FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 November 8, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-11358

Non-Argument Calendar

________________________

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
 Because proceedings commenced after April 1997, the permanent provisions of the 1

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

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”). We deny his petition. 1

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.
3

After graduating from accounting school in June 2000, Zhang apparently

joined a computer company and began leading Falun Gong sessions with four coworkers 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
4

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
 Amendments to this section by § 101(a)(3) of The REAL ID Act of 2005, Pub. L. 109- 2

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

refugee. 8 U.S.C. § 1158(b)(1). The INA defines “refugee” as follows: 2

[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
 The 2002 State Department Country Report on China is not included in the record; 3

therefore, we cannot properly consider it. See 8 U.S.C. § 1252(b)(4)(A).

6

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. The 2002 U.K. China Country Assessment states that the Chinese 3

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.” 
7

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-halfyear 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 wellfounded. 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. 
8

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. 
9

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.