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                                                                   [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 13-13014
                             ________________________

                              Agency No. A200-859-149

XUEJUN CHEN,

                                                                              Petitioner,
versus


U.S. ATTORNEY GENERAL,

                                                                              Respondent.
                             ________________________

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

                                     (July 11, 2014)

Before JORDAN, Circuit Judge, and BARTLE, * and BERMAN, ** District Judges.

*
  Honorable Harvey Bartle III, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
**
  Honorable Richard M. Berman, United States District Judge for the Southern District of New
York, sitting by designation.
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PER CURIAM:

       Xuejun Chen, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s

(“IJ”) denial of his application for cancellation of removal, under § 240A(b) of the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b), withholding of

removal under INA § 241(b)(3), 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). After careful review of

the record, and with the benefit of oral argument, we deny Mr. Chen’s petition. 1

       I.     Background

       We presume the parties’ familiarity with the facts and the record, and set out

only what is necessary to explain our decision.

       Mr. Chen entered the United States without inspection in November of 1999.

He first stopped in Houston, was then driven to Los Angeles and eventually flew to


1
  Mr. Chen has not appealed the denial of his September 27, 2010 petition for asylum in which
he contended that he would be subject to persecution and torture if he were returned to China
because he had fathered two children (in the U.S.) allegedly in violation of China’s family-
planning policy. Mr. Chen’s asylum petition was denied on April 20, 2011 because it was filed
nearly ten years too late and because the evidence did not show any extraordinary circumstances
which prevented timely filing. See Assessment to Refer, No. A200859149, dated Apr. 20, 2011
(“[A]pplicant had one year from his latest arrival, approximately November 18, 1999 until
November 17, 2000 to file his asylum application in a timely manner. Applicant filed an asylum
application on September 27, 2010, ultimately accepted on October 8, 2010 and therefore is
untimely.”).


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New York where he was met by his father’s friend, Xue Xian Wu. Mr. Wu took

Mr. Chen to Virginia, where they stayed for approximately two months. Mr. Chen

then returned to New York to look for a job and through a “job finding company”

was sent to different business locations in New York and Washington, D.C. He

appears to have resided in New York until 2001.

      In February of 2006, Mr. Chen married Yu Yun Zheng, a native of China

and a United States citizen. They have two children, who were born in the U.S. in

2006 and 2008, respectively. The Chens currently reside in Georgia where they

run a family-owned restaurant.

      Approximately one month after the denial of Mr. Chen’s asylum petition, on

May 23, 2011, the Department of Homeland Security (“DHS”) issued a Notice to

Appear stating that Mr. Chen was removable from the U.S. as an alien present

without being admitted pursuant to INA § 212(a)(6)(A)(i), 8 U.S.C. §

1182(a)(6)(A)(i). Mr. Chen subsequently applied for cancellation of removal,

withholding of removal, and CAT relief, claiming that if he were removed to

Fujian Province in China, the Chinese government would forcibly sterilize him

and/or subject him to a serious fine because he had violated China’s family

planning policy by having two children without permission.

      On March 14, 2012, following a hearing at which Mr. Chen was represented

by counsel, the IJ denied Mr. Chen’s application(s). With respect to cancellation


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of removal, the IJ found that Mr. Chen “failed to provide credible evidence of his

continuous physical presence in the United States from at least ten years prior to

the filing of the Notice to Appear.” In the Matter of Xuejun Chen, A200–859–149

(Immig. Ct. Atlanta, GA, March 14, 2012), at 9–10. The IJ pointed out that Mr.

Chen relies largely on his own “self-serving” and general testimony and the

testimony of Mr. Wu to establish his physical presence in the United States. The IJ

also noted that Mr. Chen made no effort to corroborate such testimony. 

Finally, the IJ found that Mr. Chen “has not discharged his burden of presenting

reasonably available documents concerning his presence in the United States.” 

        With respect to withholding of removal, the IJ found that Mr. Chen “has not

credibly established that given the high standard necessary for withholding of

removal that the Chinese government will subject him to persecution in China if he

were to return.” 

