[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________           FILED
                                               U.S. COURT OF APPEALS
                            No. 10-12451         ELEVENTH CIRCUIT
                        Non-Argument Calendar      JANUARY 6, 2011
                      ________________________        JOHN LEY
                                                       CLERK
                        Agency No. A078-690-823


YUE MEI DING,

                                                               Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                               Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       ________________________

                            (January 6, 2011)

Before HULL, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:
       Yui Mei Ding, a native and citizen of the People’s Republic of China, seeks

review of the final order of the Board of Immigration Appeals (“BIA”), affirming the

opinion of the Immigration Judge (“IJ”) and dismissing Ding’s claims for asylum and

withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C.

§§ 1158, 1231.1 On appeal, Ding argues that: (1) substantial evidence does not

support the BIA’s determination that she was ineligible for asylum and withholding

of removal because she failed to show a well-founded fear of future persecution for

resisting China’s coercive family planning policies; and (2) the BIA legally erred in

requiring her to establish a well-founded fear of future persecution by showing that

she (A) violated the Chinese government’s coercive family planning policies and, (B)

would “necessarily” be subject to persecution upon return to China. After thorough

review, we deny the petition.

       In a case like this, in which the BIA issued its own opinion, we review “only

the decision of the BIA, except to the extent the BIA expressly adopts the IJ’s

decision.” Rodriguez Morales v. U.S. Att’y Gen., 

, 890 (11th Cir. 2007).




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         Ding has abandoned her claim for relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment because she fails to
make more than a passing reference to the claim on appeal. See Sepulveda v. U.S. Att’y Gen.,

, 1228 n.2 (11th Cir. 2005).

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Here, the BIA issued its own opinion, upholding the IJ’s denial of asylum,

withholding of removal, and CAT relief, so we only review the BIA’s decision.

      We review questions of law, including the BIA’s statutory interpretations, de

novo. Delgado v. U.S. Att’y Gen., 

, 860 (11th Cir. 2007); Jaggernauth

v. U.S. Att’y Gen., 

, 1350 (11th Cir. 2005). However, following the

principles of Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

(1984), when we review the BIA’s construction of a statute that it administers, we

“will defer to the BIA’s interpretation of [the] statute if it is reasonable and does not

contradict the clear intent of Congress.” Quinchia v. U.S. Att’y Gen., 

,

1258 (11th Cir. 2008) (quotation omitted). In reviewing an agency’s interpretation

of a statute under Chevron, the first step of the analysis is to determine “whether

Congress has directly spoken to the precise question at issue. If the intent of Congress

is clear, that is the end of the matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress.” 

. However, “when a court reviews an agency’s construction of the statute

which it administers . . . and the statute is silent or ambiguous with respect to the

specific issue, the question for the court is whether the agency’s answer is based on

a permissible construction of the statute.” 

(quotation and

alterations omitted).

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      Finally, we review findings of fact for substantial evidence to support them.

Kazemzadeh v. U.S. Att’y Gen., 

, 1350 (11th Cir. 2009). Under the

substantial evidence test, we view the evidence in the light most favorable to the

agency’s decision and draw all reasonable inferences in favor of that decision. 

This review for substantial evidence is highly deferential: “To reverse factual

findings by the Board, we must find that the record not only supports reversal, but

compels it. The mere fact that the record may support a contrary conclusion is not

enough to justify a reversal of the administrative findings.”        

and citation omitted).

      The INA gives the Attorney General or the Secretary of Homeland Security

discretion to grant asylum to any non-citizen who meets the definition of “refugee.”

8 U.S.C. § 1158(b)(1)(A). A refugee is defined as:

      any 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 . . .
      political opinion.

8 U.S.C. § 1101(a)(42)(A). Section 101(a)(42)(B) of the INA further provides

asylum eligibility for the following persons:

      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

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      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). The asylum applicant carries the burden of proving

statutory refugee status, and thereby establishing asylum eligibility. Najjar v.

Ashcroft, 

, 1284 (11th Cir. 2001).

      “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., 

, 1236 (11th Cir. 2006) (quotations and citation

omitted). The applicant must present “specific, detailed facts showing a good reason

to fear that he or she will be singled out for persecution on account of [the protected

ground].” 

. However, the applicant need not show that

she will be singled out if she can establish that her country engages in a pattern or

practice of persecution of a group of similarly situated persons on account of a

protected ground. Mehmeti v. U.S. Att’y Gen., 

, 1200 (11th Cir. 2009).

Notably, an alien who fails to establish that she has a well-founded fear of

persecution necessarily fails to establish eligibility for withholding of removal. 

to what constitutes a well-founded fear, the Supreme Court has explained

“that so long as an objective situation is established by the evidence, it need not be

shown that the situation will probably result in persecution, but it is enough that

persecution is a reasonable possibility.” I.N.S. v. Cardoza-Fonseca, 

,

440 (1987) (quotation omitted). However, the Supreme Court declined to elaborate

further and, instead, observed that

      [t]here is obviously some ambiguity in a term like “well-founded fear”
      which can only be given concrete meaning through a process of
      case-by-case adjudication. In that process of filling any gap left,
      implicitly or explicitly, by Congress, the courts must respect the
      interpretation of the agency to which Congress has delegated the
      responsibility for administering the statutory program.

(quotations omitted).

      The BIA has determined that there is objective evidence supporting a genuine

fear of returning to China if the alien shows (1) “the details of the family planning

policy relevant to [her],” (2) “the alien violated the policy,” and (3) “the violation of

the family planning policy would be punished in the local area in a way that would

give rise to an objective fear of future persecution.” In re J-H-S-, 24 I.&N. Dec. 196,

198-99 (BIA 2007), pet. for review denied sub nom. Shao v. Mukasey, 

(2d Cir. 2008); see also In re J-W-S-, 24 I.&N. Dec. 185, 185-89 (BIA 2007).




                                           6
      Here, the BIA did not legally err in requiring Ding to demonstrate that she

violated China’s coercive family planning policy because the requirement, as

articulated in the BIA’s three-part test for determining whether a genuine fear of

returning to China is objectively reasonable, is a reasonable interpretation of the term

“well-founded fear” in 8 U.S.C. § 1101(a)(42)(B). Indeed, Ding has not argued that

the BIA’s construction of § 1101(a)(42)(B) was unreasonable or at odds with the

legislative intent, and thus, has abandoned any argument to that end. 

n.2. Nor did the BIA require Ding to demonstrate that she “necessarily”

would be persecuted in order to establish a well-founded fear of persecution, as Ding

argues. Rather, the BIA found that there was no pattern or practice of persecution

against respondents in precedential BIA decisions predicated on the birth of U.S.

citizen children and that Ding’s documentary evidence was not materially

distinguishable from the evidence presented in those cases. Thus, BIA did not legally

err in applying J-H-S- to Ding.

      Further, substantial evidence supports the finding that Ding failed to

demonstrate that she has a well-founded fear of forced sterilization or a fine rising to

the level of persecution for resisting China’s coercive family planning policies.

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

                                           7
family planning 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 women like Ding or that Ding personally faces forced

sterilization if returned to China. Moreover, Ding’s particularized evidence does not

alter this conclusion. As a result, she has failed to meet her burden of proof for

asylum. Because she failed to meet her burden of proof for asylum, Ding also failed

to meet the higher burden required for withholding of removal. Accordingly, we

deny the petition in these regards.

      DENIED.




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