Torben Kjaer Soendergaard v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11629
Non-Argument Calendar
____________________
TORBEN KJAER SOENDERGAARD,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A203-505-087
____________________
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2 Opinion of the Court 23-11629
Before W ILSON , L UCK , and A BUDU , Circuit Judges.
PER CURIAM:
Torben Kjaer Soendergaard, a native and citizen of Den-
mark, petitions for review of the Board of Immigration Appeals’
(“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of asy-
lum, and the BIA’s denial of his motion to remand the case for the
IJ to consider new evidence. First, Soendergaard argues that there
was not substantial evidence to support the BIA’s determination
that he did not have an objective fear of future persecution based
on his religious beliefs and practices. Second, he argues that the
BIA should have remanded the case to the IJ, and that the BIA
abused its discretion in denying his motion to remand in light of a
recording that was taken during his individual hearing before the
IJ. After review, we deny in part and dismiss in part Soendergaard’s
petition.
I. FACTUAL BACKGROUND & PROCEDURAL
HISTORY
In January 2019, Soendergaard was admitted to the United
States as a visitor without a visa for a period not to exceed three
months. However, he remained in the United States without au-
thorization for longer than the approved three-month period. In
June 2022, the Department of Homeland Security (“DHS”) sent a
notice of intent to issue a final administrative removal order, charg-
ing Soendergaard with remaining in the United States beyond his
approved period. Soendergaard admitted the allegations in the
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23-11629 Opinion of the Court 3
notice, but he petitioned for asylum based on a fear of persecution
because of his religion.1
At an individual hearing before the IJ, Soendergaard testified
about the conditions in Denmark that led him to apply for asylum.
He stated that he became a Christian at age 18 and practiced Pen-
tecostal-Charismatic Christianity. He was part of a ministry called
“The Last Reformation,” which he founded in 2011. He explained
that he grew up Lutheran, the predominant religion in Denmark.
However, in 1995, he went to a Pentecostal church and converted.
From there, he became very involved in the Pentecostal religion
and began the practice of “casting out demons” around 2001. He
started his ministry in Denmark around 2001 or 2002, and later
started a YouTube channel and Facebook page, where his following
grew. According to him, there were only around 5,000 Pentecostals
in Denmark.
Soendergaard further testified that he authored a book enti-
tled “The Last Reformation,” explaining that his ministry wanted
to see a reformation of the church which challenged the Lutheran
church’s ideologies. He explained that “The Last Reformation”
was more akin to a “movement” and there was no formal
1 Soendergaard also petitioned for withholding of removal and for relief under
the United Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, which the IJ and BIA denied. We are
not reviewing those denials because Soendergaard failed to challenge them in
his petition for review. See Ruga v. U.S. Att’y Gen., 757 F.3d 1193, 1196 (11th
Cir. 2014) (holding that issues not raised in a petitioner’s brief on appeal are
abandoned).
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4 Opinion of the Court 23-11629
membership. He claimed that his YouTube channel had around 46
million views and 150,000 subscribers, and he had followers on Fa-
cebook from around 70 countries with more than 1,000 house fel-
lowships. He also claimed that “The Last Reformation” had several
physical schools in different countries, online schools, Bible
schools, 3 movies in 49 languages, and a podcast, and had a pres-
ence in all 50 states. As the founder, Soendergaard was the main
face of “The Last Reformation,” and he often appeared on the
church’s website, in movies, and in some online teachings.
According to Soendergaard, the practice of casting out de-
mons involved praying, sometimes alone and sometimes in a
group, and could last from a few minutes to a few hours. He stated
that the practice could be scary and violent, with participants need-
ing to be held down by three to five people, and that the partici-
pants would sometimes try to hurt others or themselves. He stated
that he had participated in the practice of casting out demons for
around 21 years, and said he “cast out demons” from children as
young as nine years old and elderly people.