(emphasis added). And, the IJ denied CAT relief

because Mr. Chen “has not established that it is more likely than not that he’ll be

tortured in China if he’s required to return to that country.” 

        Mr. Chen appealed to the BIA which affirmed the IJ’s decision. The BIA

held that “[u]pon de novo review, we agree with the Immigration Judge’s

conclusion that the respondent did not meet his burden of proof to show that he had

the ten years of continuous physical presence required for cancellation of


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removal.” In re Xuejun Chen, No. A200–859–149 (B.I.A. June 7, 2013), at 2. The

BIA also held that Mr. Chen “has not met his burden of proof for withholding of

removal or protection under CAT,” finding no pattern or practice of persecution by

the Chinese government because of the birth of his two children in the United

States. 

      II.    Standard of Review

      Where, as here, the BIA affirms the IJ’s decision, and also issues a separate

opinion, we review only the BIA’s opinion “except to the extent the BIA expressly

adopts the IJ’s decision.” Mu Ying Wu v. U.S. Atty. Gen., 

, 1153

(11th Cir. 2014) (citation and internal quotation marks omitted). “We have found

that the BIA expressly adopted an IJ’s decision where the BIA either agreed with

the IJ’s findings or relied on the IJ’s reasoning, and in those circumstances, we

review[] both the IJ’s and the BIA’s decisions to that extent.” 

legal determinations de novo and factual determinations under

the “substantial evidence test,” see D-Muhumed v. U.S. Att’y Gen., 

,

817-18 (11th Cir. 2004), viewing the record evidence in the light most favorable to

the agency’s decision and drawing all reasonable inferences in favor of that

decision. Adefemi v. Ashcroft, 

, 1027 (11th Cir. 2004). “We must

affirm the BIA’s decision if [as here] it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” 

internal


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quotation marks omitted). We may reverse “only when the record compels a

reversal.” 

       Mr. Chen’s applications for relief from removal are governed by the REAL

ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), which provides, in

relevant part, the following:

       [i]n evaluating the testimony of the applicant or other witness in
       support of the application, the immigration judge will determine
       whether or not the testimony is credible, is persuasive, and refers to
       specific facts sufficient to demonstrate that the applicant has satisfied
       the applicant’s burden of proof. In determining whether the applicant
       has met such burden, the immigration judge shall weigh the credible
       testimony along with other evidence of record. Where the immigration
       judge determines that the applicant should provide evidence which
       corroborates otherwise credible testimony, such evidence must be
       provided unless the applicant demonstrates that the applicant does not
       have the evidence and cannot reasonably obtain the evidence.

8 U.S.C. § 1229a(c)(4)(B).2 “No court shall reverse a determination made by a

trier of fact with respect to the availability of corroborating evidence . . . unless the

court finds . . . that a reasonable trier of fact is compelled to conclude that such

corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4)(D).




2
  The REAL ID Act states that § 101(a)(3), amending 8 U.S.C. § 1158(b)(1)(B)(ii), “shall apply
to applications for asylum, withholding, or other relief from removal.” Pub. L. No. 109-13, §
101(h)(2), 119 Stat. 231, 305.


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      A. Ten Years of Continuous Physical Presence

      Under 8 U.S.C. § 1229b(b)(1), “[t]he Attorney General may cancel removal

of . . . an alien who is inadmissible or deportable from the United States if the

alien: (A) has been physically present in the United States for a continuous period

of not less than 10 years immediately preceding the date of such application; (B)

has been a person of good moral character during such period; (C) has not been

convicted of [certain offenses]; and (D) establishes that removal would result in

exceptional and extremely unusual hardship to the alien’s spouse, parent, or child,

who is a citizen of the United States or an alien lawfully admitted for permanent

residence.” Regarding the requisite ten years of continuous physical presence,

“any period of continuous residence or continuous physical presence in the United

States shall be deemed to end . . . when the alien is served a notice to appear.” 8

U.S.C. § 1229b(d)(1).

