[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-17009 ELEVENTH CIRCUIT
JULY 10, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A099-638-337
XINLU WANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 10, 2009)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Xinlu Wang, a native and citizen of China, petitions this court for review of
the Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s
(“IJ”) order of removal and denial of asylum, withholding of removal, and relief
under the CAT. After a thorough review of the record, we deny the petition.
Wang entered the United States on July 3, 2005, remained beyond the
expiration of his visa, and was charged with removability under 8 U.S.C.
§ 1227(a)(1)(B). Wang then applied for asylum, alleging that he had been
persecuted by Chinese authorities due to his religious beliefs. According to
Wang’s testimony at the removal hearing, in December 1999 or January 2000, a
family friend, Mr. Ho, introduced Wang to the art of Yi Guan Dao, a religious
practice that combined principles from Confucius and Buddha and involved
burning incense, ritual washing, and praying. Wang and three others would meet
in his home twice a month to practice Yi Guan Dao. In September 2000, the police
came to Wang’s home and arrested the practitioners. Although the others were
released, the police–believing Wang to be the leader–detained Wang for three
days. During his detention, Wang was interrogated daily and beaten for twenty
minutes each time he was interrogated. As a result of the beatings, Wang had scars
on his back. After three days, Wang posted bail and was released with orders to
report to the police weekly and to cease his participation in Yi Guan Dao.
Thereafter, Wang was unable to find significant work and was repeatedly fired. He
complied with the weekly reporting, and although he was interrogated each time,
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he was not detained or beaten. In July 2005, Wang came to the United States; he
feared he would be jailed if he returned to China.
The corroborating evidence submitted included the State Department
Religious Freedoms Report of 2006 and the Country Report of Human Rights of
2006, which acknowledged that the government took action against religious
“cults,” but did not mention Yi Guan Dao specifically, a letter from Wang’s wife,
and an article on Yi Guan Dao, which indicated that members of Yi Guan Dao had
been imprisoned and even executed for their participation.
The IJ denied relief, concluding that the single detention and minor beating
did not rise to the level of persecution. The IJ considered the fact that Wang had
not required medical attention after the detention and noted that there was no
evidence Wang had continued his religious practice after his release. The IJ also
considered that Wang had not experienced any other difficulties with authorities
after his release and that his family remained in China unharmed. Accordingly, the
IJ found that Wang had not shown a well-founded fear of future persecution.
Because the asylum claim failed, the IJ also denied withholding of removal and
CAT relief.
Wang appealed to the BIA, which dismissed the appeal. According to the
BIA, although Wang was mistreated, the “regrettable actions considered
cumulatively do not rise to the level of persecution.” The BIA further concluded
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Wang had not shown a well-founded fear, considering he had remained in China
for several years after his release, and there was no evidence he had continued his
religious practices or suffered any other harm. This petition for review followed.
Wang argues that the cumulative effect of the detention, interrogations,
beatings, inability to find work, and the requirement that he report to police weekly
constitute persecution. Wang also argues that he established a well-founded fear of
future persecution because he faced the possibility of arrest, as police had been
looking for him since he fled China.
We review only the BIA’s decision unless it expressly adopts the opinion of
the IJ. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Because,
in this case, the BIA issued its own opinion and did not adopt the opinion or
reasoning of the IJ, we review only the BIA’s decision. Id.
Legal determinations are reviewed de novo. D-Muhumed v. U.S. Att’y
Gen., 388 F.3d 814, 817 (11th Cir. 2004). We review factual findings “under the
highly deferential substantial evidence test.” Adefemi v. Ashcroft, 386 F.3d 1022,
1026-27 (11th Cir. 2004) (en banc). We will affirm the BIA’s decision “if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” D-Muhumed, 388 F.3d at 817. “To reverse a factual
finding by the BIA, this court must find not only that the evidence supports a
contrary conclusion, but that it compels one.” Farquharson v. U.S. Att’y Gen., 246
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F.3d 1317, 1320 (11th Cir. 2001). “[O]nly in a rare case does the record compel
the conclusion that an applicant for asylum suffered past persecution or has a
well-founded fear of future persecution.” Silva v. U.S. Att’y Gen., 448 F.3d 1229,
1239 (11th Cir. 2006).
An alien is eligible for asylum relief if he is outside of his country of
nationality and “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.” Zheng v. U.S. Att’y
Gen., 451 F.3d 1287, 1290 (11th Cir. 2006) (quoting 8 U.S.C. § 1101(a)(42)(A)).
To establish asylum eligibility, an applicant “must, with specific and credible
evidence, show (1) past persecution on account of a statutorily listed factor, or (2) a
‘well-founded fear’ that the statutorily listed factor will cause future persecution.”
Zheng, 451 F.3d at 1290.
An applicant who cannot demonstrate past persecution still can obtain
asylum if he shows that he has a well-founded fear of future persecution. De
Santamaria v. U.S. Att’y. Gen., 525 F.3d 999, 1007 (11th Cir. 2008) (citing 8
C.F.R. § 208.13(b)(2)). To establish a well-founded fear of future persecution, the
applicant must demonstrate that he has: “(1) a subjectively genuine and objectively
reasonable fear of persecution that is (2) on account of a protected ground.” De
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Santamaria, 525 F.3d at 1007.1 The subjective prong is satisfied “by the
applicant’s credible testimony that he or she genuinely fears persecution,” and the
objective prong is satisfied if the applicant establishes that he “has a good reason to
fear future persecution.” Id. The petitioner’s well-founded fear of persecution
must be because of one of the statutorily listed factors, such as his religion. See,
e.g. INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 816, 117 L.Ed.2d 38
(1992). The petitioner must establish this causal connection by “presenting
specific, detailed facts showing a good reason to fear that he or she will be singled
out for persecution” on account the statutory factor. Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1231 (11th Cir. 2005) (citation and quotation omitted). In addition,
an applicant’s fear of future persecution is significantly undermined if, at the time
of his asylum application, his family members remain unharmed in his country of
origin. Ruiz v. U.S. Att’y. Gen., 440 F.3d 1247, 1259 (11th Cir. 2006).
