     Case: 10-60912     Document: 00511589366         Page: 1     Date Filed: 08/31/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 31, 2011
                                     No. 10-60912
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JIAN DONG,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A094 802 979


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Jian Qing Dong, a native and citizen of China, petitions pro se for review
of an order from the Board of Immigration Appeals (BIA) dismissing her appeal
from the Immigration Judge’s (IJ) order, following remand by the BIA, denying
her application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Although Dong conceded removability, as
an alien not in possession of a valid entry document at the time of her
application for admission into the United States, she sought relief from removal

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-60912

on the grounds that she was physically abused by her father and was unable to
leave the abusive familial relationship because she was unmarried and had no
money.
      Because the BIA did not expressly adopt the IJ’s opinion, only the decision
of the BIA is reviewed. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). The
BIA’s rulings of law are reviewed de novo; its findings of fact, for substantial
evidence.   E.g., Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).          The
substantial- evidence standard is applied in reviewing factual determinations for
asylum, withholding of removal, and relief under CAT. Chen v. Gonzales, 470
F.3d 1131, 1134 (5th Cir. 2006); Zhang v. Gonzales, 432 F.3d 339, 344-45 (5th
Cir. 2005). The BIA’s decision must “be based upon the evidence presented and
be substantially reasonable”. Kane v. Holder, 581 F.3d 231, 236 (5th Cir. 2009)
(citation and internal quotation marks omitted). “[R]eversal is improper unless
we decide not only that the evidence supports a contrary conclusion, but also
that the evidence compels it”. Chen, 470 F.3d at 1134 (citation and internal
quotation marks omitted) (emphasis in original).
      Dong asserts she is entitled to asylum and withholding of removal because
she has demonstrated past persecution and “a well-founded fear of future
persecution”. She asserts she is entitled to relief under CAT because: she was
abused by her father; domestic abuse is not criminalized by the Chinese
government; and it is unwilling or unable to control her father’s abusive
behavior.
      The United States Attorney General and the Secretary of Homeland
Security have the discretion to grant asylum to a refugee; that term includes a
person outside her country of nationality who is unable to return “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 C.F.R. §§ 1158(b)(1)(A), 1101(a)(42)(A). An applicant found to be a refugee
based on past persecution is also “presumed to have a well-founded fear of

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                                  No. 10-60912

persecution”. Id. § 1208.13(b)(1). That presumption may be rebutted, however,
if the Government establishes, by a preponderance of the evidence, that “the
applicant could avoid future persecution by relocating to another part of [her]
country . . . and under all the circumstances, it would be reasonable to expect the
applicant to do so”. Id. § 1208.13(b)(1)(i)(B), (b)(1)(ii). Factors considered in
determining whether internal relocation is reasonable include, inter alia, the
country’s economic infrastructure as well as “social and cultural constraints,
such as age, gender, health, and social and family ties”. Id. § 1208.13(b)(3).
Such factors “are not necessarily determinative of whether it would be
reasonable for the applicant to relocate”. Id.
      For withholding of removal, Dong must “demonstrate a clear probability
of persecution if returned to [her] home country”, based on one of the five
categories for asylum. Zhang, 432 F.3d at 344 (citation and internal quotation
marks omitted). “Withholding of removal is a higher standard than asylum.”
Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002). Thus, if Dong does not meet
the standard for asylum, she can not meet the higher standard for withholding
of removal. Id.
      The BIA’s affirming the denial of asylum and withholding of removal is
supported by substantial evidence, and Dong has failed to show that the
evidence compels a contrary conclusion. See Chen, 470 F.3d at 1134. The BIA
agreed with the IJ’s finding that: the Government had successfully rebutted the
presumption that Dong had a well-founded fear of persecution; and it was not
unreasonable for Dong to relocate within China to avoid persecution by her
father. Although life as single woman in China may be difficult given the social
and cultural norms, the BIA found that Dong had demonstrated an ability to live
alone as an independent adult.
      Regarding the CAT claim, although it is unclear whether Dong has failed
to exhaust “all administrative remedies” with respect to that claim, see 8 U.S.C.
§ 1252(d)(1), Dong has failed to demonstrate that she would be entitled to relief

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                                   No. 10-60912

under CAT. To obtain such relief, Dong, inter alia, “must show that it is more
likely than not that [she] would be tortured if returned to [her] home country”.
Zhang, 432 F.3d at 344 (citation and internal quotation marks omitted); see also
8 C.F.R. § 1208.16(c)(2). In assessing the likelihood of torture, “all evidence
relevant to the possibility of future torture shall be considered, including, but not
limited to . . . [e]vidence that the applicant could relocate to a part of the country
of removal where he or she is not likely to be tortured”. 8 C.F.R. § 1208.16(c)(3).
As discussed above, and as the BIA found, Dong has failed to show she is unable
to relocate to another part of the country where her father could not harm her,
and the record does not compel a conclusion that she is entitled to relief under
CAT.
       Finally, Dong has waived two issues by failing to brief them. Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).             The BIA concluded that
humanitarian asylum was not warranted because even if Dong had suffered past
persecution—an issue which the BIA did not reach—that persecution was not
so severe as to warrant relief. Dong does not challenge the BIA’s finding nor
does she contend that the abuse was so severe or atrocious that humanitarian
asylum should have been granted. Dong also fails to address the BIA’s denial
of her motion to remand, which the BIA construed as a motion to reopen, based
on her involvement with Falun Gong.
       DENIED.




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