                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-2064


SHAO LAN YAN, a/k/a Shaolan Yan,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   September 21, 2012                 Decided:   November 27, 2012


Before DUNCAN, AGEE, and DIAZ, Circuit Judges.


Petition denied by unpublished per curiam opinion.


ARGUED: Gary Jay Yerman, YERMAN & ASSOCIATES, LLC, New York, New
York, for Petitioner.      Nancy Kwang Canter, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.      ON
BRIEF: Tony West, Assistant Attorney General, Civil Division,
Jennifer P. Levings, Senior Litigation Counsel, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Shao Lan Yan, a native and citizen of the People’s Republic

of China, petitions for review of an order of the Board of

Immigration Appeals (“the Board”) dismissing her appeal from the

immigration judge’s (“IJ”) denial of her requests for asylum and

withholding of removal.              For the reasons set forth below, we

deny the petition for review.



                                          I.

      Yan arrived in the United States in June 2003 and did not

possess      valid    entry    documents.         The     Department         of    Homeland

Security      (“DHS”)       detained     her     at     the     Miami       International

Airport.      In an interview conducted at the airport, Yan claimed

that she was seeking political asylum because she had left China

to “[a]void getting married with a guy.”                     (J.A. 6.)

      A few days later, an asylum officer conducted a credible

fear interview.            Yan explained that the village chief's nephew

had   come    to     her    parent's    house     and    asked       for    her    parents’

permission     to    marry    her.      Her     parents       denied    permission,       at

which point the nephew became angry, vandalized their home, and

kicked her younger brother when he tried to intervene.                                   Yan

claimed      that    the    nephew     returned       with    some     of    his    friends

several days later and that she agreed to marry him so that he

would   not    vandalize      her    parent’s     home       again.         Even   so,   the

                                           2
nephew’s     friends     destroyed        some         of   her    parents’       personal

belongings.       Yan stated that she did not report these incidents

to the local police because the village chief is a government

official, and they “protect each other.”                          (J.A. 13.)       Because

Yan   did   not   want      to    marry   the     village       chief’s       nephew,    Yan

decided to flee China.             Yan stated that she feared returning to

China   because    forced        marriages       are    common,     and   she    might    be

forced to marry the village chief’s nephew.

      The asylum officer referred Yan’s case to an IJ, and the

DHS commenced removal proceedings by issuing a Notice to Appear,

charging Yan with removability as an alien not in possession of

a valid entry document.            Before an IJ in New York, New York, Yan

conceded removability and sought relief in the form of asylum

and   withholding      of    removal;      she         waived     the    right    to    seek

protection under the Convention Against Torture.

      Yan    subsequently         filed   an      application           for   asylum     and

withholding of removal.            There, Yan asserted for the first time

that she had been forced to undergo an abortion in China.                                She

claimed that her pregnancy violated China’s birth control policy

because she did not have a marriage registration or a birth

permit, and that despite her pleas to keep her unborn child, the

clinicians     forcibly          terminated       her       pregnancy.           Yan    also

reiterated her claim that the village chief’s nephew had sought

to marry her, and had vandalized her parents’ home when she

                                             3
refused.       Yan asserted that she feared she would “be forced to

marry a person [she] do[es] not love and do[es] not wish to

marry” if she returned to China.                     (J.A. 69.)

       Yan     attached      several           documents       to   her     application,

including      a    letter     from      her     mother      describing     Yan’s    forced

abortion and the village chief’s nephew’s attempts to marry her,

and a letter from her boyfriend describing the same.

       The IJ held a hearing on the merits of Yan’s claims for

relief.       When asked why she did not mention the abortion during

her initial or credible fear interviews, Yan stated that the

abortion “has been a long time already,” and that during the

interview she was “quite scared and what [she] said was not very

complete.”         (J.A. 338-39.)

