Qiao Dan Wang v. U. S. Attorney General ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 11, 2006
No. 05-13359
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A77-927-724
QIAO DAN WANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 11, 2006)
Before BIRCH, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Qiao Dan Wang, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’s (“BIA”) order affirming without opinion the
denial of asylum, withholding of removal, and relief pursuant to the United
Nations Convention Against Torture and other Cruel, Inhumane, and Degrading
Treatment or Punishment (“CAT”) by the Immigration Judge (“IJ”). Petitioner
argues to us that the IJ wrongly concluded that she had not sufficiently described
facts to establish her claim. Because we can discern no error in the IJ’s
determination, we DENY the petition.
I. BACKGROUND
In May 2000, petitioner attempted to enter the United States under a
fraudulent Malaysian passport. She stated that she was a factory worker from
Fujian Province, China. Petitioner claimed that she had to leave China because the
son of high official was sexually assaulting her and the high official came to her
house and threatened her.
An asylum officer conducted a credible fear interview of petitioner and
determined that she had met the credible fear standard. During the interview, she
asserted that the basis for her claim was that in January 2000 the manager at the
brick factory where she worked sexually harassed her. She stated that the manager
had the police go to her house in March 2000 and that the police accused her of
ruining the manager’s reputation and told her to keep quiet. Because she was
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nervous, petitioner said that she failed to mention anything about her being accused
of practicing Falun Gong during the interview.
On 20 July 2000, petitioner signed an application for asylum and
withholding of removal under the INA and the CAT, alleging past persecution and
fear of future persecution on the basis of her political opinion. In the application,
she alleged that in January 2000 she made some remarks in support of Falun Gong
in front of her co-workers and manager during a lunch break. The police accused
her of ruining the manager’s reputation and of opposing the government’s Falun
Gong ban. Petitioner stated in her application that she feared that if she is returned
to China that she would be arrested on account of her political opinions and
because she left China illegally.
The United States State Department Country Reports on Human Rights
Practices for 2002 (“Country Report”) for China was included in the record.
According to the Country Report, China’s human rights record remained poor, and
the government continued to commit numerous and serious abuses, including
“instances of extrajudicial killings, torture and mistreatment of prisoners, forced
confessions, arbitrary arrest and detention, lengthy incommunicado detention, and
denial of due process.” AR at 77. “[T]he Government continued to wage a severe
political, propaganda, and police campaign against the [Falun Gong] movement
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during the year,” and a “mere belief in the discipline, without any outward
manifestation of its tenets, has been sufficient grounds for practitioners to receive
punishments ranging from loss of employment to imprisonment, and in many
cases, to suffer torture and death.” Id. at 90. “[T]here were numerous credible
reports of abuse and even killings of [Falun Gong] practitioners by the police and
other security personnel, including police involvement in beatings, detention under
extremely harsh conditions, and torture,” but most Falun Gong practitioners were
punished administratively, and “the vast majority of practitioners detained since
2000 were released.” Id. at 95.
Furthermore, the Country Report stated that the government restricted the
freedom of movement around the country and restricted the freedom to change
one’s workplace but that the ability of citizens to relocate continued to improve.
The Country Report also stated that the government permitted legal emigration and
foreign travel for most citizens, and that passports were increasingly easy to obtain.
The IJ denied petitioner’s applications for relief and entered an order of
removal. Specifically, the IJ found that her testimony was not sufficiently detailed,
consistent, or believable to provide a plausible and coherent account sufficient to
establish her eligibility for asylum or withholding. The IJ noted several reasons for
her findings, including (1) the inconsistencies between petitioner’s testimony and
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other evidence; (2) petitioner’s failure to explain why, if she left the factory to
work at another place or another part of the country, there would be a presumption
that she was practicing Falun Gong; (3) her failure to mention the Falun Gong
incident to the INS at the airport or during her credible fear interview; and (4) the
fact that she was never arrested, detained, or interrogated, despite claims that the
police came to her house and told her that she was suspected of belonging to Falun
Gong. The IJ concluded that, at most, Wang had some claim of sexual harassment
at work.
In denying relief under CAT, the IJ found that petitioner had not established
that it was more likely than not that she would be tortured upon her return to
China. The IJ noted that (1) she was not tortured in the past, (2) there was no
evidence that the government was looking for her, and (3) there no information
regarding any arrest warrant or charges. The IJ concluded that petitioner had not
shown that she would be tortured upon her return, as opposed to being charged
with some violation of the law and being arrested or imprisoned.