      In this case, both the IJ and the BIA concluded that Mr. Chen did not

establish ten years of continuous presence immediately preceding the issuance of

the Notice to Appear on May 23, 2011. While the IJ did not make an explicit

adverse credibility finding regarding Mr. Chen’s testimony, he did in fact conclude

that Mr. Chen’s testimony was “generally self-serving” and lacking in detail. See

In the Matter of Xuejun Chen (Immig. Ct. Atlanta, GA, March 14, 2012), at 3

(“The respondent is not quite sure what airport he ended up in once he got into


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New York.”); 

(“The respondent has not explained why his family has to go

to New York to see doctors.”); 

(“He had confirmed that he stayed at a

motel in New York but doesn’t have any documents and does not recall the exact

name. He said that he stayed in Madison Street in New York but doesn’t have any

information from that.”); see also Seriani v. U.S. Atty. Gen., 334 F. App’x. 308,

311 (11th Cir. 2009) (where “[a]lthough the IJ and the BIA did not find Seriani

incredible, they found her testimony to be weak, given its vague and confusing

nature”).

       The IJ determined that “[it is] not unreasonable in this case [for there to be

corroborating] documents given the length of Respondent’s residence in the United

States” but that Mr. Chen had failed to produce such documents to bolster his

testimony. 3 See In the Matter of Xuejun Chen (Immig. Ct. Atlanta, GA, March 14,

2012), at 9 (“The Respondent traveled back and forth from New York to Virginia

back to New York and again to Washington D.C. He made no effort to corroborate

any of this. He stayed in hotels and made no efforts to get documents from the

hotels. He traveled and sent money back to China but has no documents to

corroborate any of this.”). The IJ concluded that Mr. Chen “failed to provide

3
  At the hearing before the IJ, Joy Lampley, Assistant Chief Counsel of the Department of
Homeland Security, asked Mr. Chen: “So you lived in several places when you came to the
United States, correct?” Mr. Chen answered “Yes.” Ms. Lampley responded: “Yet you do not
have any documents today to show how long you [have] lived in the United States like leases or
bills that you’ve paid? Mr. Chen answered: “No.” When the IJ asked Mr. Chen’s attorney “what
is the best document that I need to look at to show that he was here at some point back then?”
Mr. Chen’s attorney responded “[d]ocumentary proof I do not have.”
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credible evidence of his continuous physical presence in the United States from at

least ten years prior to the filing of the Notice to Appear.” 

      The BIA agreed with the IJ’s conclusion that Mr. Chen did not meet his

burden of demonstrating that he had ten years of continuous physical presence as

required for cancellation of removal. Among other things, Mr. Chen “did not

provide detailed testimony as to [the time period May 23, 2001 to May 23, 2011].”

In re Xuejun Chen (B.I.A. June 7, 2013), at 2. “[The] evidence and testimony

[presented] is not sufficient to show that the respondent had the requisite

continuous physical presence.” 

and BIA’s finding that Mr. Chen failed to demonstrate his continuous

presence is supported by substantial evidence. Mr. Chen’s presentation does not

“compel the conclusion” that he was continuously present in the United States for

ten years. Mr. Chen’s testimony lacked significant detail (and support) regarding

his presence in the United States from May 2001 to May 2011. While he testified

generally about working in and traveling to New York, Virginia, and Washington

D.C., he was unable to provide any specific details regarding these events or

experiences, which in any event appear to have occurred prior to 2001. Indeed,




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Mr. Chen did not provide any testimony clearly supporting the relevant 10-year

period.4

       On this record, the IJ acted within his discretionary authority in requiring

Mr. Chen to produce corroborating evidence. See 8 U.S.C. § 1229a(c)(4)(B)

(expressly empowering the IJ to require corroborating evidence even when the

applicant has provided otherwise credible testimony); see also 8 U.S.C. §

1158(b)(1)(B)(ii) (same); Seriani, 334 F. App’x. at 311 (where the BIA found that

the IJ made no adverse credibility finding but denied relief “because Seriani failed

to satisfy her burden of proof by not producing sufficient corroborating

evidence.”); cf. Yang v. U.S. Att’y Gen., 

, 1201 (11th Cir. 2005) (pre-

REAL ID Act case) (“The weaker an applicant's testimony . . . the greater the need

for corroborative evidence.”).

