Qian Jiangqing v. US Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14649
Non-Argument Calendar
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Agency No. A089-114-618
QIAN JIANGQING,
a.k.a. Jiangqing Qian,
Petitioner,
versus
US ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
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(April 29, 2013)
Before WILSON, MARTIN and FAY, Circuit Judges.
PER CURIAM:
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Qian Jiangqing (Qian) seeks review of the Board of Immigration Appeals’
(BIA) final order affirming the Immigration Judge’s (IJ) denial of his application
for asylum under the Immigration and Nationality Act (INA), § 208(a), 8 U.S.C. §
1158(a), withholding of removal, INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and
relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT), 8 C.F.R. § 208.16(c).
Qian applied for asylum, withholding of removal, and CAT relief on the ground
that he would be persecuted for his family’s ties to Falun Gong and the Chinese
government’s belief that he was a Falun Gong practitioner. After review, we deny
the petition.1
Where “the BIA issues its own opinion, we review only the decision of the
BIA, except to the extent that the BIA expressly adopts the IJ’s decision.” Tang v.
U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009) (internal quotation marks
omitted). We review factual determinations under the substantial evidence test.
Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1330 (11th Cir. 2011) (per curiam).
We will affirm a decision “if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Id. (internal quotation
1 On appeal, Qian did not offer any argument on his claims for withholding of removal or
CAT relief. As such, these claims are abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005) (per curiam) (stating that “[w]hen an appellant fails to offer
argument on an issue, that issue is abandoned”).
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marks omitted). “We will reverse an IJ’s factual findings only if the evidence
compels a reasonable fact finder to find otherwise.” Id. at 1331.
The Attorney General or Secretary of Homeland Security has the discretion
to grant asylum to an alien who meets the definition of a refugee. INA
§ 208(b)(1); 8 U.S.C. § 1158(b)(1)(A). A refugee is defined as a person:
who is outside any country of such person’s nationality . . . and who is
unable and 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 . . . .
INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the
burden of proving statutory “refugee” status. 8 C.F.R. § 208.13(a). In order to
meet this burden, the applicant must prove, with credible evidence, that either:
“(1) he suffered past persecution on account of his political opinion, or (2) he has a
well-founded fear that his political opinion will cause him to be persecuted.”
Carrizo, 652 F.3d at 1331 (internal quotation marks omitted); see also 8 C.F.R.
§ 208.13(b).
We have described 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.” Sepulveda, 401 F.3d at 1231
(alteration in original) (internal quotation marks omitted). A showing of past
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persecution creates a rebuttable presumption of a well-founded fear of future
persecution. Id. “If the applicant fails to demonstrate past persecution, an
applicant may still establish asylum based upon proof of a well-founded fear of
future persecution.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1007 (11th
Cir. 2008); 8 C.F.R. § 208.13(b)(2). “To establish a well-founded fear of future
persecution, an alien need only show that there is a reasonable possibility of
suffering such persecution if he or she were to return to that country.” Mehmeti v.
U.S. Att’y Gen., 572 F.3d 1196, 1200 (11th Cir. 2009) (per curiam). “The alien
must establish a fear that is both subjectively genuine and objectively reasonable.”
Id. (internal quotation marks omitted).
In Zheng v. United States Attorney General, we denied a petitioner’s asylum
claim based on persecution for his involvement in Falun Gong because he failed to
demonstrate past persecution, and did not establish a reasonable possibility that he
would suffer future persecution. 451 F.3d 1287, 1291–92 (11th Cir. 2006) (per
curiam). We held that Zheng’s five day detention, in which he was forced to watch
anti-Falun Gong videos, stand in the sun for two hours, and sign a statement that he
would no longer practice Falun Gong, did not establish past persecution. Id. at
1289, 1291–92. As to Zheng’s well-founded fear of future persecution, we noted
that although the 2002 Country Report indicates the “Chinese government’s effort
to repress Falun Gong . . . the Report also states that Falun Gong followers were
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generally released from detention and that the harshest punishments were reserved
for core leaders of the movement.” Id. at 1291–92. Because Zheng was not a
“core leader” and had been able to relocate to a rural village without enduring any
harm, we concluded that substantial evidence supported the IJ’s determination that
Zheng failed to demonstrate that he had a well-founded fear of future persecution.
Id.
In this case, we review the IJ’s decision because the BIA expressly adopted
it. See Tang, 578 F.3d at 1275. Substantial evidence supports the IJ’s and BIA’s
conclusion that Qian failed to establish eligibility for asylum based on his family’s
practice of Falun Gong and the Chinese government’s belief that he was a Falun
Gong practitioner. The IJ and BIA concluded that Qian’s asylum claim failed to
meet the objective prong of the well-founded fear of future persecution analysis
and that the record did not compel a contrary conclusion.
Although Qian testified that police detained him and his father once after
Falun Gong material was found in the family home, Qian did not suffer any harm
during this detention and was released after two days. Qian acknowledged that he
was not a “core leader” of the Falun Gong movement. In fact, Qian admitted that
he did not even practice Falun Gong. Further, after Qian left for the United States,
Qian’s father took sole responsibility for the Falun Gong material found in Qian’s
family’s home. Based on the 2009 Country Report, which is substantially similar
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to the 2002 Country Report we relied upon in Zheng, the harshest punishment was
reserved for Falun Gong’s “core leaders,” while most casual practitioners of Falun
Gong were punished administratively. Despite testifying that he would be arrested
and beaten if returned to China, Qian has not provided any evidence to show that
he would be punished more severely than the petitioner in Zheng, whom we found
did not establish past persecution or a well-founded fear of future persecution.
Because Qian was not a leader of the Falun Gong movement and he was not
harmed during his prior Falun Gong-based detention, substantial evidence supports
the IJ’s and BIA’s conclusion that Qian did not show he faced a reasonable
possibility of harsh punishment upon return to China. As such, the IJ and BIA
correctly determined that Qian was not eligible for asylum. Accordingly, we deny
his petition for review.
AFFIRMED.
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