Case: 14-13696   Date Filed: 06/29/2015   Page: 1 of 17


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 14-13696
                         Non-Argument Calendar
                       ________________________

                        Agency No. A088-394-529



TUNG VAN DINH,

                                                                       Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

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

                              (June 29, 2015)

Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:
               Case: 14-13696        Date Filed: 06/29/2015      Page: 2 of 17


       Tung Van Dinh, a Vietnamese citizen, seeks review of the Board of

Immigration Appeals’s (“BIA”) final order affirming the Immigration Judge’s

(“IJ”) denial of his application for asylum, withholding of removal, and

withholding of removal under the United Nations Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). Dinh

argues that he is eligible for asylum because he suffered past persecution and has a

well-founded fear that he will be singled out for future persecution on account of a

political opinion—his belief that the Vietnamese government should return land

that was confiscated from the Catholic Church without due process.1 He also

contends that the interpreter’s mistranslations during the merits hearing violated

his due-process rights. After careful review, we affirm.

                                               I.

       Dinh, a native and citizen of Vietnam, and his wife and son were admitted as

non-immigrant visitors to the United States on August 5, 2009.                       They had

authorization to remain in the United States until February 4, 2010.

       On January 19, 2010, Dinh filed an application for asylum and withholding

of removal, which he later amended. 2 On February 25, 2010, the Department of

Homeland Security served Dinh with a Notice to Appear, charging him as

       1
         Dinh does not raise any arguments on appeal with respect to the denial of his claims for
withholding of removal and CAT relief. Therefore, we address only the asylum issue.
       2
          Dinh’s wife and son were listed as derivative beneficiaries on Dinh’s asylum
application and were co-respondents in the agency removal proceedings.
                                               2
                 Case: 14-13696    Date Filed: 06/29/2015      Page: 3 of 17


removable under 8 U.S.C. § 1227(a)(1)(B) for having remained in the United

States for a longer time than permitted. At the master calendar hearing, Dinh

conceded removability and requested CAT relief in addition to asylum and

withholding of removal.         Dinh filed a supplemental application for asylum,

withholding of removal, and CAT relief on December 28, 2011.

       Dinh primarily sought asylum relief based on what he described as his

political opinion that the Vietnamese government should return land that was

confiscated from the Catholic Church after 1975. 3 He claimed that he feared

torture, harm, or mistreatment if he returned to Vietnam. The following summary

of facts is taken from Dinh’s original and supplemental applications for asylum

and attached statements, in conjunction with Dinh’s testimony at the hearing

before the IJ.

       Dinh’s father was a police officer employed by the United States-backed

government in Saigon (now Ho Chi Minh City) until the Communists took over

South Vietnam in 1975. After the regime change, Dinh’s father was arrested,

imprisoned, and beaten. The government confiscated their house, and his family

was forced to relocate and to make a difficult living off the land. Dinh’s brother

fled to the United States by boat. Dinh alleged that the Communists beat and



       3
          Dinh also sought asylum based on his religion, Buddhism, but there is no evidence of
religious persecution in the record, and Dinh does not argue this ground on appeal.
                                              3
               Case: 14-13696    Date Filed: 06/29/2015   Page: 4 of 17


tortured him and his family during this time. His siblings were prevented from

attending college because they were not from a Communist family.

         In 1986, Vietnam underwent economic reforms. Dinh was able to attend

college. He chose to work in tourism because he thought that his job would have

nothing to do with politics. He earned degrees in management, English, and

tourism. Dinh eventually became the director of a tourism company owned by the

Vietnamese government.        The company managed tourist resorts in Vietnam,

among other things. As director, he was able to afford a house and car and to take

care of his family. He made around twenty-five to thirty times more than what the

average Vietnamese citizen made.

         Over time, Dinh realized that the company was not a “legitimate” business

and was being controlled by the government to benefit members of the Communist

party.     For example, Dinh alleged that he had evidence that his supervisor

organized a tour to the United States in 2009 for the purpose of laundering money.

In addition, Dinh stated that when a child died in a swimming pool at one of the

company’s resorts in 2008, he, as director, was held liable and risked incarceration

and had to pay civil damages out of pocket. Dinh alleged that the legal system was

corrupt and that he was in danger of being incarcerated without a trial because he

was not a Communist party member and could not be trusted, given his father’s

previous association with the democratic government of South Vietnam.


