FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 10, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-14191

Non-Argument Calendar

________________________

Agency No. A98-895-564

JIAN FENG CHEN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(February 10, 2009)

Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Jian Feng Chen, a native and citizen of China, seeks review of the Board of

Immigration Appeals’ (“BIA”) decision to affirm 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 Article 3 of the United

Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or

Degrading Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R.

§ 208.16. On appeal, Chen argues that the BIA: (1) erred in determining that he

had not suffered past persecution; (2) applied the erroneous legal framework to his

claim of a well-founded fear of future persecution; (3) failed to consider evidence

he had submitted; and (4) considered evidence not in the record. After thorough

review, we deny the petition.

When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). To the extent that the BIA adopts the IJ’s

reasoning, we review the IJ’s decision as well. Id. Here, because the BIA affirmed

the IJ’s decision but did so on alternative grounds that the IJ did not address, we

review the decision of the BIA only. Id.

When evaluating a petition to review a decision by the BIA to deny an

application for asylum and withholding of removal, we review findings of fact

under the “substantial evidence test,” and must affirm the decision “if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.

2005) (quotations omitted). Under the substantial evidence test, “we consider only

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whether there is substantial evidence for the findings made by the BIA, not

whether there is substantial evidence for some other finding that could have been,

but was not, made.” Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004)

(quotations omitted). We review the record evidence in the light most favorable to

the agency’s decision and may not overturn findings of fact unless the record

compels it. Forgue, 401 F.3d at 1286-87. The BIA is “entitled to rely heavily”

upon the State Department country reports. Djonda v. U.S. Att’y Gen., 514 F.3d

1168, 1175 (11th Cir. 2008) (quotations omitted).

An alien who arrives in or is present in the United States may apply for

asylum. 8 U.S.C. § 1158(a)(1). The Attorney General or the Secretary of

Department of Homeland Security has discretion to grant asylum if the alien meets

the INA’s definition of a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is

any person who is outside any country of such person’s nationality or,

in the case of a person having no nationality, is outside any country in

which such person last habitually resided, 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.

8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving

statutory “refugee” status. Al Najjar, 257 F.3d at 1284. To establish asylum

eligibility, the alien must, with specific and credible evidence, establish (1) past

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persecution on account of a statutorily listed factor, or (2) a “well-founded fear”

that the statutorily listed factor will cause such future persecution. 8 C.F.R.

§ 208.13(a), (b); Al Najjar, 257 F.3d at 1287.

We have held that “persecution,” as used to illustrate that an alien has

suffered “past persecution,” is an “extreme concept, requiring more than a few

isolated incidents of verbal harassment or intimidation, and . . . mere harassment

does not amount to persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,

1231 (11th Cir. 2005) (quotations and alterations omitted). If the alien establishes

past persecution, it is presumed that his life or freedom would be threatened upon

return to the country of removal unless the government shows by a preponderance

of the evidence that the country’s conditions have changed such that the applicant’s

life or freedom would no longer be threatened or that the alien could relocate

within the country and it would be reasonable to expect him to do so. 8 C.F.R. §§

208.13(b)(1), 208.16(b)(1).

An alien who has not shown past persecution may still be entitled to asylum

if he can demonstrate a future threat to his life or freedom on a protected ground. 8

C.F.R. §§ 208.13(b)(2), 208.16(b)(2). To establish a “well-founded fear,” an

applicant must show that she has a fear of persecution in her home country and that

“[t]here is a reasonable possibility of suffering such persecution if he or she were

to return to that country.” 8 C.F.R. § 208.13(b)(2)(i). Furthermore, an applicant

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must establish “that there is ‘a reasonable possibility he or she would be singled

out individually for persecution,’ or that he is a member of, or is identified with, a

group that is subjected to a pattern or practice of persecution.” Djonda, 514 F.3d at

1174 (quoting 8 C.F.R. § 208.13(b)(2)(iii)). When a petitioner fails to “establish a

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

withholding of removal or protection under CAT.” Forgue, 401 F.3d at 1288 n.4.

For petitioners basing their asylum claims on the application of a coercive

family planning policy, the following applies:

a person who has been forced to abort a pregnancy or to undergo

involuntary sterilization, or who has been persecuted for failure or

refusal to undergo such a procedure or for other resistance to a

coercive population control program, shall be deemed to have been

persecuted on account of political opinion, and a person who has a

well founded fear that he or she will be forced to undergo such a

procedure or subject to persecution for such failure, refusal, or

resistance shall be deemed to have a well founded fear of persecution

on account of political opinion.

8 U.S.C. § 1101(a)(42)(B). Interpreting this provision, we have held that “[i]n

addition to meeting the nexus requirement based on ‘resistance’ to the family

planning law, an applicant claiming persecution based on an unmarried partner’s

abortion must demonstrate that he has suffered harm amounting to persecution on

account of that resistance.” Yang v. U.S. Att’y Gen., 494 F.3d 1311, 1318 (11th

Cir. 2007) (quotations omitted), cert. denied, 128 S.Ct. 2466 (2008).

