Case: 17-14870 Date Filed: 09/24/2018 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14870
Non-Argument Calendar
________________________
Agency No. A209-239-683
QUANXING YANG,
Petitioner,
versus
U.S. ATTORNEY,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 24, 2018)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 17-14870 Date Filed: 09/24/2018 Page: 2 of 12
Quanxing Yang seeks review of a final order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of his application
for asylum pursuant to the Immigration and Nationality Act (“INA”) § 208(a), 8
U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3), and withholding of removal under the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”), 8 C.F.R. § 208.16(c). The IJ and BIA determined that Yang was
ineligible for asylum because he was firmly resettled in Peru, and they found that
he failed to meet his burden for withholding of removal or CAT relief. On appeal,
Yang argues that he was not firmly resettled in Peru, that he has a well-founded
fear of persecution in China, and that he met the burdens for withholding of
removal and CAT relief.
I. STANDARDS
We review only the decision of the BIA, unless the BIA adopts the IJ’s
decision. Najjar v. Ashcroft,
257 F.3d 1262, 1284 (11th Cir. 2001). When the BIA
explicitly agrees with the findings of the IJ, we will review both decisions to the
extent of the agreement. See Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 948 (11th
Cir. 2010). Here, the BIA did not adopt the IJ’s decision but agreed with the IJ’s
conclusions regarding Yang’s firm resettlement in Peru, as well as his failure to
2
Case: 17-14870 Date Filed: 09/24/2018 Page: 3 of 12
meet the burdens for withholding of removal and CAT relief. Thus, we review both
decisions to that extent. See
id.
We review legal issues presented in a petition for review de novo.
Id. We
review factual findings under the substantial evidence test. Adefemi v. Ashcroft,
386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc). Under that test, “[w]e ‘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 1027 (quoting
Najjar, 257 F.3d at 1283–84). We view the evidence in the light most favorable to
the agency’s decision and draw all reasonable inferences in favor of that decision.
Id. Factual findings “may be reversed by this [C]ourt 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.”
Id.
II. BACKGOUND
Yang is a native and citizen of China. In 1991, when Yang was 13, he and
his family left China for Peru. Yang attended school and then worked as a
businessman in Peru until entering the United States in 2016. According to Yang,
he left Peru because he was targeted by the gangs there due to the fact that he is
Chinese. In his credible fear interview, Yang described several incidents in which
gang members in Peru robbed him or his home or threatened him. Yang did not
report these incidents to the police because he believed that the gangs and the Peru
3
Case: 17-14870 Date Filed: 09/24/2018 Page: 4 of 12
police were working together. Yang stated that, on one occasion, policemen
“blackmailed” him “about [his] personal ID [card]” in order to extort money from
him. Yang also testified that the gang members threatened to kill him if he reported
any of their crimes to the police. Regarding his legal status in Peru, Yang stated in
his credible fear interview that he received permission from Peru to remain there
legally. When asked if his status in Peru was as a permanent resident or a long term
resident, Yang stated, “It is a long term residence.” The interviewer then asked
Yang when his residence in Peru would expire. Yang replied, “2020.”
At the merits hearing before the IJ, Yang reiterated his fear of returning to
Peru due to the gangs. Regarding his status there, he testified that he had “a
permanent resident card from Peru” and confirmed that he had lived there for
twenty-five years before entering the United States. Yang’s attorney tried to clarify
Yang’s statements during his credible fear interview regarding his Peru status
expiring in 2020. Yang’s attorney asked, “[I]n your prior interview with the
asylum officer, you had said that you had a long-term residence but not a
permanent residence, and that your status actually would end at the year 2020. Do
you recall that?” Yang replied, “Yeah. I remember. I think they’re all the same,
right? Long-term and permanent. What is the difference?” After a short exchange
between the IJ and Yang’s counsel, Yang supplemented his answer: “Can I add
4
Case: 17-14870 Date Filed: 09/24/2018 Page: 5 of 12
something—for the previous question? The ID card is an alien card from the
government. You had to pay a fee each year. Otherwise, it would be revoked.”
Yang also testified about a trip that he took to China from Peru in 2007.
During this trip, Yang attended several underground church gatherings. Police
raided one of these gatherings, arresting Yang and the other attendees. The police
pushed, shoved, and kicked Yang and the other attendees during the arrest in order
to make them move faster. Yang was detained for eleven days and interrogated
several times. According to Yang, the interrogations were noisy and took place at
night, making it difficult for him to sleep. Yang’s parents were able to bribe
officials to release him. Upon his release, police warned Yang that he risked being
jailed and separated from his family if he continued to attend underground
religious meetings. Additionally, in the days following Yang’s release, the police
went to his home in search of religious materials. Yang testified that he did not
suffer any major injuries from the detention. He nevertheless fears that if he returns
to China, he will again be arrested for practicing his religion. He testified that he
sought asylum in the United States because it is “the country of religious freedom”
and all of his family members live here.
