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                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 13-12437
                         Non-Argument Calendar
                       ________________________

                        Agency No. A088-777-138



HANGMIN CAI,

                                                                       Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

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

                              (July 29, 2014)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Hangmin Cai, proceeding through counsel, petitions for review of the Board

of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”)

denial of her application for asylum pursuant to the Immigration and Nationality

Act (“INA”), § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA

§ 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief under the Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(“CAT”), 8 C.F.R. § 208.16(c).

      Cai is a native and citizen of the People’s Republic of China and comes from

Chang Le, Fujian Province. She entered the United States in October 1998 without

being paroled or inspected. In May 2008, Cai was issued a notice to appear,

charging that she was subject to removal under INA § 212(a)(6)(A)(i), 8 U.S.C.

§ 1182(a)(6)(A)(i). Cai has three children, all born in the United States, and, in

February 2011, she converted to Christianity. Cai requested asylum, withholding

of removal, and CAT relief because she feared persecution in the form of forcible

sterilization or excessive fines due to her violation of China’s family planning

policies. She also feared persecution based upon her Christian faith and her intent

to join an underground Christian church if returned to China.

      The IJ determined that Cai was ineligible for asylum because she had not

shown a reasonable possibility that she would face persecution on account of her

violation of China’s family planning policies or due to her religion if returned to


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China. As to her fear of forced sterilization, the IJ concluded that her claim that

she would suffer persecution in China on account of giving birth to three children

in the United States lacked sufficient evidentiary support. Specifically, the IJ

pointed out that Cai had produced no evidence that someone similarly situated (i.e.,

someone who had given birth to children in the United States and then returned to

China) had suffered forcible sterilization or other persecution. Rather, Cai’s

evidence (1) concerned persons who had violated China’s family planning policies

by having more than one child in China; (2) came from interested family members

or individuals whom Cai had never met, who did not testify during her

immigration proceedings; and (3) was largely written years before Cai’s

immigration proceedings. Additionally, the IJ concluded that the U.S. State

Department Country Reports and other documentary evidence showed that

officials in her home province of Fujian were not particularly likely to forcibly

sterilize a returning Chinese national with unauthorized children born abroad.

      As to Cai’s fear of excessive fines, the IJ concluded that Cai might face a

fine of up to ¥50,000, but she had not provided any evidence that such a fine would

cause her to suffer economic difficulties above those generally shared by others in

China. As to Cai’s Christian faith claim, the IJ concluded that Cai had not

demonstrated that there was a good reason she would be singled out for her

persecution and had not shown a pattern or practice of persecution of Christians in


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China. The IJ further concluded that, because Cai had failed to meet the lower

standard for asylum, she was ineligible for withholding of removal or CAT relief.

      The BIA affirmed the IJ’s decision. First, the BIA found that the IJ’s

conclusion that Cai did not face a reasonable possibility of forced sterilization,

excessive fines, or other persecution upon returning to China for violating China’s

one child policy was not clearly erroneous. Addressing specific pieces of evidence

in detail (including a letter from Cai’s cousin, who claimed to have been forcibly

sterilized and fined after giving birth to her second child in China) the BIA

determined that much of the evidence that Cai offered in support of her position

was entitled to little weight. Like the IJ, the BIA focused on the fact that Cai’s

evidence concerned persons who had violated China’s family planning policies by

having more than one child in China, rather than those who had United States-born

children. The BIA also noted that U.S. State Department Country Reports and

Annual Reports from the Executive Commission on China worked against Cai

because they showed that forcible sterilization was prohibited. The BIA concluded

that, to the extent forcible sterilization occurred, no evidence suggested that it was

used against individuals who gave birth to children in the United States.

Moreover, the BIA determined that much of Cai’s evidence did not speak to

current conditions in China or relate to population control policies in Fujian

Province. The BIA also concluded that Cai’s claim based upon her fear of fines


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did not rise to the level of persecution because (1) the Country Reports showed that

couples unable to pay fines immediately had been allowed to pay in installments,

and (2) Cai had not shown that she would be unable to pay the fines. As to her

claim related to her Christian faith, the BIA noted that her evidence was of little

probative value because converting to Christianity and attending church services in

the United States did little to suggest that the Chinese authorities would likely

become aware of her continued religious practice once she returned. The BIA also

concluded that, because Cai had failed to meet the lower standard for asylum, she

was ineligible for withholding of removal, and that she was ineligible for CAT

relief because none of her evidence demonstrated that she would more likely than

not face torture.