                                          4
               Case: 14-13696      Date Filed: 06/29/2015      Page: 5 of 17


       In 2007, Dinh discovered that his company operated a tourist resort on land

that had been confiscated from the Catholic Church after the Communists took

over in 1975. The land was worth around $200 million. Dinh believed that the

confiscation was wrong and that the land should be returned to the Church. On

numerous occasions, Dinh raised the issue of the wrongful appropriation of the

land with his supervisor, Nzuyen Hoanz Bien,4 a high-ranking official in the

department of labor. Dinh also was asked by the Catholic Church to speak on its

behalf, but the government threatened him not to help the Church.

       Dinh was told not to discuss the land confiscation issue with anyone else.

On one occasion after Dinh voiced his complaints regarding the land, Nzuyen

responded, “Do you want to die? If we return the land to the Church, how could we

make money? How could we survive?” Dinh believed that if he told anyone else

about the land he would be imprisoned or killed. According to Dinh, anyone who

asked the government to return the Vatican’s land was imprisoned, including Hing

When Lee, a pastor. Other religious leaders who protested the confiscation of land

owned by churches were also imprisoned. Furthermore, Dinh said that his lawyer

in Vietnam was imprisoned for opposing the government around this same time.




       4
         Nzuyen’s name may have been inaccurately transcribed or translated, as Dinh suggests,
and is actually “Nguyen.” Nonetheless, we refer to Dinh’s supervisor as “Nzuyen” for
consistency with the administrative record.
                                              5
             Case: 14-13696     Date Filed: 06/29/2015   Page: 6 of 17


      Dinh left Vietnam with his family in 2009 because he feared being

imprisoned or killed if he continued to speak out about the land issue. By the time

Dinh left, his company wanted him and his family to go because he “became a

thorn.” He resigned from the company upon leaving the country. After he left

Vietnam, Dinh’s house was confiscated, and he may have been labeled a dissident.

      In response to questions from the IJ, Dinh clarified that he did not report

anything regarding the confiscated land to anyone besides his friends and Nzuyen

while he lived in Vietnam, and that Nzuyen was the only person who ever said

anything threatening to him regarding the land. Dinh also testified that he was not

a member of a political party and did not participate in anti-communist

demonstrations, which were forbidden in Vietnam.

      When the IJ asked if Dinh had ever been physically harmed in Vietnam,

Dinh replied, “I became openly against them just before I left so they did not have

time to harm me physically” and said that he was “only threatened.” He had been

beaten and kicked by police when he was a child and in high school, but after

1993, no one in the Communist regime physically harmed him, though the

government “made a lot of verbal threats and . . . supervise[d] [him].”        For

example, Dinh had to write reports on his activities every year.

      Dinh included several documents with his application, including a 2012

Country Report on Human Rights Practices prepared by the United States


                                         6
              Case: 14-13696     Date Filed: 06/29/2015    Page: 7 of 17


Department of State. According to the Country Report, land-rights protestors

alleging that the government confiscated their land without proper compensation

reported physical harassment and intimidation by local authorities.          Arbitrary

arrests and detention continued to be a problem, particularly for political activists.

While Vietnamese law provided criminal penalties for government corruption,

corruption was still a major problem. Dinh also attached what appears to be a

2009 news article from an unknown source stating that lawyer Le Cong Dinh and

other Vietnamese citizens were imprisoned for political activism. Dinh asserts that

Le Cong Dinh was his lawyer who was arrested.

      The IJ denied Dinh’s application for asylum, withholding of removal, and

CAT relief. The IJ did not enter an adverse credibility finding, but noted that he

did not believe everything Dinh had said, highlighting that Dinh’s theory of

persecution had shifted over the course of his filings and the hearing. Specifically,

the IJ noted that Dinh had not emphasized the wrongful-confiscation issue in his

written applications, but that it became the central issue at the hearing.

      The IJ found that Dinh had not demonstrated past persecution. In explaining

his conclusion, the IJ noted that Dinh had not been physically beaten for more than

20 years before he applied for asylum. In addition, the IJ found, Dinh had risen to

a high-level job in his company, had traveled extensively, and had earned a high

income.


