FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 9, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-14666

Non-Argument Calendar

________________________

Agency No. A093-409-812

ZHAO DI CHEN,

Petitioner-Appellant,

versus

U.S. ATTORNEY GENERAL,

Respondent-Appellee.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(June 9, 2010)

Before BIRCH, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

Zhao Di Chen, a native and citizen of China, seeks review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”)

order denying his application for asylum, withholding of removal, and relief under

the United Nations Convention Against Torture, and other Cruel, Inhuman, and

Degrading Treatment or Punishment (“CAT”). INA §§ 208, 241; 8 U.S.C.

§§ 1158, 1231; 8 C.F.R. § 208.16(c). After review of the record and the parties’

briefs, we DENY the petition.

I. BACKGROUND

On 23 April 2007, the Immigration and Naturalization Service (“INS”)

served Chen with a notice to appear, charging him with removability under INA

§ 212, 8 U.S.C. § 1182, as an alien present in the United States without being

admitted or paroled. Administrative Record (“AR”) at 708. At an initial hearing,

Chin admitted the allegations in the notice to appear and conceded removability.

Id. at 76. On 30 May 2007, Chen filed an application for asylum, withholding of

removal, and CAT relief, alleging that he feared persecution if returned to China

because he had violated China’s family planning policy. Id. at 563-64.

1

 Although Chen also alleged past persecution based on his violation of China’s family 1

planning policy, he conceded at his removal hearing that he suffered no past persecution and

agreed that his claim was limited to a well-founded fear of future persecution based on both his

violation of China’s family planning policy and his practice of Falun Gong. See id. at 94-96. 

Because Chen waived his claim of past persecution before the IJ and thus failed to exhaust

administrative remedies with respect thereto, we lack jurisdiction to consider it. See

Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam) (“We

lack jurisdiction to consider a claim raised in a petition for review unless the petitioner has

exhausted his administrative remedies with respect thereto.”). 

2
The record reflects that Chen is from Fouchou City in the Fujian Province

and had two daughters with his first wife, who thereafter was forcibly sterilized by

2

Chinese family planning officials. Id. at 102-04, 568. Chen and his first wife

divorced in October 1998, and he married his current wife the following year. Id.

at 104-06, 568. When Chen’s wife became pregnant, he sent her to live at a

relative’s home because he had not obtained a permit to have a third child. Id. at

107, 568-69. Family planning officials learned of his wife’s pregnancy, forced her

to have an abortion, and, two weeks later, required her to be fitted with an interuterine device (“IUD”) to prevent future pregnancies. Id. at 107-08, 569. Chen’s

wife subsequently had the IUD removed at a private clinic and became pregnant

for the second time in May 2004. Id. Fearing she would be forced to terminate the

pregnancy, Chen arranged to have his wife smuggled into the United States, where

she suffered a miscarriage. Id. at 108-09, 569. After Chen’s arrival in the United

States in 2006, his wife became pregnant for the third time and gave birth to a

daughter in February 2007. Id. at 109-11, 569-70. Chen believed that if he

returned to China, he would be jailed and forced to undergo a vasectomy because

 According the 2007 Country Report, China’s family planning law “grants married 2

couples the right to have one birth and allows eligible couples to apply for permission to have a

second child if they meet conditions stipulated in local and provincial regulations.” Id. at 319. 

Chen does not argue that the birth of his second daughter was illegal, but that the birth of his

third child in the United States would be viewed by family planning authorities as a violation of

the family planning law. Because Chen appears to base his asylum claim only on the birth of his

third child, we will assume for purposes of this petition for review that the birth of Chen’s

second daughter was authorized. 

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he has three children. Id. at 111-12, 570.

Chen also testified at the removal hearing that he would be persecuted if

returned to China on account of his involvement with Falun Gong, which he did

3

not practice in China but began practicing after arriving in the United States. Id. at

112, 115. He stated that he practiced privately, “in [his] room,” two or three times

a week, and would continue to practice Falun Gong if he were returned to China.

Id. at 113, 115, 136. He further testified that he attended a Falun Gong

demonstration in Washington in 2008, but remained on “the bus” and did not

actively participate in the demonstration. Id. at 113, 137. According to Chen, the

Chinese government is “against Falun Gong” and will arrest, jail, and beat its

adherents. Id. at 114-15.