       The record shows that Mr. Chen failed to produce credible evidence—

testimonial or documentary—to corroborate his own testimony. For example,

while Mr. Wu’s testimony corroborated Mr. Chen’s presence in the United States

4
  Mr. Chen also testified that he and his wife sent both of their children to live with his parents in
Fujian Province, China approximately three months after each child’s birth in 2006 and 2008.
Mr. Chen failed to explain who took his infant daughters to China or who brought them back to
the United States. At oral argument on this appeal on June 12, 2014, the following colloquy took
place: The Court: “How did the children get back to China? The record doesn’t indicate, does it?
The children did go back to China and they were such a young age, they certainly didn’t do it on
their own.” Mr. Chen’s Counsel: “Correct. In these types of cases, that’s very common—that
the children will go back to China with a relative to visit the relatives in China, but the record is
not clear on how the children did get back. They could have gone back with his wife who did
have status in the United States. But the record doesn’t indicate any of that.” Oral Argument at
13:20, Chen v. U.S. Att’y Gen., No. 13-13014 (11th Cir. June 12, 2014).
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for (roughly) two months after Mr. Chen’s arrival in November of 1999, that two-

month period is outside the continuous physical presence period of May 23, 2001

to May 23, 2011. And while Mr. Wu also testified that he spoke with Mr. Chen

over the telephone after Mr. Chen entered the United States and that he never knew

Mr. Chen to have left the country, he provided no details, such as the telephone

number he used to contact Mr. Chen, the dates of their conversations, or how he

knew that Mr. Chen was (continuously) present in the United States during or

between the phone calls.

      Mr. Chen’s wife testified, via affidavit dated February 22, 2012, and stated

that she met Mr. Chen in 2003, that they “have lived together from the summer of

2005 to the present, and [they] have had no periods of separation from each other

since that time.”    But Ms. Zheng was not able to corroborate Mr. Chen’s

continuous physical presence in the United States between 2001 and 2003.

      Mr. Chen provided his tax returns from 2001 through 2010. He did not,

however, prepare those returns until February of 2012 and none of the returns

included supporting documentation such as W-2s or paystubs. Mr. Chen also

presented a partial Chinese passport issued to him in 2008 in New York. This

document does not, of course, establish his continued presence for the requisite ten

year period (and perhaps raises some question as to whether he left the U.S.

between 2008 and 2011).


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      Nothing in the record compels the conclusion that such corroborating

evidence was unavailable to Mr. Chen. See 8 U.S.C. § 1252(b)(4)(D). As the IJ

correctly noted, “[it is] not unreasonable in this case [for there to be] documents

given the length of Respondent’s residence in the United States.” In the Matter of

Xuejun Chen (Immig. Ct. Atlanta, GA, March 14, 2012), at 9.

      We conclude that substantial evidence supports the BIA’s decision to affirm

the IJ’s conclusion that Mr. Chen failed to establish that he had ten years of

continuous physical presence in the United States.

      B. Withholding of Removal

      An alien seeking withholding of removal under the INA “bears the burden of

demonstrating that it is ‘more likely than not’ [he] will be persecuted or tortured

upon being returned to [his] country.” Sepulveda v. U.S. Att'y Gen., 

, 1232 (11th Cir. 2005) (quoting Fahim v. U.S. Att'y Gen., 

,

1218 (11th Cir. 2002)). An alien may meet his burden of proof as to “persecution”

in two ways. See Tan v. U.S. Atty. Gen., 

, 1375 (11th Cir. 2006).

“First, an alien may establish past persecution in his country based on a protected

ground.”   

internal quotation marks and alterations omitted).

Second, an alien who has not shown past persecution, such as Mr. Chen, “is

entitled to withholding of removal if [he] establishes that it is more likely than

not that [he] would be persecuted on account of race, religion, nationality,


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membership in a particular social group, or political opinion upon removal to that

country.”       

marks and brackets omitted).             Mr. Chen’s

withholding of removal claim rests (solely) upon alleged fear of future persecution,

namely, alleged forced sterilization and/or severe economic sanction for violating

China’s family planning policy against having more than one child.5

         1. Forced Sterilization

         To obtain withholding of removal based upon a fear of forced sterilization,

Mr. Chen must show: “(1) proof of the details of the family planning policy

relevant to [him]; (2) [he] violated the policy; and (3) the violation of the family

planning policy would be punished in the local area [in China] in a way that would

give rise to an objective fear of future persecution.” Mu Ying Wu v. U.S. Att’y

Gen., 

, 1155 (11th Cir. 2014) (quotation marks omitted).