                                           7
                Case: 14-13696        Date Filed: 06/29/2015       Page: 8 of 17


       The IJ also determined that Dinh failed to demonstrate a well-founded fear

of future persecution. Dinh’s testimony was the only evidence that his boss had

ever threatened him, which the Judge concluded was insufficient to meet Dinh’s

burden of proving an objectively reasonable fear of future persecution.

       Finally, the IJ concluded that there was an insufficient nexus between any

persecution and a protected ground. The IJ found that it was not clear “what the

real nexus in this case is,” and that Dinh had failed to show that his opposition to

the Vietnamese government’s confiscation of the land constituted an expression of

political opinion, citing the BIA’s opinion in Matter of N–M–, 25 I. & N. Dec. 526

(BIA 2011).5        Consequently, the IJ denied Dinh’s application for asylum,

withholding of removal, and CAT relief.

       Dinh appealed the IJ’s decision to the BIA. The BIA affirmed the IJ’s

decision “for the reasons stated therein” and wrote separately only to address

Dinh’s arguments on appeal. Among other things, the BIA concluded that (1) the

IJ was required to consider all the evidence in the record and therefore did not err

in noting a shift in the theory of persecution between Dinh’s testimony at the


       5
           In Matter of N–M–, the BIA concluded that, in some circumstances, opposition to
official corruption can constitute political opinion or imputed political opinion. 25 I. & N. Dec.
at 528. According to the BIA, activities such as “founding or being active in a political party that
opposes state corruption,” attending or speaking at political rallies against state corruption,
writing or distributing materials about state corruption, or threatening to expose corruption to
others could constitute the expression of a political opinion or may lead the persecutor to impute
such an opinion to the asylum applicant. 

                                                 8
             Case: 14-13696     Date Filed: 06/29/2015   Page: 9 of 17


hearing and his prior statements in the asylum applications; (2) while Dinh argued

that the IJ improperly required evidence of physical harm, Dinh did not challenge

the finding that nothing happened to him during his time living under the

Communist regime; (3) as a matter of law, Dinh must show more than a fear of

retaliation based solely on his opposition to the wrongful confiscation of the land,

and Dinh’s opposition did not constitute an actual political opinion; and (4) Dinh

failed to show that the alleged translation problems caused the IJ to misunderstand

the nature of his claim or its factual basis. The BIA dismissed Dinh’s appeal.

Dinh now brings this petition for review.

                                        II.

      Normally, we review only the BIA’s decision. Al Najjar v. Ashcroft, 

, 1284 (11th Cir. 2001). But because the BIA’s decision expressly

adopted the IJ’s decision “for the reasons stated therein,” we review the IJ’s

decision as well. 

administrative factual determinations under the “highly

deferential substantial evidence test.” Adefemi v. Ashcroft, 

, 1026-

27 (11th Cir. 2004) (en banc). We view the record and draw all reasonable

inferences in favor of the administrative agency’s decision. 

“We must

affirm the BIA’s decision if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” 

                                            9
             Case: 14-13696     Date Filed: 06/29/2015   Page: 10 of 17


marks omitted). To reverse a factual finding, we must find that the evidence

compels a contrary conclusion. 

the evidence could support multiple

conclusions, we must affirm the agency’s decision unless there is no reasonable

basis for that decision.” 

      We review constitutional challenges regarding removal proceedings de novo.

Lapaix v. U.S. Att’y Gen., 

, 1143 (11th Cir. 2010).

                                         III.

      Dinh argues the BIA erred in adopting the IJ’s decision because he presented

sufficient evidence of past persecution, a well-founded fear of future persecution,

and a nexus between such persecution and his political opinion.

      To be eligible for asylum, an applicant must be a “refugee.” 8 U.S.C.

§ 1158(b)(1)(A). A “refugee” is defined as follows:

             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 race,
             religion, nationality, membership in a particular social
             group, or political opinion.

8 U.S.C. § 1101(a)(42)(A). The applicant bears the burden of proving that he is a

refugee. 8 U.S.C. § 1158(b)(1)(B)(i). To make this showing, the applicant must

present specific and credible evidence demonstrating that he (1) was persecuted in

the past based on one of the protected grounds, or (2) has a well-founded fear that


                                         10
               Case: 14-13696   Date Filed: 06/29/2015    Page: 11 of 17


he will be persecuted in the future based on one of the protected grounds. Ruiz v.

