Ji Mei Jiang 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[DO NOT PUBLISH]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
No. 10-14891 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 27, 2011
________________________ JOHN LEY
CLERK
Agency No. A095-716-408
JI MEI JIANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 27, 2011)
Before CARNES, HULL, and BLACK, Circuit Judges.
PER CURIAM:
Ji Mei Jiang seeks review of the Board of Immigration Appeals’s order
affirming the Immigration Judge’s denial of her application for asylum and
withholding of removal under the Immigration and Nationality Act. Jiang
contends that she established that she had suffered past persecution on account of
her religion and that she has a well-founded fear of future persecution.
I.
Jiang, a native and citizen of China, began attending an unregistered
underground Christian church at the home of its leader “Sister” Chen in 2005. A
few months later the police raided that house during a church meeting Jiang was
attending. She successfully fled through a side door and went to her aunt’s house
in another city. While there her biological sister told her that the police had
repeatedly come to their parents house to arrest Jiang. Jiang was also told that the
police had arrested Sister Chen and beaten her before eventually releasing her. A
month later Jiang came to the United States.
In 2009 Jiang filed for asylum and withholding of removal.1 Although Jiang
was never arrested or beaten, she testified that she is afraid that she will be
1
She also made a claim under the United Nations Convention Against Torture, which the
BIA dismissed She did not raise that issue in her appeal. See Access Now, Inc. v. Southwest
Airlines Co., 385 F.3d 1324, 1335 (11th Cir. 2004) (“We will not address a claim that has been
abandoned on appeal . . . .”).
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arrested if she returns to China on account of her Christian faith and because she
attends meetings at an underground church.2 The IJ denied her application. The
BIA affirmed the IJ’s decision and dismissed the appeal. It stated that:
We agree with the Immigration Judge’s determination that the
respondent did not suffer past persecution. Nor are the respondent’s
fears of being arrested and beaten on account of her religious practice
and participation in an underground church well-founded. While her
fear may in-fact be subjectively genuine, the record does not support that
it is objectively reasonable. As noted by the Immigration Judge, the
Country Report indicates that the government allows Christian churches
to register, and that the government interferes only with unregistered and
underground churches, though such interference varies greatly from
locality to locality. The respondent has the burden of proof on her
application for relief from removal, and she has failed to establish the
degree of government interference with underground churches, if any,
in her locality.
We reject the respondent’s argument on appeal that there is a pattern or
practice of persecution in China against people who practice
Christianity, as the record before us does not support that the threat of
harm to Christians by the Chinese government is so systemic or
pervasive as to amount to a pattern or practice of persecution.
(quotation marks and footnote omitted).
II.
2
She also argued to the IJ and BIA that she feared that she would be sterilized if she
returned to China because she was pregnant with her second child. The IJ and BIA did not find
that this was a basis for relief and Jiang did not raise that issue on appeal. See Access Now, 385
F.3d at 1335 (“We will not address a claim that has been abandoned on appeal . . . .”).
3
We review de novo the BIA’s legal conclusions. Lin v. U.S. Att’y Gen.,
555 F.3d 1310, 1314 (11th Cir. 2009). We review findings of fact “under the
substantial evidence test, which requires us to affirm the BIA’s decision if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Id. (quotation marks omitted). 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.” Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004) (en banc). Put another way, we will reverse the BIA
only upon finding that the record compels reversal. See Fahim v. U.S. Att’y Gen.,
278 F.3d 1216, 1218 (11th Cir. 2002).
To establish eligibility for asylum, an applicant must establish “(1) past
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion; or (2) a well-founded fear of future persecution
on account of a statutorily-protected ground.” Chen v. U.S. Att’y Gen., 463 F.3d
1228, 1231 (11th Cir. 2006).
The record does not compel us to find that the BIA erred when it found that
Jiang, who was never arrested or physically injured, did not suffer past
persecution. See Lin, 555 F.3d at 1316 (explaining that a “[petitioner] suffered no
harm amounting to persecution that would render him eligible for asylum” when
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he was “threatened with arrest, but was neither detained nor physically injured”);
Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1340 (11th Cir. 2001) (finding
that the petitioner did not suffer past persecution when “[he] was not physically
harmed . . . [and he was] [n]ever arrested or detained”).
Nor does the record compel us to conclude that Jiang proved that she has a
well-found fear of future persecution based on a statutorily protected ground. To
prevail, she has to prove that her fear of persecution is “both subjectively genuine
and objectively reasonable.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th
Cir. 2006). Even assuming that Jiang’s fears are subjectively genuine, she has not
proven that they are objectively reasonable.
Jiang does not contest the BIA’s finding that the government allows
Christian churches to register and that the government interferes only with
unregistered churches. Accordingly, she has not proved that she fears persecution
based on practicing her religion in China; instead, her fears are related only to her
decision to attend an unregistered underground church. Cf. Lin, 555 F.3d at 1316(“[Petitioner] feared he would be prosecuted for striking a [government] official
and leaving China illegally. Because these are not statutorily protected grounds,
[petitioner] cannot [show a well-founded fear of future persecution].”); Barreto-
Claro, 275 F.3d at 1340 (explaining that although the petitioner fled Cuba illegally
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because of his “anti-Castro political opinion,” his fear of future persecution
derives from his illegal exit, and “[p]rosecution for violating Cuba’s travel laws is
not persecution”). Even assuming that the government’s actions constitute
persecution, she has failed to show that such persecution occurs in her locality
given that interference with underground churches varies greatly from locality to
locality. At most she has shown that Sister Chen, the leader of the unregistered
underground church in her locality, was arrested and beaten. The record, however,
indicates that underground church leaders face harsher punishments. Jiang has not
provided any evidence suggesting that such actions have been taken against any
non-leader members of her church, or members of any other unregistered
underground church in her locality, or that there is an arrest warrant that has been
issued for her.
Because Jiang did not meet the standard of proof for asylum relief she
cannot meet the higher standard for eligibility for withholding of removal.
See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232–33 (11th Cir. 2005).
PETITION DENIED.
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