[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15960 ELEVENTH CIRCUIT
JUNE 2, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A089-160-426
JOELSON FERNANDES DE PAULA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 2, 2010)
Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Petitioner Joelson Fernandes de Paula (“Fernandes”) petitions for review of
a final order of the Board of Immigration Appeals (“BIA”) affirming an
immigration judge’s (“IJ’s”) denial of asylum pursuant to the Immigration and
Nationality Act (“INA”) § 208(a), 8 U.S.C. § 1158 (2006), and withholding of
removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3) (2006). Fernandes argues
that the BIA ignored the record evidence and misapplied the standard for asylum,
and that its factual determinations were not supported by reasonable, substantial,
and probative evidence on the record considered as a whole.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). In this case, the BIA issued its own opinion, so
we will review the BIA’s decision only.
When considering a petition to review a BIA final order, we review legal
issues de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001).
The BIA’s factual determinations are reviewed under the substantial evidence test,
and we “must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Al
Najjar, 257 F.3d at 1283–84 (internal quotation marks omitted). The BIA must
consider all evidence introduced by the applicant, but, when the BIA has given
reasoned consideration to the application and made adequate findings, it need not
2
specifically address each claim the applicant made or each piece of evidence the
applicant presented. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006).
Rather, the BIA must “consider the issues raised and announce its decision in terms
sufficient to enable a reviewing court to perceive that it has heard and thought and
not merely reacted.” Id. (quoting Vergara-Molina v. INS, 956 F.2d 682, 685 (7th
Cir. 1992). We cannot reverse the BIA’s factual findings unless the record
compels it, and the fact that the record also supports the petitioner’s case is not
enough to reverse. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en
banc).
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) (2006). The Secretary of
Homeland Security or the Attorney General has 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) (2006). A “refugee” is
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 race,
religion, nationality, membership in a particular social group, or
political opinion.
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (2006).
3
An alien may establish eligibility for asylum if he shows that he has suffered
either “past persecution” or has a “well-founded fear” of persecution on account of
a statutorily listed factor. 8 C.F.R. § 208.13(a)–(b) (2009). Neither the INA nor
the controlling regulatory provisions define the term “persecution,” but we have
indicated that “persecution is an extreme concept, requiring more than a few
isolated incidents of verbal harassment or intimidation, and that mere harassment
does not amount to persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1231 (11th Cir. 2005) (internal quotation marks and alteration omitted). “Minor
physical abuse and brief detentions do not amount to persecution.” Kazemzadeh v.
U.S. Att’y Gen., 577 F.3d 1341, 1353 (11th Cir. 2009); see also Djonda v. U.S.
Att’y Gen., 514 F.3d 1168, 1171, 1174 (11th Cir. 2008) (holding that evidence that
an alien had been detained for 36 hours, beaten by police officers, and suffered
only scratches and bruises, did not compel a finding that the alien had been
persecuted).
An applicant can establish a well-founded fear by showing (1) past
persecution that creates a presumption of a well-founded fear of future persecution,
(2) a reasonable possibility of personal persecution that cannot be avoided by
relocating within the subject country, or (3) a pattern or practice in the subject
country of persecuting members of a statutorily defined group of which he is a
part. 8 C.F.R. § 208.13(b)(1), (2), (3)(i) (2009). The applicant’s fear must be both
4
subjectively genuine and objectively reasonable. Silva v. U.S. Att’y Gen., 448 F.3d
1229, 1236 (11th Cir. 2006).
To qualify for withholding of removal under the INA, an applicant must
show that, if returned to a country, his life or freedom would be threatened on
account of his race, religion, nationality, membership in a particular group, or
political opinion. INA § 241(b)(3); 8 U.S.C. § 1231(b)(3) (2006). An applicant
can satisfy this burden of proof by a showing that he either suffered past
persecution or that it is more likely than not that he will be persecuted in the future.
See 8 C.F.R. §§ 1208.16(b)(1)–(2) (2009). When a petitioner is unable to meet the
standard of proof for asylum, he is generally precluded from qualifying for
withholding of removal. Al Najjar, 257 F.3d at 1292–93.
“The statutes governing asylum and withholding of removal protect not only
against persecution by government forces, but also against persecution by
non-governmental groups that the government cannot control.” Ruiz v. U.S. Att’y
Gen., 440 F.3d 1247, 1257 (11th Cir. 2006); see also Matter of Acosta, 19 I. & N.
Dec. 211, 222 (BIA 1985) (“[H]arm or suffering ha[s] to be inflicted either by the
government of a country or by persons or an organization that the government was
unable or unwilling to control.”).
Fernandes argues that he qualifies for asylum because he has established
past persecution or a well-founded fear of future persecution in Brazil on account
5
of his homosexuality. To establish past persecution, he testified regarding
harassment that he experienced as a child due to his homosexuality, as well as an
incident when he was robbed on a bus. These incidents do not meet the “extreme
concept” of persecution. See Kazemzadeh, 577 F.3d at 1353; Sepulveda, 401 F.3d
at 1231. He also testified regarding confrontations that he had with police officers
in the early morning hours when he left the clubs where he worked. These
confrontations were isolated, sporadic, and did not result in his arrest, detention, or
any physical harm. See id. With regard to a 2003 incident where Fernandes was
beaten and cut on the arm by a group of young men called the “Pit Boys,” that
incident does not constitute persecution because the record does not establish that
Fernandes sustained serious injuries, he did not seek medical treatment, and he did
not report the assault to the police. The record is therefore unclear as to whether
the Pit Boys is a group that the police would have been unable or unwilling to
control. Finally, in 2005, Fernandes witnessed what he believed were police
officers in a car shooting at everyone around them, and shouting threats against
homosexuals. This incident does not constitute persecution of Fernandes because
he was not specifically targeted, he was not physically harmed, the authorities
investigated the shooting incident, and those police officers who were discovered
as the perpetrators were prosecuted and imprisoned. Cf. Sanchez Jimenez v. U.S.
Att’y Gen., 492 F.3d 1223, 1233–34 (11th Cir. 2007) (finding past persecution
6
when the record showed that the motorcyclists’ shooting was directed at the
applicant).
Because Fernandes has not established past persecution, he is not entitled to
a presumption of future persecution. See 8 C.F.R. § 208.13(b)(1) (2009). To
establish fear of future persecution, Fernandes essentially argues that there is a
pattern or practice in Brazil of persecuting homosexuals. However, the record does
not compel the conclusion that Fernandes’s fear of future persecution is objectively
reasonable. While the materials submitted by Fernandes indicate that violence
against homosexuals, including murder, is a problem in Brazil, the record evidence
does not suggest that the Brazilian government or a group that the Brazilian
government cannot control is responsible for such violence. Rather, the materials
indicate that state and federal law prohibits discrimination based on sexual
orientation, and these laws are generally enforced.
The record indicates that the BIA considered all of the evidence and applied
the proper standard for asylum, and Fernandes’s arguments to the contrary are
without merit. Substantial evidence supports the BIA’s conclusion that Fernandes
did not qualify for asylum because he failed to establish past persecution or a
well-founded fear of future persecution in Brazil on account of his homosexuality.
Fernandes’s failure to establish eligibility for asylum precludes him from
7
qualifying for withholding of removal. Al Najjar, 257 F.3d at 1292–93.
Accordingly, we deny the petition for review.
PETITION DENIED.
8