Jin Qin Lin v. U.S. Attorney General , 154 F. App'x 809 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 16, 2005
No. 05-10615 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A77-340-550
JIN QIN LIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(November 16, 2005)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Jin Qin Lin, a native and citizen of China, petitions for review of the denial
of her application for asylum and withholding of removal by the Board of
Immigration Appeals. Lin contends that the Immigration Judge and BIA erred
because she demonstrated past persecution and a well-founded fear of persecution
by presenting evidence of her refusal to undergo sterilization. She also argues that
she is entitled to relief under the United Nations Convention Against Torture. We
deny in part and dismiss in part.
I. BACKGROUND
In August 2000, Lin’s sister, who had already had two children, was
pregnant with a third child in violation of the family planning policy in China.
Family planning officers came to the home of Lin’s parents to arrest and sterilize
Lin’s sister, but Lin helped her sister escape through a back door while family
planning officers searched other parts of the home. The family planning officers
threatened to arrest and sterilize Lin the next time they came if they could not find
her sister. Two weeks later, the family planning officers returned to the home and
attempted to arrest Lin because she looked like her sister. Lin escaped to her
aunt’s home and then to her uncle’s home. Family planning officials looked for
her at both locations, but did not enter the homes to search for her. In January
2001, Lin escaped to the United States.
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At the removal hearing, Lin conceded removability, but argued that she was
eligible for asylum and withholding of removal. The IJ did not make an adverse
credibility finding because the IJ found “the facts could have happened.” The IJ,
however, deemed Lin to be “somewhat implausible” because Lin’s sister and her
brother-in-law have not been found or sterilized. The IJ also emphasized that the
lack of formal accusations or other documents supporting Lin’s allegations
diminished Lin’s credibility. Thus, the IJ denied Lin’s application for asylum and
withholding of removal because Lin had not met her burden to establish eligibility.
Lin appealed the IJ’s ruling to the BIA, but the BIA affirmed the IJ without
opinion.
II. STANDARD OF REVIEW
Because the BIA adopted the IJ’s decision without opinion, we review the
IJ’s analysis as if it were the analysis of the BIA. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). We review de novo the legal determinations of the IJ
and BIA. Id. We review findings of fact by the IJ and BIA for substantial
evidence because “[a]dministrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir.
2001).
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III. DISCUSSION
Lin argues that she is eligible for asylum and withholding of removal under
the coercive population control provisions of the Immigration and Naturalization
Act. She also argues that she is entitled to relief under the United Nations
Convention Against Torture. We discuss each argument in turn.
A. Lin Is Not Eligible for Asylum
The IJ and BIA concluded that Lin failed to establish eligibility for asylum.
An applicant has the burden to prove eligibility for asylum. Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005). To apply for asylum, an alien
must be a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is any person who is
unable to return to his home country “because of [past] persecution or a well-
founded fear of [future] persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. §
1101(a)(42)(A); 8 C.F.R. § 208.13(b). To be eligible for asylum, Lin had the
burden to establish either past persecution or a well-founded fear of future
persecution, and on each issue, Lin’s application failed.
1. Lin Has Not Suffered Past Persecution.
Line had to establish past persecution in one of three ways. Under the
coercive population provision of the INA, an applicant may establish “past
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persecution” on account of political opinion if the applicant (1) has been forced to
undergo sterilization, (2) has been persecuted for failure or refusal to undergo
forced sterilization, or (3) has been persecuted for “other resistance” to a coercive
population control program. 8 U.S.C. § 1101(a)(42)(B); see Yang v. U.S. Att’y
Gen., 418 F.3d 1198, 1202–05 (11th Cir. 2005). “Persecution” is an “extreme
concept” that requires more than a “few isolated incidents of verbal harassment or
intimidation.” Sepulveda, 401 F.3d at 1231 (internal citations omitted).
