                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                                   FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                            U.S.
                                    ________________________ ELEVENTH CIRCUIT
                                                                 SEP 15, 2011
                                                                  JOHN LEY
                                          No. 11-10197              CLERK
                                        Non-Argument Calendar
                                      ________________________

                                           Agency No. A088-372-155


YING JIANG,
RENWU ZHENG,
a.k.a. Ren Zheng,

llllllllllllllllllllllllllllllllllllllll                                    Petitioners,

    versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                    Respondent.

                                     ________________________

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

                                             (September 15, 2011)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Ying Jiang, the lead petitioner, and her husband, Renwu Zheng

(collectively, “Petitioners”), jointly petition for review of the Board of

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

denial of asylum pursuant to the Immigration and Nationality Act (“INA”) § 208,

8 U.S.C. § 1158, withholding of removal under the 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). Petitioners argue the BIA erred by reviewing their well-founded fear

of persecution de novo and by reweighing the record evidence. They also argue

they established their eligibility for asylum, withholding of removal, and CAT

relief based upon a well-founded fear of persecution under China’s family

planning policy.

                                          I.

      “We review questions of law de novo, with appropriate deference to the

BIA’s reasonable interpretation of the [INA].” Assa’ad v. U.S. Att’y Gen., 332

F.3d 1321, 1326 (11th Cir. 2003) (citation omitted). We defer to the agency’s

“interpretation of its own regulations unless that interpretation is plainly erroneous

or inconsistent with the regulation.” Id. (internal quotation marks omitted).




                                           2
      The BIA may not “engage in de novo review of findings of fact determined

by an immigration judge,” but may review an immigration judge’s factual

determinations only to assess whether those determinations were clearly

erroneous. 8 C.F.R. § 1003.1(d)(3)(i). Furthermore, except for taking

administrative notice of commonly known facts, the BIA is not permitted to

engage in factfinding in the course of deciding appeals. Id. at § 1003.1(d)(3)(iv).

But the BIA “may review questions of law, discretion, and judgment and all other

issues in appeals from decisions of immigration judges de novo.” Id. at

§ 1003.1(d)(3)(ii). Under its precedent, the BIA reviews de novo whether the facts

establish a well-founded fear of future persecution. See Matter of A-S-B-, 24 I. &

N. Dec. 493, 496–98 (BIA 2008), abrogated on other grounds by Huang v. U.S.

Att’y Gen., 620 F.3d 372 (3d Cir. 2010). As such, the BIA “is entitled to weigh

the evidence in a manner different from that accorded by the Immigration Judge,

or to conclude that the foundation for the Immigration Judge’s legal conclusions

was insufficient or otherwise not supported by the evidence of record.” Id. at 497.

      Here, the BIA did not apply the wrong standard of review, nor did it err by

reviewing de novo the IJ’s finding that Petitioners failed to establish a

well-founded fear of future persecution. See id. at 496–98. Whether an alien has

established a well-founded fear does not involve a simple factual determination;


                                          3
rather, it involves the application of the law to the facts. Therefore, the BIA’s

interpretation of its own regulation, in this regard, is neither plain error, nor

inconsistent with the regulations.

      Moreover, the record shows the BIA did not engage in de novo factfinding;

rather, it properly considered de novo whether the facts in the record amounted to

an objectively well-founded fear of future persecution. See 8 C.F.R.

§ 1003.1(d)(3)(ii); Matter of A-S-B-, 24 I. & N. Dec. at 496–98. The BIA was also

entitled to reweigh the evidence, to the extent it did so, in concluding that

Petitioners’ evidence was insufficient to establish an objectively well-founded fear

of future persecution. See Matter of A-S-B-, 24 I. & N. Dec. at 497.

                                           II.

      Having determined that the BIA’s method of analysis was appropriate, we

now turn to its conclusions. Because the BIA issued a decision and did not

expressly adopt the IJ’s opinion, we review only the BIA’s decision. See Al

Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review the BIA’s

interpretation of applicable statutes de novo and its findings of fact for substantial

evidence. Id. at 1283–84. Under the substantial evidence standard, we must

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

probative evidence on the record considered as a whole.’” Id. at 1284 (quoting


                                           4
Lorisme v. INS, 129 F.3d 1441, 1444–45 (11th Cir. 1997)). “When reviewing for

substantial evidence, we do not ask whether the evidence presented by an

applicant might support a claim for relief; instead, we ask whether the record

compels us to reverse the finding to the contrary.” Djonda v. U.S. Att’y Gen., 514

F.3d 1168, 1175 (11th Cir. 2008) (emphasis added).

      An applicant may prove a well-founded fear of future persecution, and

thereby qualify for asylum, by demonstrating a subjectively genuine and

objectively reasonable fear of persecution on account of a protected ground. See

Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1199–1200 (11th Cir. 2009) (per

curiam). Asylum claims based on China’s one-child policy must be evaluated on a

case-by-case basis. In re J-H-S-, 24 I. & N. Dec. 196, 198, 201 (BIA 2007). To

demonstrate an objectively reasonable fear, the alien must establish: (1) “the

details of the family planning policy relevant to [the alien]”; (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.” Id. at 198–99. Fines may amount to persecution if they cause

a “severe economic disadvantage.” In re T-Z-, 24 I. & N. Dec. 163, 173 (BIA

2007). To meet the severe economic disadvantage standard, the fine should

reduce the alien “to an impoverished existence.” See id. at 174.


                                           5
       Based on our review of the evidence, we cannot say the BIA’s

determination was not supported by substantial evidence, nor can we say the

record compels the contrary finding. The record (1) contains little, if any,

evidence from similarly situated individuals that would support a finding of an

objectively reasonable fear of persecution; (2) includes evidence indicating that

forced sterilizations were not common in Fujian Province; and (3) suggests that

Petitioners’ children, who are United States citizens, may not be counted for birth

planning purposes upon their return to China. Additionally, even assuming

Petitioners would be subjected to a fine, they failed to prove such a fine would

cause “severe economic disadvantage” and reduce their family “to an

impoverished existence.” See In re T-Z-, 24 I. & N. Dec. at 173–74. The

foregoing does not compel a finding that the BIA’s decision was unsupported by

the record.

       Though we sympathize with Petitioners and do not doubt their subjective

fears, this record does not compel us to find those fears of persecution are

objectively reasonable. Consequently, we must deny their petition for review.1

               PETITION DENIED.


       1
          Because Petitioners have not demonstrated an objectively reasonable fear of
persecution, they have failed to establish their eligibility for asylum. See Mehmeti, 572 F.3d at
1199–1200. And by extension, they have failed to satisfy the more stringent burdens for
withholding of removal and CAT relief. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1288 n.4
(11th Cir. 2005) (noting that a failure to establish eligibility for asylum on the merits necessarily
entails ineligibility for withholding of removal and CAT relief).

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