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First, we find no merit to Chen’s claim that the BIA’s finding that he did not

suffer past persecution was not supported by substantial evidence. Our review of

the record shows that Chen did not say whether he was injured during his physical

altercation with family planning officials; there is nothing in the record to

determine whether the 5,000 yuan fine was overly oppressive, as the record does

not indicate Chen’s salary or net worth at the time; and Chen’s detainment at the

hospital did not appear to be for a significant duration of time. Nor do the threats

compel a finding of past persecution because threats standing alone do not

generally amount to persecution. See Sepulveda, 401 F.3d at 1231 (holding that

threats do not rise to the level of past persecution compelling the reversal of the

IJ’s decision); see also Lin v. U.S. Att’y Gen., 154 F. App’x 809, 811 (11th Cir.

2005) (unpublished). In addition, the cumulative effect of the mistreatment did

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not rise to the level of persecution. See De Santamaria v. U.S. Att’y Gen., 525

F.3d 999, 1008 (11th Cir. 2008) (describing cases that compelled the finding of

past persecution where the facts included severe beatings and prolonged detention);

 Notably, the legislative history surrounding the enactment of the statutory provision 1

establishing asylum claims based on the application of a coercive family planning policy

provides that this kind of persecution is to be analyzed like any other type of persecution. See

H.R. Rep. No. 104-469(I), at 174 (1996) (“Determining the credibility of the applicant and

whether the actual or threatened harm rises to the level of persecution is a difficult and complex

task, but no more so in the case of claims based on coercive family planning than in cases based

on other factual situations. Asylum officers and immigration judges are capable of making such

judgments.”).

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Yang, 494 F.3d at 1319. Based on this record, we are not compelled to hold that

Chen suffered past persecution. Forgue, 401 F.3d at 1286-87.

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Next, we are unpersuaded that the BIA erred by requiring Chen to show a

“pattern or practice” of persecution to establish his future persecution claim. The

BIA said that “the evidence does not show a pattern and practice of forced

sterilizations or abortions for Chinese nationals returning from abroad, nor does the

evidence establish a reasonable possibility that the respondent would be forced to

under go such procedures if returned to China.” (Emphasis added). An

examination of the BIA’s decision thus shows that it did not require Chen to show

both a “pattern or practice” and that he was specifically targeted for persecution.

Rather, the BIA applied the correct legal framework for determining if a wellfounded fear of future persecution existed. See Djonda, 514 F.3d at 1174.

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We also are unpersuaded that the BIA failed to consider an expert affidavit

Chen submitted. When the BIA “has given reasoned consideration to the petition,

 Nor are we convinced that the BIA failed to consider whether Chen established “other 2

resistance” to China’s coercive population control policy. For starters, because Chen failed to

show that he was persecuted on account of his other resistance, the establishment of other

resistance is not a basis for a grant of asylum. Yang, 494 F.3d at 1318. Moreover, the BIA

explained in its decision that it was determining whether Chen “suffered past persecution due to

his resistance to the Chinese family planning laws.” It is thus clear that the BIA considered

whether he suffered past persecution on account of his other resistance to China’s coercive

population control policy.

 Moreover, Chen waived any challenge to the BIA’s determination that the evidence

3

was insufficient to establish a well-founded fear of future persecution. Sepulveda, 401 F.3d at

1228 n.2 (“When an appellant fails to offer argument on an issue, that issue is abandoned.”).

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and made adequate findings, we will not require that it address specifically each

claim the petitioner made or each piece of evidence the petitioner presented.” Tan

v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2008) (quotations omitted). In

Tan, we held that the IJ did not give reasoned consideration to the petitioner’s

application because: (1) “the Immigration Judge misstated the contents of the

record”; (2) the IJ failed to explain why an attack on the petitioner was not based

on the petitioner’s race; and (3) the IJ’s “reasoning was unresponsive to any

argument reflected in the record.” Id. at 1375-76. Here, however, the BIA said

that it considered the “expert affidavit” submitted by Chen. So even though the

BIA did not give a detailed discussion of the affidavit, it did not fail to consider the

affidavit or give reasoned consideration to the affidavit. Id. at 1374.

Finally, we reject Chen’s claim that the BIA violated his right to due process

by impermissibly incorporating the 2007 U.S. State Department’s Country Report

into the record without notice by citing to its prior decisions. Although the BIA did

cite to its previous decisions, it also considered the evidence in the record, did not

cite to the 2007 U.S. State Department’s Country Report, and did not rely on its

own decisions as evidence. In addition, it is clear that the BIA cited to its prior

decisions in order to demonstrate that it had previously considered similar

documentary evidence and reached the same conclusion that it reached in Chen’s

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application. The BIA therefore did not err by incorporating the 2007 U.S. State

Department’s Country Report into its decision.

Accordingly, we deny Chen’s petition for review.

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DENIED.

 Since Chen failed to establish a claim of asylum on the merits, he also failed to establish 4

eligibility for withholding of removal or protection under CAT. Forgue, 401 F.3d at 1288 n.4.

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