[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 30, 2007
No. 06-11843 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A70-908-631
XIN WEN CHI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 30, 2007)
Before ANDERSON, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Xin Wen Chi, a Chinese citizen, petitions for review of the Board of
Immigration Appeals’ (“BIA’s”) orders dismissing his appeal from the
Immigration Judge’s (“IJ’s”) order denying his application for asylum and
withholding of removal and affirming, without opinion, the IJ’s order denying his
application for relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT relief”), 8
U.S.C. § 1158, 1231, 8 C.F.R. § 208.16(c). On appeal, Chi argues that the IJ’s
orders denying his applications for asylum, withholding of removal, and CAT
relief are not supported by substantial evidence.
A. Asylum and Withholding of Removal
Chi argues on appeal that the IJ erred in determining that his testimony was
incredible in his first asylum hearing. Chi argues that he is eligible for asylum
because he had a well-founded fear that he would be persecuted if he returned to
China for his violation of its family planning policy. Chi also claims that he
suffered past persecution and, therefore, established a valid asylum claim. The
government responds that we lack jurisdiction to review the IJ’s decision denying
Chi’s asylum and withholding of removal claims because Chi did not seek timely
review of the denial of these claims.
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We retain jurisdiction to determine whether or not subject matter jurisdiction
exists. See Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002). We review
“questions of subject matter jurisdiction de novo.” Id.
A petition for judicial review of a BIA order must be filed no later than 30
days after the date of the final order of removal. 8 U.S.C. § 1252(b)(1); INA
§ 242(b)(1). Time limits for judicial review are mandatory and jurisdictional and
are not tolled by the filing of a motion to reopen or for reconsideration. Dakane v.
U.S. Atty. Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005); see also Stone v. INS,
514 U.S. 386, 394-95, 115 S.Ct. 1537, 1544 (1995) (commenting on the
predecessor judicial review statute, 8 U.S.C. § 1105(a)(1994), and finding that the
filing of a motion to reconsider does not affect the finality of the order and “does
not toll the time to petition for review”).
In the instant case, the BIA affirmed the IJ’s decision denying Chi’s asylum
application on August 28, 2001. Chi had 30 days to file a petition for review with
us. Chi filed nothing during this time period. Instead, Chi filed a motion to reopen
in November 2001. The filing of this motion did not toll the time period for Chi to
file his petition for review. Thus, because Chi’s petition for review, filed in
August 2006, is untimely as to the denial of his asylum application and
withholding of removal, we lack jurisdiction to review that denial.
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B. Family Planning policy and CAT Relief
Chi argues on appeal that he is entitled to CAT relief because he and his
family were tortured for violating China’s family planning policy.
Where, as here, the BIA summarily affirms the IJ’s decision without an
opinion, the IJ’s decision becomes the final agency determination subject to
review. Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003).
When an appellant fails to offer argument on an issue, that issue is abandoned.
Sepulveda v. U.S. Att’y Gen, 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
In the instant case, the IJ determined in Chi’s first asylum hearing that he
was incredible and, therefore, could not make out a valid claim for asylum or
withholding of removal based on a violation of China’s family planning policy.
Chi appealed, and the BIA dismissed his appeal in August 2001. After the BIA
granted his motion to reopen, Chi asserted that he was entitled to CAT relief based
on his violation of family planning policy. However, the IJ did not consider the
merits of this claim, but rather determined that the collateral estoppel doctrine
precluded her from considering it, in light of the first IJ’s factual findings on the
issue.
In this appeal, Chi does not attack the IJ’s collateral estoppel finding. While
Chi repeats his previous argument that he is eligible for CAT relief because he
violated the family planning policy, at no point does he address the IJ’s legal
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determination that she was estopped from considering the family planning claim.
By failing to address the IJ’s collateral estoppel decision, Chi has not shown that
the decision was unsupported by the record and, thus, has abandoned his family
planning claim.
C. Chinese Emigration Law and CAT Relief
Chi argues on appeal that he is eligible for CAT relief because he would be
tortured if he returned to China because of his violation of China’s emigration
laws.
Where the BIA summarily affirms the IJ’s decision without an opinion, the
IJ’s decision becomes the final agency determination subject to review. Mendoza,
327 F.3d at 1284 n.1. To the extent the IJ’s decision was based on legal
determinations, review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-
48 (11th Cir. 2001). The IJ’s factual determinations are reviewed under the
substantial evidence test, and we must affirm the IJ’s decision “if it is ‘supported
by reasonable, substantial, and probative evidence on the record considered as a
whole.’” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001). The
substantial evidence test is deferential and does not allow re-weighing the evidence
from scratch. Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir.
2001). “To reverse the IJ’s fact findings, we must find that the record not only
supports reversal, but compels it.” Mendoza, 327 F.3d at 1287.
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To qualify for withholding of removal under Article Three of the CAT, the
applicant must show that it is more likely than not that he will be tortured if
returned to the country of removal. 8 C.F.R. § 208.16(c)(2). Torture is defined as:
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or
her or a third person information or a confession,
punishing him or her for an act he or she or a third
person has committed or is suspected of having
committed, or intimidating or coercing him or her
or a third person, or for any reason based on
discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public
official or other person acting in an official
capacity.
8 C.F.R. § 208.18(a)(1). CAT relief carries a higher legal standard than asylum
and thus is very difficult to meet. Al Najjar, 257 F.3d at 1303. In considering
what forms of physical abuse rise to the level of “torture” under the CAT, we have
upheld the BIA’s determination that prison police brutality, such as beatings with
fists, sticks, and belts, did not rise to the level of torture. Cadet v. Bulger, 377 F.3d
1173, 1194-95 (11th Cir. 2004) (distinguishing cruel, inhuman and degrading
police brutality from torture under the CAT). Also, torture “does not include pain
or suffering arising only from, inherent in or incidental to lawful sanctions. Lawful
sanctions include judicially imposed sanctions and other enforcement actions
authorized by law, including the death penalty, but do not include sanctions that
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defeat the object and purpose of the [CAT] to prohibit torture.” 8 C.F.R.
§ 208.18(a)(3).
Here, substantial evidence supports the IJ’s conclusion that Chi did not show
that it is more likely than not that he will be tortured if returned to China. First, the
individual examples that Chi presented to the IJ of individuals who were returned
to China did not allege acts that constituted torture within the meaning of CAT
relief. Chi presented a letter stating that a repatriated Chinese man was beaten,
fined, imprisoned, and “tortured.” Further, Chi testified that his friend, Yung, was
beaten and imprisoned upon return to China. Chi also testified that 80 to 90
percent of people returning to China were beaten. This evidence is unspecific.
Further, we have upheld a BIA determination that beatings with fists, sticks, and
belts during imprisonment did not rise to the level of torture.
Second, substantial evidence supports the IJ’s determination that Chi’s
potential imprisonment for violation of China’s emigration laws would not amount
to torture within the meaning of the CAT. Chi presented evidence that he could be
imprisoned for one year for secretly crossing China’s border. However, the laws
appear to be directed at the dangers of smuggling. Moreover, Chi provides no
evidence that these laws and sanctions are intended to facilitate torture of
returnees. Thus, because the laws and sanctions do not defeat the object and
purpose of the CAT, they do not constitute torture. Further, Chi points to no place
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in the record showing that the torture of returnees is so widespread that he will
most likely be tortured. Accordingly, we dismiss the petition in part, and deny it in
part.
PETITION DISMISSED IN PART, AND DENIED IN PART.
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