Case: 13-14190   Date Filed: 06/17/2014   Page: 1 of 11


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 13-14190
                         Non-Argument Calendar
                       ________________________

                        Agency No. A095-794-661


BIN HUANG,

                                                                       Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

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

                              (June 17, 2014)



Before TJOFLAT, JORDAN, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Bin Huang, a native and citizen of China, appeals the decision of the Board

of Immigration Appeals (“BIA”) to dismiss his appeal from the Immigration

Judge’s (“IJ”) denial of his application for asylum, 8 U.S.C. § 1158(a), withholding

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

§ 1231(b)(3), and relief under the United Nations Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R.

§ 208.16(c). In his petition, Huang argues that substantial evidence does not

support the BIA’s denial of his application for asylum, withholding of removal,

and CAT relief.

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

adopts the IJ’s opinion. Insofar as the [BIA] adopts the IJ’s reasoning, we will

review the IJ’s decision as well.” Al Najjar v. Ashcroft, 

, 1284 (11th

Cir. 2001) (citation omitted). To the extent that the BIA agreed with the IJ’s

reasoning, we should review the decisions of both the IJ and the BIA. 

are reviewed under the substantial evidence test,

which requires us to “view the record evidence in the light most favorable to the

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

Adefemi v. Ashcroft, 

, 1026-29 (11th Cir. 2004) (en banc). The


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substantial evidence test is “deferential” and “we may not ‘re-weigh the evidence’

from scratch.” Mazariegos v. U.S. Att’y Gen., 

, 1323 (11th Cir.

2001). We “must affirm the BIA’s decision if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.”

D-Muhumed v. U.S. Att’y Gen., 

, 818 (11th Cir. 2004). “To reverse

the . . . fact findings, we must find that the record not only supports reversal, but

compels it.” Mendoza v. U.S. Att’y Gen., 

, 1287 (11th Cir. 2003)

(emphasis added).

      An applicant for asylum must meet the INA’s definition of a “refugee.”

INA § 208(b)(1), 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.

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the

burden of proving statutory “refugee” status. 8 C.F.R. § 208.13(a); Al 

. An applicant for withholding of removal and CAT relief bears the

burden of establishing that it is “more likely than not” that he will be persecuted or

tortured upon being returned to his country. Sepulveda v. U.S. Att’y Gen, 

, 1232 (11th Cir. 2005).

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      To establish asylum eligibility, the alien must, with specific and credible

evidence, demonstrate (1) that he suffered past persecution on account of a

protected ground, or (2) that he has a “well-founded fear” of future persecution on

account of a protected ground. 8 C.F.R. § 208.13(b); Al 

.

The applicant must demonstrate that one of those enumerated grounds “was or will

be at least one central reason for persecuting” him or her. INA § 208(b)(1)(B)(i),

8 U.S.C. § 1158(b)(1)(B)(i). “Persecution on account of … political opinion … is

persecution on account of the victim’s political opinion, not the persecutor’s.”

Sanchez v. U.S. Att’y Gen., 

, 437-38 (11th Cir. 2004) (emphasis in

original). The question is whether the persecutor is acting because of the alien’s

political opinion, not whether the alien has a political opinion. See 

An

alien may also base an asylum claim on an imputed political opinion theory,

whether correctly or incorrectly attributed to the applicant. Carrizo v. U.S. Att’y

Gen., 

, 1331 (11th Cir. 2011).

      An alien must demonstrate a sufficient nexus between his political opinion

and the alleged persecution. Rodriguez Morales v. U.S. Att’y Gen., 

,

890 (11th Cir. 2007) (quotations omitted). On appeal, the record that “compels” is

a high standard. In Rodriguez Morales, we determined that Morales failed to

demonstrate a sufficient nexus between his political opinion and his alleged

persecution, after a guerilla group attempted to recruit him to provide dental


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services for their members and to help spread their political views. 

We

said that the guerrillas’ desire to help spread their political views did not constitute

the needed evidence that they persecuted Morales because of his political opinion.

record supported the inference that he was threatened merely

for his refusal to provide dental services, not for any political opinion he had or

was believed to have. 

may establish persecution if it is, in part,

motivated by a protected ground. Cardona Rivera v. U.S. Att’y Gen., 

, 821 (11th Cir. 2007). Still, in Cardona Rivera, we determined that a family’s

decision to pay no war tax to a guerilla group did not establish persecution on

account of a political opinion. 