Soendergaard testified that the church had participated in
three movies and a Danish television show. He stated that around
2017, a man approached him to talk about a documentary that
Soendergaard believed would be about repentance and deepening
other people’s faith. However, from Soendergaard’s perspective,
the 2019 documentary, entitled “G-d’s Best Children,” painted “The
Last Reformation” in a negative light. He claimed the documen-
tary depicted him and other members of the ministry as dangerous
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23-11629 Opinion of the Court 5
and presented the casting out of demons as traumatizing. After the
documentary aired, people talked about it on the news and online,
and Soendergaard received threats stating that he needed to go to
jail and stop abusing women.
Soendergaard stated that when the second part of the docu-
mentary aired, he continued to receive threats, and the Danish gov-
ernment and children’s advocacy organizations started voicing
their concerns. Government members talked about the documen-
tary in the news, and the documentary was used to bolster support
for a law already in progress that was aimed at protecting people
from mental abuse. He claimed that the Danish parliament also
began discussing the documentary and possible legal actions
against Soendergaard to outlaw his practice of casting out demons.
Soendergaard testified that the final part of the documen-
tary series painted him as a fraud. He stated that, in the documen-
tary, he was interviewed and asked if he had taken medicine away
from people, and he said that he had not. However, according to
Soendergaard, the documentary showed otherwise and took his
words out of context. He also claimed that the documentary
showed another man named Christian, who had been convicted of
quackery2 in 2011 in Denmark, and the documentary stated that
people should go after Soendergaard the same way.
2 According to Soendergaard, in Denmark, “quackery” was a promise of a re-
sult without having proof, such as someone treating another without having
a license.
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6 Opinion of the Court 23-11629
Soendergaard further testified that after the final part of the
documentary aired, politicians and the media continued to call for
an investigation into his activities and for criminal penalties. He
said that he also continued to receive threats to his life.
Soendergaard stated that, before leaving Denmark, in 2017
and 2018 six different government agencies spoke with him related
to claims that students in his ministry were working unlawfully,
that there were fire hazards in his ministry building, the ministry
was not paying taxes, the building was not up to code, and they had
heard that Soendergaard was abusing his family. None of these
government investigations resulted in his arrest or criminal
charges, and he was never officially accused of any wrongdoing.
Soendergaard testified that he did not originally come to
America to seek asylum. However, he explained that while he had
been in the United States, everyone was afraid, including the stu-
dents at his schools. The teachers and students were afraid that
people would come after them, so no one came to the schools and
several facilities closed. Soendergaard came to the United States
hoping that the problems would disappear, but the situation con-
tinued to worsen as politicians continued talking about him. Alt-
hough Soendergaard and his family initially did not want to seek
asylum or stay in the United States, the worsening conditions and
the passage of a new law, § 243 of the Danish Criminal Code, made
them decide to file for asylum.
Soendergaard referred to this new law, which went into ef-
fect in April 2019, as a mental abuse law. Under the law, he believed
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23-11629 Opinion of the Court 7
he could face prison time for casting out demons as a form of men-
tal abuse. He asserted that Denmark already viewed him as guilty,
so he could not have meetings, pray for people, or worship with
people if returned to Denmark. Although the law did not specifi-
cally reference “casting out demons,” to him, it was clear from the
law that he was being targeted because people were pressing the
Danish government to pass the law to condemn him. He stated
that, if he returned to Denmark, he would not stop his ministry
and would continue to practice casting out demons, but he feared
being continuously jailed for doing so. He stated there was no way
to practice his faith without casting out demons, and that he would
continue to be imprisoned as politicians and child advocates came
after him. He expressed that it was not possible for him to move to
another part of Denmark because the country was so small. He
acknowledged that there were other Pentecostal-Charismatic min-
isters in Denmark, but he stated he was the only minister who prac-
ticed casting out demons. His friend Christian had practiced it, but
the government came after him, so he left Denmark.
