Efendy Lie v. U.S. Attorney General , 303 F. App'x 700 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 15, 2008
No. 08-11109 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A79-056-587
EFENDY LIE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 15, 2008)
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Efendy Lie, a citizen and native of Indonesia, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order affirming the immigration judge’s
(“IJ”) denial of asylum, withholding of removal and United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”) relief. Lie concedes that the BIA correctly dismissed his asylum claim as
untimely. Therefore, we will not further discuss that claim. The Government
argues that Lie waived his challenge to the BIA’s denial of CAT relief and any
argument that he was entitled to relief based on past persecution by not arguing
those issues in his brief. The Government also contends that Lie has waived any
argument that the BIA erred by making an adverse credibility determination by not
arguing the issue on appeal. The Government asserts that because the IJ denied
Lie’s application for relief based on the adverse credibility determination, and the
BIA affirmed, Lie’s petition should be dismissed because the adverse credibility
determination is dispositive.
When an appellant fails to offer argument on an issue, that issue is
abandoned. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005). A passing reference to an issue in a brief is insufficient to properly raise
that issue. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th
Cir. 1989). An alien who arrives in or is present in the United States may apply for
relief from removal. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1284-85 (11th
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Cir. 2005). The asylum applicant carries the burden of proof. Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). However, an adverse credibility
determination by the BIA may be sufficient in itself to support the denial of an
application for relief from removal. Forgue, 401 F.3d at 1287.
Lie has waived any argument that the BIA erred by making an adverse
credibility determination or by denying CAT relief because Lie did not argue either
issue in his brief. However, the BIA did not rest its decision solely on the adverse
credibility determination, so we will address the BIA’s denial of withholding of
removal on the merits as well.
On appeal, Lie argues that an applicant who shows a clear probability of
persecution may not be deported. Lie states that he testified at his asylum hearing
about the suffering he endured as a Chinese Christian in predominately Muslim
Indonesia, including attacks by other children where he was bruised, his nose bled,
and his ear was cut. Lie asserts that the situation in Indonesia is unstable, and it is
more likely than not that he will face further attacks from native Indonesians if
forced to return. He asserts, therefore, that the BIA erred by deny him withholding
of removal.
We review only the BIA’s decision because the BIA did not adopt the IJ’s
opinion or reasoning. Al Najjar, 257 F.3d at 1284. When considering a petition to
review a BIA final order, we review legal issues de novo. Mohammed v. Ashcroft,
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261 F.3d 1244, 1247 (11th Cir. 2001). The BIA’s factual findings are reviewed
under the substantial evidence test. Al Najjar, 257 F.3d at 1283. Under the
substantial evidence 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 1284. “To reverse a factual finding by the BIA, we must find not
only that the evidence supports a contrary conclusion, but that it compels one.”
Farquharson v. U.S. Att’y Gen., 246 F.3d 1317, 1320 (11th Cir. 2001). The fact
that evidence in the record also may support a conclusion contrary to the
administrative findings is not enough to justify a reversal. Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
An alien may qualify for withholding of removal by either by (1) showing
past persecution on a protected ground or (2) showing “it is more likely than not
that [the petitioner’s] life or freedom would be threatened on account of a
statutorily protected factor if returned to [the country of removal].” Tan v. U.S.
Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). Protected grounds are race,
religion, nationality, membership in a particular social group, or political opinion.
Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437 (11th Cir. 2004). If an alien shows
past persecution, a rebuttable presumption of future persecution arises. Tan, 446
F.3d at 1375. The alien bears the burden of proof to show that it is more likely
than not that the alien will be persecuted or tortured. Sepulveda, 401 F.3d at 1232.
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Persecution is an “extreme concept” that requires “more than a few isolated
incidents of verbal harassment or intimidation.” Id. at 1231. Mere harassment
“does not amount to persecution.” Id. Additionally, even after making an adverse
credibility determination, the IJ still must consider other evidence produced by the
applicant. Forgue, 401 F.3d at 1287.
Lie’s claim that the BIA erred by denying withholding of removal is without
merit. The BIA only needed to consider the supporting evidence, not Lie’s
testimony, because it had accepted the IJ’s adverse credibility determination. The
Country Report and Religious Freedom Report show that Indonesia has made
significant progress in reducing racial and religious discrimination. Further, Lie’s
brother and sisters live in Indonesia without incident. Substantial evidence
supports the BIA’s conclusion that Lie is not at risk of future persecution because
the evidence shows Indonesia’s racial and religious progress, and Lie’s family is
living in Indonesia without incident.
Even considering Lie’s testimony, the BIA did not err by denying relief
because Lie did not establish past persecution. Lie testified that other children had
injured him on two separate occasions, causing a nosebleed and a serious cut on his
ear. After the incident where Lie’s ear was cut, the school principal expelled the
offenders from the school. Lie suffered no other serious incidents. The incidents
that he cited do not amount to persecution because they are not extreme. In one
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incident, Lie’s most serious injury was a nosebleed, and in the other, the authorities
acted directly to punish those responsible. Therefore, the BIA did not err by
denying withholding of removal because substantial evidence supports the BIA’s
conclusion that Lie did not meet his burden of proof. Accordingly, Lie’s petition
for review of the BIA’s decision is denied.
DENIED.
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