      On appeal here, Cai argues that the BIA improperly reweighed evidence by

making its own observations, rather than relying on those of the IJ. She also

argues that the BIA erred in discounting her cousin’s letter based upon an arbitrary

distinction between children born in the United States versus those born in China

in violation of China’s family planning policies. Cai maintains that the BIA’s

distinction fell afoul of our decision in Li v. U.S. Att’y Gen., 488 F.3d 1371 (11th

Cir. 2007). Cai also claims that the BIA erred in concluding that she had failed to

show a reasonable possibility that she would face persecution based upon her

Christian faith if returned to China.


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      We only review the BIA’s decision, except to the extent that it expressly

adopts the IJ’s opinion or reasoning. Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1307

(11th Cir. 2013). Where the BIA has issued its own opinion and relied upon the

IJ’s decision and reasoning without expressly adopting the IJ’s opinion, we review

the IJ’s opinion to the extent the BIA found that IJ’s reasons were supported by the

record. Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011).

      We review legal questions de novo. Zhu, 703 F.3d at 1307. We review

factual determinations under the substantial evidence test, and thus “must affirm if

the BIA’s decision is supported by reasonable, substantial, and probative evidence

on the record considered as a whole.” Id. (quotation omitted). Under that

standard, we view the evidence in the light most favorable to the BIA’s decision,

draw all reasonable inferences in favor of the BIA’s decision, and must affirm the

BIA’s decision unless the record compels reversal. Seck, 663 F.3d at 1364.

      An alien who is present in the United States may apply for asylum. INA

§ 208(a)(1), 8 U.S.C. § 1158(a)(1). The government has the discretion to grant

asylum if the alien establishes that he is a “refugee.” See INA § 208(b)(1), 8 U.S.C.

§ 1158(b)(1)(A). The INA defines a “refugee” as, among other things, (1) “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,” and


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(2) “any person who is outside of [the] country of [her] nationality . . . and who is

unable or unwilling to return to . . . that country because of . . . a well-founded fear

of persecution on account of . . . religion.” INA § 101(a)(42)(A), 8 U.S.C. §

1101(a)(42)(A). The asylum applicant bears the burden of proving refugee status.

Zheng v. U.S. Att’y. Gen., 451 F.3d 1287, 1290 (11th Cir. 2006). Generally, an

applicant for asylum must establish either: (1) past persecution on account of a

protected ground; or (2) a well-founded fear of future persecution on account of a

protected ground. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230-31 (11th

Cir. 2005). We have explained 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, 401 F.3d at 1231

(quotation omitted).

      An applicant can establish a well-founded fear of future persecution, for

purposes of asylum, by showing a fear based upon a reasonable possibility of

future persecution on account of a protected ground, that is both “subjectively

genuine and objectively reasonable.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d

1341, 1352 (11th Cir. 2009). “The subjective component is generally satisfied by

the applicant’s credible testimony that he or she genuinely fears persecution.” De

Santamaria, 525 F.3d at 1007 (quotation omitted). “The objective prong can be




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fulfilled by establishing that the applicant has a good reason to fear future

persecution.” Id. (quotation omitted).

      The well-founded fear of future persecution is thus a mixed question of law

and fact. See Zhu, 703 F.3d at 1311-12. The factual prong involves “determining

what has happened to the petitioner in the past and what would occur to the

petitioner upon returning to his or her native country.” Id. at 1312. The legal

prong involves “deciding whether what has occurred and what will occur suffice to

meet the legal standard for a well-founded fear of persecution.” Id. “To the extent

the BIA has the ability to reweigh evidence, this power is limited to reviewing the

evidence before the IJ and reviewing it through the prism of clear error review.”

Id. at 1315 (emphasis in original).