       With     respect        to     the        forced      marriage     claim,      Yan’s

allegations regarding the nephew’s visits to her parents’ house

echoed her prior statements, except that for the first time she

stated the nephew visited the home a third time, after she fled

China.        She     claimed       that    once       the   village    chief’s      nephew

realized she had left, “he threw a few things . . . and ate in

[her   parents’]       home.        He     ate    for   free.”      (J.A.    357.)     Yan

“d[id]n’t know” why she failed to mention this third visit in

any of her prior accounts or why her mother failed to mention it

in her letter.          (J.A. 357.)            She also indicated for the first

time that her father had lost his job as a sanitation worker and

                                                 4
that she thought it was because she had refused to marry the

village chief’s nephew. 1        She claimed that although she learned

of   her   father’s    termination     prior    to     completing     her   asylum

application, she had not included the information then because

she “didn’t think about it.”           (J.A. 342.)        Yan did not have an

explanation for why her mother did not mention the father’s job

loss in the letter she wrote to support Yan’s application.

      The IJ continued the proceedings to permit Yan more time to

acquire documentary evidence in support of her claims.                      At the

subsequent merits hearing, Yan submitted a copy of an abortion

certificate dated July 2, 2002, stating that an abortion was

performed on Yan “in this hospital on July 2.”                (J.A. 228.)

      In an oral decision (“September 2005 IJ Decision”), the IJ

denied Yan’s application for relief.                 The IJ first determined

that Yan was not credible with respect to her claim of past

persecution    based    on   a   forced      abortion.        The    IJ   found    it

implausible    that    Yan   would    have    failed     to   mention     having    a

forced     abortion    in    either    of     her    first     two    interviews,

especially given that there were questions specifically asking

Yan whether she or any family members had ever been “threatened

or mistreated.”        (See J.A. 11.)         The IJ also harbored doubts

      1
       Asked whether her father lost his job “because you escaped
. . . because you didn’t marry the nephew of the chief,” Yan
replied, “Maybe, I think so. I think that’s why.” (J.A. 341.)



                                       5
about the abortion certificate’s validity, noting that although

it was purportedly issued in 2005, it bore a 2002 issuance date.

In addition, the IJ noted that a recent U.S. State Department

report    had   cautioned        about    a       “very    high    rate    of   fraud    or

fabrication of documents emanating from” the region of China

where Yan lived.       (J.A. 422-23.)

      With respect to the claim based on the threat of forced

marriage, the IJ found that Yan failed to establish persecution

on account of a protected ground.                   The IJ instead believed that

Yan’s account indicated “a personal dispute between [Yan] and

the person who wants to marry her.”                        (J.A. 423-24.)           The IJ

reasoned that even if Yan’s testimony were accepted in whole,

the   basis     of   her   claim    would         not     fall    within    any     of   the

protected categories for asylum or withholding of removal.

      Yan     appealed     the     IJ’s       decision      to     the     Board,    which

summarily remanded the case for further proceedings in light of

Gao v. Gonzales, 440 F.3d 62 (2d Cir. 2006). 2

      Following the remand but prior to any further proceedings,

Yan moved for a change of venue based on her recent relocation


      2
       In Gao, the Second Circuit held, inter alia, that “women
who have been sold into marriage (whether or not that marriage
has yet taken place) and who live in a part of China where
forced   marriages   are   considered  valid  and   enforceable”
constitute   a  “particular   social  group”  for  purposes   of
establishing eligibility for asylum. 440 F.3d at 70-71.



                                              6
to   Virginia.   The    motion      was   granted    and    Yan’s   case   was

transferred to an IJ in Arlington, Virginia.                During the same

interim period, the Supreme Court granted the petition for writ

of certiorari in Gao, vacated the Second Circuit’s judgment, and

remanded the case for reconsideration in light of Gonzales v.

Thomas, 547 U.S. 183 (2006) (per curiam).                See Keisler v. Gao,

552 U.S. 801 (2007).

     The Virginia IJ denied Yan’s applications for relief and

ordered her removed to China.         In so doing, the IJ noted that

although the Board had remanded the case for reconsideration in

light of Gao, such reconsideration was no longer necessary due

to the transfer of Yan’s case out of the Second Circuit and the

Supreme Court’s action in Gao, each of which made Gao no longer

precedential authority.      The IJ then adopted and reissued in

whole the September 2005 IJ Decision denying Yan’s applications.

