Gui Huang Zhou v. U.S. Attorney General , 237 F. App'x 605 ( 2007 )


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  •                                                          [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    JUNE 27, 2007
    No. 06-13734                     THOMAS K. KAHN
    Non-Argument Calendar                    CLERK
    ________________________
    BIA No. A79-453-834
    GUI HUANG ZHOU,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    _________________________
    (June 27, 2007)
    Before BLACK, CARNES and MARCUS, Circuit Judges.
    PER CURIAM:
    Gui Huang Zhou petitions this Court, pro se, for review of the BIA’s final
    order which affirmed the IJ’s denial of asylum and withholding of removal under
    the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1158, 1231, and the
    Convention Against Torture (CAT), 8 C.F.R. § 208.16(c). Zhou contends that the
    BIA erred because its decision was either not supported by substantial evidence or
    was based on a misapplication of the law. Zhou asserts that the lack of
    corroborating evidence is not an adequate ground for denial because neither the IJ
    nor the BIA made a finding as to whether Zhou could have obtained documentary
    evidence under the circumstances. Zhou argues that his specific, consistent, and
    detailed testimony was adequate to meet his burden of proof. He also argues that
    the BIA’s decision misstated the record by asserting that Zhou’s family continues
    to practice the Falun Gong religion in China without any problems. Finally, Zhou
    claims that the IJ’s adverse credibility finding, which he claims was adopted by the
    BIA, was not adequately supported.
    We review only 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). “Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s
    decision as well.” 
    Id. Here, because
    the BIA expressly adopted the IJ’s decision,
    and added some comments of its own, we review both.
    2
    We begin by considering what claims are properly before us. The
    government argues that Zhou has abandoned several of his claims by failing to
    adequately pursue them before the BIA or in this appeal. We do not have
    jurisdiction to review claims that have not been raised before the BIA. Amaya-
    Artunduaga v. United States Att’y Gen., 
    463 F.3d 1247
    , 1250 (11th Cir. 2006).
    Nor do we have jurisdiction to review claims if the appellant fails to raise that
    argument on appeal. Sepulveda v. United States Att’y Gen., 
    401 F.3d 1226
    , 1228
    n.2 (11th Cir. 2005).
    Zhou has abandoned any claim of past persecution because he did not
    sufficiently advance such an argument in either his appeal to the BIA or in this
    appeal. See 
    id. Zhou’s brief
    makes several passing references to past persecution,
    but he never claims that the IJ or the BIA erred in finding no past persecution.
    Even if we read his pro se brief liberally, see Tannenbaum v. United States, 
    148 F.3d 1262
    , 1263 (11th Cir. 1998), we still find that he abandoned this portion of
    his claim.1
    1
    Further, even if Zhou had not abandoned his past persecution claims, we would not be
    compelled to reverse the IJ’s conclusion that he failed to proffer evidence sufficient to meet the
    persecution standard. If anything, Zhou was only indirectly threatened while in China, which is
    not enough. See 
    Sepulveda, 401 F.3d at 1231
    (holding that threats to petitioner and her brother
    did not compel reversal of IJ’s decision).
    3
    Accordingly, Zhou’s asylum claim hinges on his ability to show a well-
    founded fear of future persecution on account of his Falun Gong practices.
    8 C.F.R. § 208.13(a), (b); Al 
    Najjar, 257 F.3d at 1287
    –88. He must demonstrate a
    well-founded fear that is both subjectively genuine and objectively reasonable. Al
    
    Najjar, 257 F.3d at 1289
    . The subjective component can be proven by “credible
    testimony” that he “genuinely fears persecution,” while the objective component
    “can be fulfilled either by establishing past persecution or that he . . . has a good
    reason to fear future persecution.” 
    Id. (quotation marks
    omitted).
    Both the IJ and the BIA determined that Zhou failed to prove either the
    subjective or objective component of a well-founded fear. According to both the
    BIA and the IJ, Zhou’s testimony, which was not supported by corroborating
    documents, was insufficiently detailed regarding his parents’ arrest, imprisonment,
    and alleged torture. Additionally, there was no evidence that the Chinese
    authorities were or are after him. Zhou’s actions prior to leaving China—staying
    with a fellow Falun Gong member the night his parents were arrested and then
    leaving his aunt’s home and returning to his parents store to live and work after
    their release from prison—further diminish Zhou’s claims. Finally, both courts
    agreed that the fact that Zhou’s parents currently live in China and practice Falun
    4
    Gong without problems undermines Zhou’s asserted well-founded fear of future
    persecution.2
    Our review of the IJ’s factual determination is extremely deferential, and we
    “affirm the [IJ’s] decision if it is supported by reasonable, substantial, and
    probative evidence on the record considered as a whole.” Forgue v. United States
    Att’y Gen., 
    401 F.3d 1282
    , 1286 (11th Cir. 2005) (quotation marks omitted and
    alteration in original). In order “[t]o reverse the IJ’s decision, we must conclude
    that the record not only supports such a conclusion, but compels it.” Yang v.
    United States Att’y Gen., 
    418 F.3d 1198
    , 1202 (11th Cir. 2005) (quotation marks
    omitted and alteration in original).
    Zhou argues that the IJ and the BIA erred in finding his testimony
    insufficient and in implicitly requiring corroborating documentation without
    finding that such documents could be reasonably obtained by Zhou. In certain
    cases uncorroborated testimony is sufficient. 
    Id. at 1201
    (“Uncorroborated but
    credible testimony may be sufficient to sustain the burden of proof for
    demonstrating eligibility for asylum. The weaker an applicant’s testimony,
    however, the greater the need for corroborative evidence.” (citations omitted)).
    Here, Zhou’s uncorroborated testimony was weak and supporting documentation
    2
    Zhou claims that this finding is a misstatement of the record, but we disagree. In his
    application for asylum and withholding of removal, Zhou specifically stated that his “parents
    still practice Falun Gong, but only doing it at home with very few and selective people.”
    5
    would have been helpful. Nevertheless, even if we were to accept Zhou’s
    testimony as true, it was insufficient to establish a well-founded fear of past
    persecution.
    Substantial evidence supports the IJ’s finding that Zhou did not qualify for
    asylum because he failed to show a well-founded fear of future persecution. His
    parents continue to live and work in China while practicing Falun Gong. There is
    nothing to suggest that the Chinese authorities are after Zhou or that he is in any
    danger. Zhou’s decision to stay with a fellow Falun Gong practitioner on the night
    of his parents’ arrest was inconsistent with his asserted fear. Given that substantial
    evidence supports the IJ’s finding that Zhou could not meet the lesser asylum
    burden, the BIA properly denied Zhou’s petition for withholding of removal and
    CAT relief as well. Accordingly, we deny the petition for review.
    DENIED.
    6