                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________                  FILED
                                                                     U.S. COURT OF APPEALS
                                            No. 10-14459               ELEVENTH CIRCUIT
                                        Non-Argument Calendar              JUNE 14, 2011
                                      ________________________              JOHN LEY
                                                                             CLERK
                                           Agency No. A098-981-824


JIN FU WENG,

llllllllllllllllllllllllllllllllllllllll                                        Petitioner,

                                                   versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                      Respondent.

                                     ________________________

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

                                               (June 14, 2011)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.

PER CURIAM:
      Jin Fu Weng, a native and citizen of the People’s Republic of China,

petitions this Court for review of the Board of Immigration Appeals’ (“BIA”)

decision affirming the Immigration Judge’s (“IJ”) denial of his application for

asylum, withholding of removal, and relief under the United Nations Convention

Against Torture (“CAT”), 8 U.S.C. §§ 1158(a), 1231(b)(3), 8 C.F.R. § 208.16(c),

and denying his motion for a remand based on new evidence, 8 C.F.R. § 1003.2(c).

Weng contends that the BIA failed to adequately consider whether he had a well-

founded fear of future persecution based on his opposition to China’s coercive

family planning policy. In addition, Weng argues that the BIA abused its

discretion by denying his motion for a remand based on new evidence of his

involvement in Falun Gong. For the reasons stated below, we deny the petition for

review.

                                         I.

      The Department of Homeland Security issued Weng a Notice to Appear,

alleging that he was a native and citizen of China who entered the United States

without being admitted or paroled by an immigration officer. The notice charged

that Weng was removable under INA § 212(a)(6)(A)(i), 8 U.S.C.

§ 1182(a)(6)(A)(i), as an alien present in the United States without being admitted

or paroled. Weng admitted the allegations in the Notice to Appear and conceded

                                         2
removability. He applied for asylum, withholding of removal, and CAT relief.

      At an asylum hearing, Weng testified that he was born in Changle City,

Fujian Province, China. He was married, and he and his wife had two daughters.

On September 16, 1999, birth control officers came to the family’s house and told

Weng that his wife would have to be sterilized because the couple was not allowed

to have any more children. Weng argued with the officers and tried to stop them

from taking his wife, but the officers took his wife away and forced her to undergo

a sterilization procedure.

      Weng testified that he was angry and unhappy over what had happened to

his wife. He told his neighbor that the birth control officers did not respect human

rights and were not human beings. He also declared that he wanted to leave China

and go to the United States. When the birth control officers heard about Weng’s

criticisms, they came to his house and told him that they would sterilize him if he

continued to speak out against them. After two unsuccessful attempts to leave

China, Weng finally was able to come to the United States in 2005. He feared that

he would be fined, imprisoned, and sterilized if he returned to China.

      The record included a copy of the U.S. State Department’s 2008 Country

Report on Human Rights Practices in China. According to the 2008 Country

Report, the Chinese government sometimes used coercive measures to enforce its

                                         3
population control policy. Parents with two children often were pressured to

undergo sterilization. The report also explained that the Chinese government had

continued a crackdown against the Falun Gong movement. According to Falun

Gong sources, more than 100,000 members had been sentenced to reeducation

through labor camps, and thousands died from torture while in custody. Most

practitioners were punished administratively, but “core leaders” of the Falun Gong

were singled out for particularly harsh treatment. Even practitioners who did not

engage in public demonstrations were sometimes sent to labor camps or forced to

attend anti-Falun Gong classes.

      The IJ issued an oral decision denying Weng’s applications for asylum,

withholding of removal, and CAT relief. First, the IJ concluded that Weng’s story

lacked credibility. Moreover, even assuming that Weng’s testimony was credible,

the IJ concluded that he had not met the standard for asylum. The IJ explained

that the family planning officials’ threats to sterilize Weng did not rise to the level

of past persecution. In addition, the IJ determined that Weng did not have a

well-founded fear of future persecution. The IJ observed that, after Weng was

threatened with sterilization, he continued to live in China for five years without

incident, and there was no evidence that the officials had been searching for him

since his departure from China. Accordingly, the IJ denied Weng’s application for

                                           4
asylum. Because Weng had failed to meet the standard for asylum, the IJ

concluded that he necessarily was unable to meet the higher standard for

withholding of removal. Finally, the IJ denied Weng’s claim for CAT relief

because he had not shown that he would be tortured by, or with the acquiescence

of, a Chinese government official.

      Weng appealed the IJ’s decision to the BIA. He also filed a motion to

remand his case for further proceedings due to the fact that he recently had begun

to practice Falun Gong. In a supporting affidavit, Weng explained that he had

been suffering from depression following the denial of his asylum application and

the death of his mother. On the advice of his wife, he started practicing Falun

Gong, and he discovered that the exercises had a good effect on his mental health.

In March 2010, Weng went to the “Global Service Center for Quitting Chinese

Communist Party,” where he denounced the Communist Party, disassociated

himself from the Communist Youth Group, and formally joined the Falun Gong

movement. Weng feared that he would be imprisoned if he returned to China

because the Chinese government considered Falun Gong to be an “evil cult.”