     Yan   appealed    the   IJ’s    decision       to    the   Board,   which

dismissed her appeal.    The Board affirmed the IJ’s determination

that reconsideration in light of Gao was no longer necessary.

Turning to the merits of Yan’s case, the Board found no clear

error in the IJ’s finding that Yan “did not credibly establish

that she had a forced abortion in China.”                  (J.A. 535.)     In

addition, the Board found that Yan failed to demonstrate past

persecution on account of a threat of forced marriage because

the conduct she testified to did not “rise[] to the level of

                                      7
past persecution.”             (J.A. 536.)              The Board also agreed with the

IJ that Yan had not demonstrated a “well-founded fear of future

persecution        on    account       of     a    statutorily          enumerated       ground”

because     she    did       not   belong     to       her     proposed      protected    social

group (“women who suffered forced marriage”) given that Yan fled

China    prior     to    being       required          to     marry    the   village     chief’s

nephew.      (J.A.       536.)         The    Board          then    re-characterized         Yan’s

proposed group as “women who have been targeted for forcible

marriage in the past” and concluded that such a group was not

cognizable under the INA because it “is not particularized or

socially visible.”            (J.A. 536.)

      Yan    filed       a    timely    petition             for    review    of   the   Board’s

decision,        and    we    have     jurisdiction            pursuant       to   8   U.S.C.    §

1252(a)(1).



                                                  II.

      We review the Board’s administrative findings of fact under

the     substantial          evidence        rule,          treating     such      findings     as

conclusive “unless the evidence before the [Board] was such that

any reasonable adjudicator would have been compelled to conclude

to the contrary.”              Haoua v. Gonzales, 472 F.3d 227, 231 (4th

Cir. 2007); see 8 U.S.C. § 1252(b)(4)(B)-(D).                                 We review legal

issues      de     novo,       “affording          appropriate          deference        to    the

[Board]’s         interpretation             of        the     INA     and    any      attendant

                                                   8
regulations.”        Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir.

2008).

       The INA authorizes the Attorney General to confer asylum on

any refugee.        See 8 U.S.C. § 1158(a).        To establish eligibility

for the discretionary grant of asylum, Yan has the burden of

showing, inter alia, that she has “suffered past persecution” or

“has a well-founded fear of future persecution” “on account of .

. . membership in a particular social group . . . .”                 8 C.F.R. §

1208.13(b); see Nazigi v. Gonzales, 455 F.3d 484, 486 (4th Cir.

2006).     Yan could proceed to meet this burden in either of two

ways: She could show that she was subjected to past persecution,

in which case a rebuttable presumption arises that she has a

well-founded fear of future persecution.              Ngarurih v. Ashcroft,

371 F.3d 182, 187 (4th Cir. 2004).              Or, regardless of proof of

past persecution, Yan could demonstrate eligibility based solely

on a well-founded fear of future persecution.                 Id.     There is

both   a   subjective    and   an   objective     component   to   this   latter

approach.     The subjective component is satisfied “by presenting

candid, credible, and sincere testimony demonstrating a genuine

fear of persecution.”          Chen v. INS, 195 F.3d 198, 201 (4th Cir.

1999) (quotation marks omitted) (quoting Berrotean-Melendez v.

INS,   955   F.2d    1251,   1256   (9th   Cir.   1987)).     “The    objective

element requires the asylum [applicant] to show, with specific,



                                       9
concrete facts, that a reasonable person in like circumstances

would fear persecution.”           Id. at 202.



                                          A.

     We   have     reviewed    the    record     evidence    and    conclude    that

substantial       evidence    supports     the     IJ’s     adverse    credibility

determination      and   denial      of   relief   on     Yan’s    claim   of   past

persecution on account of having a forced abortion. 3                  The IJ and

the Board articulated three specific and cogent reasons that

raised material concerns as to whether Yan was forced to have an

abortion.     See Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir.

2011) (stating that “the agency must provide specific, cogent

reasons     for    making     an   adverse     credibility        determination”).