Soendergaard acknowledged that he had been freely “cast-
ing out demons” since 2002, and that before the documentary came
out, no one from the government pressed him about the issue. Ev-
idence was presented of the Danish law Soendergaard opposed,
which provided, in relevant part:
a person who belongs to, or is closely associated with
the household of another person, or who has previ-
ously had such an association with the household,
and who repeatedly, over a period of time subjects the
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8 Opinion of the Court 23-11629
other person to grossly degrading, harassing, or abu-
sive behavior, that is likely to control the other person
in an undue manner, shall be punished for physical vi-
olence by a fine, or by imprisonment for up to three
years.
Soendergaard believed that the law targeted him given the
government and the media’s portrayal of him that led to the law’s
passage. He knew there were still people in Denmark who fol-
lowed “The Last Reformation,” and were meeting surreptitiously
to avoid any conflicts. Additionally, he acknowledged that people
still practiced casting out demons in Denmark without being pros-
ecuted or charged, but he believed that was because no one knew
they were doing it and noted that many people had stopped. He
further acknowledged that his son remained in Denmark and that
no one from the Danish government had approached him.
Soendergaard admitted he was never accused of, or charged
by the government of, abusing anyone. Instead, he stated that he
and his family were worried that they would be arrested based on
a phone call he received from a friend telling him to leave Den-
mark. This friend did not work for the police or the government,
but instead worked for another ministry and was aware of the
changes in the law.
Soendergaard then called Dr. Michael Brown to testify on his
behalf, and Dr. Brown stated that he was an author and host of a
national radio show where he discussed religious persecution
worldwide. He met Soendergaard in 2019 and was familiar with
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23-11629 Opinion of the Court 9
the documentary on “The Last Reformation.” Dr. Brown had not
written about religious persecution in Denmark but had per-
formed some general research about religious persecution in Scan-
dinavia. He testified that Soendergaard’s ministry in Denmark was
perceived as cult-like, abnormal, and a challenge against the estab-
lished Lutheran religion. He believed that Danish society would
view Soendergaard as dangerous to Denmark’s religious institu-
tions because the name “The Last Reformation” suggested those
institutions were deeply flawed. He believed Soendergaard’s fears
of going back to Denmark were justified, and that there was a risk
that his children would be taken from him or that he would not be
able to practice his faith freely. Dr. Brown was not familiar with
anyone else in Denmark whose ministry was taken away from
them, but he did know that some Danish Christians had come to
the United States seeking more religious freedom. He maintained
that Soendergaard, however, was in a different situation because he
practiced his faith more publicly.
Ultimately, the IJ denied Soendergaard’s application for asy-
lum. The IJ found Soendergaard credible but determined that he
failed to establish past persecution or a well-founded fear of future
persecution. To past persecution, the IJ found that Soendergaard
had not pointed to the past persecution of any individuals or him-
self. As to a well-founded fear of future persecution, the IJ found
that Soendergaard met the subjective component of a persecution
claim because he showed that he was personally afraid of what
would happen to him and his family if they returned to Denmark.
However, as to the objective component, the IJ found that
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10 Opinion of the Court 23-11629
Soendergaard had not shown that he would be subjected to any
type of future persecution based on his religious beliefs.
Soendergaard appealed the IJ’s decision to the BIA. While
his appeal was pending, he also filed a motion to remand before the
BIA. In the motion, Soendergaard argued that, during the hearing
before the IJ, an activist critical of Soendergaard illegally recorded
the hearing and later disseminated the video online, which alerted
the Danish population and government of his claims of persecu-
tion. He stated that several media platforms referenced the video,
including a press outlet associated with the Danish National
Church. He also asserted that members of the Danish government
discovered the video and discussed it on Facebook. He argued that
this evidence previously was unavailable and, thus, newly discov-
ered and showed an even greater probability of persecution upon
return to Denmark, where he would be deemed a radical cult
leader. Thus, he requested that the BIA remand to the IJ for con-
sideration of this new evidence.