Although the IJ found Yang credible, the IJ denied Yang’s petition for
asylum, withholding of removal, and CAT relief. The IJ first found that Yang was
firmly resettled in Peru and concluded that Yang was therefore ineligible for
5
Case: 17-14870 Date Filed: 09/24/2018 Page: 6 of 12
asylum. The IJ further concluded that, even if Yang were not statutorily barred
from seeking asylum, Yang failed to show that he was entitled to asylum under the
INA. The IJ stated that he believed that Yang was not seeking asylum from Peru.
The IJ then found that Yang’s allegations regarding his eleven-day detention in
China did not rise to the level of past persecution. Additionally, the IJ found that
Yang’s fear of future persecution in China based on his religion was not
objectively reasonable and that Yang failed to establish that it was more likely than
not that he would be tortured upon return to China.
The BIA affirmed the IJ’s denial of Yang’s petition. The BIA first agreed
with the IJ’s determination that Yang was ineligible for asylum due to his firm
resettlement in Peru. The BIA then affirmed the IJ’s conclusion that Yang failed to
establish that he was entitled to withholding of removal or relief under CAT. The
BIA also noted that the record was a bit inconsistent regarding whether Yang was
seeking asylum from Peru as well as from China. Nevertheless, the BIA concluded
that any error regarding the IJ’s failure to address Yang’s fear of returning to Peru
is harmless because Yang was ordered removed to China.
III. DISCUSSION
The Attorney General has the authority to grant asylum to an alien who
meets the INA’s definition of “refugee.” INA § 208(b)(1)(A), 8 U.S.C.
§ 1158(b)(1)(A). A refugee is:
6
Case: 17-14870 Date Filed: 09/24/2018 Page: 7 of 12
[A]ny person who is outside any country of such person’s
nationality . . . and who is unable or unwilling to return to, and is
unable or unwilling to avail him 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). However, an applicant is
statutorily ineligible for asylum if he was “firmly resettled in another country prior
to arriving in the United States.” INA § 208(b)(2)(A)(vi), 8 U.S.C.
§ 1158(b)(2)(A)(vi). “An alien is considered to be firmly resettled if, prior to
arrival in the United States, he or she entered into another country with, or while in
that country received, an offer of permanent resident status, citizenship, or some
other type of permanent resettlement . . . .” 8 C.F.R. § 1208.15. An exception to
this rule exists if the alien can show either (1) that his entry into that country “was
a necessary consequence” of his flight from persecution, he only remained there
long enough to arrange further travel, and he did not establish significant ties to
that country, or (2) that the conditions of his residency in that country were “so
substantially and consciously restricted by the authority of the country” that he was
not in fact resettled.
Id. § 1208.15(a)–(b).
An alien is entitled to withholding of removal if he can show that his “life or
freedom would be threatened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or political opinion.” INA
§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The applicant must show that it is more
7
Case: 17-14870 Date Filed: 09/24/2018 Page: 8 of 12
likely than not that he will be persecuted or tortured upon returning to his country.
Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1232 (11th Cir. 2005).
Persecution is an “extreme concept,” requiring more than mere harassment
or “a few isolated incidents of verbal harassment or intimidation.”
Id. at 1231
(quoting Gonzalez v. Reno,
212 F.3d 1338, 1355 (11th Cir. 2000)). For example,
in Djonda v. United States Attorney General,
514 F.3d 1168 (11th Cir. 2008), we
held that the evidence did not compel a conclusion that the petitioner had suffered
past persecution.
Id. at 1174. In that case, the petitioner was detained in a small cell
with twelve other people for thirty-six hours, unable to sleep, beaten multiple
times, including once with a belt, forced to drink a “very dirty liquid” and eat
something “very bad,” and hospitalized for two days after the detention.
Id. at
1171. Additionally, in Kazemzadeh v. United States Attorney General,
577 F.3d
1341 (11th Cir. 2009), we held that a four-day detention, including a five-hour
interrogation and beating, accompanied by post-incarceration monitoring, did not
compel a finding that the petitioner had suffered past persecution.
Id. at 1353–54.
On the other hand, we have held that a petitioner suffered past persecution
on account of his religion where officials interrupted a church service in the
petitioner’s home, confiscated bibles, detained the petitioner for seven days,
slapped him, threatened to beat him with a bar, and handcuffed him to an iron bar
overnight in the rain, which caused a high fever and sore throat. Shi v. U.S. Att’y
8
Case: 17-14870 Date Filed: 09/24/2018 Page: 9 of 12
Gen.,
707 F.3d 1231, 1235–37 (11th Cir. 2013). In concluding that Shi had
suffered past persecution, we distinguished the facts of Shi from those in Djonda,
noting that Djonda involved less than a weeklong detention, did not involve the
interruption of a church service or confiscation of religious material, and did not
involve as “singularly cruel a tactic” as handcuffing the petitioner to a bar outside
in the rain overnight.
