                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                  MAY 23, 2007
                                No. 06-15970                    THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                          ________________________

                            Agency No. A97-952-676

YI FEI LIN,


                                                                         Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.


                          ________________________

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

                                 (May 23, 2007)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

     Petitioner Yi Fei Lin, a native and citizen of China, through counsel,
petitions us for review of the Board of Immigration Appeal’s (BIA) order,

dismissing his application for asylum, withholding of removal and relief under the

United Nations Convention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment of Punishment (CAT).

      On appeal, Lin contends that he established eligibility for relief based on

China’s family-planning policy. He argues that the BIA failed to make an adverse

credibility finding, and his credible testimony was sufficient, without

corroboration, to establish eligibility for relief. Lin further asserts that the BIA

erred in its determination that he could not qualify as a “spouse” under INA

§ 101(a)(42), because he was not “legally” married. Moreover, Lin contends, the

BIA did not sufficiently explain how he had not qualified for relief based on “other

resistance” to China’s coercive population control measures.

      Here, the BIA did not expressly adopt the immigration judge’s (IJ) decision,

so we review only the BIA’s decision. See Arboleda v. U.S. Att’y Gen., 434 F.3d

1220, 1222 (11th Cir. 2006). To the extent that the BIA’s decision was based on a

legal determination, our review is de novo. D-Muhumed v. U.S. Att’y Gen., 388

F.3d 814, 817 (11th Cir. 2004). In addition,“[w]e review the BIA’s statutory

interpretation de novo,” and apply the test set forth in Chevron, U.S.A., Inc. v. Nat’l

Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782, 81 L. Ed. 2d 694



                                            2
(1984). See Usmani v. U.S. Att’y Gen., No. 06-13843, manuscript op. at 4 (11th

Cir. April 10, 2007). Thus, if the intent of Congress is unclear, and a “statute is

ambiguous,” we will defer to the BIA’s interpretation if it is based on a permissible

construction of the statute. Id. (internal quotations and citations omitted). The

BIA’s construction is reasonable and, thus, controls, if it is not “arbitrary,

capricious, or manifestly contrary to the statute.” Chevron, U.S.A., Inc., 467 U.S.

at 844, 104 S. Ct. at 2782. (quotations omitted).

      The BIA’s factual determinations are reviewed under the substantial

evidence test, and we will “affirm the . . . decision if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Forgue

v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (internal quotations and

citations omitted). The substantial evidence test is “highly deferential” and does

not allow “re-weigh[ing] the evidence from scratch.” Id. The BIA or IJ must make

an “explicit” credibility determination. See Yang v. U.S. Att’y Gen., 418 F.3d

1198, 1201 (11th Cir. 2005). If credible, an alien’s testimony may be sufficient,

without corroboration, to sustain his burden of proof in establishing his eligibility

for relief from removal. See Forgue, 401 F.3d at 1287 (11th Cir. 2005).

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

asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of the Department



                                            3
of Homeland Security and the Attorney General both have the discretion to grant

asylum if the alien meets the INA’s definition of a “refugee.” INA § 208(b)(1), 8

U.S.C. § 1158(b)(1)(A) (as amended by the REAL ID Act). A “refugee” is

defined as:

       any person who is outside any country of such person’s nationality
       . . . , 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 . . . political opinion.

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the

burden of proving statutory “refugee” status. Al Najjar v. Ashcroft, 257 F.3d 1262,

1284 (11th Cir. 2001). To establish asylum eligibility, the alien must, with specific

and credible evidence, establish (1) past persecution on account of a statutorily

listed factor, or (2) a “well-founded fear” that the statutorily listed factor, in this

case political opinion, will cause such future persecution. 8 C.F.R. § 208.13(a),

(b); Al Najjar, 257 F.3d at 1287. An alien may establish a well-founded fear of

future persecution by showing that: (1) he fears persecution based on his

membership in a protected group; (2) there is a reasonable possibility that he will

suffer persecution if removed to his native country; and (3) he could not avoid

persecution by relocating to another part of his or her country, if, under all of the

circumstances, it would be reasonable to expect relocation. See 8 C.F.R.