Ultimately, the BIA dismissed Soendergaard’s appeal and de-
nied his motion to remand. As to his appeal, the BIA held that
Soendergaard failed to show a well-founded fear of future persecu-
tion rather than a fear of prosecution under fairly administered
laws. The BIA found that other followers of “The Last Refor-
mation” had continued to “cast out demons” in Denmark but had
not been arrested or harmed by the passage of § 243. It also found
that, although Soendergaard referenced his friend who left Den-
mark after facing prosecution, the friend was prosecuted for
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23-11629 Opinion of the Court 11
quackery before the passage of § 243, and Soendergaard failed to
establish that a friend or other similarly situated individual had
been arrested or harmed by public officials on account of their re-
ligion after the passage of § 243. The BIA also found that a member
of the Danish parliament’s reference to the documentary in sup-
port of the law did not by itself adequately show that the law con-
cerning psychological abuse was designed to target Soendergaard
or the practice of casting out demons. It found that, although in-
dividuals called for his prosecution under quackery or child abuse
laws after the documentary aired, he was never charged with these
offenses, and he did not establish evidence of pretextual prosecu-
tions or unfair trial procedures in Denmark that would demon-
strate a well-founded fear of persecution. Thus, the BIA affirmed
the IJ’s decision denying asylum.
As to Soendergaard’s motion to remand, the BIA found that
the Danish public was already aware of Soendergaard’s religious
practices, and the additional information did not adequately show
that Danish officials would punish individuals who had sought asy-
lum in other countries, that they intended to engage in conduct
constituting persecution or torture, or that they had arrested any-
one similarly situated under the new law. Thus, the BIA found that
remand would be unwarranted because it likely would not change
the result of the case. Soendergaard now petitions this Court for
review.
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12 Opinion of the Court 23-11629
II. ANALYSIS
A. Substantial Evidence Supports the BIA Denial of Soen-
dergaard’s Application for Asylum.
We review only the decision of the BIA, except to the extent
that the BIA expressly adopts or explicitly agrees with the IJ’s deci-
sion. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016).
In deciding whether to uphold the BIA’s decision, we are limited to
the grounds upon which the BIA relied. Id.
We review legal conclusions de novo and review factual find-
ings for substantial evidence. Perez-Zenteno v. U.S. Att’y Gen., 913
F.3d 1301, 1306 (11th Cir. 2019). Under the substantial evidence
standard, we “view the record evidence in the light most favorable
to the agency’s decision and draw all reasonable inferences in favor
of that decision.” Id. (internal quotation marks omitted) (quoting
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc)).
Under this standard of review, “we must affirm the BIA’s decision
if it is supported by reasonable, substantial, and probative evi-
dence” in consideration of the entire record. Id. (internal quotation
marks omitted) (quoting Muhumed v. U.S. Att’y Gen., 388 F.3d 814,
818 (11th Cir. 2004)). To reverse the BIA, we “must find that the
record not only supports reversal, but compels it.” Id. (internal
quotation marks omitted) (quoting Mendoza v. U.S. Att’y Gen., 327
F.3d 1283, 1287 (11th Cir. 2003)). “[T]he mere fact that the record
may support a contrary conclusion is not enough to justify a rever-
sal.” Adefemi, 386 F.3d at 1027.
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23-11629 Opinion of the Court 13
To meet the burden of establishing eligibility for asylum, a
noncitizen must, “with specific and credible evidence,” establish
(1) past persecution based on a statutorily protected ground, or
(2) a “well-founded fear” that the noncitizen will be persecuted on
account of a protected ground. Diallo v. U.S. Att’y Gen., 596 F.3d
1329, 1332 (11th Cir. 2010); 8 C.F.R. § 1208.13(a), (b). The pro-
tected grounds include, among other things, religion and political
opinion. 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a), (b). Per-
secution “is an extreme concept,” which requires “more than a few
isolated incidents of verbal harassment or intimidation,” because
“mere harassment does not amount to persecution.” De Santama-
ria v. U.S. Att’y Gen., 525 F.3d 999, 1008 (11th Cir. 2008) (internal
quotation marks omitted) (quoting Sanchez Jimenez v. U.S. Att’y
Gen., 492 F.3d 1223, 1232 (11th Cir. 2007)). Additionally, “[p]erse-
cution . . . does not include every sort of treatment that our society
regards as offensive.” Min Yong Huang v. Holder, 774 F.3d 1342, 1346
(11th Cir. 2014) (internal quotation marks omitted) (quoting Shi v.
