     Case: 09-60836     Document: 00511232004          Page: 1    Date Filed: 09/13/2010




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

                                                 FILED
                                                                        September 13, 2010
                                     No. 09-60836
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

RONG CHEN,

                                                   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 922 375




Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Petitioner Rong Chen seeks review of the decision of the Board of
Immigration Appeals denying him asylum, withholding of removal, and relief
under the Convention Against Torture. We deny the petition in part and dismiss
it in part for lack of jurisdiction.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-60836     Document: 00511232004 Page: 2         Date Filed: 09/13/2010
                                  No. 09-60836

                                          I.
      Chen, a citizen of the People’s Republic of China, operated an internet café
in China where customers played a video game called The Legendary World. He
also hired several experienced players who played the game to win virtual items
that Chen would then sell to his customers for profit. Chen admits that his
business was using pirated copies of The Legendary World and paid no royalties
to the copyright holder, and he also acknowledges that the Chinese government
considers this internet gaming to be a form of illegal gambling.
      Although the Chinese government inspects internet cafés on a regular
basis, Chen testified that he evaded detection of the illegal activity at his café for
several months by simply closing his shop on the days when it was scheduled for
inspection. Chinese authorities eventually shut down Chen’s internet café and
issued a notice for his arrest. Chen’s business partner and several employees
were arrested, but Chen escaped and fled to the United States, entering the
country illegally.
      Chen concedes removability, but seeks asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). He claims that he
has faced past persecution and has a well-founded fear of future persecution for
his political opinions and his membership in a particular social group, which he
identifies as “the internet gaming community.”          He also argues that he is
entitled to protection under CAT because he will likely be tortured if he returns
to China. The Immigration Judge (IJ) denied each of Chen’s claims and ordered
removal. The Bureau of Immigration Appeals (BIA) summarily affirmed.


                                         II.
      Because the BIA adopted the decision of the Immigration Judge without
opinion, we review the IJ’s decision. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.
1997). We have jurisdiction to review only those issues where “the alien has
exhausted all administrative remedies,” 8 U.S.C. § 1252(d), by first presenting

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the issue to the BIA. Omari v. Holder, 562 F.3d 314, 318, 321-22 (5th Cir. 2009).
When an alien appeals an IJ’s decision and submits a brief to the BIA, “that brief
becomes the operative document through which any issues that a petitioner
wishes to have considered must be raised.” Claudio v. Holder, 601 F.3d 316, 319
(5th Cir. 2010).
      We review an IJ’s determinations on asylum, withholding of removal, and
protection under CAT for substantial evidence. Chen v. Gonzales, 470 F.3d 1131,
1134 (5th Cir. 2006). Under that standard, this court will not reverse the IJ’s
decision unless the evidence not only supports a contrary conclusion, but compels
it. Id.


                                       III.
      To qualify for asylum, an alien must demonstrate either past persecution
or a well-founded fear of future persecution on account of one of five protected
grounds: (1) race, (2) religion, (3) nationality, (4) membership in a particular
social group, or (5) political opinion. Tesfamichael v. Gonzales, 469 F.3d 109, 113
(5th Cir. 2006).    To demonstrate entitlement to withholding of removal, a
petitioner “must demonstrate a clear probability of persecution on the basis of”
one of the five grounds for asylum. Chen, 470 F.3d at 1138. This is a higher
burden than for asylum; thus, a petitioner's failure to establish entitlement to
asylum necessarily defeats a claim for withholding of removal. Id.
      Chen first argues that he faces persecution for his membership in a social
group which he identifies as “the internet gaming community.” To be eligible for
asylum, however, the social group “must share a common immutable
characteristic that they cannot change or should not be required to change
because it is fundamental to their individual identities or consciences.”
Mwembie v. Gonzales, 443 F.3d 405, 414-15 (5th Cir. 2006) (internal quotation
marks and citation omitted). Chen presented no evidence that membership in
the online gaming community is so fundamental to one’s identity or conscience

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that it functions as an immutable characteristic. Indeed, Chen was primarily
involved with internet gaming as a means of employment, and we have held that
one’s occupation is normally not so fundamental that it can be considered
immutable. Id. at 415.
      Chen also argues that he was subject to persecution for his political
opinions, but he has not offered any evidence that he was singled out for any
political views. To the contrary, there is substantial evidence to support the IJ’s
determination that Chen’s café was seized because it was engaged in unlawful
gambling and because it was using pirated computer software. Chen fails to
identify any persecution by the Chinese government except for the closing of his
illegal business.
      The record supports the IJ’s conclusion that Chen was not persecuted on
account of political opinion or membership in any protected group, but because
he was running an illegal business. And because Chen did not establish grounds
for asylum, it follows that Chen also cannot meet the more stringent burden for
withholding of removal. See Chen, 470 F.3d at 1138.


                                       IV.
      Chen also argues before this court that he is eligible for protection under
CAT because he is likely to be tortured if removed to China. But in contrast to
his asylum and withholding claims, Chen made no argument regarding torture
or CAT in his brief to the BIA. Because Chen did not fairly present this issue to
the BIA, he has not exhausted the claim and we lack jurisdiction to review it.
See 8 U.S.C. § 1252(d); Omari, 562 F.3d at 318-22.
      In any event, substantial evidence supports the IJ’s determination that
Chen has not shown it “more likely than not” that he would be tortured if
returned to China. See 8 C.F.R. § 208.16(c)(2). Chen presented a letter from his
business partner attesting that the partner was imprisoned for three and a half
months, but that letter makes no mention of torture. See Zhang v. Gonzales, 432

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F.3d 339, 345 (5th Cir. 2005) (“The normal incidents of lawful sanctions do not
constitute torture.”). Chen claims to have been in contact over the internet with
several of his former employees, but failed to preserve any of those alleged
communications, even though he admits that his attorney had warned him that
he would need to offer documents to support his claims. Thus, even if Chen had
raised his CAT claim before the BIA, the evidence does not support it.
      PETITION      DENIED     IN    PART,    DISMISSED       FOR    LACK     OF
JURISDICTION IN PART.




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