      In Li v. U.S. Att’y Gen., the petitioner sought to reopen her removal

proceedings after having been denied asylum because she gave birth to two

children in the United States and feared that she would face forcible sterilization if

returned to China. See Li, 488 F.3d at 1372-73. The BIA denied her motion to

reopen after determining, among other things, that the petitioner had failed to

establish a policy of persecuting women with foreign-born children, as opposed to

native children. Id. at 1376. We rejected the BIA’s distinction, explaining that the

BIA “assumed that [the petitioner’s] alleged persecutors would make a similar

distinction” even though no evidence in the record showed that government


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officials would make such a distinction. See id. We determined that the BIA’s

reliance on that factual distinction to conclude that the petitioner failed to make out

a prima facie case for asylum was “arbitrary and capricious” on that record. Id.

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

life or freedom would be threatened in her country of origin on account of a

statutorily protected ground. See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A).

The applicant must demonstrate that she would more likely than not be persecuted

upon being returned to her country of origin. Sepulveda, 401 F.3d at 1232. To

qualify for CAT relief, the petitioner must show that it is “more likely than not”

that she would be tortured “at the instigation of or with the consent or acquiescence

of” government authorities if removed to her home country. Reyes-Sanchez v. U.S.

Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (quotations omitted). An

applicant who is unable to satisfy the standard for asylum generally will be unable

to meet the more stringent standards for withholding of removal and CAT relief.

Sepulveda, 401 F.3d at 1232-33; Morales v. U.S. Att’y Gen., 488 F.3d 884, 891

(11th Cir. 2007).

      Contrary to Cai’s assertion, the BIA did not engage in impermissible

reweighing of evidence, but rather reviewed the evidence that was before the IJ

through the prism of clear error. See Zhu, 703 F.3d at 1315. Cai’s claim that the

BIA’s discounting of her cousin’s letter fell afoul of Li is unpersuasive because,


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even if so, the BIA also noted that the letter’s author was an interested witness not

subject to cross examination as a reason for giving it little weight. In any event,

here, unlike in Li, record evidence supports the BIA’s native-born child versus

foreign-born child distinction. Specifically, a 2006 correspondence from the

Fujian Province Population and Family Planning Commission to the United States

General Consulate states that a U.S.-born child by a resident of China would not be

counted for family planning purposes if the child’s permanent residency is not

established when the child returns to China. See Li, 488 F.3d at 1376.

      In addition to the 2006 Fujian Province Population and Family Planning

Commission correspondence, other substantial evidence in the record supports the

BIA’s and IJ’s determinations that Cai failed to show a reasonable possibility that

she would face forced sterilization if returned to China. See Zhu, 703 F.3d at 1307.

Specifically, there is evidence in the record that (1) the Chinese government

prohibited use of force to compel sterilization; and (2) forced sterilization

occurred, but only in some instances and under intense pressure to meet family

planning goals. Substantial evidence also supports the BIA’s and IJ’s conclusions

that Cai had not shown a reasonable possibility of persecution in the form of

excessive fines because Cai offered no evidence that a fine of any particular

amount would cause her severe economic damage. Therefore, even assuming Cai

proved she faced a reasonable possibility of a fine, the BIA properly concluded


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that she did not show that any such fine would rise to the level of persecution. See

Sepulveda, 401 F.3d at 1231.

      The BIA’s and IJ’s determinations as to Cai’s claim based on her Christian

faith are, likewise, supported by substantial evidence. See Zhu, 703 F.3d at 1307.

The U.S. State Department Country Reports show that the Chinese government’s

treatment of underground church members varies regionally, and Cai provided no

evidence of persecution of underground church members in her local region, or any

evidence that the Chinese government was aware of her Christian faith. As Cai did

not meet the lower standard for asylum as to any of her claims—i.e., a reasonable

possibility of future persecution based on her violation of China’s family planning

policy or her Christian faith—substantial evidence supports the BIA’s

determination that Cai failed to establish eligibility for withholding of removal and

CAT relief. See Sepulveda, 401 F.3d at 1232-33; Morales, 488 F.3d at 891.

Accordingly, we deny her petition for review.

      PETITION DENIED.




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