[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 30, 2008
No. 08-13498 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A79-682-709
JIN NAN LI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 30, 2008)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Jin Nan Li, a native and citizen of China, seeks review of the Board of
Immigration Appeals’ order affirming the immigration judge’s order of removal
and denial of Li’s claims for asylum and withholding of removal under the
Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231, and relief under the
United Nations Convention Against Torture and Other Forms of Cruel, Inhuman,
or Degrading Treatment or Punishment (CAT), 8 C.F.R. § 208.16. Li contends
that the BIA erred by requiring her to present evidence that Chinese officials
specifically targeted for sterilization Chinese nationals returning with American-
born children.1
We review only the BIA’s decision, except to the extent that it expressly
adopts the IJ’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). To the extent that the BIA adopts the IJ’s reasoning, we review the IJ’s
decision as well. See id. Here the BIA affirmed the IJ’s decision insofar as it
concluded that Li failed to meet her burden of proof for relief. Because the BIA’s
order followed the reasoning of the IJ, we will review the BIA’s decision and the
relevant portion of the IJ’s decision.
We review findings of fact under the “substantial evidence test” and must
affirm the decision “if it is supported by reasonable, substantial, and probative
1
We lack jurisdiction to consider Li’s claim that she has a well-founded fear of future
persecution based on fines for violating China’s family-planning policy because she did not raise
that claim before the BIA. See Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003). We will
only address Li’s claims of future persecution based on forced sterilization.
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evidence on the record considered as a whole.” Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1286 (11th Cir. 2005) (quotation omitted). “We view the record
evidence in the light most favorable to the agency’s decision,” Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004), and “consider only whether there
is substantial evidence for the findings made by the BIA, not whether there is
substantial evidence for some other finding that could have been, but was not,
made.” Id. at 1029 (quotation omitted). “To reverse the [agency’s] decision, we
must conclude that the record not only supports a conclusion, but compels it.”
Yang v. United States Att’y Gen., 418 F.3d 1198, 1202 (11th Cir. 2005).
An alien applying for asylum must meet the INA’s definition of a “refugee.”
8 U.S.C. § 1158(b)(1). A “refugee” is
any 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). The asylum applicant bears the burden of proving
statutory “refugee” status. See Al Najjar, 257 F.3d at 1284.
To establish asylum eligibility, the alien must, with specific and credible
evidence, establish (1) past persecution on account of a statutorily listed factor, or
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(2) a “well-founded fear” that the statutorily listed factor will cause such future
persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. Here Li’s
claim for asylum is based on her fear that she will be involuntarily sterilized if she
is returned to her hometown in China’s Fujian Province. An applicant's
well-founded fear that she will be forced to undergo involuntary sterilization is
sufficient to demonstrate eligibility for asylum. See 8 U.S.C. § 1101(a)(42).
A “well-founded fear” has both a subjective and objective component. See
Yang, 418 F.3d at 1202. “The subjective component is generally satisfied by the
applicant’s credible testimony that he or she genuinely fears persecution.” Al
Najjar, 257 F.3d at 1287. The objective prong may be satisfied by establishing that
the applicant “has a good reason to fear future persecution.” Id. The dispute in
this case is over whether Li has “good reason to fear” involuntary sterilization if
she is returned to China, now that she has had three children while living in the
United States.
The BIA and IJ concluded that she did not have good reason to fear
sterilization. The IJ’s oral decision relied heavily on the State Department’s 2005
Profile of Asylum Claims and Country Conditions in China. Although the 2005
Profile states that “a family with a U.S. born child or children receives no special
treatment under the family planning laws,” it also states that “U.S. diplomats in
China are not aware of any cases in which returnees from the United States were
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forced to undergo sterilization procedures on their return.” Additionally, it notes
that “[l]ocal physicians in contact with the U.S. Consulate General . . . report that
they have not seen signs of forced abortions or sterilizations among their patients
from Fujian and Guangdong Provinces since the 1980s.”
Li contends that the BIA’s and IJ’s decisions improperly relied on a
distinction between the treatment of parents with children born abroad and those
with children born in China and points to our decision in Li v. United States
Attorney General, 488 F.3d 1371 (11th Cir. 2007), for support. There, however,
we were faced with a much different record, including an affidavit from the
petitioner’s mother describing what we characterized as “a recent campaign of
forced sterilization in her home village.” Id. We concluded that the BIA erred in
distinguishing that evidence on the basis that it involved parents whose children
were born in China, instead of abroad. By contrast, here the only evidence that Li
presented in support of her claim was her testimony that her sister-in-law was
involuntarily sterilized after she had two children. Li did not, however, provide
any additional evidence to support that allegation. Moreover, Li admitted that her
mother, who has four children, has not been sterilized.
Our review is confined to the record in this case, and we may not “find, or
consider, facts not raised in the administrative record nor can we reweigh the
evidence from scratch.” Adefemi, 368 F.3d at 1027 (internal quotation marks and
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citation omitted). In light of this record, we cannot conclude that “a reasonable
factfinder would have to conclude that the requisite fear of persecution existed.”
Al Najjar, 257 F.3d at 1284 (internal quotation marks and citation omitted). There
is substantial evidence to support the BIA’s conclusion that Li failed to
demonstrate a well-founded fear of involuntary sterilization, regardless of where
her children were born. Therefore, we affirm the its denial of Li asylum claim.
We are unable to review Li’s claims for withholding of removal and CAT
relief because she failed to exhaust her administrative remedies by not raising those
claims to the BIA. See Sundar, 328 F.3d 1320 at 1323.
PETITION DENIED.
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