Guiyan Zhu v. U.S. Attorney General , 238 F. App'x 555 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U .S . COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-10360 July 18, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
BIA Nos. A97-628-381 & A97-628-382
GUIYAN ZHU,
WENTANG SUN,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 18, 2007)
Before BIRCH, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Guiyan Zhu,1 a Falun Gong member and a native of China, petitions this
Court for review of the BIA’s order denying her application for asylum. We find
that, regardless of whether the BIA and IJ’s adverse credibility determinations
were based on specific, cogent reasons and supported by substantial evidence, Zhu
has failed to establish a well-founded fear of persecution.
As an initial matter, we conclude that the BIA did not act improperly in
refusing to submit Zhu’s case to a three-member panel. A petitioner does not have
an automatic right to a three-member panel; the regulations provide that a board
member may, but does not have to, designate a case for panel review in certain
circumstances. See 8 C.F.R. § 1003.1(e)(6). We also conclude that we lack
jurisdiction to consider Zhu’s claims that (1) the IJ improperly denied withholding
of removal and CAT relief and (2) a pattern or practice of persecution of Falun
Gong members exists in China, because these two issues were not exhausted. See
Amaya-Artunduaga v. United States Att’y Gen., 463 F.3d 1247, 1250–51 (11th
Cir. 2006) (we lack jurisdiction to review claims that the petitioner failed to raise
before the BIA, regardless of whether the BIA sua sponte addressed them).
On appeal, we review 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
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Zhu’s husband, Wentang Sun, also appeals, but his claim is based on derivative status.
Accordingly, the petitioners will be collectively referred to as “Zhu.”
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(11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we will review
the IJ’s decision as well.” Id. Here, because the BIA decided the merits of the
claims by partially relying on the IJ’s decision, we review the BIA’s decision and,
to the extent relied on, the IJ’s decision.
Factual determinations are reviewed under the substantial evidence test, and
we will affirm a decision if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole. Forgue v. United States Att’y Gen.,
401 F.3d 1282, 1286 (11th Cir. 2005). The substantial evidence test is deferential
and does not allow “re-weigh[ing] the evidence from scratch.” Id. (quoting
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004)). To the extent that the
IJ’s and BIA’s decisions were based on a legal determination, our review is de
novo. See Mohammed v. Ashcroft, 261 F.3d 1244, 1247–48 (11th Cir. 2001). “To
reverse the IJ’s [and BIA’s] fact findings, we must find that the record not only
supports reversal, but compels it.” Mendoza v. United States Att’y Gen., 327 F.3d
1283, 1287 (11th Cir. 2003) (considering withholding of removal claim). The fact
that evidence in the record may support a conclusion contrary to the administrative
findings is not enough to justify a reversal. Adefemi, 386 F.3d at 1027.
An alien who arrives in or is present in the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). The petitioner bears the burden of proving
“refugee” status and must show past persecution or a well-founded fear of future
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persecution based on a statutory classification. Al Najjar, 257 F.3d at 1284.
Although not specifically characterized as such by practitioners, for our purposes
Falun Gong is considered a religion—one of the statutory classifications
potentially meriting asylum. On appeal, Zhu does not argue that she suffered past
persecution, so her asylum application turns on the existence of a well-founded
fear of future persecution because of her Falun Gong practices. 8 C.F.R. §
208.13(a), (b); see Al Najjar, 257 F.3d at 1287.
We have never expressly defined “persecution,” but we have indicated 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 v. United States Att’y Gen., 401 F.3d 1226, 1231 (11th
Cir. 2005) (quotation marks and alteration omitted). Additionally, we have held
that merely being involved with Falun Gong in China along is not enough to merit
asylum. See Zheng v. United States Att’y Gen., 451 F.3d 1287, 1291–92 (11th
Cir. 2006), cert. denied, 127 S. Ct. 1124 (Jan. 16, 2007). Zhu cannot meet this
standard. She alleges no more than a single brief detention and some amount of
surveillance. That is not enough. The evidence before us does not compel a
conclusion contrary to that reached by the BIA and the IJ.
Further, we find no merit to Zhu’s claim that the BIA and IJ failed to
properly consider the 2002 Country Report allegedly demonstrating that the
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Chinese government was cracking down on Falun Gong practitioners. Neither the
IJ nor the BIA had a duty to explicitly mention the report in its decision, see Tan v.
United States Att’y Gen., 446 F.3d 1369, 1376 (11th Cir. 2006), and both decisions
indicate that all proffered evidence was taken into consideration.
Finally, we need not reach Zhu’s claim that the BIA and IJ erred in making
an adverse credibility determination that was not supported by specific, cogent
reasons or substantial evidence. Even if we deem Zhu credible and accept all her
testimony as true, she still cannot demonstrate sufficient persecution to establish
the well-founded fear necessary for asylum. See Al Najjar, 257 F.3d at 1284–85.
Accordingly, Zhu’s petition is denied in part and dismissed in part.
PETITION DENIED IN PART AND DISMISSED IN PART.
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