An alien is entitled to withholding of removal if he can show that his life or
freedom would be threatened based on one of the five protected grounds. 8 C.F.R.
§ 208.16(b). If the alien can prove a past threat to life or freedom, there is a
1
An applicant may also establish a well-founded fear of future persecution by showing that
he is a member of, or is identified with, a group that is subjected to a pattern or practice of
persecution. Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (quoting 8 C.F.R.
§ 208.13(b)(2)(iii)). In this case, Wang did not argue before the IJ or BIA that China had a pattern
or practice of persecution against members of his religion; therefore, he has not exhausted this issue
and we do not consider it. Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th
Cir. 2001); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006).
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presumption that the alien’s life or freedom would be threatened in the future. 8
C.F.R. § 208.16(b)(1). An alien who seeks relief under CAT carries the burden of
establishing “that it is more likely than not that he or she 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. 2004) (quoting 8 C.F.R. § 208.16(c)(2)). If an
applicant cannot establish eligibility for asylum relief, he cannot meet the more
stringent burden for withholding of removal or CAT relief. Zheng, 451 F.3d at
1292.
Upon review, and giving due deference to the agency’s factual findings, we
conclude the record does not compel the conclusion that Wang suffered past
persecution. Persecution is an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation. Sepulveda v. U.S. Att’y Gen, 401
F.3d 1226, 1231 (11th Cir. 2005) (internal quotations omitted). Even considering
the events cumulatively, the three-day detention, during which Wang was
interrogated and beaten for twenty minutes a day, do not rise to the level of
persecution. Djonda v. U.S. Att’y. Gen., 514 F.3d 1168, 1174 (11th Cir. 2008)
(explaining that a brief detention and minor beating resulting in scratches and
bruises and a two-day hospital stay do not compel the conclusion that the petitioner
suffered persecution). Although Wang contends the beatings were severe, there
was no evidence Wang required any medical treatment for any injuries after his
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release. See Djonda, 514 F.3d at 1174 (considering medical evidence showing the
petitioner suffered scratches and bruises and concluding that the evidence did not
compel a finding of past persecution); Zheng, 451 F.3d at 1290-91 (concluding that
there was no persecution where the petitioner was detained for five days but
suffered no injuries). Considering the record, this incident does not have the
severity found in other cases in which the record has compelled a conclusion that
the petitioner was persecuted. See, e.g., De Santamaria, 525 F.3d 999 (involving
verbal threats, assault resulting in hospitalization, trauma from torture and fatal
shooting of family groundskeeper who refused to reveal petitioner’s location,
kidnaping and beating with guns resulting in hospitalization); Niftaliev v. U.S.
Att’y Gen., 504 F.3d 1211 (11th Cir. 2007) (involving threats, numerous
interrogations and beatings by police during a 15-day detention resulting in
2-month hospitalization, and two subsequent physical assaults on street).
Moreover, even if we consider Wang’s inability to find work and the
requirement that he report to authorities, the record would not compel a different
conclusion. See Zheng, 451 F.3d at 1290 (explaining that the “inability to find
another job . . . is also insufficient to show past persecution.”). Accordingly,
Wang has not shown past persecution.2
2
Even if we were compelled to conclude Wang suffered past persecution, the government
has rebutted the presumption of future persecution by showing a “fundamental change in
circumstance such that the alien no longer has a well-founded fear of persecution.” 8 C.F.R.
8
Additionally, Wang has not shown a well-founded fear of future persecution
that is objectively reasonable.3 Wang remained in China for several years after his
detention without incident. His wife, child, and siblings continue to live in China
without harm. Wang’s fear that he will be arrested for his failure to report does not
amount to a well-founded fear entitling him to asylum. See Sepulveda, 401 F.3d at
1231 (requiring applicant to present specific, detailed facts showing a good reason
to fear that he will be singled out for persecution on account of the statutory
factor).
Additionally, nothing in the corroborating evidence alters our analysis. The
State Department Reports do not mention Yi Guan Dao, and the articles that
indicate Yi Guan Dao members were imprisoned and executed in the past appear to
be from 1995, well before Wang’s detention and release. Thus, we not compelled
to conclude that Wang has an objectively reasonable fear of future persecution,
especially given the lack of evidence that Wang continues to be involved in the
practice of Yi Guan Dao.
§ 208.13(b)(1)(i)(A); Sepulveda, 401 F.3d at 1231. In this case, as the BIA noted, there was no
evidence that Wang continues to engage in the practice of Yi Guan Dao.
3
The IJ found Wang credible; therefore, we conclude Wang met the subjective component
of the well-founded fear analysis.
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Finally, because Wang cannot show that he was eligible for asylum, he
cannot meet the more stringent burden for withholding of removal or CAT relief.
Zheng, 451 F.3d at 1292.
PETITION DENIED.
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