                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________
                                                                 FILED
                             No. 04-13996              U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                         Non-Argument Calendar                June 8, 2005
                       ________________________           THOMAS K. KAHN
                                                                CLERK
                         Agency No. A77-354-235

MEI ZHEN LI,

                                                                   Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                 Respondent.

                      __________________________

                    Petition for Review of a Final Order
                    of the Board of Immigration Appeals
                       _________________________
                                (June 8, 2005)




Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Mei Zhen Li, a citizen and national of the People’s Republic of China,

petitions this Court for review of the Board of Immigration Appeals’ (BIA’s) final

order affirming the Immigration Judge’s (IJ’s) removal order, which found that Li

failed to establish eligibility for asylum and withholding of removal under the

Immigration and Nationality Act (INA) and the United Nations Convention

Against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishment (CAT). Li asserts the IJ erred in determining (1) she failed to

establish eligibility for asylum, and (2) she failed to establish eligibility for

withholding of removal under the INA or the CAT. The IJ did not err. We deny

the petition.

                                   I. DISCUSSION

      Li claims if she were removed to China she would be forced to have an

abortion because she has violated the government’s family planning policy. She

alleges that, since arriving in the United States in 2001 without a valid entry

document, she has given birth to a daughter and was expecting a second child at

the time of the hearing before the IJ. Li asserts the IJ did not adequately consider

the likelihood of persecution she would face upon being returned to China. To

support her claim she would be tortured upon return, she relies heavily upon the




                                            2
U.S. Department of State Country Report on Human Rights Practices for 2003,

even though this document was not before the IJ.1

A.     Asylum

       We review the IJ’s decision in this case, not the BIA’s, because the BIA

affirmed the IJ’s decision without an opinion, thereby making the IJ’s decision the

final agency determination. Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1284

n.1 (11th Cir. 2003). The IJ’s factual determination that an alien is not entitled to

asylum must be upheld if supported by substantial evidence. See Mazariegos v.

Attorney Gen., 241 F.3d 1320, 1323 (11th Cir. 2001). Under this highly

deferential standard of review, a denial of asylum may be reversed only if the

evidence would compel a reasonable factfinder to find the requisite fear of

persecution exists. INS v. Elias-Zacarias, 112 S. Ct. 812, 815 n.1 (1992).

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

asylum. See 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant

asylum if the alien meets the INA’s definition of a “refugee.” See 8 U.S.C.

§ 1158(b)(1). A “refugee” is:




       1
         We cannot consider this report. See 8 U.S.C. § 1252(b)(4)(A) (providing “the court of
appeals shall decide the petition only on the administrative record on which the order of removal is
based”).

                                                 3
      any person who is outside any country of such person’s nationality or,
      in the case of a person having no nationality, is outside any country in
      which such person last habitually resided, 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). This statute addresses forced abortions as follows:

      For purposes of determinations under this chapter, 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.

8 U.S.C. § 1101(a)(42)(B).

      The asylum applicant carries the burden of proving statutory “refugee”

status. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). If the

applicant meets this burden, then the Attorney General may exercise his discretion

to grant the applicant asylum. Id. An alien is entitled to asylum if she can

establish, with specific and credible evidence: (1) past persecution on account of a

statutorily listed factor; or (2) a “well-founded fear” that a statutorily listed factor

will cause future persecution. 8 C.F.R. § 208.13(a), (b). If an alien demonstrates

                                            4
past persecution, she is presumed to have a well-founded fear of future

persecution. 8 C.F.R § 208.13(b)(1). If, however, an alien does not establish past

persecution, she bears the burden of demonstrating a well-founded fear of

persecution by showing that (1) she fears persecution based on a statutorily listed

factor, (2) there is a reasonable possibility she will suffer persecution in her home

country, and (3) she could not avoid persecution by relocating to another part of

her home country, if, under all of the circumstances, it would be reasonable to

expect her to do so. See 8 C.F.R. § 208.13(b)(2), (3)(i).

