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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14980
Non-Argument Calendar
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Agency No. A208-571-823
YE ENJIE,
a.k.a. Enjie Ye,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 5, 2018)
Before MARTIN, JILL PRYOR, and EDMONDSON, Circuit Judges.
PER CURIAM:
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Ye Enjie (“Petitioner”), a native and citizen of China, petitions for review of
the order by the Board of Immigration Appeals (“BIA”) affirming the decision of
the Immigration Judge (“IJ”). The IJ’s decision denied asylum and withholding of
removal. 1 No reversible error has been shown; we deny the petition.
We review only the decision of the BIA, except to the extent that the BIA
adopts expressly the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). Because the BIA agreed expressly with the IJ’s reasoning in this
case, we review both the IJ’s and the BIA’s decisions. See id.
We review fact determinations under the “highly deferential substantial
evidence test” whereby we “must affirm the BIA’s decision if it is ‘supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.’” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc).
We “view the record evidence in the light most favorable to the agency’s decision
and draw all reasonable inferences in favor of that decision.” Id. at 1027. To
reverse a fact determination, we must conclude “that the record not only supports
reversal, but compels it.” Mendoza v. United States Att’y Gen., 327 F.3d 1283,
1287 (11th Cir. 2003).
1
The IJ also denied relief under the Convention Against Torture. We will not address this claim,
however, because Petitioner failed to challenge this denial in his appeal to the BIA and has failed
to raise the issue on appeal. See Amaya-Artunduaga v. United States Att’y Gen., 463 F.3d 1247,
1250-51 (11th Cir. 2006); Sepulveda v. United States Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th
Cir. 2005).
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An alien may obtain asylum if he is a “refugee,” that is, a person unable or
unwilling to return to his county of nationality “because of persecution or a well-
founded fear of persecution on account of” a protected ground, including religion.
8 U.S.C. §§ 1101(a)(42)(A). The asylum applicant bears the burden of proving
statutory “refugee” status. Ruiz v. United States Att’y Gen., 440 F.3d 1247, 1257
(11th Cir. 2006). To do so, he must present “specific and credible evidence”
demonstrating that he (1) was persecuted in the past based on a protected ground,
or (2) has a well-founded fear that he will be persecuted in the future based on a
protected ground. Id.
Petitioner alleges he suffered past persecution by the Chinese government on
account of his religion. Petitioner is a Christian and was a member of an
underground “house church” in China. In March 2015, Petitioner and nine fellow
churchgoers were arrested while attending a house church gathering. At the police
station, officers told the churchgoers they had been arrested for holding an illegal
religious gathering. The churchgoers were then placed together in a small cell with
a shared toilet. Petitioner’s parents later came to the police station and paid to
have Petitioner released.
During Petitioner’s fifteen-day detention, officers provided the churchgoers
a small amount of food and water three times a day. Neither Petitioner nor his
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fellow churchgoers were interrogated or beaten. Petitioner suffered no physical
injuries during his detention.
Upon his release from confinement, officers required Petitioner to promise
not to attend illegal religious gatherings and ordered him to report weekly to the
police station. Petitioner reported weekly to the police station for about one
month; each meeting lasting about five minutes, and Petitioner was not harmed.
During the meetings, officers asked Petitioner about his religious activities, and
Petitioner reported falsely that he was no longer attending a house church. The
officers threatened Petitioner with severe punishment if he attended a house church
again.
In May 2015, Petitioner moved to Guangzhou to live at a friend’s home.
When Petitioner failed to report to the police station, officers visited Petitioner’s
parents’ home two or three times a week inquiring about Petitioner’s whereabouts
and warning that Petitioner would be in trouble if found. The police last visited
Petitioner’s parents’ home in early 2016, just before Petitioner’s arrival in the
United States.
Petitioner remained in Guangzhou for about six months. During that time,
Petitioner worked part time and said he was able to come and go freely. Petitioner
said he did not participate in house church activities while in Guangzhou because
he was unfamiliar with the city and could find no house church to attend.
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Petitioner then decided to leave China and arrived in the United States in February
2016.
The IJ denied Petitioner’s application for asylum and for withholding of
removal. The IJ determined, in pertinent part, that the events Petitioner
complained of did not rise to the level of past persecution. The IJ also concluded
that Petitioner showed no objective well-founded fear of future persecution. The
BIA agreed with the IJ’s reasoning.
After review, we conclude that substantial evidence supports the finding that
Petitioner demonstrated no past persecution; and we are not compelled to reverse
the decision. We have explained that persecution is an “extreme concept” that
“requires more than a few isolated incidents of verbal harassment or intimidation,
unaccompanied by any physical punishment, infliction of harm, or significant
deprivation of liberty.” Shi v. United States Att’y Gen., 707 F.3d 1231, 1235 (11th
Cir. 2013).
Viewed cumulatively, the mistreatment Petitioner experienced is
insufficiently extreme to rise to the level of past persecution, particularly given the
absence of physical injury or threats of physical harm. 2 The mistreatment in this
case is on par with the abuse involved in Zheng v. United States Att’y Gen., 451
F.3d 1287 (11th Cir. 2006). In Zheng, we concluded that a petitioner suffered no
2
The only physical harm Petitioner suffered was being struck unintentionally by the front door
as police entered the house church meeting.
