Ling Dong v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12467
October 28, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
Agency No. A96-440-086
LING DONG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 28, 2005)
Before DUBINA, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Ling Dong, a native and citizen of China, petitions this Court to review the
final order of the Board of Immigration Appeals (“BIA”), which affirmed without
opinion the decision of the immigration judge (“IJ”) denying Dong’s application
for relief under the United Nations Convention Against Torture and Other Cruel,
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Inhuman, or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c).
The IJ determined that Dong failed to establish that it was more likely than not that
she would be tortured upon return to China. On appeal, Dong claims that because
her father offended the Chinese government by failing to repay a debt and she is an
illegal emigrant, she will be subject to arrest and continuous detention
accompanied by beating and deprivation of food and clothing, by or at the
acquiescence of the Chinese government, if she returns to China. After thorough
review of the record and the parties’ briefs, we deny the petition for review.
Where, as here, the BIA summarily affirms the IJ’s decision, the IJ’s
decision becomes the final agency determination subject to review. See Mendoza
v. U.S. Att’y Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003). To the extent the
IJ’s decision was based on legal determinations, our review is de novo.
Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). The IJ’s factual
determinations are reviewed under the substantial evidence test, meaning that we
will “affirm the IJ’s decision if it is supported by reasonable, substantial, and
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We will not review Dong’s arguments in support of asylum and withholding of removal
under the INA because she withdrew these arguments during her hearing before the IJ. See Al
Najjar v. Ashcroft, 257 F.3d 1262, 1283 n.12 (11th Cir. 2001) (“there shall be no review of a claim
‘if the alien has not exhausted the administrative remedies available to him as of right under the
immigration laws and regulations.’” (citations omitted)).
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probative evidence on the record considered as a whole.” Forgue v. U.S. Att’y
Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quoting Al Najjar v. Ashcroft, 257
F.3d 1262, 1283-84 (11th Cir. 2001)). “To reverse the IJ’s 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) (withholding of removal claim).
That evidence in the record may also 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, 161 L. Ed. 2d 1063 (2005).
At the evidentiary hearing before the IJ, Dong admitted that she entered the
United States with a false passport and stated that she sought withholding only
under the CAT. To qualify for withholding of removal under Article 3 of the CAT,
the applicant must show that it is more likely than not that she will be tortured if
returned to 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 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). CAT relief carries a higher legal standard than asylum,
and thus is very difficult to meet. See Al Najjar, 257 F.3d at 1303. “[F]or an act to
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constitute ‘torture’ under CAT, it must be: (1) an act causing severe physical or
mental pain or suffering; (2) intentionally inflicted; (3) for an illicit or proscribed
purpose; (4) by or at the instigation of or with the consent or acquiescence of a
public official who has custody or physical control of the victim; and (5) not
arising from lawful sanctions.” Cadet v. Bulger, 377 F.3d 1173, 1181 (11th Cir.
2004).
Our review of the record reveals the following with regard to Dong’s
testimony in support of her application: (1) Dong testified she was pursued by
Chinese police, but the harassment stopped after she and her father signed a
document relating to the sale of their home; and (2) Dong stated that if she returned
to China, she would be subjected to fines for having illegally departed the country.
On this record, we conclude the evidence presented in this case would not compel
a reasonable factfinder to find that it is more likely than not that Dong would be
subjected to torture, within the meaning of Cadet, upon her return to China.
Accordingly, we deny her petition for review.
PETITION DENIED.
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