Nengkao Zhang v. U.S. Attorney General , 154 F. App'x 152 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11358 November 8, 2005
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
Agency No. A78-854-120
NENGKAO ZHANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 8, 2005)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
Nengkao Zhang, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ final order affirming, without opinion, the
immigration judge’s denial of asylum, withholding of removal under the
Immigration and Nationality Act (“INA”), and relief under the United Nations
Convention Against Torture (“CAT”).1 We deny his petition.
I.
In December 2001, Zhang, then nineteen years old, illegally entered this
country in Chicago, Illinois, using a counterfeit passport. He filed an asylum
application in November 2002 and was subsequently issued a notice to appear
charging him with removability. Zhang conceded removability but sought asylum
based on his fear of persecution if he returned to China because of his practice of
Falun Gong, a spiritual and philosophical movement banned by the Chinese
government since July 1999. A hearing before the IJ was held in September 2003.
In his asylum application and testimony before the IJ, Zhang stated that he
began practicing Falun Gong in March 1999 while attending accounting school.
After the government’s ban, the school prohibited its teachers and students from
practicing Falun Gong and from attending Falun Gong demonstrations and
assemblies. In September 1999, the school suspended Zhang for practicing Falun
Gong and threatened him with dismissal if he continued to practice, which he
secretly did.
1
Because proceedings commenced after April 1997, the permanent provisions of the
INA, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Pub. L. No. 104-208, 110 Stat. 3009 (1996), govern this petition.
2
After graduating from accounting school in June 2000, Zhang apparently
joined a computer company and began leading Falun Gong sessions with four co-
workers at one co-worker’s house. At one session, according to Zhang, police
surrounded the house and arrested Zhang’s co-workers, one of whom called Zhang
at his home and told him not to come there. Zhang testified that the police may
have been looking for him because he was on a list of Falun Gong practitioners and
was leader of the group. Zhang stated that he believed his co-workers were
coerced into signing letters promising not to practice Falun Gong in the future. In
August 2001, the computer company fired Zhang for attending Falun Gong
practices and assemblies. Subsequently, the local authorities issued a subpoena to
Zhang requiring him to appear before them on October 11, 2001. Instead, Zhang
went into hiding for two months and then fled China altogether.
Although finding Zhang credible on most points, the IJ determined that
Zhang failed to establish either past persecution or a well-founded fear of future
persecution. The IJ found that Zhang had not demonstrated past persecution
because Zhang was never arrested or detained because of Falun Gong and nothing
in the subpoena itself indicated that it was issued because of his Falun Gong
activities. The IJ determined that the only evidence supporting a fear of future
persecution is Zhang’s fear that “he will be arrested if he returns to China because
of his Falun Gong practice and the fact that his group was raided about 2 1/2 years
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ago.” The IJ found this evidence unpersuasive in light of the background evidence
that showed that the Chinese government was primarily seeking the leaders of the
entire Falun Gong movement and that the arrests were done at large
demonstrations, which Zhang stated he never attended. The IJ noted that Zhang,
“by his own testimony indicates that he was a very, very, very[] small fish in the
Falun Gong movement.” In conclusion, the IJ stated that “[i]t hardly seems
reasonable and believable that the Government of China has any interest in a small
time leader in a group of four other people after 2 1/2 years.” Accordingly, the IJ
denied Zhang’s application for asylum and other relief.
II.
“When the BIA summarily affirms the IJ's decision without an opinion, the
IJ's decision becomes the final removal order subject to review.” Sepulveda v.
U.S. Attorney Gen., 401 F.3d 1226, 1230 (11th Cir. 2005). “The IJ’s findings of
fact 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.’” Id. (quoting Al Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001)). “Under this highly deferential standard of review, the IJ’s
decision can be reversed only if the evidence ‘compels’ a reasonable fact finder to
find otherwise.” Id. (citations omitted).
To be eligible for asylum, an applicant must first demonstrate that he is a
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refugee. 8 U.S.C. § 1158(b)(1).2 The INA defines “refugee” as follows:
[A]ny 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). To establish that he is a refugee, an applicant for asylum
must present specific and credible evidence that he has experienced past
persecution or that he has a well-founded fear of future persecution. See 8 C.F.R.
§ 208.13(b)(1)–(2); Al Najjar, 257 F.3d at 1287.
Zhang does not contend that the IJ erred in finding that he failed to
demonstrate past persecution. Therefore, Zhang has waived any claim for asylum
based on past persecution. See Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir.
1995); Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir. 1994) (“Issues
that clearly are not designated in the initial brief ordinarily are considered
abandoned.”).