      Weng presented a series of documents in support of his motion for a

remand. First, he submitted a psychiatric evaluation, which indicated that he had

been diagnosed with major depressive disorder and psychosis. Weng also

                                         5
provided a letter from his wife in which she advised him to begin practicing Falun

Gong. In addition, he presented a certificate from the Global Service Center for

Quitting Chinese Communist Party, which stated that Weng “has realized the evil

nature of the Chinese Communist Party and registered for quitting the Chinese

Communist Party and/or its affiliated organizations.” Finally, Weng submitted a

series of photographs apparently showing him at the Global Service Center.

      The BIA dismissed Weng’s appeal. The BIA did not adopt the IJ’s adverse

credibility finding, but did agree with the IJ’s alternative conclusion that Weng

had not met his burden of proof for asylum, withholding of removal, or CAT

relief. First, the BIA concluded that Weng had not experienced past persecution in

China. The BIA found that Weng’s criticisms of the family planning officials did

not amount to “other resistance” to China’s family planning policy, and concluded

that the family planning officials’ threats to sterilize Weng did not rise to the level

of persecution.

      Next, the BIA determined that Weng did not have a well-founded fear of

future persecution. The BIA noted that Weng apparently had “worked

uneventfully as a fisherman until he left China.” The BIA concluded that Weng

had not established an objectively reasonable possibility that he would be

sterilized or otherwise harmed based on his earlier resistance to the family

                                           6
planning program. Therefore, the BIA affirmed the denial of Weng’s asylum

application. Because Weng did not satisfy the standard for asylum, the BIA

further concluded, he was unable to meet the higher standard for withholding of

removal. In addition, the BIA determined that Weng was not entitled to CAT

relief because he had not shown that it was more likely than not that he would be

tortured by, or with the acquiescence of, a government official.

      The BIA also denied Weng’s motion for a remand. The BIA noted that

mere involvement in the Falun Gong movement does not, in and of itself, entitle a

person to asylum in the United States. Citing the 2008 Country Report, the BIA

noted that the Chinese government reserved the harshest punishments for Falun

Gong leaders, and pointed out that there was no evidence that Weng held a

leadership role in the Falun Gong movement. The BIA further observed that there

was no evidence that the Chinese government was even aware of Weng’s “limited

and very recent” practice of Falun Gong in the United States. Because Weng had

not made a prima facie showing that he would be entitled to asylum based on his

practice of Falun Gong, the BIA concluded that no remand was warranted.

                                         II.

      When the BIA issues a decision, we review only that decision, except to the

extent that it adopts the IJ’s opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d

                                          7
1262, 1284 (11th Cir. 2001). Here, the BIA issued its own decision without

adopting the IJ’s opinion or reasoning, so we review only the BIA’s decision. We

review the BIA’s factual findings to determine whether they are supported by

substantial evidence. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir.

2004) (en banc). “[W]e view the record evidence in the light most favorable to the

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

Id. at 1027. We may reverse the BIA’s factual findings only when the record

compels a reversal. Id.

      The Attorney General has discretion to grant asylum to any alien who is

determined to be a refugee. INA § 208(b)(1), 8 U.S.C. § 1158(b)(1); 8 C.F.R.

§ 208.13(a). An applicant qualifies as a refugee if he has suffered past

persecution, or has a well-founded fear of future persecution, in his country of

origin. 8 C.F.R. § 208.13(b); Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1351

(11th Cir. 2009). The burden of proof is on the applicant to establish that he is a

refugee. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i); Kazemzadeh, 577

F.3d at 1351.

      To establish asylum based on past persecution, the applicant must show that

he was persecuted on account of a protected ground. 8 C.F.R. § 208.13(b)(1);

Kazemzadeh, 577 F.3d at 1351. We have explained that “persecution is an

                                          8
extreme concept, requiring more than a few isolated incidents of verbal

harassment or intimidation, and that mere harassment does not amount to

persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)

(quotations and alteration omitted) (concluding that menacing phone calls and

threats did not rise to the level of persecution). In the absence of past persecution,

an applicant may establish a well-founded fear of persecution by showing that

there is a reasonable possibility that he will be persecuted if he is returned to his

country of origin. 8 C.F.R. 208.13(b)(2); Kazemzadeh, 577 F.3d at 1352. The

applicant must show that his fear of persecution is both “subjectively genuine and

objectively reasonable.” Al Najjar, 257 F.3d at 1289.

      Congress has provided that

      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 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.

INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). An individual whose spouse has been

forced to undergo an abortion or sterilization procedure is not automatically

entitled to refugee status. Yu v. U.S. Att’y Gen., 568 F.3d 1328, 1332-33 (11th Cir.

                                           9
2009); Matter of J-S-, 24 I. & N. Dec. 520, 523-24 (A.G. 2008). Rather, the

applicant must show that he or she personally was forced to undergo an abortion

or sterilization procedure, has a well-founded fear of being forced to do so in the

future, or has a well-founded fear of persecution based on “other resistance” to a

population control program. Yu, 568 F.3d at 1333.

