Ben Jian Chen v. U.S. Attorney General ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15449
Non-Argument Calendar
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Agency No. A073-178-928
BEN JIAN CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 19, 2015)
Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Ben Jian Chen, a Chinese citizen, petitions for review of a decision of the
Board of Immigration Appeals (“BIA”) that affirmed an Immigration Judge’s
(“IJ”) denial of his application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). Mr. Chen argues only that he
properly established a well-founded fear of persecution on account of his practice
of Falun Gong, which he began after he came to the United States. After careful
consideration of the briefs and the record, we deny the petition.
I.
In 1993, Mr. Chen entered the United States from China and then sought
asylum. His asylum application apparently lay dormant for over a decade. In
2005, he was charged with removability under the Immigration and Nationality
Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), and ordered to appear
for removal proceedings. Mr. Chen amended his asylum application in 2006 and
conceded removability as charged but affirmed his pursuit of asylum, withholding
of removal, and CAT protection. In 2013, Mr. Chen again amended his asylum
application to assert that he had a well-founded fear of persecution based on his
practice of Falun Gong, a spiritual practice banned in China.
In support of his application, Mr. Chen submitted evidence of his Falun
Gong practice. This evidence showed that in 2011 he began practicing Falun Gong
to improve his health. He engaged in the practice at home by himself and, about
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once or twice per week, would meet with others to practice Falun Gong in a public
park. Mr. Chen also handed out materials about Falun Gong to passersby once per
week.
Mr. Chen also submitted evidence of possible mistreatment he believes he
would suffer were he to return to China. The evidence shows that neighbors from
Mr. Chen’s home village observed Mr. Chen practicing Falun Gong in the United
States and relayed this information to Chinese officials. Then, in August 2012,
Chinese government officials visited Mr. Chen’s mother in China. The officials
told her that they knew about Mr. Chen’s Falun Gong activities. They warned that
Mr. Chen’s conduct was a serious criminal act and demanded that his mother urge
him to stop his involvement with Falun Gong and return to China for punishment.
They further warned that if Mr. Chen disobeyed government orders, he would be
“punished more severely.” Admin. R. at 303-304. Specifically, Mr. Chen would
be sentenced to prison where he would “lose personal freedom.” Id. The
government officials followed-up with a letter to Mr. Chen’s mother reiterating
these warnings. Neither the oral threats nor the written warning identified any
specific punishment except for detention, and neither specified how long Mr. Chen
would be detained if caught.
After an evidentiary hearing, the IJ denied Mr. Chen’s application for
asylum, withholding of removal, and CAT protection. The IJ found that Mr. Chen
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failed to establish past persecution, relying on Mr. Chen’s admission that he never
practiced Falun Gong in China and thus was never mistreated in China on account
of his Falun Gong practices. The IJ also found Mr. Chen’s testimony incredible
and unreliable and held that he failed to establish a well-founded fear of future
persecution. Because Mr. Chen failed to establish a well-founded fear of
persecution, the IJ denied his application for asylum and withholding of removal.
And because Mr. Chen introduced no evidence that he would be tortured in China
if removed there, the IJ denied his request for CAT relief as well. Mr. Chen
appealed to the BIA.
The BIA presumed Mr. Chen’s credibility but nonetheless found, on de novo
review, that he had failed to demonstrate a well-founded fear of future persecution.
In particular, the BIA concluded that the threats to Mr. Chen’s freedom, delivered
through his mother in China, were insufficient to meet his burden of showing he
harbored a well-founded fear of persecution. For this reason, the BIA determined
he was ineligible for asylum. Because the BIA found Mr. Chen failed to satisfy the
lower burden of proof for asylum based on Falun Gong-related mistreatment, the
BIA concluded that he also failed to satisfy the higher burden of proof for
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withholding of removal on this basis. For these reasons, the BIA dismissed Mr.
Chen’s appeal. 1
Mr. Chen petitions this Court for review of the BIA’s decision.
II.
“We review only the BIA’s decision, except to the extent that it expressly
adopt[s] the IJ’s opinion or reasoning.” Shi v. U.S. Att’y Gen., 707 F.3d 1231,
1234 (11th Cir. 2013) (internal quotation marks omitted) (alteration in original).
Here, the BIA did not expressly adopt the IJ’s opinion or reasoning, so we review
the BIA’s decision only.
“We review a factual determination that an alien does not have a well-
founded fear of persecution under the substantial evidence test.” Id. “Thus, we
must affirm if the BIA’s decision is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Id. (internal quotation
marks and citation omitted). “Under the substantial evidence test, we view the
record evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004) (en banc). In order to conclude that a finding of fact
should be reversed, we must determine that the record compels reversal. Id.
1
The BIA did not address Mr. Chen’s request for CAT relief because, although he made a
passing reference to CAT in his appeal, he did not contest the IJ’s denial of his request for CAT
relief. Mr. Chen also failed to argue he suffered past persecution, so the BIA did not consider
that issue either.