      Substantial evidence supports the IJ’s finding that Li failed to demonstrate

either past persecution or a well-founded fear of future persecution on account of a

protected ground. First, Li did not establish past persecution. She presented no

evidence, either documentary or testimonial, showing she previously had been

persecuted in China based upon its family planning policy.

      Second, Li did not meet her burden to establish a well-founded fear of

future persecution because she did not show there was a reasonable possibility she

would suffer persecution in her home country. Although Li testified she feared

she would be forced to undergo an abortion or sterilization if she returned to

China, she presented little, if any, evidence to support this assertion, and in fact,

virtually all of the evidence in the record was to the contrary. Although the U.S.

                                           5
Department of State’s1998 Profile of Asylum Claims and Country Conditions for

China acknowledged that forced abortions continued to occur in certain areas, it

noted that the Fujian province, where Li was from, had only “lax enforcement” of

the family planning rules, and that a second child was often permitted if the first

child was a female, as Li’s first child was. Two children were permitted without

the necessity of paying a fine for the second child. It also stated that, for children

born abroad like Li’s children, parents faced only modest fines upon return to

China, based upon the additional costs of housing and schooling the children.

These children were even characterized as “bonus” children.

      The 2002 China Country Assessment, apparently from the United Kingdom,

noted the Fujian province was lax in implementing the birth control policies, and

the policy was “less strict in Fujian than in any other province except

Guangdong.” It stated authorities in Fujian worked by incentive schemes rather

than forced abortions and sterilization, which were not tolerated. Finally, the U.S.

Department of State’s 2001 Country Report on Human Rights Practices noted that,

in rural areas of China, where 70 percent of the population lived, the one-child

policy was not strictly enforced and that, outside the cities, exceptions to the

policy were becoming “the norm.” Accordingly, substantial evidence in the record




                                           6
supported the IJ’s conclusion that Li did not establish a well-founded fear of

future persecution.

B.    Withholding of Removal

      Li asserts she is entitled to withholding of removal under the INA and the

CAT. The IJ’s factual determination an alien is not entitled to withholding of

removal must be upheld if it is supported by substantial evidence. See Najjar, 257

F.3d at 1283. An alien is entitled to withholding of removal under the INA if she

can show her life or freedom would be threatened on account of race, religion,

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

Mendoza, 327 F.3d at 1287 (11th Cir. 2003). The alien bears the burden of

demonstrating it is “more likely than not” she will be persecuted or tortured upon

being returned to her country. Fahim v. U.S. Attorney General, 278 F.3d 1216,

1218 (11th Cir. 2002). If, however, “‘an applicant is unable to meet the ‘well-

founded fear’ standard for asylum, [s]he is generally precluded from qualifying for

either asylum or withholding of deportation.’” Al Najjar, 257 F.3d at 1292-93

(citation omitted).

      To obtain withholding of removal under the CAT, the burden is on the

applicant to establish it is “more likely than not” she will be tortured in the country

of removal. 8 C.F.R. § 208.16(c)(2).

                                          7
      Torture is defined as any act by which severe pain or suffering,
      whether physical or mental, is intentionally inflicted on a person for
      such purposes as obtaining from him or her or a third person
      information or a confession, punishing him or her for an act he or she
      or a third person has committed or is suspected of having committed,
      or intimidating or coercing him or her or a third person, or for any
      reason based on discrimination of any kind, when such pain or
      suffering is inflicted by or at the instigation of or with the consent or
      acquiescence of a public official or other person acting in an official
      capacity.

Id. § 208.18(a)(1). The burden of proof for an applicant for withholding of

removal under the CAT, as with the applicant under the INA, is higher than the

burden imposed on an asylum applicant. Al Najjar, 257 F.3d at 1303.

      Because Li failed to establish asylum eligibility, she cannot establish

eligibility for withholding of removal under the INA or the CAT. In addition, Li

failed to demonstrate she would more likely than not be persecuted or tortured

upon her return to China. The record supports the IJ’s conclusion that Li would

not face forced abortion or sterilization if returned to the Fujian province of China

after having two children abroad.

                                II. CONCLUSION

      We find the IJ’s decision was supported by substantial evidence, and deny

the petition for review.

      PETITION DENIED.



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