U.S. Att’y Gen., 707 F.3d 1231, 1235 (11th Cir. 2013)).
Establishing “past persecution creates a rebuttable presump-
tion of a well-founded fear of future persecution.” Id. at 1007. In
the absence of past persecution, an asylum applicant may establish
a well-founded fear of future persecution that is subjectively genu-
ine and objectively reasonable based on a statutorily protected
ground. Id. The objective component requires that the applicant
show a reasonable possibility of suffering persecution, either by be-
ing singled out for persecution or being identified with a persecuted
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14 Opinion of the Court 23-11629
group. Li Shan Chen v. U.S. Att’y Gen., 672 F.3d 961, 965 (11th Cir.
2011).
We have held that “having to practice religion underground
to avoid punishment is itself a form of persecution.” Kazemzadeh v.
U.S. Att’y Gen., 577 F.3d 1341, 1354 (11th Cir. 2009). However, we
have also held that “[f]ear of prosecution under fairly administered
laws . . . does not ordinarily entitle [a noncitizen] to asylum.”
Scheerer v. U.S. Att’y Gen., 445 F.3d 1311, 1315 (11th Cir. 2006). “If,
however, the [noncitizen] shows the prosecution is based on a stat-
utorily-protected ground, and if the punishment under that law is
sufficiently extreme to constitute persecution, the law may provide
the basis for asylum . . . even if the law is generally applicable.” Id.
at 1316.
On appeal, Soendergaard argues that the BIA erred in con-
cluding he was not entitled to asylum. He contends that the evi-
dence he presented supports the finding that he was singled out by
Danish politicians during the passage of § 243 and that, if removed,
he would be forced to practice his religion in hiding.
Here, substantial evidence supports the BIA’s determination
that Soendergaard failed to meet his burden of demonstrating an
objective fear of persecution based on his religious beliefs and prac-
tices if he were removed to Denmark. De Santamaria, 525 F.3d at
1007. As the BIA recognized, a fear of prosecution under fairly ad-
ministered laws does not ordinarily entitle a noncitizen to asylum.
Scheerer, 445 F.3d at 1316. Based on Soendergaard’s own testi-
mony, § 243 on its face does not single out him or his religion, nor
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23-11629 Opinion of the Court 15
has the law been used to single out followers of “The Last Refor-
mation” that were still in Denmark, including Soendergaard’s son.
The only person that Soendergaard pointed to who was prosecuted
by the Danish government for their beliefs was prosecuted in 2011
under a different law for quackery. Also, even if Soendergaard
could show that § 243 was generally applicable, yet still used to sin-
gle out him and his religion, he showed at best that Danish society
viewed him and his ministry as cult-like and that the Danish gov-
ernment saw him as challenging the state religion and had concerns
that his ministry’s practices could potentially cause physical or
mental harm to the practitioners. However, this does not rise to
the extreme level of persecution that would entitle Soendergaard
to relief. Min Yong Huang, 774 F.3d at 1346; Scheerer, 445 F.3d at
1315.
Further, Soendergaard failed to show the law would conflict
with his freedom to openly practice his religion. Soendergaard tes-
tified that no one from his ministry was prosecuted under § 243,
and Dr. Brown testified that he was not aware of the Danish gov-
ernment taking away anyone’s ministry. Although Soendergaard
and Dr. Brown both testified that Soendergaard was different be-
cause he practiced his religion more publicly, the evidence shows
that Soendergaard was “casting out demons” since 2002, and no
one from the government had questioned him. Further, Soender-
gaard testified that the government investigated him before and af-
ter the documentary, but there was never any finding of wrongdo-
ing, and he was never accused or charged by the government of
abusing anyone. Soendergaard has not provided any evidence,
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16 Opinion of the Court 23-11629
absent his own unsubstantiated fears, that the Danish government
would do anything different upon his return to Denmark or would
limit the exercise of his religion, and those unsubstantiated fears do
not compel reversal of the BIA’s decision. Perez-Zenteno, 913 F.3d
at 1306. Thus, we deny his petition for review.
