USCA11 Case: 22-10216 Document: 31-1 Date Filed: 02/01/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10216
Non-Argument Calendar
____________________
YUE ZHU QIU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A088-777-109
____________________
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2 Opinion of the Court 22-10216
Before ROSENBAUM, JILL PRYOR, and LAGOA,
PER CURIAM:
Yue Qiu, a native and citizen of China, appeals from the
Board of Immigration Appeals’s (“BIA”) order dismissing both her
motion to reopen and her motion to remand proceedings to an Im-
migration Judge (“IJ”). Below, Qui argued that her proceedings
should be reopened based on her eligibility for asylum, withhold-
ing of removal, or relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treat-
ment or Punishment (“CAT”) based on the birth of her third child,
that she will face forced sterilization if she must return to China,
and based on her conversion to Christianity. On appeal, she argues
that her proceedings should be reopened because she is prima facie
eligible for asylum based on her conversion to Christianity. As we
explain below, we must dismiss in part and deny in part Qiu’s ap-
peal.
We review only the decision of the BIA except to the extent
the BIA expressly adopts the IJ’s opinion. Lopez v. U.S. Att’y Gen.,
504 F.3d 1341, 1344 (11th Cir. 2007). When the BIA agrees with the
IJ’s findings but makes additional observations, we review both de-
cisions. Singh v. U.S. Att’y Gen.,
561 F.3d 1275, 1278 (11th Cir.
2009). We construe a motion to remand as a motion to reopen
proceedings, the denial of which we review for an abuse of discre-
tion. Ali v. U.S. Att’y Gen.,
643 F.3d 1324, 1329 (11th Cir. 2011).
This review is limited to determining whether the BIA exercised its
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22-10216 Opinion of the Court 3
discretion in an arbitrary or capricious manner. Zhang v. U.S. Att’y
Gen.,
572 F.3d 1316, 1319 (11th Cir. 2009). The moving party bears
a heavy burden, as motions to reopen are disfavored, especially in
removal proceedings.
Id.
We cannot consider facts that were not raised before the
BIA. See Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004).
Somewhat relatedly, we may review an argument only if the peti-
tioner “has exhausted all administrative remedies available to the
alien as of right.” INA § 242(d)(1),
8 U.S.C. § 1252(d)(1). We have
said that the exhaustion requirement is jurisdictional, so the failure
to exhaust precludes our review of a claim that was not presented
to the BIA. Lin v. U.S. Att’y Gen.,
881 F.3d 860, 867 (11th Cir.
2018). “This is not a stringent requirement” and requires only that
the petitioner “previously argued the core issue now on appeal be-
fore the BIA.” Indrawati v. U.S. Att’y Gen.,
779 F.3d 1284, 1297
(11th Cir. 2015) (quotation marks omitted). Though exhaustion
does not require a petitioner to use precise legal terminology or
provide a well-developed argument to support her claim, it does
require that she provide information sufficient to enable the BIA to
review and correct any errors below.
Id. Unadorned, conclusory
statements do not satisfy this requirement.
Id. So in determining
whether a petitioner has exhausted a claim, we must look to the
substance of the appeal before the BIA for facts and allegations that
make manifest the petitioner’s attempt to raise this claim before
the BIA.
Id. at 1298.
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4 Opinion of the Court 22-10216
As an initial matter, Qiu has abandoned her claims that her
proceedings should be reopened based on her eligibility for either
withholding of removal or relief under the CAT by not discussing
on appeal her prima facie eligibility for either. Similarly, Qiu has
abandoned her claim that her proceedings should be reopened be-
cause of her eligibility for asylum based on the birth of her third
child, and that she will face forced sterilization if she returns to
China because she does not discuss this claim on appeal to us.
Further, Qiu failed to exhaust her claim that she was prima
facie eligible for asylum based on a pattern or practice of persecu-
tion of Christians in China because she did not present that claim
to the BIA. Therefore, we lack jurisdiction to review this claim,
and we dismiss Qiu’s petition as to this claim.
That leaves only whether the BIA abused its discretion in
denying Qiu’s motions to reopen and to remand based on her claim
that she is eligible for asylum because of her recent conversion to
Christianity.
The BIA must consider all evidence that the petitioner intro-
duced. Forgue v. U.S. Att’y Gen.,
401 F.3d 1282, 1287 (11th Cir.
2005). Where the BIA gives reasoned consideration to the petition
and makes adequate findings, it is not required to specifically ad-
dress each claim made by the petitioner or each piece of evidence
presented by the petitioner. Tan v. U.S. Att’y Gen.,
446 F.3d 1369,
1374 (11th Cir. 2006). The BIA must consider the issues raised and
announce its decision in terms sufficient to enable a reviewing
court to perceive that it has heard and considered all the issues. See
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22-10216 Opinion of the Court 5
id. When a petitioner fails to offer an argument on an issue on
appeal to us, that issue is considered abandoned. Ruga v. U.S. Att’y
Gen.,
757 F.3d 1193, 1196 (11th Cir. 2014).
A motion to reopen must state the new facts that will be
proven at a hearing to be held if the motion is granted and shall be
supported by affidavits or other evidentiary material. INA
§ 240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B); see
8 C.F.R. § 1003.2(c)(1).
The new evidence must be material, and the noncitizen must
demonstrate that the evidence could not have been discovered or
presented at the former hearing.