         The IJ concluded that “[t]here is little evidence that the [family planning]

policy is enforced in such a way that Respondent will not be able to avoid any

adverse harm to himself if he were to return to China.” In the Matter of Xuejun

Chen (Immig. Ct. Atlanta, GA, March 14, 2012), at 13. The BIA affirmed, noting

that “much of the respondent’s documentary evidence does not address current

family planning policies, and is general in nature and cumulative of documentation

analyzed in our published Board decisions.” In re Xuejun Chen, (B.I.A. June 7,


5
    As noted, Mr Chen has two children, both of whom were born in the U.S.
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2013), at 3. The BIA also stated that Mr. Chen’s evidence “does not demonstrate

that forcible sterilizations are mandated in the respondent’s home province after

the birth of a second United States citizen child. Indeed, the evidence establishes

no uniform policy regarding the implementation of the population control law

with respect to children born outside of China.” 

      Based upon our review of the record, we find there is substantial evidence to

support the conclusions of the IJ and the BIA. Much of Mr. Chen’s materials, such

as the 2009 and 2010 State Department Human Rights Reports, provided (only)

general information regarding China’s birth limitation policies—found in the 2002

National Population and Family-planning Law—and showed that implementation

of that law varied widely among China’s localities. See Matter of J-H-S-, 24 I. &

N. Dec. 196, 202 (BIA 2007), aff’d, Shao v. Mukasey, 

(2d Cir. 2008)

(“In the past, enforcement efforts in Fujian Province, where the respondent comes

from, were specifically described as ‘lax’ or ‘uneven’ in published reports and

court decisions.”); 

(“[T]he Fujian province, is known for

its lax enforcement of China’s family-planning policies.”). Also, with respect to

Fujian Province, Mr. Chen’s home province, Mr. Chen provided a copy of an

unofficial translation of the Population and Family Planning Regulation of Fujian

Province. According to the Fujian Population Regulation, “[t]hose who become

pregnant in violation of this Regulation should take remedial measures in time”;


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but it also stated that under a number of circumstances, couples may, in fact, be

allowed to have a second child.6 Mr. Chen also submitted an article containing

“Country Advice for China” from the Australian Government’s Refugee Review

Tribunal which stated that “[c]hildren born outside of China may not be subject to

the penalties set out in the Fujian family planning legislation.”

       In sum, Mr. Chen did not present any particularized evidence that showed

that he would more likely than not be subject to forced sterilization upon his return

to Fujian Province as a result of having two U.S.-born children.                    Substantial

evidence supports the IJ and the BIA’s denial of Mr. Chen’s application for

withholding of removal on this ground.

       2. Economic Persecution

       We consider separately Mr. Chen’s claim that he would be subject to a

severe fine for violating China’s family planning policy. This Court has held that

“[f]ines may amount to persecution if they cause a severe economic disadvantage,

considering the alien’s net worth, other sources of income, and the conditions of

the local economy.” 

. To satisfy this standard, “the fine

should reduce the alien to an impoverished existence.” 

concluded that, “while some individuals may be subject to

economic penalties or sanctions for . . . births [of children born in violation of the

6
  For example, Chinese citizens returning from overseas are permitted to have a second child if
they had already become pregnant at the time they returned to China.
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family planning policy], the respondent’s evidence does not establish penalties or

sanctions rising to the level of persecution or that it is more likely than not that he

would be subjected to such persecution.” In re Xuejun Chen, (B.I.A. June 7,

2013), at 3.

