Zhou Liang Li v. U.S. Attorney General , 311 F. App'x 225 ( 2009 )


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  •                                                             [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 08-10582                      FEBRUARY 6, 2009
    Non-Argument Calendar                 THOMAS K. KAHN
    CLERK
    ________________________
    Agency No. A98-715-212
    ZHOU LIANG LI,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    _________________________
    (February 6, 2009)
    Before EDMONDSON, MARCUS and WILSON, Circuit Judges.
    PER CURIAM:
    Petitioner Zhou Liang Li (“Petitioner”) seeks review of the decision of the
    Bureau of Immigration Appeals (“BIA”), which issued its own decision affirming
    the decision of the Immigration Judge (“IJ”), to deny Li’s application for asylum,
    withholding of removal, and relief under the United Nations Convention Against
    Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
    (“CAT”). No reversible error has been shown; we affirm.
    Petitioner is a Chinese native who arrived in the United States in December
    2004. He filed an application for asylum, withholding of removal, and relief under
    CAT, alleging he fears harm based on his religion, political opinion, and
    membership in a particular social class if he returns to China. Li’s concerns stem
    from his father’s practice of Falun Gong in secret at the family’s home and the
    father’s arrest in January 2004. After Li’s father’s alleged arrest, Li traveled to the
    United States. Since arriving in the United States, Li has started to practice Falun
    Gong. According to Li, he is afraid that, if he is sent back to China, he will be
    arrested just like his father and other practitioners of Falun Gong.
    The IJ denied Li’s application for asylum, withholding of removal, and relief
    under CAT. Li filed a notice of appeal to the BIA, which it denied in its own
    written decision.
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    When the BIA issues its own decision, separate from the IJ’s decision, this
    Court reviews only the BIA’s decision. Al Najjar v. Ashcroft, 
    257 F.3d 1262
    ,
    1284 (11th Cir. 2001). “To the extent that the BIA’s decision was based on a legal
    determination, this court’s review is de novo.” D-Muhumed v. U.S. Att’y Gen.,
    
    388 F.3d 814
    , 817 (11th Cir. 2004). “This court reviews administrative fact
    findings under the highly deferential substantial evidence test.” Adefemi v.
    Ashcroft, 
    386 F.3d 1022
    , 1026-27 (11th Cir.2004) (en banc). This Court will
    affirm the BIA’s decision “if it is supported by reasonable, substantial, and
    probative evidence on the record considered as a whole.” D-Muhumed, 
    388 F.3d at 817
    .
    An alien who seeks asylum carries the burden of proving statutory refugee
    status. Al Najjar, 257 F.3d at 1284. To carry this burden, 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. A “well-founded fear” of persecution may be established by showing (1)
    past persecution that creates a rebuttable presumption of a “well-founded fear” of
    future persecution, (2) a reasonable possibility of future personal persecution that
    cannot be avoided by relocating within the subject country, or (3) a pattern or
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    practice in the subject country of persecuting members of a statutorily defined
    group of which the alien is part. 
    8 C.F.R. § 208.13
    (b)(1), (2).
    An alien who seeks withholding of removal carries the burden of showing
    that it is more likely than not that, if returned to his country, his life or freedom
    would be threatened on account of race, religion, nationality, membership in a
    particular social group, or political opinion. 
    8 U.S.C. § 1231
    (b)(3)(C). An
    applicant who cannot meet the lower “well-founded fear” of persecution burden for
    asylum usually cannot meet the “more likely than not” standard required to qualify
    for withholding of removal. Rivera v. U.S. Att’y Gen., 
    487 F.3d 815
    , 820-21 (11th
    Cir. 2007).
    This Court has explained that “[n]ot all exceptional treatment is
    persecution.” Gonzalez v. Reno, 
    212 F.3d 1338
    , 1355 (11th Cir. 2000).
    Persecution requires “more than a few isolated incidents of verbal harassment or
    intimidation, and . . . harassment does not amount to persecution.” Sepulveda v.
    U.S. Att’y Gen., 
    401 F.3d 1226
    , 1231 (11th Cir. 2005). This Court has upheld
    agency decisions when petitioners failed to prove past persecution in cases where
    petitioners had been temporarily detained and suffered injuries that required
    hospitalization. See Zheng v. U.S. Att’y Gen., 
    451 F.3d 1287
     (11th Cir. 2006);
    Djonda v. U.S. Att’y Gen., 
    514 F.3d 1168
     (11th Cir. 2008).
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    An alien who seeks relief under CAT carries the burden of establishing “that
    it is more likely than not that he or she would be tortured if removed to the
    proposed country of removal.” Reyes-Sanchez v. U.S. Att’y Gen., 
    369 F.3d 1239
    ,
    1242 (11th Cir. 2004) (quoting 
    8 C.F.R. § 208.16
    (c)(2)). The “more likely than
    not” standard for relief under CAT is higher than the “well-founded fear” standard
    for relief for asylum, so a petitioner who fails to meet the asylum standard will
    usually not be able to carry his burden for relief under CAT. See Al Najjar, 257
    F.3d at 1303-04.
    The BIA’s decision that Li is not entitled to asylum, withholding of removal,
    or CAT relief is supported by the evidence. Li did not present evidence that he
    was arrested or otherwise harmed while living in China. He did not present
    evidence that the Chinese government is aware that he currently practices Falun
    Gong. He also failed to present evidence that the Chinese government has ever
    been interested in him, would single him out for harsh treatment if he returns, or
    any other reason he should have a “well-founded fear of persecution,” especially
    because he is not a Falun Gong leader and simply practices in the privacy of his
    home. Furthermore, this Court has held that “[i]nvolvement in Falun Gong in
    China by itself does not entitle a person to asylum in the United States.” Zheng,
    
    451 F.3d at 1292
    . Petitioner has not demonstrated reversible error in the BIA’s
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    decision; accordingly, we affirm.
    AFFIRMED.
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