” and are still looking
for him. But he did not offer evidence from his wife or otherwise about how often
the visits occur, when the last visit occurred, or whether any action was taken to
carry out the threats. Rather, Chen has admitted that his wife and child have
continued living in China after he left and has provided no evidence that they have
been harmed in any way. As we’ve recognized, a claim of well-founded fear is
undercut when the alien has family living in the country or removal unharmed.
Ruiz, 440 F.3d at 1259. There is also no evidence that the Chinese government has
actively sought to determine his location since he left his home.
As for Chen’s testimony about corruption, he only addressed corruption
around his city, as opposed to other parts of China, and the 2012 Human Rights
Report noted that Chinese authorities prosecuted corruption. For example, in
2011, the government body charged with countering corruption, the Central
Commission for Discipline Inspection (“CCDI”), investigated 137,859 corruption-
related cases, and 142,893 people were disciplined. The Chinese Communist Party
expelled a former railroads minister for his involvement with corruption, and the
CCDI removed a deputy party secretary for suspected “serious discipline
violations.” Regulations also provide a mechanism for Chinese citizens to request
information from government agencies regarding corruption. What’s more, Chen
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offered no evidence of widespread persecution by the Chinese government of
individuals opposed to corruption, and in any event, nothing in the record indicates
that Chen is a major protestor or activist in the fight against corruption. On this
record, the evidence does not compel a finding that Chen will be singled out for
future persecution on account of his political opinion, see Forgue, 401 F.3d at
1286, and the BIA did not err in determining that he was not entitled to asylum.
See Farquharson, 246 F.3d at 1320; 8 U.S.C. § 1101(a)(42)(A).
Finally, because Chen could not prove his entitlement to asylum relief, he
cannot meet the more stringent burden necessary to qualify for withholding or
removal. Sepulveda, 401 F.3d at 1232-33. Nor is Chen eligible for CAT relief.
Chen argued that if he returned to China he would be imprisoned, but did not
provide any evidence that he had been tortured while he was in China, or that he
would more likely than not be tortured if he returned, or even that the Chinese
authorities specifically target for torture individuals opposed to corruption by
government officials. We need not consider the Human Rights Report that Chen
appended to his brief because it was not presented to the agency, and the 2012
Human Rights Report stated that Chinese law prohibits the physical abuse of
detainees, confessions extracted through torture, and beating prisoners. See Al
Najjar, 257 F.3d at 1283-84. Accordingly, Chen did meet his burden of showing
that it was more likely than not that he would be tortured by the government or
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with the government’s consent upon removal to China, and substantial evidence
supports the IJ’s finding that Chen did not show eligibility for CAT relief. Reyes-
Sanchez, 369 F.3d at 1242.
We affirm the denial of Chen’s application for asylum, withholding of
removal, and CAT relief.
AFFIRMED.
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