Zhi Keng Chen v. United States Attorney General , 387 F. App'x 945 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 09-14705 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar
JULY 20, 2010
________________________
JOHN LEY
CLERK
Agency No. A095-079-642
ZHI KENG CHEN,
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 20, 2010)
Before EDMONDSON, BIRCH and ANDERSON, Circuit Judges.
PER CURIAM:
Zhi Keng Chen, a citizen and native of the People’s Republic of China,
petitions for review of the Board of Immigration Appeals’ (“BIA”) decision
affirming the Immigration Judge’s (“IJ”) order denying his application for asylum
and withholding of removal under the Immigration and Nationality Act (“INA”),
INA §§ 208, 241; 8 U.S.C. §§ 1158, 1231. On appeal, Chen argues that he was
eligible for asylum based on his “other resistance” to China’s family planning
policy and the mental anguish he suffered after his wife’s forced sterilization. He
also contends that he established eligibility for withholding of removal and
protection under the Convention Against Torture (“CAT”).
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 (11th Cir. 2001).
Here, the BIA issued its own decision, expressly adopting portions of the IJ’s
decision. Accordingly, our review is limited to the BIA’s decision and those parts
of the IJ’s decision expressly adopted by the BIA. Id.The BIA’s factual determinations are reviewed under the “highly
deferential” substantial evidence test, and 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. (quotation omitted). “Thus, a finding of fact will be
reversed 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.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir.
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2006) (quotation omitted).
To be eligible for asylum, the applicant bears the burden of proving refugee
status by establishing, with specific and credible evidence, (1) past persecution on
account of a protected ground; or (2) a well-founded fear of future persecution on
account of a protected ground. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th
Cir. 2006). However, fear of punishment for leaving China illegally is not a
protected ground. Yu v. U.S. Att’y Gen., 568 F.3d 1328, 1334 n.4 (11th Cir. 2009).
While the INA does not define persecution, we have held 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. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)
(quotations and brackets omitted). Furthermore, the INA provides that:
[A] person who has been forced to abort a pregnancy or to
undergo involuntary sterilization, or who has been persecuted
for failure or refusal to undergo such a procedure or for other
resistance to a coercive population control program, shall be
deemed to have been persecuted on account of political opinion,
and a person who has a well founded fear that he or she will be
forced to undergo such a procedure or subject to persecution for
such failure, refusal, or resistance shall be deemed to have a
well founded fear of persecution on account of political
opinion.
INA § 101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B). We recently held that
§ 1101(a)(42)(B) “does not confer automatic refugee status on an individual
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merely because his or her spouse . . . underwent a forced abortion or sterilization.”
Yu, 568 F.3d at 1332. “Rather, the person who did not physically undergo the
forced procedure, or is not subject to a well-founded fear of one, must establish
actual persecution for resisting a country’s coercive family planning policy, or a
well-founded fear of future persecution for doing so.” Id. at 1333 (quotations
omitted). Thus, even if hiding from authorities to avoid a spouse’s sterilization
amounts to “other resistance,” the alien must still show that he was personally
persecuted because of that resistance. Id. at 1334.
To qualify for withholding of removal under the INA, an applicant must
show that, if returned to his country of origin, his life or freedom would be
threatened on account of a statutorily-protected ground. INA § 241(b)(3); 8 U.S.C.
§ 1231(b)(3). An applicant can satisfy this burden of proof by a showing that he
either suffered past persecution or that it is more likely than not that he will be
persecuted in the future. See 8 C.F.R. §§ 1208.16(b)(1)-(2). When a petitioner is
unable to meet the standard of proof for asylum, he is generally precluded from
qualifying for withholding of removal. Al Najjar, 257 F.3d at 1292-93.
We note initially that, even if Chen’s act of hiding from authorities
amounted to “other resistance,” he failed to offer any argument as to how he was
persecuted based on that “other resistance.” While he does argue that he suffered
mental anguish based on his wife’s forced sterilization, that is not based on Chen’s
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own resistance. Accordingly, Chen has abandoned this issue on appeal. See
Sepulveda, 401 F.3d at 1228 n.2 (“When an appellant fails to offer argument on an
issue, that issue is abandoned”).
Chen argues that his mental anguish amounted to past persecution; however,
the BIA concluded that Chen did not suffer mental anguish in the first place.
Substantial evidence supports this conclusion. The evidence showed that Chen did
not alter his life after his wife’s forced sterilization, but continued to work for the
Chinese government for nearly two years. Chen did not attempt to leave China
until after he was detained by police for making an utterance in opposition to the
government’s removal of people exercising in the town square, which had nothing
to do with his wife’s forced sterilization. Accordingly, the record does not compel
reversal of the BIA’s conclusion that Chen did not suffer mental anguish. In
addition, Chen’s fear of future persecution was not based on a protected ground
because he testified that he feared imprisonment for being smuggled illegally out
of China. See Yu, 568 F.3d at 1334 n.4. Thus, Chen failed to establish his
eligibility for asylum. As such, it follows that he cannot meet the more rigorous
standard for withholding of removal. See Al Najjar, 257 F.3d at 1292-93. Also,
because Chen did not challenge the IJ’s denial of CAT relief to the BIA, he has not
exhausted his administrative remedies as to this issue and we dismiss this claim for
lack of jurisdiction. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250
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(11th Cir. 2006).
PETITION DENIED IN PART, DISMISSED IN PART.
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