In addition to Chen’s asylum application and removal hearing testimony, the

IJ also considered the U.S. Department of State’s 2007 Profile of Asylum Claims

and Country Conditions (“2007 Profile”) and 2007 Country Report on Human

Rights Practices in China (“2007 Report”). See id. at 250-371. With respect to

China’s population control policy, the 2007 Profile noted the following. Under the

 According to the 2007 Asylum Profile for China (“2007 Profile”), Falun Gong is a 3

movement that “blends aspects of Taoism, Buddhism, and the meditation techniques and

physical exercises of qigong (a traditional Chinese exercise discipline) with the teachings of

Falun Gong founder Li Hongzhi.” Id. at 259. The 2007 Profile notes that, “[d]espite the mystical

nature of Li’s teachings, Falun Gong has no clergy or places of worship, and does not represent

itself as a religion.” Id.

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government’s family planning law, couples who have an unapproved child must

pay a “social maintenance or compensation fee,” while couples who comply with

the policy receive rewards in the form of monthly stipends and preferential

medical, food, and educational benefits. Id. at 272, 296, 306. “[S]ocial and

economic pressures are common,” and in the Fujian Province specifically,

“unspecified ‘remedial measures’” are used to deal with unauthorized pregnancies.

Id. at 272. Additional penalties “may include loss of government-subsidized health

benefits, job loss or demotion, loss of promotion opportunity for one or more

years, . . . and other administrative penalties.” Id. at 272, 306-08. While official

government policy prohibits forcible sterilizations and abortions, they continue to

be reported in some areas, and “[h]undreds of asylum applicants from Fujian claim

that forced abortions and sterilizations continue to the present day.” Id. 273, 275.

According to one former family planning officer, a birth planning office in the

Fujian Province was performing involuntary abortions and sterilizations as late as

1998. Id. at 275. The Fujian Provincial Birth Planning Committee (“FPBPC”)

maintained, however, that “the provincial government only imposes economic

penalties on families that do not comply with the birth planning law” and “does not

impose criminal penalties or physically coercive methods to ensure compliance.”

Id. at 276. The FPBPC acknowledged that there were “isolated” incidents of

forced abortion and sterilization in the 1980’s and early 1990’s, but insisted that no

5
cases of forced abortion or sterilization have been reported in the ten years

preceding the 2007 Profile and that all men and women who undergo surgical

procedures are now required to provide informed, written consent. Id. at 275.

Local physicians confirmed that they had seen no evidence of forced abortions or

sterilizations among their patients from Fujian Province since the 1980’s, and

Consulate General officials who visited Fujian Province reported that although

“coercion through public and other pressure has been used,” they were aware of no

cases in which physical force was used in connection with abortion or sterilization.

Id. Consulate General interviews with visa applicants from Fujian Province also

revealed “no evidence of forced abortion.” Id. at 275-76.

Appendices to the 2007 Profile contain the national and regional regulations

concerning family planning. See id. at 289-310. The regional regulations for

Fujian Province, which permit each family to have one child, and in certain

circumstances, two, provide incentives for using contraception and economic

penalties for non-compliance with the region’s population development plan. Id. at

305-07. According to a Fujian Provincial Government response to the U.S.

Consulate General, the government does not employ forcible IUD insertion or

sterilization for violations of the population control policy. Id. at 310.

The 2007 Report, which contains largely cumulative evidence, notes that the

Chinese government’s “birth limitation policies retain harshly coercive elements,”

6
including strict penalties that “leav[e] some women little choice but to abort

pregnancies.” Id. at 319. In addition to these “strict penalties,” China’s population

control policy relies on education, propaganda, economic incentives, and coercive

measures like job loss or demotion and social compensation fees. Id. at 320. The

2007 Report also noted that while the law “standardizes the implementation of the

government’s birth limitation policies[,] . . . enforcement varied significantly from

place to place.” Id. at 319.

With respect to the practice of Falun Gong, the 2007 Report noted that the

Chinese government considers Falun Gong a “cult” and has prohibited persons

from publicly engaging in Falun Gong activity. Id. at 329. Falun Gong sources

reported that at least 6,000 Falun Gong practitioners were sent to prison, and

100,000 were sent to reeducation-through-labor camps. Id. While “core leaders”

of Falun Gong were singled out for particularly harsh punishment, most

practitioners were punished administratively. Id. Administrative punishments

included reeducation-through-labor camps, renunciation of Falun Gong, and

mandatory anti-Falun-Gong education sessions. Id. at 329-30.

Like the 2007 Report, the 2007 Profile reported that the Chinese government

“continued to wage a severe campaign against Falun Gong,” punishing not only

those who engage in Falun Gong practices, but in some cases, those who admit

belief in the movement “or simply refus[e] to recant their beliefs or condemn the

7
movement” as well. Id. at 259. The 2007 Profile further noted that “[t]he mere

belief in Falun Gong, without any public practice of its tenets, has been sufficient

grounds for practitioners to receive punishments ranging from loss of employment

to imprisonment.” Id. While some non-governmental organizations have

documented close to 500 cases of Falun Gong members being detained,

prosecuted, or sentenced to reeducation based on their Falun Gong activities, other

“credible reports suggested the actual number was much higher.” Id. The degree

to which Falun Gong is restricted varies significantly from region to region,

however. Id. at 253.