Moreover, these concerns go directly “to the heart” of Yan’s




     3
       Yan asserts for the first time on appeal that the IJ did
not actually make an adverse credibility determination, but
rather simply expressed “doubts” as to her credibility.     This
argument is belied by the text of the IJ’s decision, which
unequivocally states, “I’m just not convinced that [Yan’s]
testimony is of a credible nature . . . .”          (J.A. 423.)
Moreover, Yan has waived this challenge by failing to raise it
in her appeal to the Board and by conceding before the Board
that the IJ had made an adverse credibility finding.         See
Farrokhi v. INS, 900 F.2d 697, 700 (4th Cir. 1990) (“[A]n alien
who has failed to raise claims during an appeal to the Board has
waived his right to raise those claims before a federal court on
appeal of the Board’s decision.”).



                                          10
claim. 4   Id. at 273-74.       Those reasons were: (1) Yan’s failure to

mention     being   forced     to    undergo      an   abortion    at    either   her

airport or credible fear interviews, despite being asked whether

she or any family members had been threatened or mistreated in

China; (2) the suspect authenticity of the abortion certificate,

which bore an issuance date of July 2, 2002, even though it was

allegedly obtained by Yan’s father sometime after the May 2005

merits     hearing;     and   (3)    the   U.S.    State   Department         report’s

conclusion       that    “documentation         from    China     is    subject     to

widespread fabrication and fraud,” particularly in Yan’s region

of the Fujian Province, including “documents that purportedly

verify . . . births and birth control measures.”                   (J.A. 207-10.)

Because     substantial       evidence      supports     the    IJ’s    credibility

determination, we will not disturb his conclusion that Yan was

not entitled to asylum or withholding of removal as to this

claim.     See Djadjou, 662 F.3d at 273-75.



                                           B.

     Yan also appeals the Board’s denial of her petition for

asylum     and   withholding        of   removal   arising      from    the   village

     4
       Because Yan’s application was filed prior to May 11, 2005,
the provisions of the REAL ID Act changing this rule regarding
credibility determinations do not apply to her application. See
8 U.S.C. § 1158(b)(1)(B)(iii).    Instead, her case is reviewed
under the prior standards. See Djadjou, 662 F.3d at 274 n.1.



                                           11
chief’s nephew’s attempts to marry her.                       She claims that the

events        precipitating      her     leaving       China       constitute        “past

persecution” under the INA, and that those events also credibly

establish her fear of future persecution in the form of being

subjected to forced marriage should she return to China.

        Yan    challenges     more     than    just    the    IJ   and    the   Board’s

dispositive ruling as to this claim.                  She also contends that the

Virginia IJ erred as a matter of law in ignoring the Board’s

previous remand of her case for reconsideration in light of Gao,

and that her case should be reversed and remanded for the IJ to

apply Gao.       We reject Yan’s argument because it would require us

to ignore two controlling and superseding facts that modified

the     basis    for    the    Board’s    remand.            First,     the   case     was

originally being considered within the Second Circuit, and the

Board    remanded       for   reconsideration         in   light   of    then-existing

Second Circuit precedent (Gao) that would have been binding on

an IJ within the Second Circuit.                      Upon transfer to a venue

within the Fourth Circuit, Yan’s case was no longer governed by

Second    Circuit       precedent.       The    transfer       thus     nullified     any

binding impact of Gao on Yan’s claims.                     See, e.g., In re Yanez-

Garcia, 23 I. & N. Dec. 390, 399-400 (BIA 2002) (acknowledging

that     the    Board    is    “bound    to     follow       the   Second     Circuit’s

[precedent] in cases arising within that court’s jurisdiction,”



                                          12
but would apply a contrary view held by the Board to cases

arising “outside the Second Circuit”).

      Second, and of at least equal importance, the Supreme Court

issued     an    order        granting      certiorari     in   Gao,    vacating     the

judgment below, and remanding the case for reconsideration.                          See

Gao, 552 U.S. 801.              While Yan quibbles over the basis for the

Supreme    Court’s       action,      the    fact   remains     that   Gao    has    been

vacated.         The     IJ     did   not     err   in    determining     that      these

developments altered the basis for the remand, and the Board did

not err in agreeing with that assessment.

