Wenzhen Wu v. U.S. Attorney General , 303 F. App'x 734 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 16, 2008
No. 08-10249 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A98-564-518
WENZHEN WU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 16, 2008)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Wenzhen Wu, through counsel, seeks review of the Board of Immigration
Appeals’ (“BIA”) summary affirmance of the immigration judge’s (“IJ”) order of
removal and denial of his application for asylum, withholding of removal under the
Immigration and Nationality Act (“INA”), and relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16. On appeal, Wu
challenges the IJ’s finding that he was not eligible for asylum. He also offers
several additional arguments, discussed below, over which we lack jurisdiction or
which have been abandoned.
A. Claims over which we lack jurisdiction
We review our subject matter jurisdiction de novo. Gonzalez-Oropeza v.
U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). The exhaustion
requirement applicable to immigration cases is found in 8 U.S.C. § 1252(d)(1),
which provides that “[a] court may review a final order of removal only if . . . the
alien has exhausted all administrative remedies available to the alien as of right.” 8
U.S.C. § 1252(d)(1). We have “interpreted that requirement to be jurisdictional, so
we lack jurisdiction to consider claims that have not been raised before the BIA.”
Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003).
Wu did not raise the following his claims on appeal to the BIA: (1) the IJ
should not have considered the fact that Wu’s family still resided in the same
home, and nothing had happened to them; (2) Wu was persecuted because he was a
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member of a social group, as he contended before the IJ and the BIA only that he
was persecuted because of his political opinions; (3) he was entitled to CAT relief;
and (4) the country reports were “biased and outdated.” Therefore, we lack
jurisdiction over those claims.
B. Abandoned claims
When an appellant fails to offer argument on an issue, or includes only a
passing reference to an issue, that will be insufficient to raise a claim for appeal,
and such an issue will be deemed abandoned. Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1228 n.2 (11th Cir. 2005) (no argument); Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir. 1989) (passing reference).
First, by not offering any support for his argument that the BIA’s summary
affirmance violated his due process rights, Wu abandoned this issue. Second,
although Wu contends that the birth certificate that he submitted should have been
deemed sufficient to establish his identity, and the IJ erred by finding otherwise, he
does not offer any legal or factual support for his argument, and therefore, this
issue has been abandoned.
C. Asylum Claim
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). “Insofar as the BIA adopts the IJ’s reasoning,
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we will review the IJ’s decision as well.” Id. Here, the BIA expressly adopted the
IJ’s reasoning, and therefore we will review the IJ’s decision.
To the extent that the IJ’s and the BIA’s decisions are based on a legal
determination, review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247
(11th Cir. 2001). Factual determinations, however, are reviewed under the “highly
deferential substantial evidence test,” which requires us to “view the record in the
light most favorable to the [IJ]’s decision and draw all reasonable inferences in
favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir.
2004) (en banc). “Findings of fact made by the [IJ] may be reversed by [us] 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 of the administrative
findings.” Silva v. U.S. Att'y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006)
(alterations and quotation omitted).
An alien may receive asylum if he can carry the burden of proving that he is
a “refugee,” which is defined as:
any person who is outside any country of such person’s nationality . . .
and who is unable or unwilling to return to, and is unable or unwilling
to avail . . . [himself] 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.
Sepulveda, 401 F.3d at 1230 (citing INA § 101(a)(42)(A), 8 U.S.C.
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§ 1101(a)(42)(A)). “The asylum applicant must establish eligibility for asylum by
offering ‘credible, direct, and specific evidence in the record.’” Forgue v. U.S.
Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005); see also INA § 208(b)(1)(B)(ii),
8 U.S.C. § 1158(b)(1)(B)(ii) (as amended by the REAL ID Act § 101(a)(3))
(effective May 11, 2005, for asylum and withholding applications made on or after
that effective date) (“The testimony of the applicant may be sufficient to sustain
the applicant's burden without corroboration, but only if the applicant satisfies the
trier of fact that the applicant's testimony is credible, is persuasive, and refers to
specific facts sufficient to demonstrate that the applicant is a refugee.”).
“Uncorroborated but credible testimony from the applicant may be sufficient alone
to sustain the burden of proof for asylum or withholding of removal.” D-Muhumed
v. U.S. Att’y Gen., 388 F.3d 814, 818-19 (11th Cir. 2004). “The weaker an
applicant’s testimony, however, the greater the need for corroborative evidence.”
Yang v. U.S. Atty. Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). “Indications of
reliable testimony include consistency on direct examination, consistency with the
written application, and the absence of embellishments.” Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1255 (11th Cir. 2006).
Accordingly, to be eligible for asylum, “the alien must, with credible
evidence, establish (1) past persecution on account of [his] political opinion or any
other protected ground, or (2) a ‘well-founded fear’ that [his] political opinion or
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any other protected ground will cause future persecution.” Sepulveda, 401 F.3d at
1230-31 (citing 8 C.F.R. § 208.13(a) and (b)). Demonstrating such a connection
requires the alien to present specific, detailed facts showing a good reason to fear
that he would be “singled out” for persecution. Al Najjar, 257 F.3d at 1287. This
Court has recognized that an alien’s imputed political opinion satisfies the
requirement that persecution be based on a protected ground. Id. at 1289.
Although the INA does not define persecution, we have recognized that
“persecution” is “an extreme concept, requiring more than a few isolated incidents
of verbal harassment or intimidation, and that mere harassment does not amount to
persecution.” Sepulveda, 401 F.3d at 1231 (quotations and bracket omitted). We
have held that a five-day detention during which an alien is not harmed does not
compel a finding of past persecution. Zheng v. U.S. Att’y Gen., 451 F.3d 1287,
1290 (11th Cir. 2006). “A showing of past persecution creates a presumption of a
‘well-founded fear,’ subject to rebuttal by the [government].” Sepulveda, 401 F.3d
at 1231 (citing 8 C.F.R. § 208.13(b)(1)).
Withholding of removal may be granted if the alien establishes that, if
returned to his country, his life or freedom would be threatened on account of his
race, religion, nationality, membership in a particular social group, or political
opinion. INA § 241(b)(3); 8 U.S.C. § 1231(b)(3). If an alien does not establish
past persecution, he bears the burden of showing that it is more likely than not that
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he will suffer persecution on the basis of a protected ground, and he would not be
able to avoid persecution by relocating to another part of his country, if, under all
of the circumstances, it would be reasonable to expect him to do so. 8 C.F.R.
§ 208.16(b)(2).
Substantial evidence supports the IJ’s decision that Wu was not eligible for
asylum because Wu did not establish that he held a political opinion or otherwise
fell into one of the five statutorily protected categories. Although he testified that
he opposed the village elections, his opposition was based on fears of corruption,
not political views. Additionally, he failed to provide any details of his political
involvement. Second, Wu’s testimony regarding his detentions convinces us that
he did not suffer persecution. Accordingly, we dismiss Wu’s petition in part and
deny it in part.
DISMISSED IN PART, DENIED IN PART.
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