The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
SEP 15, 2011
JOHN LEY
No. 11-10197 CLERK
Non-Argument Calendar
________________________
Agency No. A088-372-155
YING JIANG,
RENWU ZHENG,
a.k.a. Ren Zheng,
llllllllllllllllllllllllllllllllllllllll Petitioners,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 15, 2011)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Ying Jiang, the lead petitioner, and her husband, Renwu Zheng
(collectively, “Petitioners”), jointly petition for review of the Board of
Immigration Appeals’s (“BIA”) order affirming the Immigration Judge’s (“IJ”)
denial of asylum pursuant to the Immigration and Nationality Act (“INA”) § 208,
8 U.S.C. § 1158, withholding of removal under the INA § 241(b)(3), 8 U.S.C. §
1231(b)(3), and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R.
§ 208.16(c). Petitioners argue the BIA erred by reviewing their well-founded fear
of persecution de novo and by reweighing the record evidence. They also argue
they established their eligibility for asylum, withholding of removal, and CAT
relief based upon a well-founded fear of persecution under China’s family
planning policy.
I.
“We review questions of law de novo, with appropriate deference to the
BIA’s reasonable interpretation of the [INA].” Assa’ad v. U.S. Att’y Gen., 332
F.3d 1321, 1326 (11th Cir. 2003) (citation omitted). We defer to the agency’s
“interpretation of its own regulations unless that interpretation is plainly erroneous
or inconsistent with the regulation.” Id. (internal quotation marks omitted).
2
The BIA may not “engage in de novo review of findings of fact determined
by an immigration judge,” but may review an immigration judge’s factual
determinations only to assess whether those determinations were clearly
erroneous. 8 C.F.R. § 1003.1(d)(3)(i). Furthermore, except for taking
administrative notice of commonly known facts, the BIA is not permitted to
engage in factfinding in the course of deciding appeals. Id. at § 1003.1(d)(3)(iv).
But the BIA “may review questions of law, discretion, and judgment and all other
issues in appeals from decisions of immigration judges de novo.” Id. at
§ 1003.1(d)(3)(ii). Under its precedent, the BIA reviews de novo whether the facts
establish a well-founded fear of future persecution. See Matter of A-S-B-, 24 I. &
N. Dec. 493, 496–98 (BIA 2008), abrogated on other grounds by Huang v. U.S.
Att’y Gen., 620 F.3d 372 (3d Cir. 2010). As such, the BIA “is entitled to weigh
the evidence in a manner different from that accorded by the Immigration Judge,
or to conclude that the foundation for the Immigration Judge’s legal conclusions
was insufficient or otherwise not supported by the evidence of record.” Id. at 497.
Here, the BIA did not apply the wrong standard of review, nor did it err by
reviewing de novo the IJ’s finding that Petitioners failed to establish a
well-founded fear of future persecution. See id. at 496–98. Whether an alien has
established a well-founded fear does not involve a simple factual determination;
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rather, it involves the application of the law to the facts. Therefore, the BIA’s
interpretation of its own regulation, in this regard, is neither plain error, nor
inconsistent with the regulations.
Moreover, the record shows the BIA did not engage in de novo factfinding;
rather, it properly considered de novo whether the facts in the record amounted to
an objectively well-founded fear of future persecution. See 8 C.F.R.
§ 1003.1(d)(3)(ii); Matter of A-S-B-, 24 I. & N. Dec. at 496–98. The BIA was also
entitled to reweigh the evidence, to the extent it did so, in concluding that
Petitioners’ evidence was insufficient to establish an objectively well-founded fear
of future persecution. See Matter of A-S-B-, 24 I. & N. Dec. at 497.
II.
Having determined that the BIA’s method of analysis was appropriate, we
now turn to its conclusions. Because the BIA issued a decision and did not
expressly adopt the IJ’s opinion, we review only the BIA’s decision. See Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review the BIA’s
interpretation of applicable statutes de novo and its findings of fact for substantial
evidence. Id. at 1283–84. Under the substantial evidence standard, we must
affirm the BIA’s decision if it is “‘supported by reasonable, substantial, and
probative evidence on the record considered as a whole.’” Id. at 1284 (quoting
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Lorisme v. INS, 129 F.3d 1441, 1444–45 (11th Cir. 1997)). “When reviewing for
substantial evidence, we do not ask whether the evidence presented by an
applicant might support a claim for relief; instead, we ask whether the record
compels us to reverse the finding to the contrary.” Djonda v. U.S. Att’y Gen., 514
F.3d 1168, 1175 (11th Cir. 2008) (emphasis added).
An applicant may prove a well-founded fear of future persecution, and
thereby qualify for asylum, by demonstrating a subjectively genuine and
objectively reasonable fear of persecution on account of a protected ground. See
Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1199–1200 (11th Cir. 2009) (per
curiam). Asylum claims based on China’s one-child policy must be evaluated on a
case-by-case basis. In re J-H-S-, 24 I. & N. Dec. 196, 198, 201 (BIA 2007). To
demonstrate an objectively reasonable fear, the alien must establish: (1) “the
details of the family planning policy relevant to [the alien]”; (2) “the alien violated
the policy”; and (3) “the violation of the family planning policy would be
punished in the local area in a way that would give rise to an objective fear of
future persecution.” Id. at 198–99. Fines may amount to persecution if they cause
a “severe economic disadvantage.” In re T-Z-, 24 I. & N. Dec. 163, 173 (BIA
2007). To meet the severe economic disadvantage standard, the fine should
reduce the alien “to an impoverished existence.” See id. at 174.
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Based on our review of the evidence, we cannot say the BIA’s
determination was not supported by substantial evidence, nor can we say the
record compels the contrary finding. The record (1) contains little, if any,
evidence from similarly situated individuals that would support a finding of an
objectively reasonable fear of persecution; (2) includes evidence indicating that
forced sterilizations were not common in Fujian Province; and (3) suggests that
Petitioners’ children, who are United States citizens, may not be counted for birth
planning purposes upon their return to China. Additionally, even assuming
Petitioners would be subjected to a fine, they failed to prove such a fine would
cause “severe economic disadvantage” and reduce their family “to an
impoverished existence.” See In re T-Z-, 24 I. & N. Dec. at 173–74. The
foregoing does not compel a finding that the BIA’s decision was unsupported by
the record.
Though we sympathize with Petitioners and do not doubt their subjective
fears, this record does not compel us to find those fears of persecution are
objectively reasonable. Consequently, we must deny their petition for review.1
PETITION DENIED.
1
Because Petitioners have not demonstrated an objectively reasonable fear of
persecution, they have failed to establish their eligibility for asylum. See Mehmeti, 572 F.3d at
1199–1200. And by extension, they have failed to satisfy the more stringent burdens for
withholding of removal and CAT relief. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1288 n.4
(11th Cir. 2005) (noting that a failure to establish eligibility for asylum on the merits necessarily
entails ineligibility for withholding of removal and CAT relief).
6