Id. at 1239. We stated that “perhaps” the most important fact
in compelling the finding of past persecution in Shi was the fact that Shi was
handcuffed to the bar.
Id. at 1237. We noted that Shi developed a high fever and
sore throat and was only released after he did not recover and the police feared that
he would die in custody.
Id.
We affirm the denial of Yang’s petition for asylum and withholding of
removal. First, substantial evidence supports the finding that, after leaving China,
Yang firmly resettled in Peru before entering the United States. According to
Yang’s own testimony, he lived, attended school, and worked as a businessman in
Peru for twenty-five years. Regarding his legal status there, it is true that Yang
described his status as long term rather than permanent in his credible fear
interview; he also answered the interviewer’s question regarding when his status
would expire by saying “2020.” But at the hearing before the IJ, Yang testified that
he had “a permanent resident card from Peru.” When asked about his contradictory
answer during his credible fear interview, Yang explained that he does not think
9
Case: 17-14870 Date Filed: 09/24/2018 Page: 10 of 12
that there is a difference between long term and permanent residence. Yang also
stated that his status does “expire” every year; however, he can pay a fee each year
to renew his card. Given the totality of Yang’s testimony regarding his status in
Peru, substantial evidence supports the finding that Yang obtained an offer of
permanent residence in Peru. And Yang does not offer evidence that the
government in Peru severely restricted his status such that he was not in fact firmly
resettled there. Accordingly, the IJ and BIA correctly concluded that Yang is
statutorily barred from seeking asylum from China.
Regarding Yang’s claims for withholding of removal to China, substantial
evidence supports the IJ’s and BIA’s conclusion that Yang failed to show that it is
more likely than not that he will be persecuted upon returning to China. First,
substantial evidence supports the finding that Yang’s eleven-day detention does
not amount to past persecution. Although Yang testified that the police were rough
with him and the other attendees during the arrest, Yang testified that he only
suffered minor injuries from the incident. Regarding the fact that Yang was
interrogated and kept awake at night by the noisy interrogations, this Court has
held that seemingly more severe detentions that involved multiple beatings and
interrogations did not compel a finding of past persecution. See
Djonda, 514 F.3d
at 1174 (holding that a thirty-six-hour detention, during which the petitioner was
beaten multiple times, resulting in a two-day hospitalization, did not compel the
10
Case: 17-14870 Date Filed: 09/24/2018 Page: 11 of 12
conclusion that the petitioner suffered persecution);
Kazemzadeh, 577 F.3d at 1353
(holding that a four-day detention, during which the petitioner was interrogated
and beaten, did not compel the conclusion that the petitioner suffered persecution).
Given that Yang was not subjected to severe interrogation tactics, was not
seriously injured, and was allowed to leave China without incident after his
release, the record in this case does not compel a finding of past persecution. Cf.
Shi, 707 F.3d at 1235–37 (holding that the record compelled a finding of past
persecution where the petitioner was detained for seven days, handcuffed to an iron
bar overnight in the rain, and only released when the police feared that the
petitioner would die in custody).
Likewise, the record does not compel a finding that it is more likely than not
that Yang would be persecuted on account of his religion if he returned to China.
In making this determination, the IJ relied on several country reports regarding
religious liberty in China. See
Djonda, 514 F.3d at 1175 (“[T]he Board is ‘entitled
to rely heavily on’ country reports.” (quoting Reyes–Sanchez v. U.S. Att’y Gen.,
369 F.3d 1239, 1243 (11th Cir. 2004))). Some of these reports note that, in certain
areas in China, local authorities allow or at least do not interfere with the activities
of unregistered religious groups. The IJ also noted that, despite his participation in
an underground religious service, Yang was able to leave China without incident
after his eleven-day detention and that it has been many years since Yang was
11
Case: 17-14870 Date Filed: 09/24/2018 Page: 12 of 12
detained. Given this evidence, the record does not compel the conclusion that Yang
would more likely than not suffer hardships that amount to persecution on account
of his religion upon his return to China.
We also affirm the IJ’s and BIA’s conclusion that Yang failed to establish
that he is entitled to relief under CAT. To obtain CAT relief, an applicant must
show that it is more likely than not that a government official or person acting in
an official capacity will torture him or aid or acquiesce in his torture if he is
removed to the proposed country. See
Najjar, 257 F.3d at 1303. Given that
substantial evidence supports the determination that it is not more likely than not
that Yang will suffer persecution upon his return to China, substantial evidence
also supports the IJ’s and BIA’s determination that Yang is not more likely than
not to be tortured by the Chinese government upon his return to China.
Finally, Yang argues that the IJ erred by failing to analyze whether Yang
established a well-founded fear of persecution if he returned to Peru. We agree
with the BIA’s conclusion that any error in this regard is harmless because the IJ
ordered that Yang be removed to China, not Peru. For all of these reasons, we deny
Yang’s petition.
PETITION DENIED.
12