B. The BIA Did Not Abuse Its Discretion in Denying Soen-
dergaard’s Motion to Remand.
When a petitioner files a motion to remand with the BIA
seeking to introduce evidence that had not been previously pre-
sented, such motion is generally treated as a motion to reopen.
Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1286 (11th Cir. 2008). We
review for an abuse of discretion the BIA’s denial of a motion to
reopen. Id.
Motions to reopen are disfavored. Jiang v. U.S. Att’y Gen.,
568 F.3d 1252, 1256-57 (11th Cir. 2009). Thus, we give significant
discretion to the BIA to deny a motion to reopen, “even where the
movant has made a prima facie case that reopening would other-
wise be appropriate.” Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860,
873 (11th Cir. 2018). The BIA may deny a motion to reopen where
the movant fails to produce evidence that was material and previ-
ously unavailable. Id. A noncitizen “who attempts to show that
the evidence is material bears a heavy burden and must present ev-
idence that demonstrates that, if the proceedings were opened, the
new evidence would likely change the result in the case.” Jiang,
568 F.3d at 1256-57.
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23-11629 Opinion of the Court 17
Section 1252(d)(1) of the Immigration and Nationality Act
provides, in relevant part, that a court can review a final order of
removal only if “the alien has exhausted all administrative reme-
dies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). We
have held that “[a] petitioner has not exhausted a claim unless he
has both raised the ‘core issue’ before the BIA, and also set out any
discrete arguments he relies on in support of that claim.” Jeune v.
U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016) (internal quota-
tion marks and citations omitted). However, this obligation to ex-
haust administrative remedies is a claims-processing rule and is not
jurisdictional, meaning it is subject to waiver and forfeiture. San-
tos-Zacaria v. Garland, 598 U.S. 411, 423 (2023). Section 1251(d)(1),
as a claims-processing rule, is generally applied when it has been
asserted by a party. Kemokai v. U.S. Att’y Gen., 83 F.4th 886, 891
(11th Cir. 2023).
On appeal, Soendergaard contends that the BIA abused its
discretion when it denied his motion to remand. He contends that
the dissemination of the recording of his IJ hearing violated appli-
cable regulations and agency policy, and the evidence of the record-
ing being disseminated and discussed throughout Denmark was
material to his asylum application. In response, the government
argues that, to the extent Soendergaard’s contention attempts to
raise a distinct claim that his right to a confidential asylum hearing
pursuant to federal regulations was violated, that this Court cannot
review such challenge because Soendergaard failed to make that
distinct claim before the BIA. It also argues that the BIA did not
abuse its discretion in denying the motion to remand.
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18 Opinion of the Court 23-11629
Here, the BIA did not abuse its discretion in denying Soen-
dergaard’s motion to remand based on the recording taken during
his hearing because that evidence was not material and did not
show that the result of Soendergaard’s case would be different if
the IJ had considered that evidence. Jiang, 568 F.3d at 1256-57. The
evidence of the recording and the subsequent reaction of individu-
als in Denmark was merely cumulative of the evidence Soender-
gaard originally presented, and such evidence does not overcome
Soendergaard’s heavy burden of proving materiality to justify reo-
pening the proceedings. Id. Accordingly, we deny the petition for
review as to this issue.
Further, to the extent that Soendergaard raises a claim that
his right to a confidential asylum hearing under federal regulations
was violated, he failed to exhaust this claim before the BIA. Thus,
because the government seeks to enforce the claims-processing
rule barring unexhausted arguments, we dismiss the petition for
review as to that argument. Kemokai, 83 F.4th at 891.
III. CONCLUSION
For the reasons outlined above, we DENY IN PART AND
DISMISS IN PART Soendergaard’s petition for review.
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