The IJ ordered Chen removed after finding that while he testified credibly,

he failed to demonstrate a well-founded fear of future persecution based on either

his violation of China’s family planning policy or his limited Falun Gong

involvement. Id. at 66, 70. On appeal to the BIA, Chen argued that the Chinese

government had established a “pattern or practice” of punishing those who violated

the population control policy and that it had the “capacity” and “inclination” to

punish him. Id. at 20. He also argued that he was previously persecuted for

resisting China’s population control policy and that he had established a well4

 As discussed supra, Chen waived before the IJ his claim of past persecution based on 4

“other resistance” to China’s population control policy. Although the BIA addressed the merits

of this claim in its final decision, we are still without jurisdiction to consider it on petition for

review. See Amaya-Artunduaga, 463 F.3d at 1250. 

8
founded fear of persecution based on his adherence to Falun Gong. Id. at 21-23.

Finally, Chen asserted that he was entitled to withholding of removal and relief

under CAT. Id. at 23-25.

The BIA first found that Chen failed to establish a well-founded fear of

future persecution based on his involvement with Falun Gong because he was a

“casual practitioner” and not one of the movement’s “core leaders.” Id. at 3-4.

The BIA next found that Chen failed to establish a well-founded fear of future

persecution based on the birth of his third daughter in the United States because the

documentary evidence did not compel the conclusion that there was a “pattern or

practice of persecution by the Chinese government against applicants on account of

the birth of children in the United States” or “that forcible sterilizations are

mandated in the [Fujian Province] after the birth of a third child.” Id. at 4.

Inasmuch as Chen failed to meet his burden of proof with respect to asylum, the

BIA found that he necessarily failed to meet his burden of proof with respect to

withholding of removal. Id. at 5. Finally, the BIA concluded that Chen failed to

present facts demonstrating that it was more likely than not that he would be

tortured if returned to China. Id. The BIA dismissed Chen’s appeal accordingly,

and this petition for review followed.

II. DISCUSSION

Where, as here, the BIA issues its own decision and does not adopt the IJ’s

9
opinion, we review the BIA’s decision only. Rodriguez Morales v. U.S. Att’y Gen.,

488 F.3d 884, 890 (11th Cir. 2007) (per curiam). We review the BIA’s legal

conclusions de novo and its factual findings 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.” Mejia v.

U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007) (quotation marks and

citation omitted). Under this highly deferential standard, we view the record in the

light most favorable to the BIA’s decision and are bound by that decision “unless

[a] reasonable adjudicator would be compelled to conclude to the contrary.”

Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc) (citing 8

U.S.C. § 1252(b)(4)(B)). Accordingly, “even if the evidence could support

multiple conclusions, we must affirm the agency’s decision unless there is no

reasonable basis for that decision.” Id. at 1029.

To establish asylum eligibility, the petitioner bears the burden of proving

with “credible, direct, and specific evidence in the record” that he suffered past

persecution, or has a “well-founded fear” of future persecution, on account of

“race, religion, nationality, membership in a particular social group, or political

opinion.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (2005) (citation

omitted); 8 C.F.R. § 208.13(b) (2010). An alien who has not shown past

persecution may therefore still be entitled to asylum if he can prove that he has

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“(1) a subjectively genuine and objectively reasonable fear of persecution that is

(2) on account of a protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229,

1236 (11th Cir. 2006) (quotation marks and citations omitted). The alien may

satisfy the subjective component by offering credible testimony that he genuinely

fears persecution, and may satisfy the objective component by presenting “specific,

detailed facts showing a good reason to fear that he . . . will be singled out for

persecution” on account of a statutorily listed factor. Al Najjar v. Ashcroft, 257

F.3d 1262, 1289-90 (quotation marks, alteration, and citation omitted) (11th Cir.

2001); see 8 C.F.R. § 208.13(b)(2); Mejia, 498 F.3d at 1256 (alien “need only

show that there is a reasonable possibility of suffering such persecution if he or she

were to return to that country”) (quotation marks, alteration, and citation omitted).

An applicant’s credible testimony may be sufficient, without corroboration, to

sustain this burden. 8 U.S.C. § 1158(b)(1)(B)(ii) (2010); 8 C.F.R. § 208.13(a).