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past persecution when he (1) was arrested for his involvement in Falun Gong; (2)
was detained for five days during which he was forced to watch and read anti-
Falun Gong materials, forced to stand in the sun for two hours, and required to
pledge not to practice Falun Gong under penalty of imprisonment, but was
otherwise unharmed; (3) lost his job; and (4) was subjected to periodic searches.
451 F.3d at 1290-91 (citing decisions in which incidents of detentions (including a
14-day detention), beatings, and deprivation of food constituted no persecution).
That Petitioner’s fifteen-day detention was longer than the detention
involved in Zheng does not change the decision. Especially given that Petitioner
(like Zheng) remained physically unharmed during his detention, we are not
compelled to conclude that Petitioner’s detention rose to the level of persecution.
Cf. Niftaliev v. United States Att’y Gen., 504 F.3d 1211, 1217 (11th Cir. 2007)
(concluding that the cumulative effect of numerous beatings, arrests, searches, and
interrogations, which culminated in a fifteen-day detention during which petitioner
was deprived of food, beaten, and threatened at gunpoint, constituted persecution).
The lack of specific physical harm suffered by Petitioner also distinguishes
this case from the circumstances involved in Shi v. United States Att’y Gen., 707
F.3d 1231 (11th Cir. 2013). The petitioner in Shi suffered these harms: (1) police
interrupted a gathering at a house church, confiscated the group’s bibles, and
arrested the churchgoers; (2) police detained petitioner for seven days; (3) police
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twice interrogated petitioner, during which they slapped him in the face, kicked his
chair out from under him, and threatened to beat him with a baton; and (4) police
handcuffed petitioner to an iron bar overnight outside in the rain, after which
petitioner became so sick that the police released him for fear he would die in
custody. 707 F.3d at 1232-33. We determined that the cumulative effect of these
harms compelled a finding of past persecution, focusing in particular on the
“singularly cruel” interrogation tactic of handcuffing petitioner overnight in the
rain and the resulting physical injuries. See id. at 1237-39.
Petitioner argues -- based on language in the opinion in Kazemzadeh v.
United States Att’y Gen., 577 F.3d 1341 (11th Cir. 2009) -- that he suffered
persecution because he was forced to practice his faith in secret. In Kazemzadeh,
we -- facing a case where an Iranian Muslim had converted to Christianity, an act
punishable by death in Iran -- said that “having to practice religion underground to
avoid punishment is itself a form of persecution.” 577 F.3d at 1354. The level of
potential punishment for petitioner’s practicing Christianity was an important fact
in Kazemzadeh. Kazemzadeh did not decide -- and no court has construed
Kazemzadeh as establishing a hard-edged rule -- that evidence a petitioner has
practiced his faith underground to avoid some trouble is in itself always sufficient
to compel a finding of past persecution, that extreme concept that warrants asylum
relief. Instead, we concluded in Kazemzadeh only that the BIA and the IJ erred by
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failing to consider in that case all pertinent evidence (on fear of persecution based
on petitioner’s religion) submitted by the petitioner -- a person with a history of
political action that might also draw special attention to his religious conversion.
Id. at 1345, 1354. The case was remanded for consideration of certain evidence
and more fact finding.
In this case, substantial evidence also supports a finding that Petitioner has
demonstrated no well-founded fear of future persecution based on his religious
activities. To show a well-founded fear of future persecution, Petitioner must
establish that his fear both is “subjectively genuine and objectively reasonable.”
Al Najjar, 257 F.3d at 1289. “[T]he objective prong can be fulfilled either by
establishing past persecution or that he or she has a good reason to fear future
persecution.” Id. (quotation omitted).
Petitioner testified that he traveled from his hometown to Guangzhou,
remained there for six months without incident, obtained employment, and moved
about freely. Although Petitioner did not attend a house church while in
Guangzhou, he said it was because he was unfamiliar with the area, not because he
feared police interference. Since Petitioner left China, the police have not returned
to Petitioner’s parents’ house asking about him. Petitioners’ parents also continue
to live in the same hometown and have continued to practice their Christian faith
without interference. See Ruiz, 440 F.3d at 1259 (a petitioner’s claim of future
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persecution is undercut when the petitioner’s family remained unharmed in the
region).
Petitioner points to the Department of State’s 2015 International Religious
Freedom Report, which reported incidents in which the Chinese government
tortured, abused, detained, and harassed members of both registered and
unregistered churches. But the report also stated that the restrictions on religious
freedom -- including participating in unregistered churches -- varies by region and
that some areas “tacitly approve of” unregistered church activities. Petitioner’s
evidence does not compel the conclusion that he will be subjected to future
persecution throughout China, if he returns.
Substantial evidence supports the IJ’s and BIA’s decisions that Petitioner
was unentitled to asylum; and we are not compelled to reverse the decisions.
Petitioner’s failure to establish eligibility for asylum forecloses his eligibility for
withholding of removal. See Forgue v. United States Att’y Gen., 401 F.3d 1282,
1288 n.4 (11th Cir. 2005).
PETITION DENIED.
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Ye Enjie v. U.S. Attorney General
Combined Opinion