                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                               ________________________           FILED
                                                         U.S. COURT OF APPEALS
                                      No. 10-11921         ELEVENTH CIRCUIT
                                  Non-Argument Calendar    NOVEMBER 29, 2010
                                ________________________        JOHN LEY
                                                                 CLERK
                                  Agency No. A098-559-278


SHUI-HAH CHONG,

lllllllllllllllllllll                                                      Petitioner,


                                            versus

U.S. ATTORNEY GENERAL,

lllllllllllllllllllll                                                    Respondent.

                                ________________________

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

                                     (November 29, 2010)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

         Shui-Hah Chong is a citizen of Malaysia who came to the United States on a
student visa in 1995. Chong continued her studies in this country until 2003. Two

years later, the Department of Homeland Security began removal proceedings

against Chong after she failed to comply with her visa’s conditions. Chong then

filed an application for asylum and withholding of removal under both the

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

Against Torture (CAT).

      In her application and at a hearing on its merits, Chong claimed that while

living in Malaysia she was once verbally harassed because of her Chinese

ethnicity. She testified that she was also subjected to vulgar sexual remarks

during the same incident. Chong further said that she feared persecution if she

returned to Malaysia because she is a practicing Christian and a woman.

      The immigration judge (IJ) denied Chong relief. The IJ ruled that Chong’s

asylum application was untimely and that she had established neither a reasonable

probability of future persecution nor that it was more likely than not that she

would be subjected to torture upon her return to Malaysia. Chong appealed to the

Board of Immigration Appeals (BIA), which affirmed the IJ’s decision without




                                          2
opinion. She now petitions this court for review of the IJ’s decision denying her

withholding-of-removal claims.1

       First we must note that we cannot review Chong’s withholding-of-removal

claim under the INA. Although Chong’s notice of appeal to the BIA indicated that

she was appealing both the IJ’s order denying withholding of removal under the

INA and the CAT, her brief before the BIA only addressed her CAT claim. As

such, the INA claim was not exhausted and we are without jurisdiction to review

it. 8 U.S.C. § 1252(d)(1).

       In evaluating Chong’s remaining withholding-of-removal claim, we review

the IJ’s decision, which was adopted without elaboration by the BIA. Kazemezdah

v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). We review the IJ’s legal

conclusions de novo, and will not disturb factual findings unless they are so

unsubstantiated by the record that we are compelled to do so. Id. at 1350–51.

       To establish withholding of removal under the CAT, Chong must

demonstrate that if she were to return to Malaysia it is “more likely than not” that

she would be tortured “by or at the instigation of[,] or with the consent or


       1
          Chong concedes that we cannot review the IJ’s asylum ruling because she did not
appeal that decision to the BIA. See 8 U.S.C. § 1252(d)(1) (prohibiting review of unexhausted
claims). Nor may we consider Chong’s due-process claim because it was not raised before the
BIA. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006).
Accordingly, that part of her petition is dismissed.

                                               3
acquiescence of[,] a public official or other person acting in an official capacity.”

8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1).

      Chong argues that her testimony alone, which the IJ found credible,

qualifies her for relief. Although in some instances a petitioner’s testimony by

itself will justify relief, see 8 C.F.R. § 1208.16(c)(2), that is not always the case.

Here, Chong did not testify that she had been tortured in the past. See 8 C.F.R.

§ 1208.16(c)(3). Nor did she testify that the verbal harassment she endured was

perpetrated by government officials or at their behest. Even if it had been, mere

harassment is not torture. See id. § 1208.18(a); cf. Sepulveda v. U.S. Att’y Gen.,

401 F.3d 1226, 1231 (11th Cir. 2005). And Chong never testified that she feared

being tortured if she returned to Malaysia.

      The only evidence of torture Chong submitted was in two reports on human

rights in Malaysia, one written by the State Department and the other by Amnesty

International. The State Department report mostly detailed the abuse of

immigrants in government custody, and the other instances it chronicled, although

still serious, were isolated rather than pervasive. And Amnesty International’s

report only addressed the torture of suspected terrorists. Despite these isolated

instances of torture, Chong presented no evidence of how the reports established

that it was more likely than not that she would be tortured upon her return to

                                            4
Malaysia. Without such evidence we cannot say that IJ should have been

compelled to grant Chong relief in the first place, so we may not grant her relief

either.

          PETITION DISMISSED IN PART AND DENIED IN PART.




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