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III.
To qualify for asylum, an applicant must establish that he has a well-founded
fear that he will be persecuted on account of a protected ground in the Immigration
and Nationality Act. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230-31 (11th
Cir. 2005). A petitioner must establish either past persecution or a reasonable
possibility that he will be singled out for future persecution. Djonda v. U.S. Att’y
Gen., 514 F.3d 1168, 1174 (11th Cir. 2008). Because Mr. Chen does not argue he
suffered past persecution, we must consider whether the record compels a finding
that Mr. Chen harbors a well-founded fear of future persecution.
“‘Persecution’ is an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation, and . . . mere harassment does not
amount to persecution.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1353
(11th Cir. 2009) (internal quotation marks omitted) (quoting Sepulveda, 401 F.3d
at 1231). “To establish a ‘well-founded fear,’ [Mr. Chen] must demonstrate that
his fear is both subjectively genuine and objectively reasonable.” Zheng, 451 F.3d
at 1291. Mr. Chen demonstrated that he subjectively feared future persecution,
averring that if he were to return to China, he would continue practicing Falun
Gong and believed he would be jailed, beaten, and lose “personal freedom.”
Admin. R. at 304. The BIA assumed that Mr. Chen was credible for purposes of
its analysis, so we do as well. See Shi, 707 F.3d at 1234.
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The record is insufficient, however, to compel a finding that his fear of
persecution was objectively reasonable. Even considering the evidence
cumulatively as we must, De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008
(11th Cir. 2008), we are not compelled to characterize Mr. Chen’s threatened
mistreatment as “persecution.” According to Mr. Chen, after government officials
in China learned of his Falun Gong activities, they verbally questioned his mother
about them. They told her to urge Mr. Chen to return to China to accept a
punishment, and they followed-up with a letter to his mother warning that if he
failed to return, he would “suffer serious consequences” and would be “stringently
punished and jailed.” Admin. R. at 326. The threats do not specify the type or
degree of punishment or the length of detention. This verbal harassment and threat
of detention, although harrowing, does not constitute persecution. See Djonda, 514
F.3d at 1171, 1174 (holding that evidence that petitioner was beaten, kicked, and
detained for 36 hours by police, made to drink unclean liquid, and released with a
warning that the next time he was arrested he would “rot in jail,” did not compel
the conclusion that the petitioner suffered persecution); Zheng v. U.S. Att’y Gen.,
451 F.3d 1287, 1290-91 (11th Cir. 2006) (holding that a short period of detention,
during which time the petitioner was forced to watch anti-Falun Gong reeducation
videos, stand in the sun for two hours, and pledge to stop practicing Falun Gong,
was insufficient to compel a finding of past persecution).
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In addition to the threats of imprisonment noted above, which alone are
insufficient to amount to persecution, Mr. Chen relies on evidence in annual
reports issued by the United States Department of State that the Chinese
government has engaged in a harsh and comprehensive campaign against Falun
Gong. The State Department has recognized that Falun Gong practitioners, among
others, have been “targeted for arbitrary arrest, detention, and harassment.” U.S.
Dep’t of State, Country Reports on Human Rights Practices for 2009, China
(“2009 Human Rights Report”).2 But the State Department also has noted that it
was “Falun Gong members identified by the government as ‘core leaders’ [who]
were singled out for particularly harsh treatment.” Id. According to the 2009
Human Rights Report, “[m]ost practitioners . . . were punished administratively.”
Id. Mr. Chen does not argue that he is a core leader in Falun Gong who might be
subjected to treatment amounting to persecution. Thus, this report does not tip the
scales in favor of compelling a finding that Mr. Chen’s fear of persecution is
objectively reasonable. See Zheng, 451 F.3d at 1291 (considering a country report
on abuses against Falun Gong practitioners in China in concluding that substantial
evidence supported denial of asylum for practitioner who was detained for five
days). Mr. Chen’s concern for his freedom to practice Falun Gong in China, no
2
Mr. Chen does not direct the Court to any specific State Department report, but the 2009
Human Rights Report appears in the administrative record.
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matter how sincere, does not compel us to find that Mr. Chen harbors an
objectively reasonable, well-founded fear of persecution.
Because Mr. Chen is unable to establish a claim of asylum based on his fear
of persecution for his Falun Gong practices, Mr. Chen also fails to establish
eligibility for withholding of removal on this basis. See Sepulveda, 401 F.3d at
1232-33 (noting that the “more likely than not” standard—the standard for proving
a threat to life or freedom to warrant withholding of removal—is more stringent
than the standard for asylum). On appeal, Mr. Chen advances no argument about
the denial of relief under CAT and thus has abandoned that issue. Sepulveda, 401
F.3d at 1228 n.2.
IV.
For the foregoing reasons, Mr. Chen’s petition is denied.
PETITION DENIED.
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