8 C.F.R. § 1003.2(c)(1). A noncit-
izen must demonstrate prima facie eligibility for the relief sought.
Flores-Panameno v. U.S. Att’y Gen.,
913 F.3d 1036, 1040 (11th Cir.
2019). The decision to grant or deny a motion to reopen is within
the discretion of the administrative adjudicator. See
8 C.F.R. §
1003.2(a); INS v. Doherty,
502 U.S. 314, 323 (1992) (“the Attorney
General has ‘broad discretion’ to grant or deny such motions”) (in-
ternal citations omitted). Thus, a noncitizen who seeks to reopen
her removal proceedings bears a heavy burden. INS v. Abudu,
485
U.S. 94, 110 (1988).
An applicant for asylum must meet the INA’s definition of a
refugee. INA § 208(b)(1),
8 U.S.C. § 1158(b)(1). The INA defines a
refugee as follows:
[A]ny person who is outside any country of such per-
son’s nationality . . . and who is unable or unwilling
to return to, and is unable or unwilling to avail him-
self or herself of the protection of, that country
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6 Opinion of the Court 22-10216
because of persecution or a well-founded fear of per-
secution 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). To meet the defini-
tion of a refugee, the applicant must, with specific and credible ev-
idence, demonstrate (1) past persecution on account of a statutorily
listed factor, or (2) a well-founded fear that the statutorily listed fac-
tor will cause future persecution. Ruiz, 440 F.3d at 1257. Where
an applicant demonstrates past persecution, a rebuttable presump-
tion that he has a well-founded fear of future prosecution applies.
Id. If the petitioner cannot show past persecution, she must
demonstrate a well-founded fear of future persecution that is both
subjectively genuine and objectively reasonable. Id.
Similar to the showing required for asylum, an applicant
seeking the withholding of removal under the INA must demon-
strate that her life or freedom would be threatened in that country
because of her race, religion, nationality, membership in a particu-
lar social group, or political opinion. INA § 241(b)(3)(A),
8 U.S.C.
§ 1231(b)(3)(A). Withholding-of-removal claims are governed by a
more stringent standard than asylum claims, though, requiring the
applicant to demonstrate that it is more likely than not that she will
be persecuted upon return to her home country. Sepulveda v. U.S.
Att’y Gen.,
401 F.3d 1226, 1233 (11th Cir. 2005). If a petitioner is
unable to meet the standard of proof for asylum, she cannot meet
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22-10216 Opinion of the Court 7
the more stringent standard for withholding of removal. D-Mu-
humed v. U.S. Att’y Gen.,
388 F.3d 814, 819 (11th Cir. 2004).
An applicant seeking CAT relief must establish that it is
more likely than not that she would be tortured if removed to the
proposed country of removal.
8 C.F.R. § 1208.16(c)(2).
The CAT defines torture as follows:
[A]ny act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a per-
son for such purposes as obtaining from him or her or
a third person information or a confession, punishing
him or her for an act he or she or a third person has
committed or is suspected of having committed, or
intimidating or coercing him or her or a third person,
or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of
a public official or other person acting in an official
capacity.
8 C.F.R. § 208.18(a)(1). Evidence relevant to an applicant’s eligibil-
ity for CAT relief includes, but is not limited to (1) incidents of past
torture inflicted upon the applicant; (2) the viability of relocation
within the country of removal as a means to avoid torture; (3)
gross, flagrant or mass human rights violations in the country of
removal; and (4) other relevant country conditions.
Id.
§ 208.16(c)(3)(i)-(iv). An applicant who is unable to meet the well-
founded-fear standard for asylum is generally precluded from
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8 Opinion of the Court 22-10216
qualifying for withholding of removal or CAT relief. Forgue v.
U.S. Att’y Gen.,
401 F.3d 1282, 1288 n.4 (11th Cir. 2005).
Here, we cannot conclude that the BIA abused its discretion
in denying either Qiu’s motion to reopen or her motion to remand
because it considered the issues she raised, and it made specific ci-
tations to the record in support of its decision to deny those mo-
tions. Similarly, based on this record, we cannot find that the BIA
did acted in an arbitrary and capricious manner when it determined
that Qiu’s subjective belief that she would be persecuted based on
her conversion to Christianity was not objectively reasonable be-
cause she showed little evidence of persecution of Christians in her
home Fujian province. Accordingly, we deny Qiu’s petition.
PETITION DENIED IN PART and DISMISSED IN PART.
