FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 1, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-11386

Non-Argument Calendar

________________________

Agency No. A98-113-628

QIN LIU, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(November 1, 2007)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
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Petitioner Quin Liu (“Liu”), a citizen of China, petitions for review of the

Board of Immigration Appeals’ (“BIA”) decision, affirming the Immigration

Judge’s (“IJ”) denial of asylum, withholding of removal, and relief under the

United Nations Convention Against Torture and Other Cruel, Inhumane or

Degrading Treatment or Punishment (“CAT”), and the BIA’s denial of his motion

to remand, which was based on new evidence of a marriage certificate. Liu and his

wife,Yuan Sun, who had been married in a traditional ceremony, were not legally

married when Sun was subjected to a forcible abortion and sterilization. Sun was

sterilized after Liu escaped sterilization by fighting and fleeing family planning

authorities at the hospital. For the reasons that follow, we deny his petition for

review and affirm the BIA’s denial of his motion to remand. 

I.

On appeal, Liu argues that the BIA exceeded its scope of review by

characterizing as “alleged,” contrary to the IJ’s findings: (1) Sun’s coerced

abortion; and (2) the “beating” that Liu received at the hands of the family

planning officials. Liu contends that the BIA’s treatment of these events seriously

undermined his case. 

Liu’s contention that the BIA exceeded its scope of review is meritless. The

BIA’s reasons for denying asylum as to the abortion claim were based on Liu’s

failure to be part of a legal marriage and did not depend on whether there had been
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an abortion, alleged or otherwise. Also, the IJ did not make specific findings

regarding a beating, and Liu never testified that he was beaten. 

II.

Liu next argues that the fact that he was not legally married when the

abortion and sterilization of his now legal wife occurred should not bar his asylum

application because the BIA’s determination that a legally recognized marriage

during the relevant time period is required finds no support in precedent or the

regulations. Liu asserts that, because the BIA’s decision in the instant case is

unpublished and, thus, not precedential rule-making, it is not entitled to deference

under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 104 S. Ct. 2778 (1984). Liu argues that his association and later legal

marriage to his wife constituted a significant association, which could establish a

well founded fear of future persecution, and the BIA’s requirement of a legal

marriage was contrary to this doctrine of imputed political opinion. 

“[R]eview of the BIA’s interpretation [of a statute] is informed by the

principle of deference articulated in Chevron.” Castillo-Arias v. U.S. Att'y. Gen.,

446 F.3d 1190, 1195 (11th Cir. 2006) (citations omitted), cert. denied 127 S. Ct.

977 (2007). Under Chevron, there is a two-step process, looking to see, first, if

congressional purpose is clear. Id. If Congressional intent on an issue is

ambiguous or silent, “a court may not substitute its own construction of a statutory
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provision for a reasonable interpretation made by the administrator of an agency.” 

Id. (citation and quotation omitted). 

In 1996, the definition of “refugee” was amended to include that: 

[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. 

INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). The statute itself is silent on the issue

of a spouse’s derivative asylum. See id. The BIA has determined that the ability

of one spouse to claim refugee status, under § 1101(a)(42), based on the forcible

abortion or sterilization of the other spouse is limited to those legally married. In

re S-L-L-, 24 I. & N. Dec. 1, 7 (BIA 1996) (en banc). We recently affirmed as

reasonable the BIA’s determination that legal marriage is required in order to

extend derivative refugee status to a husband for his wife’s forcible abortion. See

Yi Qiang Yang v. U.S. Att’y Gen., 494 F.3d 1311, 1317-18 (11th Cir. 2007). 

Because we conclude that the BIA’s interpretation of the asylum statute,

denying derivative asylum to a partner not legally married at the time when his

partner was subjected to a forcible abortion or sterilization, was reasonable, we

defer to the BIA’s interpretation. 
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III.

Liu next argues that, since his marriage was legally registered in 2005, and

he and Sun had been living as husband and wife since 1999, he was entitled to

asylum protection due to his wife’s past persecution, pursuant to the BIA’s former

decisions, which allow an applicant to establish asylum eligibility due to his/her

spouse’s forced sterilization. Liu recognizes that the BIA has limited this

protection to married couples, but as he and his wife are now legally married, he

claims that he has established the requisite nexus and level of harm for persecution,

making him eligible for asylum. Liu also argues that he demonstrated “other

resistance” to China’s family planning policy by: (1) impregnating his wife; (2)

having two children in secrecy and in violation of Chinese law; (3) escaping

Chinese family planning officials who were planning on sterilizing him; and (4)

going into hiding and refusing to pay fines imposed upon him. 