The IJ’s finding that the guerillas’

motive for persecuting the petitioners’ family was to raise funds for its war against

the Columbian government, and not because the family supported a rival political

party, was no reversible error. 

written that “persecution is an extreme concept, requiring more

than a few isolated incidents of verbal harassment or intimidation, and that [m]ere

harassment does not amount to persecution.” 

(quotations omitted); see also Djonda v. U.S. Att’y Gen., 

, 1171

(11th Cir. 2008) (concluding that no persecution occurred when an alien was

detained for 36 hours after participating in a political rally, and during his

detention, police officers beat him severely enough to warrant a two-day hospital


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stay, several medications, and 2 weeks of rest). “In determining whether an alien

has suffered past persecution, the [factfinder] must consider the cumulative effects

of the incidents.” Delgado v. U.S. Att’y Gen., 

, 861 (11th Cir. 2007).

      To establish a well-founded fear of future persecution, the applicant must

show that there is a “reasonable possibility” of suffering persecution if he returns

to his home country. Mejia v. U.S. Att’y Gen., 

, 1256 (11th Cir.

2007). The fear of future persecution must be “subjectively genuine and

objectively reasonable” and on account of a protected ground. De Santamaria v.

Att’y Gen., 

, 1007 (11th Cir. 2008). “The subjective component is

generally satisfied by the applicant’s credible testimony that he or she genuinely

fears persecution[,]” and “[i]n most cases, the objective prong can be fulfilled

either by establishing past persecution or that he or she has a good reason to fear

future persecution.” Al 

(quotation omitted). To show an

objectively reasonable fear of future persecution, the alien must present “specific,

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

persecution on account of [a protected ground].” Forgue v. U.S. Att’y Gen., 

, 1286 (11th Cir. 2005) (quotation omitted).

      If an applicant is unable to prove his entitlement to asylum relief, he is

generally precluded from qualifying for withholding of removal. 

. To obtain CAT relief, the torture must “be by or at the instigation


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of or with the consent or acquiescence of a public official or other person acting in

an official capacity.” Sanchez Jimenez v. U.S. Att’y Gen., 

, 1239

(11th Cir. 2007) (quotation omitted).

      A petitioner must exhaust all remedies on a particular claim; otherwise, we

lack jurisdiction to consider the claim. Amaya-Artunduaga v. U.S. Att’y Gen., 

, 1250 (11th Cir. 2006). The exhaustion doctrine requires the petitioner

to raise claims before the agency, to thereby ensure that the agency had a full

opportunity to consider the petitioner’s claims. 

sua sponte

discussion of an issue is not enough to amount to exhaustion. 

The

BIA has noted that it is inappropriate for it to consider an issue not raised before

the IJ. See Matter of J-Y-C-, 24 I. & N. Dec. 260, 261 n.1 (BIA 2007). The BIA

will not engage in factfinding on appeal. 8 C.F.R. 1003.1(d)(3)(iv).

      As an initial matter, we lack jurisdiction to consider Huang’s claim that he

established past persecution based on an imputed political opinion, because he did

not sufficiently raise the issue before the BIA or the IJ; thus, it is unexhausted. See

. The BIA’s discussion of Huang’s imputed

political opinion claim does not change the result, because the BIA’s sua sponte

discussion of an issue is insufficient to amount to exhaustion. See 

      While Huang raised the claim that he suffered persecution on account of his

membership in a particular social group before the BIA, it is also unexhausted: he


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failed to raise the claim before the IJ. Although exhaustion usually concerns the

failure to raise a claim before the BIA, the exhaustion doctrine exists to give the

agency a full opportunity to consider the claim; and it requires exhaustion of all

available remedies. This claim was not raised before the IJ because Huang never

checked the box on his asylum application, and he never argued it before the IJ.

Huang’s failure to raise this claim before the IJ meant that he did not “avail

himself” of all agency remedies, and he did not give the BIA a full opportunity to

consider his claim since the BIA cannot address an issue for the first time on

appeal or engage in factfinding. See J-Y-C-, 24 I. & N. Dec. at 261 n.1; 8 C.F.R.