                                             4
§ 208.13(b)(2), (3)(i).

         The INA does not expressly define “persecution” for purposes of qualifying

as a “refugee.” See INA § 101(a)(42). It does provide, however, that:

         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.

INA § 101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B). The BIA has held that an act of

persecution in the form of forced sterilization or abortion against one’s spouse can

be imputed to the other spouse to establish past persecution. Matter of C-Y-Z, 21

I&N Dec. 915, 918 (BIA 1997). The BIA has further explained, however, that the

imputed protections do not extend to unmarried couples, but instead, only to

individuals who are legally married. Matter of S-L-L, 24 I&N Dec. 1, 4 (BIA

2006).

         According to the BIA, if an unmarried applicant asserts persecution based on

his partner’s forced abortion, the applicant must demonstrate “that he or she

qualifies under the terms of the “other resistance” clause in section 101(a)(42).”

Matter of S-L-L, 24 I&N Dec. at 4. To do so, the applicant must demonstrate

                                             5
resistance, and “that he has suffered harm amounting to persecution on account of

that resistance.” Id. at 10. The BIA has further explained that, “[i]n the context of

coercive family planning, the term ‘resistance’ covers a wide range of

circumstances, including expressions of general opposition, attempts to interfere

with enforcement of government policy in particular cases, and other overt forms

of resistance to the requirements of the family planing law.” Id.

      Along with seeking asylum, the alien also may seek withholding of removal.

See INA § 241, 8 U.S.C. § 1231(b)(3). One significant difference between proving

asylum eligibility and withholding of removal eligibility is that, to merit the latter,

the alien must prove that future persecution would occur “more-likely-than-not.”

See Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). As the

more-likely-than-not standard that applies to withholding of removal is more

stringent than the well-founded-fear standard that applies to asylum, ineligibility

for asylum generally precludes withholding of removal eligibility. Al Najjar, 257

F.3d at 1292-93.

      In addition, the alien may seek relief under the CAT if the applicant

establishes that he more likely than not would be tortured if he returned to the

proposed country of removal. 8 C.F.R. § 208.16(c)(2). As with withholding of

removal under the INA, an applicant who cannot establish asylum eligibility



                                          6
usually cannot establish CAT eligibility. Al Najjar, 257 F.3d at 1303.

        Accepting Lin’s allegations as true, nonetheless, we conclude from the

record that substantial evidence supports the BIA’s determination that Lin failed to

demonstrate eligibility for asylum, withholding of removal, or CAT relief. First,

the BIA’s interpretation relating to the who qualifies as a “spouse” under INA

§ 101(a)(42) is subject to our deference because Congress’ intent is not clear from

the language itself, and there is no indication that the BIA’s interpretation is

unreasonable. See Usmani, manuscript op. at 4; Chevron, U.S.A., Inc., 467 U.S. at

844, 104 S. Ct. at 2782. As such, Lin’s assertion that his girlfriend was forced to

undergo an abortion does not in and of itself demonstrate that Lin was persecuted

because undisputed evidence in the record shows that Lin was not “legally”

married to his girlfriend. See Matter of S-L-L, 24 I&N Dec. at 4.

      Moreover, we conclude that substantial evidence supports the BIA’s

determination that Lin failed to qualify for asylum under the “other resistance”

clause of § 101(a)(42), because Lin failed to present any evidence tending to

establish resistance to China’s family-planning policy.      See INA § 101(a)(42);

Forgue, 401 F.3d at 1286; Matter of S-L-L, 24 I&N Dec. at 10. Because Lin has

failed to demonstrate eligibility for asylum, it necessarily follows that his claim for

withholding of removal also fails. See Al Najjar, 257 F.3d at 1292-93. In addition,



                                          7
substantial evidence supports the BIA’s finding that Lin failed to establish

eligibility for CAT relief because he presented no evidence suggesting the

possibility of torture. See 8 C.F.R. § 208.16(c)(2); Al Najjar, 257 F.3d at 1303.

Accordingly, we deny Lin’s petition for asylum, withholding of removal, and CAT

relief.

          PETITION DENIED.




                                        8