      With respect to the merits of Yan’s claim, we hold that

substantial evidence supported the Board’s conclusion that Yan

has not demonstrated that she suffered past persecution.                              For

purposes of the INA,

      [p]ersecution involves the infliction or threat of
      death, torture, or injury to one’s person or freedom,
      on account of one of the enumerated grounds in the
      refugee definition.    Although the term ‘persecution’
      includes actions less severe than threats to life or
      freedom, actions must rise above the level of mere
      harassment to constitute persecution.    Persecution is
      an extreme concept that does not include every sort of
      treatment that our society regards as offensive.

Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (internal

quotation marks and citations omitted); see Mirisawo v. Holder,

599   F.3d      391,   396     (4th   Cir.     2010)     (describing    the   sort    of

economic, i.e., non-physical persecution that would satisfy the

INA’s strictures).            Yan’s evidence regarding the village chief’s

                                              13
nephew’s desire to marry her and his behavior after she refused

simply does not persuade us that a reasonable fact-finder must

conclude that Yan had been “persecuted” within the meaning of

the INA.         Moreover, a decade has passed since Yan fled China

without any indication that the nephew still seeks to force her

into       a   marriage      or   has   taken    any     action   toward   her   family.

Accordingly, having failed to establish past persecution, Yan

was not entitled to a presumption of a well-founded fear of

future persecution.               See Ngarurih, 371 F.3d at 187; see also 8

C.F.R. § 1208.13(b)(1).

       Furthermore, because Yan relies on the same insufficient

evidence        of    past    persecution       to     also   establish    her   fear   of

persecution if returned to China, Yan cannot, as a matter of

law, establish that she possesses a well-founded fear of future

persecution. 5         An alien whose evidence of past mistreatment does

not    rise      to   the    level      of   persecution      “cannot   prove    a   well-

founded fear of future persecution merely by relying on the past

mistreatment.          Instead, the alien must prove that she has reason

to believe she will be treated worse, i.e., persecuted, upon

return to her native country.”                       Li, 405 F.3d at 176-77 (citing


       5
       That Yan relies on the same evidence to prove both past
persecution and fear of future persecution is readily apparent
not only from the record and briefing in this case, but also
from a concession by Yan’s counsel during oral argument.



                                                14
Zalega v. INS, 916 F.2d 1257, 1261 (7th Cir. 1990) (internal

citation   omitted)).       Accordingly,   Yan   cannot   establish

eligibility for asylum. 6

     Because the standard for statutory withholding of removal

is more stringent than the standard for granting asylum, Yan’s

failure to establish eligibility for asylum necessarily means

she cannot meet the higher standard for withholding of removal.

See Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004).




     6
       The Board denied Yan’s claim of future persecution on the
ground   that   Yan’s  particular  social   group   was  neither
particularized nor socially visible.   We are of course mindful
that “except in rare circumstances,” the Court may not consider
issues in an administrative appeal that the agency has not first
decided.   See Thomas, 547 at 185-87; INS v. Ventura, 537 U.S.
12, 16-17 (2002) (per curiam); see also Lin, 517 F.3d at 694
n.12.   On full consideration of the scope of our authority and
the relevant precedent, we conclude that this case presents one
of those appropriate circumstances in which our decision rests
on a clear question of law rather than fact.        We are also
confident that the Board’s decision as to this issue would be “a
foregone conclusion” and remand for consideration in the first
instance a “mere formality.” See Hussain v. Gonzales, 477 F.3d
153, 158 (4th Cir. 2007) ("Because the result of a remand to the
Board is a foregone conclusion such that remand would amount to
nothing more than a mere formality, we find that the Ventura
'rare circumstances' exception applies."); see also id. at 157-
58.



                                 15
                                III.

    For   the   foregoing   reasons,   we   deny   Yan’s   petition   for

review.

                                                       PETITION DENIED




                                 16
