Bin Huang v. U.S. Attorney General , 569 F. App'x 715 ( 2014 )


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  •            Case: 13-14190   Date Filed: 06/17/2014   Page: 1 of 11
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 13-14190
    Non-Argument Calendar
    ________________________
    Agency No. A095-794-661
    BIN HUANG,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    ________________________
    (June 17, 2014)
    Before TJOFLAT, JORDAN, and EDMONDSON, Circuit Judges.
    Case: 13-14190     Date Filed: 06/17/2014   Page: 2 of 11
    PER CURIAM:
    Bin Huang, a native and citizen of China, appeals the decision of the Board
    of Immigration Appeals (“BIA”) to dismiss his appeal from the Immigration
    Judge’s (“IJ”) denial of his application for asylum, 8 U.S.C. § 1158(a), withholding
    of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C.
    § 1231(b)(3), and relief under the United Nations Convention Against Torture and
    Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R.
    § 208.16(c). In his petition, Huang argues that substantial evidence does not
    support the BIA’s denial of his application for asylum, withholding of removal,
    and CAT relief.
    “We review only the [BIA’s] decision, except to the extent that it expressly
    adopts the IJ’s opinion. Insofar as the [BIA] adopts the IJ’s reasoning, we will
    review the IJ’s decision as well.” Al Najjar v. Ashcroft, 
    257 F.3d 1262
    , 1284 (11th
    Cir. 2001) (citation omitted). To the extent that the BIA agreed with the IJ’s
    reasoning, we should review the decisions of both the IJ and the BIA. 
    Id. Factual determinations
    are reviewed under the substantial evidence test,
    which requires us to “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
    , 1026-29 (11th Cir. 2004) (en banc). The
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    substantial evidence test is “deferential” and “we may not ‘re-weigh the evidence’
    from scratch.” Mazariegos v. U.S. Att’y Gen., 
    241 F.3d 1320
    , 1323 (11th Cir.
    2001). We “must affirm the BIA’s decision if it is supported by reasonable,
    substantial, and probative evidence on the record considered as a whole.”
    D-Muhumed v. U.S. Att’y Gen., 
    388 F.3d 814
    , 818 (11th Cir. 2004). “To reverse
    the . . . fact findings, we must find that the record not only supports reversal, but
    compels it.” Mendoza v. U.S. Att’y Gen., 
    327 F.3d 1283
    , 1287 (11th Cir. 2003)
    (emphasis added).
    An applicant for asylum must meet the INA’s definition of a “refugee.”
    INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is:
    any person who is outside any country of such person’s nationality or,
    in the case of a person having no nationality, is outside any country in
    which such person last habitually resided, and who is unable or
    unwilling to return to, and is unable or unwilling to avail himself 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). The asylum applicant carries the
    burden of proving statutory “refugee” status. 8 C.F.R. § 208.13(a); Al 
    Najjar, 257 F.3d at 1284
    . An applicant for withholding of removal and CAT relief bears the
    burden of establishing that it is “more likely than not” that he will be persecuted or
    tortured upon being returned to his country. Sepulveda v. U.S. Att’y Gen, 
    401 F.3d 1226
    , 1232 (11th Cir. 2005).
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    To establish asylum eligibility, the alien must, with specific and credible
    evidence, demonstrate (1) that he suffered past persecution on account of a
    protected ground, or (2) that he has a “well-founded fear” of future persecution on
    account of a protected ground. 8 C.F.R. § 208.13(b); Al 
    Najjar, 257 F.3d at 1287
    .
    The applicant must demonstrate that one of those enumerated grounds “was or will
    be at least one central reason for persecuting” him or her. INA § 208(b)(1)(B)(i),
    8 U.S.C. § 1158(b)(1)(B)(i). “Persecution on account of … political opinion … is
    persecution on account of the victim’s political opinion, not the persecutor’s.”
    Sanchez v. U.S. Att’y Gen., 
    392 F.3d 434
    , 437-38 (11th Cir. 2004) (emphasis in
    original). The question is whether the persecutor is acting because of the alien’s
    political opinion, not whether the alien has a political opinion. See 
    id. at 438.
    An
    alien may also base an asylum claim on an imputed political opinion theory,
    whether correctly or incorrectly attributed to the applicant. Carrizo v. U.S. Att’y
    Gen., 
    652 F.3d 1326
    , 1331 (11th Cir. 2011).
    An alien must demonstrate a sufficient nexus between his political opinion
    and the alleged persecution. Rodriguez Morales v. U.S. Att’y Gen., 
    488 F.3d 884
    ,
    890 (11th Cir. 2007) (quotations omitted). On appeal, the record that “compels” is
    a high standard. In Rodriguez Morales, we determined that Morales failed to
    demonstrate a sufficient nexus between his political opinion and his alleged
    persecution, after a guerilla group attempted to recruit him to provide dental
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    services for their members and to help spread their political views. 
    Id. at 891.