A. Well-founded Fear of Persecution Based on Violation of Population Control

Policy

The BIA has held that in order to qualify for asylum based on violation of

China’s population control policy, the alien must show: (1) that the birth(s)

“violated family planning policies in that alien’s local province, municipality, or

other locally-defined area,” and (2) “that current local family planning enforcement

efforts would give rise to a well-founded fear of persecution because of the

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violation.” In re J-H-S-, 24 I. & N. Dec. 196, 198 (BIA 2007).

We need not decide whether the birth of Chen’s third child in the United

States violates an established local policy because even assuming Chen can meet

his first burden under the above test, he cannot meet his second burden of showing

that such a violation “would be punished in the local area in a way that would give

rise to an objective fear of future persecution.” Id. at 199. The record in this case

reflects that while China’s family planning law retains coercive elements,

monetary penalties, rather than forcible medical procedures, are the predominant

means of enforcing the law in Fujian Province. Such enforcement efforts, insofar

as they result only in “moderate economic impact,” would not provide the basis for

a well-founded fear of persecution. In re J-W-S-, 24 I. & N. Dec. 185, 191, 193-94

(BIA 2007) (analyzing similar documentary evidence, including the 2007 Profile,

and concluding that “[a]t most, the evidence . . . suggest[ed] that the applicant and

his wife may face sanctions and penalties upon returning to China because of the

births of their United States citizen children,” and thus “fail[ed] to establish that

any sanctions imposed on parents of foreign-born children would rise to the level

of persecution”). See also J-H-S-, 24 I. & N. Dec. at 202-03 (alien, who fathered

two children in the Fujian Province before fleeing to the United States, could not

prove that he would be punished in the local area in a way that would give rise to

an objective fear of future persecution because the record, including the 2005 and

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2006 Country Reports as well as the 2007 Profile, “lack[ed] persuasive evidence”

that the birth of alien’s second child “would trigger family planning enforcement

efforts that would rise to the level of persecution”). Although the documentary

evidence submitted in this case cites reports of forced sterilizations from Fujian

Province, the record as a whole indicates that China’s population control policy is

largely dependent upon economic incentives and penalties and thus does not

compel the conclusion that there is a pattern or practice in Fujian Province of

forcibly sterilizing men like Chen or that Chen personally faces forced sterilization

if returned to China. See Adefemi, 386 F.3d at 1027. Accordingly, we will not

disturb the BIA’s conclusion that Chen failed to establish a well-founded fear of

persecution based on his alleged violation of China’s population control policy.

See id. at 1029.

B. Well-founded Fear of Persecution Based on Involvement in Falun Gong

Substantial evidence supports the BIA’s conclusion that Chen is not entitled

to relief based on his practice of Falun Gong. In Zheng v. U.S. Att’y Gen., 451

F.3d 1287, 1291-92 (11th Cir. 2006) (per curiam), we determined that a limited

practice of Falun Gong, without more, is insufficient to establish a well-founded

fear of persecution on a protected ground. The record in this case reflects that

Chen is not a “core leader” of the Falun Gong movement and contains no evidence

that Chinese authorities are even aware of Chen’s Falun Gong practice in the

13
United States. The record thus does not compel the conclusion that Chen will be

singled out for persecution based on his involvement with Fulan Gong if returned

to China. See id. at 1292.

C. Eligibility for Withholding of Removal and CAT Relief

To qualify for withholding of removal under the INA, an applicant must

show that it is “more likely than not” that he will be persecuted or tortured upon

returning to his home country. Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218

(11th Cir. 2002) (per curiam) (quotation marks and citation omitted); see 8 C.F.R.

§ 208.16(b)(2). To qualify for CAT relief, an applicant must demonstrate that it is

“more likely than not” that he will be tortured upon his return to the proposed

country of removal. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir.

5

2004); 8 C.F.R. 208.16(c)(2). Inasmuch as Chen has not satisfied the less stringent

standard for establishing asylum eligibility, his claims for withholding of removal

 Torture is defined as: 5

[A]ny 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. 

Id. at 819-20 (citing 8 C.F.R. § 208.18(a)(1)). 

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under the INA and CAT relief necessarily fail. See Zheng, 451 F.3d at 1292; see

also Forgue, 401 F.3d at 1288 n.4 (noting that where a petitioner “fail[s] to

establish a claim of asylum on the merits, he necessarily fails to establish eligibility

for withholding of removal or protection under CAT”).

III. CONCLUSION

Chen petitions us for review of the BIA’s dismissal of his appeal from the

IJ’s denial of asylum, withholding of removal, and CAT relief. Because the

evidence does not compel a finding that Chen has a well-founded fear of future

persecution based on his violation of family planning laws or his involvement with

Falun Gong, we DENY the petition.

PETITION DENIED.

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