IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60915

Summary Calendar

MEI HE,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A089 095 360

Before REAVLEY, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

Mei He, a citizen of China, petitions this court for review of the Board of

Immigration Appeals (BIA) dismissal of her appeal of an Immigration Judge’s

(IJ) denial of asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). Mei He, a Christian, argues that the

evidence compels the conclusion that she is entitled to asylum based upon a wellfounded fear of future persecution by the Chinese government on account of her

religion. Mei He does not challenge the BIA’s denial of withholding of removal

United States Court of Appeals

Fifth Circuit

F I L E D

September 26, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 10-60915

or the denial of her application for protection under the CAT. She has therefore

abandoned any challenge to these determinations. See Soadjede v. Ashcroft, 324

F.3d 830, 833 (5th Cir. 2003).

The BIA’s decision was based in part on the IJ’s findings and the BIA did

not expressly adopt the IJ’s decision. Accordingly, to the extent the IJ’s ruling

affected the BIA’s decision, this court will review both decisions. Zhu v.

Gonzales, 493 F.3d 588, 593-94 (5th Cir. 2007). The Attorney General’s

statutory power to grant asylum to one who qualifies as a refugee under 8 U.S.C.

§ 1101(a)(42)(A) is discretionary. 8 U.S.C. § 1158(b); Zhao v. Gonzales, 404 F.3d

295, 306 (5th Cir. 2005). A refugee is a “person who is outside any country of

such person’s nationality,” who cannot or is unwilling to return to “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.” § 1101(a)(42)(A). Whether an alien has demonstrated eligibility for

asylum is a factual determination that is reviewed for substantial evidence. See

Zhao, 404 F.3d at 306. Under this standard, reversal is improper unless this

court decides “not only that the evidence supports a contrary conclusion, but also

that the evidence compels it.” Id. (internal quotation marks and citation

omitted) (emphasis in original).

Mei He’s argument that the BIA erred by analyzing whether she had

established past persecution lacks merit, as Mei He asserted in testimony that

she left China because she was persecuted on account of her religion. The record

establishes, inter alia, that Mei He was not harmed while she was in China. She

escaped arrest when she fled the police invasion of the “family church” where she

practiced her faith and any threat of future arrest was indirect. Also, although

she lived in a small village where police were looking for members of her family

church, the local police did not find her and did not search for her by name. She

was able to leave China using her own passport without incident. The record

therefore does not compel a finding that Mei He is eligible for asylum based upon

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past persecution. See Zhao, 404 F.3d at 306; Eduard v. Ashcroft, 379 F.3d 182,

187 n.4 (5th Cir. 2004).

As Mei He failed to demonstrate past persecution, she cannot rely upon a

presumption of future persecution. See 8 C.F.R. § 208.13(b)(1). Although Mei

He argues at length that the BIA misunderstood her testimony regarding the

differences between the family church and the government-monitored church,

Mei He testified that from the religious aspect the unregistered churches and the

registered churches are the same, the members of the two churches use the same

Bible, sing the same songs, and say the same prayers. Moreover, Mei He

testified that her parents practice Christianity in the government-monitored

church and occasionally attend a family church, without incident. The record

therefore does not compel a conclusion that is contrary to the BIA’s finding that

it is possible that Mei He could avoid the risk of future persecution altogether

by attending the officially recognized Christian church. See Zhao, 404 F.3d at

306. Moreover, Mei He failed to provide facts establishing that she has a good

reason to fear that she will be singled out for persecution. See Faddoul v. INS,

37 F.3d 185, 188 (5th Cir. 1994). The record therefore does not compel a finding

that Mei He is eligible for asylum based upon a well-founded fear of future

persecution. See Zhao, 404 F.3d at 306.

Mei He further contends thatthe BIA erred by determining that relocation

was possible without inquiring whether relocation would be reasonable. 

Although Mei He argued in her appeal to the BIA that current conditions in

China made relocation unreasonable, she did not argue, as she does here, that

relocation was unreasonable due to China’s household registration system. To

the extent that Mei He is raising a new issue before this court that she did not

present to the BIA, this court lacks jurisdiction to consider the issue. See 8

U.S.C. § 1252(d)(1); Omari v. Holder, 562 F.3d 314, 322 (5th Cir. 2009).

The BIA expressly analyzed the 2008 U.S. Department of State

International Religious Freedom Report and found that the report provided

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evidence of widely varying official treatment of house churches throughout

China. The BIA thus concluded that Mei He could avoid persecution by

relocating within China, and it was reasonable to expect her to do so. Thus, Mei

He’s argument that the BIA erred by failing to consider whether relocation was

a reasonable option is belied by the express findings set forth within the BIA’s

opinion, as the BIA expressly analyzed whether relocation was a reasonable

option in light of evidence in the record.

Rather than specifically addressing the provisions of the 2008 report or

other evidence that is in the administrative record, Mei He contends that

relocation is unreasonable and relies upon “recent U.S. government reports” that

are not in the administrative record. This court may not consider new evidence

that is not part of the administrative record. See 8 U.S.C. § 1252(b)(4)(A). Mei

He’s challenge to the BIA’s relocation determination is thus based upon broad

generalizations that fail to address the evidence in the record and she relies

upon evidence that is not in the administrative record. As such, her argument

fails to establish that the record compels a finding that is contrary to the BIA’s

determination. See Chen, 470 F.3d at 1134.

Finally, Mei He argues that the BIA erred by failing to address the IJ’s

credibility finding. However, the BIA expressly determined that it was

unnecessary to address credibility as, even if credible, Mei He failed to sustain

the burden of proof applicable to asylum. As discussed above, the record does

not compel a conclusion that is contrary to the BIA’s denial of relief. 

Accordingly, Mei He’s petition for review is DENIED.

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