Dan Hui Zhang v. U.S. Attorney General

Case: 12-15973 Date Filed: 11/22/2013 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15973
Non-Argument Calendar
________________________
Agency No. A089-964-934
DAN HUI ZHANG
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 22, 2013)
Before HULL, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
Case: 12-15973 Date Filed: 11/22/2013 Page: 2 of 6
Dan Hui Zhang, a native and citizen of China, seeks review of the Board of
Immigration Appeals’ (BIA) order affirming the Immigration Judge’s (IJ) denial of
his application for asylum and withholding of removal under the Immigration and
Nationality Act (INA), and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Zhang argues the BIA and the IJ erred by concluding his past sufferings on account
of his religion did not amount to past persecution, and by concluding he failed to
demonstrate his fear of future persecution was objectively reasonable.1 After
review, we deny Zhang’s petition.
When the BIA issues an opinion that does not expressly adopt the IJ’s
decision, we review only the BIA’s decision as the final agency judgment. See
Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 956 (11th Cir. 2005). We assess
an agency’s factual determinations under the extremely deferential substantial-
evidence test. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en
banc). Under this test, we view “the record evidence in the light most favorable to
the agency’s decision and draw all reasonable inferences in favor of that decision.”
1
Zhang mentions that he is eligible for withholding of removal and CAT relief and
recites the relevant law, but does not provide any specific argument or citation to the record on
those issues. See Fed. R. App. P. 28(a)(9)(A). Accordingly, he has abandoned those issues.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). Regardless, these
claims would fail on the merits because Zhang cannot establish eligibility for asylum, and he has
not shown it is more likely than not he would be tortured if returned to China.
2
Case: 12-15973 Date Filed: 11/22/2013 Page: 3 of 6
Id. at 1027. Accordingly, to reverse a factual determination on appeal, the record
must not only permit another interpretation of the evidence, but compel it. Id.
“To establish asylum based on past persecution, the applicant must prove
(1) that he was persecuted, and (2) that the persecution was on account of a
protected ground.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1351 (11th Cir.
2009) (alteration omitted). A showing of past persecution creates a rebuttable
presumption of a well-founded fear of future persecution. Id. An applicant may
also demonstrate a well-founded fear of future persecution by proving a
subjectively genuine and objectively reasonable fear of persecution due to
protected grounds. Id. at 1352. The applicant must present “specific, detailed
facts” that show a good reason to fear he “will be singled out for persecution.”
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005).
Persecution is an extreme concept, and does not encompass mere
harassment. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290 (11th Cir. 2006). We
evaluate the harm that a petitioner suffered cumulatively and by considering the
totality of the circumstances on a case-by-case basis. Shi v. U.S. Att’y Gen., 707
F.3d 1231, 1235-36 (11th Cir. 2013). We have held that a beating in which the
petitioner suffered only scratches and bruises during a 36-hour detention combined
with threats of a future arrest did not compel the conclusion that the petitioner had
suffered past persecution. See Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174
3
Case: 12-15973 Date Filed: 11/22/2013 Page: 4 of 6
(11th Cir. 2008). Additionally, in Kazemzadeh, we held that an alien’s testimony
that he suffered a five-hour interrogation and beating, coupled with the petitioner
being detained for four days, without evidence of physical harm, was not enough to
compel the conclusion that the petitioner suffered persecution as opposed to
harassment. 577 F.3d at 1352-53.
By contrast, in Shi, Chinese officials interrupted a Christian church service
in the petitioner’s father’s home, arrested the petitioner, his father, and other
worshippers, and confiscated their Bibles. 707 F.3d at 1232. The officials
detained the petitioner for seven days and interrogated him. Id. at 1233. Shi was
slapped, told that he had been brainwashed, and eventually handcuffed to an iron
bar overnight in the rain, which left him ill. Id. We granted Shi’s petition for
review, holding that his case was “extreme enough to compel a finding that Shi
suffered past persecution on account of practicing his religion in China.” Id.
at 1236.
Here, substantial evidence supports the BIA’s conclusion that Zhang was
ineligible for asylum protection. Zhang’s testimony does not compel the
conclusion that he suffered past persecution on account of his religion. See
Adefemi, 386 F.3d at 1026-27. The Chinese police detained Zhang on three
occasions and beat him twice, and during the detentions, Zhang received very little
food. These incidents, while deplorable, are more akin to harassment, see Djonda,
4
Case: 12-15973 Date Filed: 11/22/2013 Page: 5 of 6
514 F.3d at 1174; Kazemzadeh, 577 F.3d at 1352-53, rather than the “extreme”
level of persecution described in Shi, which included a weeklong detention and
handcuffing the petitioner to an iron bar overnight in the rain. 707 F.3d at 1232-33.
Accordingly, the BIA did not err by concluding Zhang had not suffered
mistreatment rising to the level of past persecution, thereby placing the burden on
him to prove a well-founded fear of future persecution. See Kazemzadeh, 577 F.3d
at 1353.
Zhang did not satisfy his burden of showing his fear of persecution was
objectively reasonable given the conditions in his locality. Although Zhang’s
testimony supported his claim of a subjectively genuine fear that he would be
arrested if returned to China, the record does not compel the conclusion that this
fear was objectively reasonable. First, his mother, who was also a member of his
church, remained in China, and there was no evidence she had been arrested or
otherwise harmed. Second, Zhang has failed to show that persecution occurs in his
locality, given that interference with underground churches varies greatly from
locality to locality. At most, the record indicates that the government tends to
target religious leaders, as opposed to followers such as Zhang. Accordingly,
substantial evidence supports the BIA’s decision to deny Zhang asylum protection.
PETITION DENIED.
5
Case: 12-15973 Date Filed: 11/22/2013 Page: 6 of 6
JORDAN, Circuit Judge, concurring.
I am not sure that Kazemzadeh v. U.S. Attorney General, 577 F.3d 1341,
1352-53 (11th Cir. 2009), correctly decided the past persecution issue. But
Kazemzadeh constitutes binding precedent, and given its holding, the record here
does not compel a finding of persecution under the applicable standard of review.
6