    We
    said that the guerrillas’ desire to help spread their political views did not constitute
    the needed evidence that they persecuted Morales because of his political opinion.
    
    Id. Furthermore, the
    record supported the inference that he was threatened merely
    for his refusal to provide dental services, not for any political opinion he had or
    was believed to have. 
    Id. An alien
    may establish persecution if it is, in part,
    motivated by a protected ground. Cardona Rivera v. U.S. Att’y Gen., 
    487 F.3d 815
    , 821 (11th Cir. 2007). Still, in Cardona Rivera, we determined that a family’s
    decision to pay no war tax to a guerilla group did not establish persecution on
    account of a political opinion. 
    Id. at 823.
    The IJ’s finding that the guerillas’
    motive for persecuting the petitioners’ family was to raise funds for its war against
    the Columbian government, and not because the family supported a rival political
    party, was no reversible error. 
    Id. We have
    written that “persecution is an extreme concept, requiring more
    than a few isolated incidents of verbal harassment or intimidation, and that [m]ere
    harassment does not amount to persecution.” 
    Sepulveda, 401 F.3d at 1231
    (quotations omitted); see also Djonda v. U.S. Att’y Gen., 
    514 F.3d 1168
    , 1171
    (11th Cir. 2008) (concluding that no persecution occurred when an alien was
    detained for 36 hours after participating in a political rally, and during his
    detention, police officers beat him severely enough to warrant a two-day hospital
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    stay, several medications, and 2 weeks of rest). “In determining whether an alien
    has suffered past persecution, the [factfinder] must consider the cumulative effects
    of the incidents.” Delgado v. U.S. Att’y Gen., 
    487 F.3d 855
    , 861 (11th Cir. 2007).
    To establish a well-founded fear of future persecution, the applicant must
    show that there is a “reasonable possibility” of suffering persecution if he returns
    to his home country. Mejia v. U.S. Att’y Gen., 
    498 F.3d 1253
    , 1256 (11th Cir.
    2007). The fear of future persecution must be “subjectively genuine and
    objectively reasonable” and on account of a protected ground. De Santamaria v.
    Att’y Gen., 
    525 F.3d 999
    , 1007 (11th Cir. 2008). “The subjective component is
    generally satisfied by the applicant’s credible testimony that he or she genuinely
    fears persecution[,]” and “[i]n most cases, the objective prong can be fulfilled
    either by establishing past persecution or that he or she has a good reason to fear
    future persecution.” Al 
    Najjar, 257 F.3d at 1289
    (quotation omitted). To show an
    objectively reasonable fear of future persecution, the alien must present “specific,
    detailed facts showing a good reason to fear that he or she will be singled out for
    persecution on account of [a protected ground].” Forgue v. U.S. Att’y Gen., 
    401 F.3d 1282
    , 1286 (11th Cir. 2005) (quotation omitted).
    If an applicant is unable to prove his entitlement to asylum relief, he is
    generally precluded from qualifying for withholding of removal. 
    Sepulveda, 401 F.3d at 1232-33
    . To obtain CAT relief, the torture must “be by or at the instigation
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    of or with the consent or acquiescence of a public official or other person acting in
    an official capacity.” Sanchez Jimenez v. U.S. Att’y Gen., 
    492 F.3d 1223
    , 1239
    (11th Cir. 2007) (quotation omitted).
    A petitioner must exhaust all remedies on a particular claim; otherwise, we
    lack jurisdiction to consider the claim. Amaya-Artunduaga v. U.S. Att’y Gen., 
    463 F.3d 1247
    , 1250 (11th Cir. 2006). The exhaustion doctrine requires the petitioner
    to raise claims before the agency, to thereby ensure that the agency had a full
    opportunity to consider the petitioner’s claims. 
    Id. The BIA’s
    sua sponte
    discussion of an issue is not enough to amount to exhaustion. 
    Id. at 1251-52.
    The
    BIA has noted that it is inappropriate for it to consider an issue not raised before
    the IJ. See Matter of J-Y-C-, 24 I. & N. Dec. 260, 261 n.1 (BIA 2007). The BIA
    will not engage in factfinding on appeal. 8 C.F.R. 1003.1(d)(3)(iv).
    As an initial matter, we lack jurisdiction to consider Huang’s claim that he
    established past persecution based on an imputed political opinion, because he did
    not sufficiently raise the issue before the BIA or the IJ; thus, it is unexhausted. See
    
    Amaya-Artunduaga, 463 F.3d at 1250
    . The BIA’s discussion of Huang’s imputed
    political opinion claim does not change the result, because the BIA’s sua sponte
    discussion of an issue is insufficient to amount to exhaustion. See 
    id. at 1251-52.
    While Huang raised the claim that he suffered persecution on account of his
    membership in a particular social group before the BIA, it is also unexhausted: he
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    failed to raise the claim before the IJ. Although exhaustion usually concerns the
    failure to raise a claim before the BIA, the exhaustion doctrine exists to give the
    agency a full opportunity to consider the claim; and it requires exhaustion of all
    available remedies. This claim was not raised before the IJ because Huang never
    checked the box on his asylum application, and he never argued it before the IJ.