1003.1(d)(3)(iv). Huang contends that the IJ considered the claim that Huang

suffered persecution on account of his membership in a particular social group

because the IJ stated that he failed to show that his mistreatment related “to his

political opinion, or any other protected ground[,]”; this contention lacks merit.

Exhaustion is based on what the petitioner raises and not what the agency

addresses sua sponte. Cf. 

.

      Substantial evidence supports the IJ’s and the BIA’s determination that the

mistreatment Huang suffered was not politically motivated. In fact, Huang’s

testimony before the IJ illustrated that he suffered harm not because of particular

political beliefs, but because he did not want to give up his family’s land to the

government. Therefore, this case is like Rodriguez 

, and


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Cardona 

, where the petitioners failed to establish a

sufficient nexus between their political opinion and the alleged persecution the

petitioners suffered when they personally refused to cooperate with a guerilla

group.

      Huang’s incident involved a personal dispute with the government, where he

was beaten for trying to stop his home’s demolition, not for his taking a general

political stance against corruption. Nor was the genesis of that dispute political, as

Huang’s home was not targeted for demolition because of his politics, but because

it lay in the path of a road project. Huang also did not attempt to petition the

Chinese government about the demolition of his home or other people’s homes.

Given this kind of evidence, the record does not compel a finding that Huang’s

political opinion was a reason for his mistreatment. See Cardona 

.

          Furthermore, substantial evidence supports the determination that the harm

Huang suffered did not rise to the level of persecution. Huang testified that he was

beaten by government workers and that, as he tried to escape, he fainted. Based on

Huang’s testimony and medical records, Huang was taken to the hospital because

he suffered bruises and cuts to his arm and knee, which required cleaning and

stitches. He also states in his brief that he suffered a broken knee, but that injury

was not supported by the record. Huang was released from the hospital on the


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same day, was prescribed medication, and was advised to rest. Although Huang

suffered physical harm, the record fails to compel a finding that his mistreatment

met the “extreme” threshold level of persecution. See, e.g., 

. Huang stated that he lost his home, he had to move in with a friend, he did

not live with his mother anymore, his family could not farm anymore, and the

government did not provide adequate compensation for their home. Huang,

however, did not lose his home because of resistance to the demolition order, and

the record does not compel that this harm is the kind of economic harm that rises to

the level of persecution.

      Substantial evidence also supports the decision of the IJ and the BIA that

Huang failed to demonstrate a well-founded fear of future persecution on account

of a protected ground. After being beaten, Huang testified that his mother told him

that the officers from the village government were looking for him and that she

advised him to go into hiding. But Huang lived with a friend in another district

after the demolition of his home without being harmed, and the officers never

came to his friend’s house looking for him. Besides, the Chinese government has

not sought to determine Huang’s location since his leaving China; and his mother

continues to live in China without incident. Several of the newspaper articles

submitted by Huang outlined the struggles of Chinese citizens who petitioned the

central government but were beaten and jailed, and the Country Report discussed


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violent property-related disputes between citizens and the government.

Nevertheless, Huang did not petition the central government, and the record does

not indicate that he is a major proponent or activist in the fight against the Chinese

government’s taking of land. Therefore, the record does not compel a finding that

Huang will be “singled out” for persecution on account of his political opinion.

See 

.

       Huang could not prove his entitlement to asylum relief; he necessarily

failed to satisfy the more stringent standard that it was “more likely than not” that

he would be persecuted on account of a protected ground if he returned to China.

See 

(discussing withholding of removal).

Furthermore, the record demonstrates that the IJ and the BIA addressed Huang’s

withholding of removal claim; and the record does not compel a finding that

Huang established that it is “more likely than not” that he would be singled out for

persecution if he returned to China or that the Chinese government has a pattern or

practice of persecuting individuals similarly situated to Huang. Moreover, the

record demonstrates that the IJ and the BIA addressed Huang’s CAT claim; and

substantial evidence supports the finding that it is not “more likely than not” that

he would be tortured if he returned to China.

      PETITION DENIED.




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