[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 28, 2008
No. 07-12543
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
BIA No. A98-560-285
XIU XIA HUANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 28, 2008)
Before ANDERSON, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Xiu Xia Huang, a native and citizen of China, petitions this Court to review
the final order of the Board of Immigration Appeals (“BIA”) affirming the
immigration judge’s (“IJ”) denial of asylum and withholding of removal under the
Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231.1 In her petition
for review, Huang argues that the BIA erred by affirming the IJ’s finding that she
had not established past persecution, or a fear of future persecution, “on account
of” one of the five grounds enumerated in Section 101(a)(42)(A) of the INA, 8
U.S.C. § 1101(a)(42)(A). Huang contends that she is a member of a particular
social group consisting of young unmarried women in rural China, and that her
family was persecuted based on her membership in this group. After careful
review, we deny the petition for review.
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). Because the BIA did not adopt the IJ’s decision, we review only the BIA’s
decision. To the extent that the BIA’s decision was based on a legal determination,
our review is de novo. See D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817
(11th Cir. 2004). The BIA’s factual determinations are reviewed under the
substantial evidence test, and we will “affirm the BIA’s decision if it is supported
by reasonable, substantial, and probative evidence on the record considered as a
whole.” Al Najjar, 257 F.3d at 1284 (quotation omitted). Put another way, we will
1
Huang also applied for relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman and Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). She
does not challenge the denial of her CAT claim and, accordingly, has waived the claim. Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
reverse a finding of fact only when the record compels a reversal; the mere fact that
the record may support a contrary conclusion is not enough to justify a reversal.
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of Homeland
Security or the Attorney General has discretion to grant asylum if the alien meets
the INA’s definition of a “refugee.” See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1).
A “refugee” is any person who is unwilling to return to her home country or to
avail herself of that country’s protection “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 asylum applicant carries the burden of proving statutory “refugee”
status. See Al Najjar, 257 F.3d at 1284; 8 C.F.R. § 208.13(a). The applicant
satisfies this burden by showing, with specific and credible evidence: (1) past
persecution on account of a statutorily listed factor, or (2) a “well-founded fear” of
future persecution. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).
A showing of past persecution creates a presumption of a “well-founded fear,”
subject to rebuttal by the government. See Sepulveda, 401 F.3d at 1231. If she
cannot show past persecution, then a petitioner must demonstrate a well-founded
fear of future persecution that is both subjectively genuine and objectively
3
reasonable. Al Najjar, 257 F.3d at 1289. The subjective component can be
established “by the applicant’s credible testimony that he or she genuinely fears
persecution,” while the objective component “can be fulfilled either by establishing
past persecution or that he or she has a good reason to fear future persecution.” Id.
(quotation omitted).
“Persecution” is “an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation.” Sepulveda, 401 F.3d at 1231
(quotations omitted). We have stated that mere harassment does not amount to
persecution. Id. In assessing whether an alien has suffered past persecution, the
BIA should consider the cumulative effect of the alleged acts of persecution. See
De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008 (11th Cir., 2008). Thus,
while individual instances of mistreatment might not amount to persecution, the
record considered as a whole still may compel a finding of past persecution. Id. at
1009 (holding that record compelled a finding that the petitioner endured past
persecution where, although the petitioner’s physical injuries were minor, she
endured repeated death threats, two physical attacks, the murder of a family friend
who refused to give information on the petitioner’s whereabouts, and a kidnaping
accompanied by a beating).
4
Again, Huang relies on her membership in a particular social group
consisting of young unmarried women in rural China.2 According to Huang, her
family was persecuted based on her membership in this group. The alleged
persecution consisted of her father’s detention by authorities, the destruction of her
family’s crops, and the beating of her boyfriend. The BIA found that while Huang
and her family had been harassed by the son of the town leader, who was
romantically interested in Huang, Huang “was never harmed and there is no
evidence that anyone in China is interested in harming her on account of any
protected ground.” We have held that harassment, such as threats and acts of
intimidation, particularly those that result in no physical harm, do not rise to the
level of persecution. Sepulveda, 401 F.3d at 1231. From our review of the record,
we are not compelled to conclude the BIA erred when it concluded that the
mistreatment alleged by Huang amounts to mere harassment, rather than
persecution. Accordingly, substantial evidence supports the BIA’s determination
that Huang did not suffer past persecution, or a well-founded fear of future
persecution, sufficient to warrant asylum.3
2
To the extent Huang also relies on her membership in a particular social group consist-
ing of women in fear of forced marriages, we lack jurisdiction to review that claim since Huang did
not raise it in the immigration court. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250
(11th Cir. 2006).
3
Because Huang has not established past persecution or future persecution, we need not
reach the issue of whether she belongs to a particular social group.
5
PETITION DENIED.
6