Hua You v. U.S. Attorney General , 219 F. App'x 899 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 6, 2007
No. 06-13933 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A97-951-703
HUA YOU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 6, 2007)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Petitioner Hua You is a native and citizen of China. An Immigration Judge
(IJ) denied his application for asylum, withholding of removal under the
Immigration and Naturalization Act (INA), and relief under the U.N. Convention
Against Torture (CAT), and ordered his removal. The Board of Immigration
Appeals (BIA) affirmed the IJ’s decision. Petitioner now asks us to review that
disposition.
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). Here, the BIA adopted the IJ’s determination
“that [Petitioner] failed to meet his burden of establishing eligibility for his
requested relief from removal.” The majority of the BIA’s opinion, however,
consists of its own findings regarding Petitioner’s eligibility for asylum,
withholding of removal, and CAT relief. We therefore review the BIA’s decision.
We consider BIA’s conclusions of law de novo, see Mohammed v. Ashcroft, 261
F.3d 1244, 1247-48 (11th Cir. 2001), and its findings of fact under the substantial
evidence test. In the end, we must 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 1283-84 (citation omitted); Antipova v. United
States Att’y Gen., 392 F.3d 1259, 1261 (11th Cir. 2004) (quotation omitted).
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The Attorney General has discretion to grant asylum if the alien meets the
INA definition of “refugee.” See INA § 208(b)(1), 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.
INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A). To establish asylum eligibility,
the alien must, with specific and credible evidence, establish (1) past persecution
on account of a statutorily listed factor, or (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. If the alien establishes past persecution, it is
presumed that his life or freedom would be threatened upon a return to that country
unless the Government shows by a preponderance of the evidence that the
country’s conditions have changed such that the applicant’s life or freedom would
no longer be threatened upon his removal or that the alien could relocate within the
country and it would be reasonable to expect him to do so. 8 C.F.R. § 208.13(b).
A request for withholding of removal requires that an alien show that his life
or freedom would more likely than not be threatened in his country of origin on
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account of race, religion, nationality, membership in a particular social group, or
political opinion. INA § 243(b)(3), 8 U.S.C. § 1252(b)(3); Sepulveda v. United
States Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). Where an alien fails to
establish eligibility for asylum, he likewise fails to establish withholding of
removal. See Al Najjar, 257 F.3d at 1293. Similarly, to obtain CAT relief, the
burden is on the alien to establish that it is “more likely than not” that he will be
tortured in the country of origin. 8 C.F.R. § 208.16(c)(2).1 Where the alien fails to
establish eligibility for asylum, which carries a lower burden of proof than the
burden of proof for the withholding of removal and CAT relief, he likewise fails to
establish eligibility for these other forms of relief. See Al Najjar, 257 F.3d at 1293.
Although the IJ found Petitioner’s testimony not credible, the BIA did not so
find. We therefore assume that Petitioner’s testimony was credible in assessing the
merits of his petition for review. Though it found Petitioner’s testimony credible
in assessing the merits of his petition for review, the BIA had substantial evidence
1
Torture is defined as
any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or her
or a third person information or a confession, punishing him or her for an act he
or she or a third person has committed or is suspected of having committed, or
intimidating or coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.
8 C.F.R. § 208.18(a)(1).
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before it to conclude that Petitioner failed to meet his burden of proof for asylum in
that he failed to demonstrate a well-founded fear that he would be persecuted on a
protected ground if returned to China.
Because, as noted above, eligibility for asylum carries a lower burden of
proof than withholding of removal or CAT protection, substantial evidence also
supports the BIA’s conclusion that Petitioner failed to carry his burden of proof
under these provisions.
PETITION DENIED.
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