    Huang’s failure to raise this claim before the IJ meant that he did not “avail
    himself” of all agency remedies, and he did not give the BIA a full opportunity to
    consider his claim since the BIA cannot address an issue for the first time on
    appeal or engage in factfinding. See J-Y-C-, 24 I. & N. Dec. at 261 n.1; 8 C.F.R.
    1003.1(d)(3)(iv). Huang contends that the IJ considered the claim that Huang
    suffered persecution on account of his membership in a particular social group
    because the IJ stated that he failed to show that his mistreatment related “to his
    political opinion, or any other protected ground[,]”; this contention lacks merit.
    Exhaustion is based on what the petitioner raises and not what the agency
    addresses sua sponte. Cf. 
    Amaya-Artunduaga, 463 F.3d at 1251-52
    .
    Substantial evidence supports the IJ’s and the BIA’s determination that the
    mistreatment Huang suffered was not politically motivated. In fact, Huang’s
    testimony before the IJ illustrated that he suffered harm not because of particular
    political beliefs, but because he did not want to give up his family’s land to the
    government. Therefore, this case is like Rodriguez 
    Morales, 488 F.3d at 886
    , and
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    Cardona 
    Rivera, 487 F.3d at 818
    , where the petitioners failed to establish a
    sufficient nexus between their political opinion and the alleged persecution the
    petitioners suffered when they personally refused to cooperate with a guerilla
    group.
    Huang’s incident involved a personal dispute with the government, where he
    was beaten for trying to stop his home’s demolition, not for his taking a general
    political stance against corruption. Nor was the genesis of that dispute political, as
    Huang’s home was not targeted for demolition because of his politics, but because
    it lay in the path of a road project. Huang also did not attempt to petition the
    Chinese government about the demolition of his home or other people’s homes.
    Given this kind of evidence, the record does not compel a finding that Huang’s
    political opinion was a reason for his mistreatment. See Cardona 
    Rivera, 487 F.3d at 821
    .
    Furthermore, substantial evidence supports the determination that the harm
    Huang suffered did not rise to the level of persecution. Huang testified that he was
    beaten by government workers and that, as he tried to escape, he fainted. Based on
    Huang’s testimony and medical records, Huang was taken to the hospital because
    he suffered bruises and cuts to his arm and knee, which required cleaning and
    stitches. He also states in his brief that he suffered a broken knee, but that injury
    was not supported by the record. Huang was released from the hospital on the
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    same day, was prescribed medication, and was advised to rest. Although Huang
    suffered physical harm, the record fails to compel a finding that his mistreatment
    met the “extreme” threshold level of persecution. See, e.g., 
    Djonda, 514 F.3d at 1174
    . Huang stated that he lost his home, he had to move in with a friend, he did
    not live with his mother anymore, his family could not farm anymore, and the
    government did not provide adequate compensation for their home. Huang,
    however, did not lose his home because of resistance to the demolition order, and
    the record does not compel that this harm is the kind of economic harm that rises to
    the level of persecution.
    Substantial evidence also supports the decision of the IJ and the BIA that
    Huang failed to demonstrate a well-founded fear of future persecution on account
    of a protected ground. After being beaten, Huang testified that his mother told him
    that the officers from the village government were looking for him and that she
    advised him to go into hiding. But Huang lived with a friend in another district
    after the demolition of his home without being harmed, and the officers never
    came to his friend’s house looking for him. Besides, the Chinese government has
    not sought to determine Huang’s location since his leaving China; and his mother
    continues to live in China without incident. Several of the newspaper articles
    submitted by Huang outlined the struggles of Chinese citizens who petitioned the
    central government but were beaten and jailed, and the Country Report discussed
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    violent property-related disputes between citizens and the government.
    Nevertheless, Huang did not petition the central government, and the record does
    not indicate that he is a major proponent or activist in the fight against the Chinese
    government’s taking of land. Therefore, the record does not compel a finding that
    Huang will be “singled out” for persecution on account of his political opinion.
    See 
    Forgue, 401 F.3d at 1286
    .
    Huang could not prove his entitlement to asylum relief; he necessarily
    failed to satisfy the more stringent standard that it was “more likely than not” that
    he would be persecuted on account of a protected ground if he returned to China.
    See 
    Sepulveda, 401 F.3d at 1232-33
    (discussing withholding of removal).
    Furthermore, the record demonstrates that the IJ and the BIA addressed Huang’s
    withholding of removal claim; and the record does not compel a finding that
    Huang established that it is “more likely than not” that he would be singled out for
    persecution if he returned to China or that the Chinese government has a pattern or
    practice of persecuting individuals similarly situated to Huang. Moreover, the
    record demonstrates that the IJ and the BIA addressed Huang’s CAT claim; and
    substantial evidence supports the finding that it is not “more likely than not” that
    he would be tortured if he returned to China.
    PETITION DENIED.
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