Zhang does contend that the IJ erred by failing to consider certain
background materials that corroborate his fear of future persecution if he is forced
2
Amendments to this section by § 101(a)(3) of The REAL ID Act of 2005, Pub. L. 109-
13, 119 Stat. 231, 303, do not apply to this petition because the final order in this case was
entered in September 2003, before § 101(a)(3) took effect in May 2005. See The REAL ID Act
§ 101(h)(2), 119 Stat. at 305.
5
to return to China. Specifically, Zhang points to the United Kingdom Immigration
and Nationality Directorate 2002 China Country Assessment and a 2002 United
States State Department Country Report on Human Rights and Country Conditions
on China.3 The 2002 U.K. China Country Assessment states that the Chinese
government has branded Falun Gong as an illegal cult and terrorist organization
and that it frequently detains Falun Gong practitioners without trial, imprisons
them, and subjects them to torture. Therefore, Zhang argues, “a reasonable person
like Zhang who practices Falun Gong would fear returning to China.”
Zhang also contends that the IJ failed to consider certain evidence in the
record supporting his fear, including the notice from his school prohibiting its
teachers and students from practicing Falun Gong, the school suspension notice
issued to Zhang, the subpoena issued by the police for Zhang, and the two letters
from Zhang’s mother recounting police inquiries of them as to Zhang’s
whereabouts and their claim to have gone into hiding to avoid the police. Zhang
argues that the IJ erred in its assessment of the subpoena because “it is logical to
presume, based on the circumstances as well as the subsequent attempts to arrest
Zhang, that he was wanted because he was a Falun Gong practitioner” and that
there was no evidence indicating that he was wanted “for any other reason.”
3
The 2002 State Department Country Report on China is not included in the record;
therefore, we cannot properly consider it. See 8 U.S.C. § 1252(b)(4)(A).
6
Finally, Zhang asserts that the IJ’s presumption that the Chinese government
would no longer be interested in arresting Zhang because of the two-and-one-half-
year time lapse since the subpoena was issued is without basis.
For two reasons, the evidence that Zhang points to does not compel us to
reverse the IJ and find that Zhang has a well-founded fear that he will be
persecuted in China. First, we agree with the IJ’s analysis of the evidence, the
thrust of which is that Zhang’s fear of future persecution in China is not well-
founded. To have a “well-founded fear,” “an applicant must demonstrate that his
or her fear of persecution is subjectively genuine and objectively reasonable.” Al
Najjar, 257 F.3d at 1289. While Zhang’s credible testimony is sufficient to meet
the subjective component, see id., the evidence does not support a finding that his
fear is objectively reasonable. Simply put, there is no evidence that the
government intends to incarcerate and/or punish Zhang. Zhang’s concerns about
what might happen when he returns to China are speculative because, as the IJ
pointed out, the subpoena does not explain why the police are interested in Zhang
and the police never tracked Zhang down after they raided the Falun Gong session
at his co-worker’s house. Although the letters from Zhang’s mother in 2002
indicate that the Chinese authorities had been looking for Zhang, there was no
more recent evidence that whatever interest the authorities had in Zhang would
outlast his now four-year absence from China. See Sepulveda, 401 F.3d at 1232.
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Second, there is no evidence that whatever awaits Zhang in China will rise to
the level of persecution. “Although the INA does not expressly define
‘persecution’ for purposes of qualifying as a ‘refugee,’ . . . we have discussed other
circuits’ holdings 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.’” Id. at 1231 (citing Gonzalez v. Reno,
212 F.3d 1338, 1355 (11th Cir. 2000) (citations omitted)). In Ghaly v. INS, 58
F.3d 1425 (9th Cir. 1995), a case cited by this Court in Gonzalez, the Ninth Circuit
explained that persecution is “the infliction of suffering or harm upon those who
differ (in race, religion or political opinion) in a way regarded as offensive.” In this
case, the only evidence that Zhang will be subjected to any “extreme” or
“offensive” treatment is that the Chinese government is interested in talking to him
and that they may have identified him as a Falun Gong practitioner. Given the
evidence that Zhang’s co-workers were eventually released and that the Chinese
government is primarily interested in arresting Falun Gong adherents who, unlike
Zhang, participate in public protests or demonstrations, it is mere conjecture that
the Chinese government will treat Zhang in a way that rises to persecution.
Therefore, the IJ’s finding that Zhang does not have a well-founded fear of
persecution if returned to China is supported by substantial evidence. Accordingly,
we affirm the IJ’s holding that Zhang is not eligible for asylum.
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III.
Zhang’s claims for withholding of removal and CAT relief are subject to a
more stringent standard than the standard for granting asylum. See Al Najjar, 257
F.3d at 1292–93, 1303–04. Accordingly, because we affirm the BIA’s conclusion
that Zhang failed to establish a well-founded fear of persecution in order to be
entitled to asylum, we also affirm the denial of withholding of removal and CAT
relief.
PETITION DENIED.
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