U.S. Att’y Gen., 

, 1257 (11th Cir. 2006). The protected ground must

be “at least one central reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i).

      Demonstrating past persecution creates a rebuttable presumption that the

applicant has a well-founded fear of future persecution. 

. If

the applicant cannot show past persecution, the applicant must show a “well-

founded fear of future persecution that is both subjectively genuine and objectively

reasonable.”    

credible testimony that he fears persecution

generally satisfies the subjective component.       

the objective

component, the applicant must either show past persecution or present specific,

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

persecution. Al 

.

      “[P]ersecution is an extreme concept requiring more than a few isolated

incidents of verbal harassment or intimidation[.]” Rodriguez v. U.S. Att’y Gen.,

, 1308 (11th Cir. 2013) (internal quotation marks omitted). The IJ

must consider the cumulative effect of any alleged incidents to determine whether

an alien suffered past persecution.      

death threat is generally

insufficient to qualify as persecution. See Silva v. U.S. Att’y Gen., 

,

1237 (11th Cir. 2006) (concluding that a “condolence note” containing an implicit

death threat was “an example of harassment and intimidation, but not


                                         11
             Case: 14-13696    Date Filed: 06/29/2015   Page: 12 of 17


persecution”). Minor physical abuse and brief detentions also do not amount to

persecution. Kazemzadeh v. U.S. Att’y Gen., 

, 1353 (11th Cir.

2009). However, serious physical injury is not required if the applicant also shows

repeated threats combined with other forms of severe mistreatment.               De

Santamaria v. U.S. Att’y Gen., 

, 1009 (11th Cir. 2008).

      Assuming arguendo that Dinh’s belief that the Catholic Church’s land was

unlawfully taken without due process and should be returned constituted a political

opinion, and therefore a protected ground for purposes of asylum, Dinh still has not

shown that there was no reasonable basis for the denial of Dinh’s application for

asylum. See 

.

      First, substantial evidence supports the determination that Dinh did not

suffer past persecution. The record shows that, when Dinh was young, Dinh’s

father was arrested, imprisoned, and beaten for working for the United States-

backed government in South Vietnam. Because of this, Dinh and his family

suffered beatings and severe economic deprivations.         However, there is no

evidence that any persecution Dinh experienced when he was younger was tied to

Dinh personally or was on account of Dinh’s political opinion. See 

(“The pattern of persecution must be ‘tied to the applicant

personally.’”) (quoting In re A–K–, 24 I. & N. Dec. 275, 278 (BIA 2007)); 

.


                                         12
              Case: 14-13696    Date Filed: 06/29/2015    Page: 13 of 17


      Dinh’s testimony at the hearing was that, since 1993, he had not suffered any

physical harm from the police or the government. Indeed, as an adult, he became a

highly paid government employee who lived comfortably. The “crux” of Dinh’s

asylum claim, as he puts it, was Dinh’s opposition to the wrongful confiscation of

the Catholic Church’s land and the resulting threats he received from his

supervisor.   But the only specific threat Dinh testified about was a single

ambiguous death threat, which alone is insufficient to show more than harassment

or intimidation. See 

. And while Dinh’s testimony also

generally indicates that he received other threats from Nzuyen not to speak out

about the land, the record does not compel the finding that these incidents were

“severe” or “extreme” enough to amount to persecution. See 

; De 

.

      Substantial evidence likewise supports the finding that Dinh did not have an

objectively reasonable and well-founded fear of future persecution. Dinh testified

that he first learned of the land confiscation in 2007, and that, from that point until

he left Vietnam in 2009, he raised the issue with his supervisor, Nzuyen, on

numerous occasions. However, during this same time, Dinh continued to work as

a highly paid government employee, and he traveled to and from the United States.

The only specific threat Dinh testified about was an ambiguous death threat from




                                          13
             Case: 14-13696      Date Filed: 06/29/2015   Page: 14 of 17


his supervisor. Such isolated intimidation does not compel a finding that Dinh’s

fear of being singled out for future persecution was objectively reasonable.