      To qualify for withholding of removal, an applicant must establish that his life

or freedom would be threatened in his country of origin on account of a protected

ground. See INA § 241(b)(3)(A); 8 U.S.C. § 1231(b)(3)(A). The applicant must

demonstrate that he would more likely than not be persecuted upon being returned to

his country of origin. Sepulveda, 401 F.3d at 1232. An applicant who is unable to

satisfy the standard for asylum generally will be unable to meet the more stringent

standard for withholding of removal. Id. at 1232-33. To establish eligibility for CAT

relief, the applicant must demonstrate that it is more likely than not that he would be

tortured if he is removed to the designated country of removal.              8 C.F.R.

§ 208.16(c)(2). An applicant who is not eligible for asylum generally will be unable

to meet the higher standard for CAT relief. Al Najjar, 257 F.3d at 1303.

      In this case, substantial evidence supports the BIA’s finding that Weng did

not have a well-founded fear of future persecution based on his opposition to

China’s family planning policy. As the BIA observed, Weng did not present any

                                          10
evidence that he had any problems with the birth control officers between 1999

and his departure from China in 2005. Thus, he failed to establish an objectively

reasonable possibility that birth control officers would target him for persecution

if he returned to China. See Kazemzadeh, 577 F.3d at 1352. Although Weng

suggests that the IJ and the government should have asked him additional

questions to see if he had any further troubles with the family planning officials

before he left China, the burden of proof was on him, not on the agency, to

produce evidence supporting his claim for asylum. See INA § 208(b)(1)(B)(i), 8

U.S.C. § 1158(b)(1)(B)(i); Kazemzadeh, 577 F.3d at 1351.

      Because Weng could not meet the standard for asylum, he necessarily was

unable to meet the higher standard for withholding of removal. See Sepulveda,

401 F.3d at 1232-33. In addition, substantial evidence supports the BIA’s denial

of Weng’s claim for CAT relief. Although forced sterilization could be considered

a form of torture, the record does not compel the conclusion that Weng is likely to

be forcibly sterilized if he returns to China. As noted above, after the birth control

officials threatened to sterilize Weng, he was able to remain in China for five years

without further incident. Because Weng did not establish that he would more

likely than not be tortured upon his return to China, the BIA properly denied his

claim for CAT relief. See 8 C.F.R. § 208.16(c)(2).

                                          11
                                         III.

      A motion to remand a case based on new evidence is generally treated as a

motion to reopen under 8 C.F.R. § 1003.2(c). Al Najjar, 257 F.3d at 1301; Matter

of Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992). We review the BIA’s denial of a

motion to reopen for an abuse of discretion. Zhang v. U.S. Att’y Gen., 572 F.3d

1316, 1319 (11th Cir. 2009). “This review is limited to determining whether the

BIA exercised its discretion in an arbitrary or capricious manner.” Id. The BIA

may deny a motion to reopen if the applicant’s new evidence fails to establish a

prima facie case for asylum. Al Najjar, 257 F.3d at 1302. The applicant bears the

“heavy burden” of showing that his new evidence would likely change the

outcome of the case. Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006);

Matter of Coelho, 20 I. & N. Dec. at 473.

      Here, Weng’s new evidence regarding his involvement in Falun Gong did

not establish that he was prima facie eligible for asylum, withholding of removal,

or CAT relief. First, Weng did not show that the Chinese government is even

aware that he has started practicing Falun Gong. Weng may have criticized

China’s family planning policies in the past, but there is no evidence that the

Chinese government has identified him as a dissident or has continued to monitor

his activities. Weng argues that he has engaged in demonstrations against the

                                         12
Chinese government, but the only record evidence that he cites is the certificate

and photographs from the Global Service Center for Quitting Chinese Communist

Party. It is not apparent that this certificate or any demonstrations that Weng may

have engaged in have come to the attention of the Chinese authorities.

      Even if the Chinese government were to learn of Weng’s involvement in

Falun Gong, it is far from clear that Weng would be singled out for persecution.

Cf. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1292 (11th Cir. 2006) (“Involvement

with Falun Gong in China by itself does not entitle a person to asylum in the

United States.”). The 2008 Country Report indicates that the harshest

punishments are imposed on Falun Gong leaders, not ordinary practitioners such

as Weng. Although some Falun Gong adherents were sentenced to reeducation

through labor camps, others were only required to take anti-Falun Gong classes.

Thus, it is not apparent that any mistreatment that Weng might experience would

be serious enough to constitute persecution. Because Weng’s new evidence did

not establish that he was prima facie eligible for asylum, the BIA did not abuse its

discretion by denying his motion for a remand. See Al Najjar, 257 F.3d at 1302;

Zhang v. U.S. Att’y Gen., 572 F.3d at 1319.

      Accordingly, after review of the administrative record and the parties’

briefs, we deny the petition for review.

                                           13
PETITION DENIED.




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