      Substantial evidence supports the BIA’s conclusion. For one thing, as noted

above, it is unclear whether Mr. Chen’s U.S.-born children would be considered

under China’s family planning policy. See n.6, above. Even assuming, arguendo,

they were and that Mr. Chen were to be fined for violating the policy, the record

does not compel the conclusion that such a fine would amount to persecution, i.e.,

reduce Mr. Chen to impoverishment. Referring to the 2010 State Department

Human Rights Report, Mr. Chen contends that China’s family planning policy

states that the “social compensation fee” could reach ten times a person’s annual

disposable income. However, that same Report also states that the fee is set and

assessed at the local level and it does not specify the amount of the fine(s) that are

imposed in Fujian Province.

      Mr. Chen did present evidence of an actual fine imposed in Fujian Province

in January 2010, which was described as the largest fine ever imposed for violating

China’s family planning policy. But the article reporting the fine does not describe

the economic circumstances of the couple that violated the policy, nor does it state

that the fine was ten times their disposable income, the amount that Mr. Chen


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claims he might face. And, the Fujian Population Regulation that Mr. Chen relied

upon states that the “social compensation fee” for having a first additional

unapproved child may be two-to-three times the average annual disposable income

of the urban resident or the net average annual income of the rural resident in the

year prior to the child’s birth.

       Mr. Chen failed to establish the amount of the fine to which he would likely

be subject. 7 The record before the IJ and the BIA does not compel a conclusion

that it is more likely than not that Mr. Chen would receive a fine, much less a fine

that would cause such severe economic disadvantage as to reduce Mr. Chen to an

impoverished existence. See 

–57 (in the context of asylum,

concluding that the record did not compel a finding that any fine would be imposed

on the petitioner where her children were born in the United States and would not

be registered in China, or that even if a fine were imposed, it would reduce the

petitioner to an impoverished existence).

       C. CAT Relief

       To qualify for CAT relief, Mr. Chen had the burden of proving that “it is

more likely than not that he . . . would be tortured if removed to the proposed


7
 Mr. Chen did present (some) evidence of his economic situation and the wages he expected to
be able to earn in China, i.e., 1,000 renminbi per month, and testified that if he returned to China,
he would sell his restaurant. See In re T-Z-, 24 I. & N. Dec. 163, 174 (BIA 2007) (“The
availability of other sources of income has been a key factor in assessing the impact of economic
sanctions.”). See also 

.


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country of removal,” in this case China. Sanchez Jimenez v. U.S. Att’y Gen., 

, 1239 (11th Cir. 2007) (quoting 8 C.F.R. § 208.16(c)(2)). The burden of

proof for an applicant seeking withholding of removal under the CAT is higher

than the burden imposed upon an asylum applicant. See Al 

. Torture is the intentional infliction of “severe pain or suffering, whether

physical or mental.” See 8 C.F.R. § 208.18(a)(1). To obtain CAT relief, Mr. Chen

must have demonstrated that torture would be inflicted by the government or with

the government’s consent or acquiescence. See Reyes–Sanchez v. U.S. Att’y Gen.,

, 1241 (11th Cir. 2004). 8

       Mr. Chen failed to meet his burden and substantial evidence supports the

BIA’s determination that he did not establish that it is more likely than not that he

would be tortured (by or with the acquiescence of the government) if returned to

China. See 

–42. As noted, Mr. Chen provided no

evidence of torture apart from his contention (discussed at pp. 12 to 17, above) that

he might be forcibly sterilized or fined for fathering two children in the U.S. in

violation of China’s family planning policy. 9



8
  “Acquiescence of a public official requires that the public official, prior to the activity
constituting torture, have awareness of such activity and thereafter breach his or her legal
responsibility to intervene to prevent such activity.” 8 C.F.R. § 208.18(a)(7).
9
  In rejecting Mr. Chen’s asylum application, DHS stated, with respect to China’s family
planning policy, that “more emphasis has been placed on fines or ‘social compensation fees’
which are unlikely to rise to the level of persecution than on more coercive measures such as
forced sterilization. In addition, some documentation indicates that Chinese citizens who have
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       IV.    Conclusion

       For the above-stated reasons, we deny Mr. Chen’s petition for review.

       PETITION DENIED.




lived abroad for more than one year and return with more than one child are not processed or
dealt with upon return to China.” (Assessment to Refer, No. A200859149, dated Apr. 20, 2011.)
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