The record does not compel the conclusion that Lin established past
persecution. Lin was not forcibly sterilized. She also was not “persecuted for
failure or refusal to undergo” forced sterilization because the actions of the family
planning officers do not rise to the level of “persecution.” Lin’s allegations that
officers threatened to sterilize her forcibly, if true, amount to no more than isolated
instances of “verbal harassment.” Sepulveda, 401 F.3d at 1231. Lin was never
subject to a pattern of arrests, fines, or beatings. See Yang, 418 F.3d at 1203(stating that a single fine does not constitute “persecution”); Sepulveda, 401 F.3d
at 1231 (concluding that death threats over the telephone and a restaurant bombing
do not compel reversal of the IJ’s findings that no persecution occurred). Lin also
was not persecuted for “other resistance” to a coercive program of population
control. Cf. Yang, 418 F.3d at 1205 (stating that the removal of an intrauterine
device against family planning policy may constitute “other resistance” because it
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is “punishable as a crime in China”). Thus, substantial evidence supports the
finding of the IJ that Lin failed to establish past persecution.
2. Lin Has Not Demonstrated a Well-Founded Fear of Persecution.
Lin has also failed to establish a well-founded fear of future persecution. A
well-founded fear of future persecution requires a showing of a reasonable
possibility of personal persecution that cannot be avoided by relocating within the
subject country. 8 C.F.R. § 208.13(b)(2). The fear of persecution must be both
“subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289.
To determine whether the applicant’s fear is subjectively genuine and objectively
reasonable, “this [C]ourt may not substitute its judgment for that of the [IJ and the]
BIA with respect to credibility findings.” D-Muhumed v. U.S. Att’y Gen., 388
F.3d 814, 818 (11th Cir. 2004). The IJ’s findings of facts and credibility are
conclusive unless the record “compels” reversal. 8 U.S.C. § 1252 (b)(4)(B);
Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
The IJ did not make an adverse credibility finding, but concluded that Lin’s
testimony about threats of future involuntary sterilization were implausible because
no officials had threatened her family or taken affirmative steps to pursue Lin since
she left China. Family planning officers have also not found, arrested, or sterilized
Lin’s sister and brother-in-law. No arrest warrant or other documentation supports
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Lin’s contention that she is likely to be subject to involuntary sterilization. Lin’s
arguments, while “subjectively genuine,” are not “objectively reasonable” because
she failed to provide “specific, detailed facts showing a good reason to fear that []
she will be singled out for persecution.” Sepulveda, 401 F.3d at 1231; see Al
Najjar, 257 F.3d at 1289 (stating that the “subjectively genuine” prong assesses the
credibility of the applicant, but the “objectively reasonable” prong assesses the
probability of future persecution). Because substantial evidence supports the
conclusion of the IJ and BIA and the record does not compel reversal, we deny
Lin’s petition for asylum.
B. Lin Has Not Established Withholding of Removal
We also deny Lin’s petition for withholding of removal. An alien is entitled
to withholding of removal if “his life or freedom would be threatened on account
of race, religion, nationality, membership in a particular social group, or political
opinion.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). The
standard to establish withholding of removal is “more stringent than the
‘well-founded fear’ standard for asylum.” D-Muhumed, 388 F.3d at 819.
Because Lin has failed to meet the standard for asylum, her petition for
withholding of removal also fails. See id.7
C. This Court Lacks Jurisdiction to Review Arguments Under the Convention
Against Torture
We lack jurisdiction to review Lin’s argument under the Convention Against
Torture because she failed to raise this argument before the BIA. Fernandez-
Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001). Lin has not
“exhausted all administrative remedies available.” 8 U.S.C. § 1252(d)(2). We
dismiss Lin’s argument that she is entitled to relief under the Convention Against
Torture.
IV. CONCLUSION
We deny Lin’s application for asylum and withholding or removal because
the threats of forcible sterilization by the family planning officers did not rise to
the level of “persecution,” Lin has failed to establish an objectively reasonable fear
of future persecution, and Lin has failed to meet her burden for withholding of
removal. Because we lack jurisdiction to review Lin’s arguments under the United
Nations Convention Against, we dismiss that aspect of her petition.
PETITION DENIED IN PART AND DISMISSED IN PART.
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