                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                FILED
                      ________________________
                                                       U .S . COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                            No. 07-10360                        July 18, 2007
                        Non-Argument Calendar                THOMAS K. KAHN
                      ________________________                   CLERK


                  BIA Nos. A97-628-381 & A97-628-382

GUIYAN ZHU,
WENTANG SUN,

                                                         Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                         Respondent.


                      ________________________

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

                            (July 18, 2007)


Before BIRCH, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
       Guiyan Zhu,1 a Falun Gong member and a native of China, petitions this

Court for review of the BIA’s order denying her application for asylum. We find

that, regardless of whether the BIA and IJ’s adverse credibility determinations

were based on specific, cogent reasons and supported by substantial evidence, Zhu

has failed to establish a well-founded fear of persecution.

       As an initial matter, we conclude that the BIA did not act improperly in

refusing to submit Zhu’s case to a three-member panel. A petitioner does not have

an automatic right to a three-member panel; the regulations provide that a board

member may, but does not have to, designate a case for panel review in certain

circumstances. See 8 C.F.R. § 1003.1(e)(6). We also conclude that we lack

jurisdiction to consider Zhu’s claims that (1) the IJ improperly denied withholding

of removal and CAT relief and (2) a pattern or practice of persecution of Falun

Gong members exists in China, because these two issues were not exhausted. See

Amaya-Artunduaga v. United States Att’y Gen., 463 F.3d 1247, 1250–51 (11th

Cir. 2006) (we lack jurisdiction to review claims that the petitioner failed to raise

before the BIA, regardless of whether the BIA sua sponte addressed them).

       On appeal, we review the BIA’s decision, “except to the extent that it

expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284



       1
        Zhu’s husband, Wentang Sun, also appeals, but his claim is based on derivative status.
Accordingly, the petitioners will be collectively referred to as “Zhu.”
                                                  2
(11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we will review

the IJ’s decision as well.” Id. Here, because the BIA decided the merits of the

claims by partially relying on the IJ’s decision, we review the BIA’s decision and,

to the extent relied on, the IJ’s decision.

      Factual determinations are reviewed under the substantial evidence test, and

we will affirm a decision if it is supported by reasonable, substantial, and probative

evidence on the record considered as a whole. Forgue v. United States Att’y Gen.,

401 F.3d 1282, 1286 (11th Cir. 2005). The substantial evidence test is deferential

and does not allow “re-weigh[ing] the evidence from scratch.” Id. (quoting

Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004)). To the extent that the

IJ’s and BIA’s decisions were based on a legal determination, our review is de

novo. See Mohammed v. Ashcroft, 261 F.3d 1244, 1247–48 (11th Cir. 2001). “To

reverse the IJ’s [and BIA’s] fact findings, we must find that the record not only

supports reversal, but compels it.” Mendoza v. United States Att’y Gen., 327 F.3d

1283, 1287 (11th Cir. 2003) (considering withholding of removal claim). The fact

that evidence in the record may support a conclusion contrary to the administrative

findings is not enough to justify a reversal. Adefemi, 386 F.3d at 1027.

      An alien who arrives in or is present in the United States may apply for

asylum. 8 U.S.C. § 1158(a)(1). The petitioner bears the burden of proving

“refugee” status and must show past persecution or a well-founded fear of future
                                              3
persecution based on a statutory classification. Al Najjar, 257 F.3d at 1284.

Although not specifically characterized as such by practitioners, for our purposes

Falun Gong is considered a religion—one of the statutory classifications

potentially meriting asylum. On appeal, Zhu does not argue that she suffered past

persecution, so her asylum application turns on the existence of a well-founded

fear of future persecution because of her Falun Gong practices. 8 C.F.R. §

208.13(a), (b); see Al Najjar, 257 F.3d at 1287.

      We have never expressly defined “persecution,” but we have indicated that

“persecution is an 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. United States Att’y Gen., 401 F.3d 1226, 1231 (11th

Cir. 2005) (quotation marks and alteration omitted). Additionally, we have held

that merely being involved with Falun Gong in China along is not enough to merit

asylum. See Zheng v. United States Att’y Gen., 451 F.3d 1287, 1291–92 (11th

Cir. 2006), cert. denied, 127 S. Ct. 1124 (Jan. 16, 2007). Zhu cannot meet this

standard. She alleges no more than a single brief detention and some amount of

surveillance. That is not enough. The evidence before us does not compel a

conclusion contrary to that reached by the BIA and the IJ.

      Further, we find no merit to Zhu’s claim that the BIA and IJ failed to

properly consider the 2002 Country Report allegedly demonstrating that the
                                          4
Chinese government was cracking down on Falun Gong practitioners. Neither the

IJ nor the BIA had a duty to explicitly mention the report in its decision, see Tan v.

United States Att’y Gen., 446 F.3d 1369, 1376 (11th Cir. 2006), and both decisions

indicate that all proffered evidence was taken into consideration.

      Finally, we need not reach Zhu’s claim that the BIA and IJ erred in making

an adverse credibility determination that was not supported by specific, cogent

reasons or substantial evidence. Even if we deem Zhu credible and accept all her

testimony as true, she still cannot demonstrate sufficient persecution to establish

the well-founded fear necessary for asylum. See Al Najjar, 257 F.3d at 1284–85.

Accordingly, Zhu’s petition is denied in part and dismissed in part.

      PETITION DENIED IN PART AND DISMISSED IN PART.




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