On appeal, petitioner argues that she has a well-founded fear of persecution
based on her membership in a social group, her religion, and her political opinion.
She argues that she had to leave China on account of being sexually harassed by
the manager of the factory where she worked and because she was falsely accused
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of being a member of Falun Gong. Finally, she claims that, upon her return to
China, she would suffer persecution and torture because she sought asylum in the
United States and because she became a Falun Gong member during her stay here.
II. DISCUSSION
A. Subject Matter Jurisdiction
As an initial matter, we “are obligated to inquire into subject-matter
jurisdiction sua sponte whenever it may be lacking.” Cadet v. Bulger, 377 F.3d
1173, 1179 (11th Cir. 2004) (citation and quotation omitted). We can review a
final order of removal only if “the alien has exhausted all administrative remedies
available to the alien as of right.” 8 U.S.C. § 1252(d)(1). Accordingly, we lack
jurisdiction to consider claims that were not raised before the BIA. See
Fernandez-Bernal v. Att’y Gen. of the U.S., 257 F.3d 1304, 1317 n.13 (11th Cir.
2001).
In this case, petitioner did not present to the IJ or the BIA her claims for
asylum on account of her membership in a particular social group or her religion.
Therefore, she has failed to exhaust her administrative remedies with regard to
these claims, and we lack jurisdiction to consider them. See Fernandez-Bernal,
257 F.3d at 1317 n.13. Accordingly, we dismiss any portion of the petition
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addressing these claims.
B. Asylum
When the BIA summarily affirmed the IJ’s decision without an opinion, the
IJ’s decision became the final removal order subject to review. See 8 C.F.R.
§ 1003.1(e)(4); Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1284 n.1 (11th Cir.
2003). “To the extent that the [IJ]’s decision was based on a legal determination,
this court’s review is de novo.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814,
817 (11th Cir. 2004).
The IJ’s factual determinations are reviewed under the substantial evidence
test, and we “must affirm the [IJ]’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (citation and quotation
omitted). “[W]e cannot engage in fact-finding on appeal, nor may [we] weigh
evidence that was not previously considered below.” Id. at 1278. Therefore, a
finding of fact will be reversed “only when the record compels a reversal; the mere
fact that the record may support a contrary conclusion is not enough to justify a
reversal.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004), cert.
denied, __U.S. __, 125 S. Ct. 2245 (2005); see also 8 U.S.C. § 1252(b)(4)(B)
(“[T]he administrative findings of fact are conclusive unless any reasonable
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adjudicator would be compelled to conclude to the contrary.”).
An alien who arrives in, or is present in, the United States may apply for
asylum. See 8 U.S.C. § 1158(a)(1). The Secretary of Homeland Security or the
Attorney General has discretion to grant asylum if the alien meets the INA’s
definition of a “refugee.” See id. § 1158(b)(1). A “refugee” is defined as:
any person who is outside any country of such person’s
nationality . . . 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.
Id. § 1101(a)(42)(A). “The asylum applicant carries the burden of proving
statutory ‘refugee’ status.” D-Muhumed, 388 F.3d at 818.
To establish asylum eligibility, the petitioner must, with specific and
credible evidence, demonstrate (1) past persecution on account of a statutorily
listed factor, or (2) a “well-founded fear” that the statutorily listed factor will cause
future persecution. 8 C.F.R. § 208.13(b)(1), (2); Al Najjar, 257 F.3d at 1287. If
the petitioner demonstrates past persecution, there is a rebuttable presumption that
he has a well-founded fear of future persecution. See 8 C.F.R § 208.13(b)(1). If
he cannot show past persecution, then the petitioner must demonstrate a well-
founded fear of future persecution that is both “subjectively genuine and
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objectively reasonable.” See Al Najjar, 257 F.3d at 1289. The subjective
component can be proved “by the applicant’s credible testimony that he or she
genuinely fears persecution,” while the objective component “can be fulfilled
either by establishing past persecution or that he or she has a good reason to fear
future persecution.” Id. (citation and quotation omitted).
Neither the INA nor the regulations define “persecution.” We have stated,
however, that “persecution is an extreme concept, requiring more than few isolated
incidents of verbal harassment or intimidation, and . . . mere harassment does not
amount to persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th
Cir. 2005) (per curiam) (citation and quotations omitted). The petitioner’s well-
founded fear of persecution must be because of one of the statutorily listed factors,
such as his political opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.