      While Dinh’s criticism of the Vietnamese government, viewed in light of

evidence of Vietnam’s practice of incarcerating political and land-rights activists,

weighs in favor of a finding that Dinh had an objectively reasonable fear of

persecution if he returned to Vietnam, it does not compel such a finding because

the record supports the IJ’s and BIA’s determinations that Dinh was not a political

activist, was not Catholic, and was not directly or overtly opposed to Communism.

Thus, the record does not compel a finding that Dinh had good reason to fear that

he will be singled out for future persecution. See Al 

.

      In short, substantial evidence supports the decision that Dinh did not

establish past persecution or a well-founded fear of future persecution.        See

. Therefore, we do not address Dinh’s remaining

arguments that he established a sufficient nexus between his political opinion and

the threat of future persecution.

                                          IV.

      Dinh also argues that his due-process rights to a fair hearing were violated

because he was deprived of a suitable interpreter.          According to Dinh, the

interpreter’s deficiencies caused the IJ to believe that there were discrepancies in

Dinh’s testimony that did not, in fact, exist.


                                           14
             Case: 14-13696    Date Filed: 06/29/2015   Page: 15 of 17


      We briefly review the some of the translation issues during the hearing. At

one point, Dinh’s attorney interrupted the hearing to express his concern that

Dinh’s testimony was being summarized by the interpreter. The IJ instructed Dinh

to only speak one sentence at a time so his testimony could be translated. He also

directed Dinh’s attorney, who spoke Vietnamese, to object to the translations if

there were any further problems. On another occasion, when Dinh was explaining

whether he reported the land issue to anyone apart from his supervisor, Dinh’s

attorney suggested that the interpreter did not fully understand the vocabulary Dinh

was using. The interpreter stated that there was no vocabulary issue and that she

noticed that some of Dinh’s answer was not relevant to the question asked. The IJ

instructed the interpreter to repeat whatever Dinh said regardless of its relevance.

Thereafter, Dinh stated that he could not understand some of the interpreter’s

translations. After some further discussion, the IJ determined that the interpreter

was translating correctly and that the hearing should proceed.

      The Fifth Amendment entitles petitioners in removal proceedings to due

process of law, which requires that petitioners “be given notice and an opportunity

to be heard in their removal proceedings.” 

; see Alhuay v.

U.S. Att’y Gen., 

, 548 (11th Cir. 2011) (reviewing a due process claim

based in part on the lack of an interpreter). To obtain relief based on a due-process

violation, the petitioner must show both (1) violation of due process and (2)


                                         15
             Case: 14-13696    Date Filed: 06/29/2015   Page: 16 of 17


substantial prejudice. 

. To show substantial prejudice,

the petitioner “must demonstrate that, in the absence of the alleged violations, the

outcome of the proceeding would have been different.” 

if the interpreter mistranslated portions of Dinh’s testimony or

made it more difficult to understand, Dinh fails to show that any errors caused him

substantial prejudice.   While many of the translations contained grammatical

errors, the thrust of Dinh’s testimony was comprehensible. Dinh and his attorney

both spoke English and Vietnamese, and the record shows that translation issues

did not cause the IJ to misunderstand the factual basis of Dinh’s asylum claim.

The IJ’s summary of Dinh’s testimony is consistent with the remainder of the

record and with Dinh’s presentation of the evidence on appeal.

      We disagree with Dinh’s contention that the translation issues caused the IJ

to believe there were discrepancies in his testimony. First, the IJ did not make an

adverse credibility finding. Second, the IJ’s discussion of issues related to Dinh’s

credibility focused on the differences between the theories of persecution asserted

in Dinh’s written materials and the theory of persecution relied upon at the hearing,

not on any inconsistencies in his testimony at the hearing. Therefore, Dinh has not

shown that, in the absence of the alleged violations, the result would have been

different. See 

.

                                           V.


                                           16
            Case: 14-13696    Date Filed: 06/29/2015   Page: 17 of 17


      In sum, we conclude that substantial evidence supports the agency’s decision

that Dinh did not suffer past persecution or have a well-founded fear of future

persecution. Furthermore, Dinh was not prejudiced by any violations of his due-

process rights during the merits hearing. Accordingly, we deny Dinh’s petition for

review.

      PETITION DENIED.




                                       17