We “review only the [BIA]’s decision, except to the extent that it expressly

adopts the IJ’s opinion.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). 

“Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as

well.” Id. To the extent that the IJ’s and the BIA’s decisions are based on a legal

determination, review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48

(11th Cir. 2001). Factual determinations, however, are reviewed under the “highly

deferential substantial evidence test,” which requires us to “view the record
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evidence in the light most favorable to the [IJ]’s decision and draw all reasonable

inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27

(11th Cir. 2004) (en banc). 

We have stated that: 

[A]sylum relief requires proof of two criteria. To establish asylum

based on past persecution, the applicant must prove (1) that she was

persecuted, and (2) that the persecution was on account of a protected

ground. To establish eligibility for asylum based on a well-founded

fear of future persecution, the applicant must prove (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) (citations omitted).

In Yang, we also held that, even assuming that the petitioner established, under the

“other resistance” clause of § 1101(a)(42), that he (1) “had an extremely close and

committed relationship” with his partner, and (2) physically resisted family

planning officials at the hospital in an attempt to prevent his partner’s forced

abortion, he could not establish that he was persecuted, where he only had a

physical altercation with family planning officials at the hospital, was subpoenaed

by the local security office, and was sought by family planning officials and

“Village Cadres,” who tried and were still seeking to arrest him. Yang, 494 F.3d at

1319. We held that, where the petitioner suffered no prolonged detention or

physical violence, we were not compelled to conclude that the petitioner suffered

past persecution. Id. 
Liu also argues for the first time on appeal that: (1) his wife’s forced abortion and 1

sterilization resulted in his emotional trauma and psychological persecution; (2) he was

persecuted by the government’s imposition of fines, which he was unable to pay; and (3) the

government effectively deprived him of his livelihood, as he was forced into hiding. However,

we lack jurisdiction to review these claims, as they were not exhausted below. 

See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006). 

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The record does not compel reversal of the BIA’s determination that Liu had

not suffered independent past persecution based on his resistance to family

planning policies, because we conclude that a brief altercation with family

planning officials and going into hiding to avoid arrest are not sufficient to

establish persecution.1

IV.

Liu next argues that he established a well-founded fear of future persecution

based on his resistance to family-planning laws. He contends that his wife’s

sterilization does not negate the possibility of future persecution, and the

presumption of future persecution established by his wife’s sterilization has not

been rebutted. Additionally, he asserts that an outstanding fine creates a fear of

future persecution because, as long as the fine remains unpaid, he and his wife will

live in fear. 

Asylum status can be established based on a well-founded fear of future

persecution, by proving that there is “(1) a ‘subjectively genuine and objectively
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reasonable’ fear of persecution, that is (2) on account of a protected ground.” 

Silva, 448 F.3d at 1236 (citation omitted). We have held that:

It is “well-established” that the well-founded fear inquiry contains

both an objective and subjective component, i.e., the petitioner must

be genuinely afraid and that fear must be objectively reasonable. As

we have noted, “persecution” is an “extreme concept,” requiring more

than “a few isolated incidents of verbal harassment or intimidation,”

or “mere harassment.” Furthermore, it is the petitioner’s burden to

present “specific, detailed facts showing a good reason to fear that he

or she will be singled out for persecution.” 

Huang v. U.S. Att’y Gen., 429 F.3d 1002, 1009 (11th Cir. 2005) (citations and

alterations omitted).

Because Liu was not able to demonstrate that the Chinese government still

would be interested in arresting him three years after he left China, we conclude

that he has not established a well-founded fear of future persecution. 

V.

Finally, Liu argues that, because the BIA has never required that marriages

have to exist during all relevant time periods of the resistance to family planning, it

should have granted his motion to remand to prove the current validity of his

marriage. 

Because the motion to remand requested additional proceedings to present

new evidence regarding Liu’s eligibility for relief, it was in the nature of a motion

to reopen. See Najjar, 257 F.3d at 1301. We review the BIA’s denial of a motion
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to reopen for an abuse of discretion, and “the BIA’s discretion is quite broad.” 

Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003) (quotation

omitted). 

The marriage certificate did not add any new material information, as it only

proved that he was currently legally married, not that he was married at the

relevant time. Thus, we conclude that the BIA did not abuse its discretion in

denying the motion. 

For the above-stated reasons, we conclude that the BIA properly dismissed

the appeal and denied the motion. 

PETITION DENIED.