Ct. 812, 816 (1992). The petitioner must establish this causal connection by
“presenting specific, detailed facts showing a good reason to fear that he or she
will be singled out for persecution” on account the statutory factor. Sepulveda,
401 F.3d at 1231 (citation and quotation omitted). Finally, we have approved of a
“country-wide requirement” in which a refugee must first pursue an “internal
resettlement alternative” in his own country, or establish that this is not possible,
before seeking asylum here. Mazariegos v. Office of the U.S. Att’y Gen., 241 F.3d
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1320, 1326–27 (11th Cir. 2001).
Substantial evidence supports the IJ’s conclusion that the petitioner in this
case failed to meet her burden of establishing past persecution, and the record does
not compel us to reverse this determination. Qiao Dan Wang failed to carry her
burden of demonstrating past persecution on account of a statutorily listed factor
due to the lack of specific credible evidence. At most, she was a victim of sexual
harassment and an unsympathetic police force. This evidence is not sufficient to
compel a reversal of the IJ’s finding that she did not suffer past persecution. See
Adefemi, 386 F.3d at 1027.
Furthermore, petitioner cannot establish future persecution. She failed to
establish a causal connection that her current practice of Falun Gong will result in
future persecution. See Sepulveda, 401 F.3d at 1231. Petitioner did not present
“specific, detailed facts showing a good reason to fear that . . . she will be singled
out for persecution” on account of the statutory factor. Sepulveda, 401 F.3d at
1231 (citation and quotation omitted). Moreover, she has not shown that there is a
reasonable possibility she will suffer persecution if removed to her native country
or that she could not avoid persecution by relocating to another part of China. See
8 C.F.R. § 208.13(b)(2), (3)(i).
C. Withholding of Removal
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The IJ’s factual determination that an alien is not entitled to withholding of
removal must be upheld if it is supported by substantial evidence. See Al Najjar,
257 F.3d at 1283. An alien is entitled to withholding of removal under the INA if
he or she can show that his or her “life or freedom would be threatened on account
of race, religion, nationality, membership in a particular social group, or political
opinion.” Mendoza, 327 F.3d at 1287; see also 8 U.S.C. § 1231(b)(3). As a
general rule, however, if “an applicant is unable to meet the ‘well-founded fear’
standard for asylum, he is generally precluded from qualifying for either asylum or
withholding of deportation.” Al Najjar, 257 F.3d at 1292–93 (citation and
quotation omitted).
In this case, because Qiao Dan Wang failed to establish past persecution or a
well-founded fear of persecution sufficient to support her asylum claim, as
discussed above, she cannot establish that she is eligible for withholding of
removal under the INA. See id.D. CAT Relief
In order to obtain relief under the CAT, the burden is on the applicant to
establish that it is “more likely than not” that he will be tortured in the country of
removal. 8 C.F.R. § 208.16(c)(2).
Torture is defined as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for
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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.
Id. § 208.18(a)(1). Torture does not include pain or suffering arising only from
lawfully imposed sanctions, and the torturous act “must be specifically intended to
inflict severe physical or mental pain or suffering.” Id. § 208.18(a)(3), (5).
Furthermore, we have noted that when a petitioner “has failed to establish a claim
of asylum on the merits, he necessarily fails to establish eligibility for . . .
protection under CAT.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1288 n.4 (11th
Cir. 2005).
In this case, substantial evidence supports the IJ’s denial of protection under
the CAT because Qiao Dan Wang failed to establish that she would more likely
than not be tortured by the Chinese government upon her return. Because Wang
failed to establish her eligibility for asylum, she necessarily fails to establish her
eligibility for protection under the CAT. See id. The evidence in the record
reveals that most Falun Gong practitioners were either punished administratively
or ordered to attend anti-Falun Gong classes, not tortured. This type of punishment
does not amount to torture under the regulations, as it is not intended to inflict
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severe physical or mental pain or suffering. See 8 C.F.R. § 208.18(a).
III. CONCLUSION
Qiao Dan Wang petitions for review of the BIA’s order affirming the IJ’s
denial of asylum, withholding of removal, and CAT relief. Her arguments fail
because the IJ reasonably concluded, among other things, that petitioner could not
show sufficient probability of future harm. PETITION DISMISSED IN PART
AND DENIED IN PART.
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