Bin Lin v. U.S. Attorney General ( 2009 )

  •                                                                 [DO NOT PUBLISH]
                           FOR THE ELEVENTH CIRCUIT
                             ________________________                   FILED
                                                               U.S. COURT OF APPEALS
                                    No. 08-17010                 ELEVENTH CIRCUIT
                                                                     JUNE 26, 2009
                                Non-Argument Calendar
                                                                  THOMAS K. KAHN
                               Agency No. A097-660-008
    BIN LIN,
                         Petition for Review of a Decision of the
                              Board of Immigration Appeals
                                     (June 26, 2009)
    Before BLACK, CARNES and BARKETT, Circuit Judges.
         Bin Lin, a native and citizen of China, petitions for review of the Board of
    Immigration Appeal’s decision denying his appeal from the Immigration Judge’s
    order denying his application for asylum under the Immigration and Nationality
    Act. Lin contends that he has a well-founded fear of future persecution based on
    an imputed political opinion, namely that Chinese authorities perceived him as
    being a supporter of Falun Gong.
          Because the BIA issued its own decision and did not adopt the IJ’s one, our
    review is limited to BIA’s decision. See Al Najjar v. Ashcroft, 
    257 F.3d 1262
    1284 (11th Cir. 2001). The BIA’s factual determinations are reviewed under the
    “substantial evidence” test. Id. at 1283. Under that test, we “must affirm the
    BIA’s decision if it is supported by reasonable, substantial, and probative evidence
    on the record considered as a whole.” Id. at 1283-84 (citations and internal
    quotation marks omitted). We will reverse the BIA only when the record compels
    us to, and the fact that the record also supports the petitioner’s case is not enough
    to reverse. Adefemi v. Ashcroft, 
    386 F.3d 1022
    , 1029 (11th Cir. 2004) (en banc).
    Moreover, in our review we may not find or consider facts not raised in the
    administrative record, nor may we reweigh the evidence from scratch. Id. at 1027.
          An alien who arrives in or is present in the United States may apply for
    asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). An alien is eligible for asylum if
    the alien meets the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. §
    1158(b)(1). Under the INA, 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
    INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42 )(A). The asylum applicant carries
    the burden of proving statutory “refugee” status. Id. 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
    (2) a “well-founded fear” that the statutorily listed factor will cause future
    persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. An imputed
    belief, whether correctly or incorrectly attributed, may constitute a ground for a
    “well-founded fear” of persecution under the INA. Al Najjar, 257 F.3d at 1289.
          Lin contends that he will be persecuted if he is returned to China because of
    his imputed association with Falun Gong. Specifically, he argues that he will be
    arrested and persecuted because the Chinese government assumes he is a Falun
    Gong supporter because he sold Falun Gong literature at his bookstore. Substantial
    evidence supports the BIA’s finding to the contrary. Lin has the burden of
    demonstrating that his “fear of persecution is subjectively genuine and objectively
    reasonable.” Al Najjar, 257 F.3d at 1289. To do, he must present “specific,
    detailed facts showing a good reason to fear that he or she will be singled out for
    persecution on account of” the statutorily listed factor. D-Muhumed v. United
    States Att’y Gen., 
    388 F.3d 814
    , 818 (11th Cir. 2004).
          Lin’s fear-of-persecution argument is based on theory that the Chinese
    government shut down his bookstore because he was selling Falun Gong literature,
    and therefore that the Chinese government believes he supports Falun Gong. That
    argument fails. The only supporting evidence that Lin presented was a statement
    in his asylum application that a friend advised him that he was perceived as selling
    Falun Gong literature and may be investigated. That is not enough evidence,
    however, to compel the conclusion that Lin’s bookstore was shut down because he
    was selling Falun Gong literature, much less that the government will persecute
    Lin upon his return.
          The BIA concluded that the Chinese authorities did not shut down Lin’s
    bookstore on account of Lin’s perceived support of Falun Gong. Lin argues that it
    is nonetheless reasonable to conclude from the record that he will be persecuted if
    he returns to China. It is not enough that the record supports the petitioner’s claim.
    See Adefemi, 386 F.3d at 1027 (“[T]he mere fact that the record may support a
    contrary conclusion in not enough to justify a reversal of administrative
    findings.”). The record must compel us to reverse the BIA. Id. Here it does not.
    Instead, the record provides substantial evidence to support the BIA’s
    determination that Lin has not demonstrated a well-founded fear of future
    persecution if he returns to China.

Document Info

DocketNumber: 08-17010

Filed Date: 6/26/2009

Precedential Status: Non-Precedential

Modified Date: 12/21/2014