[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10616 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 8, 2010
________________________ JOHN LEY
CLERK
Agency No. A088-123-215
NICOLAS CRUZ-SOLIS,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 8, 2010)
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Nicolas Cruz-Solis, a native and citizen of Guatemala, appeals the denial of
his application for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). He argues pro se that the Board of
Immigration Appeals (“BIA”) and Immigration Judge (“IJ”) erred by finding his
asylum application untimely. Further, Cruz-Solis contends that the IJ erred in its
credibility determination. Finally, he argues that the record compels granting his
application for withholding of removal or CAT relief because he established that
his father was persecuted by the Ladinos guerilla based on his Mayan ancestry.
Upon review of the parties’ briefs and the record, we deny the petition.
I.
Cruz-Solis, a native and citizen of Guatemala, entered into the United States
without inspection at an unknown place around January 1, 1995. In April 2008,
the Department of Homeland Security (“DHS”) issued him a Notice to Appear
(“NTA”), charging him as removable pursuant to INA § 212(a)(6)(A)(i) and 8
U.S.C. § 1227(a)(1)(A) due to being a citizen of Guatemala and lacking U.S.
citizenship.
On February 15, 2008, Cruz-Solis filed his application for asylum,
withholding of removal, and CAT relief. According to his application, Cruz-Solis
was born on June 19, 1984, in the village of Patzalan. Cruz-Solis claimed that he
feared persecution by the Ladinos who created problems for indigenous people in
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Guatemala, specifically Mayans.
In January 2009, Cruz-Solis appeared before an Immigration Judge with an
attorney and conceded removability. At a removal hearing in March 2009, Cruz-
Solis testified that he came from Guatemala and originally spoke Awakateko. He
left on December 20, 1994, and arrived in the United States on January 1, 1995.
He testified that he left Guatemala because the Ladinos guerrillas made threats
against his family when he was eleven years old. Specifically, on December 5,
1994, the Ladinos attempted to recruit Cruz-Solis’ father to join their guerrillas
even though he was a member of the Civil Patrol. When his father refused, the
Ladinos beat him. The Ladinos did not harm Cruz-Solis or his mother. Cruz-Solis
claims that his father paid someone to bring him to the United States at the
beginning of 1995.
His father now lives in El Salvador, but his mother remains in Guatemala,
Huehuetenango—an urban province approximately a half hour to one hour from
where they used to live when the Ladinos beat his father. She left in 2002 because
the neighbors “bother[ed] her,” but he did not elaborate on why. Cruz-Solis
indicated that his brother moved to Mexico. Cruz-Solis further testified that he
did not file his asylum application until 2008 because he was arrested, although it
is unclear when precisely this occurred or how long he spent in jail. Cruz-Solis
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also testified that he was afraid to return to Guatemala because of the Ladinos
incident with his father and their threat against his family.
Cruz-Solis submitted exhibits as well. He included a Wikipedia article from
March 2009 on “Aguacatán,” which is a municipality in Guatemala, in the
province of Huehuetenango. It is the only municipality in the world where
Awakateko is the native language. The article also stated that the municipality
suffered much violence during the civil war in the 1980’s.
Cruz-Solis also submitted a 2008 Country Report on Guatemala from the
U.S. State Department. The report noted that, as a general matter, widespread
social violence, including killings, and discrimination against indigenous
communities. The IJ also noted that there were no reports that the government or
its agents committed any politically-motivated killings. With respect to
discrimination against indigenous people, the report stated that some people in
those communities attained high positions, but they were generally
underrepresented in mainstream society. It did not detail specific instances or
discuss general patterns of violence presently threatening these groups. Finally,
Cruz-Solis submitted a declaration, recounting the Ladinos’ attack on his father.
He asserts that the group always attacked Mayans.
On March 18, 2009, the IJ rendered an oral decision denying Cruz-Solis’
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application. With respect to asylum, the IJ indicated that Cruz-Solis turned
twenty-one in 2005, however, Cruz-Solis did not file an application for asylum
until three years later. The IJ then reasoned that there was no adequate
explanation for his failure to file an application for asylum sooner, particularly
when he lived in a community with a number of Guatemalans who could assist
him. The IJ explained that even if the one-year period to file began when he
turned twenty-one, the application was still significantly late. The IJ invoked the
pretermitted aspect of Section 208 of the INA. Thus, the IJ only analyzed Cruz-
Solis’ withholding of removal claim.
The IJ concluded that there was little evidence to support Cruz-Solis’ claim
other than his testimony and the Country Report. The Country Report showed that
indigenous Guatemalans had a presence with some political awareness and
prominence. With respect to Cruz-Solis’ testimony, the IJ found him not credible
because he left aspects of his testimony unexplained. The IJ noted Cruz-Solis
provided few details on how he supported himself as a child in this country, and
other than his own admission, it was not possible to verify when he entered the
into the United States. In sum, the IJ found that Cruz-Solis did not prove that he
would be tortured if he was to return to his home country, and that he did not meet
the standard for withholding of removal or CAT relief.
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In a pro se appeal to the BIA, Cruz-Solis reiterated that he fled Guatemala
in 1994 because his father was beaten by the Ladinos. He argued that the IJ erred
by not taking into account the harms he suffered in Guatemala by the Ladinos and
the cumulative effect of the harm. He did not challenge the IJ’s credibility
finding.
On January 14, 2010, the BIA affirmed the IJ’s decision and dismissed his
appeal. The BIA explained that Cruz-Solis failed to carry his burden to establish
that his life or freedom would be threatened in Guatemala. The BIA also found
Cruz-Solis’ application for asylum untimely. Cruz-Solis did not challenge this
determination on appeal. The BIA reasoned that the threats directed at Cruz-Solis
were not based on a protected ground such as his Mayan heritage. Rather, the
threats were based on the father’s membership in the Civil Patrol and
unwillingness to join the Ladinos guerillas. Thus, the BIA concluded that the
abuse of Cruz-Solis’ father, without more, is insufficient to meet the heightened
burden for withholding of removal. With respect to the CAT, the BIA found that
he did not establish that it was more likely than not that he would be tortured by
the government or those acting with its acquiescence. Cruz-Solis’ pro se petition
to this Court followed.
II.
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This Court liberally construes briefs filed by pro se aliens. See Lorisme v.
INS, 129 F.3d 1441, 1444 n.3 (11th Cir. 1997). We review de novo our subject-
matter jurisdiction. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007).
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). “Insofar as the Board adopts the IJ’s
reasoning, we will review the IJ’s decision as well.” Id. In this case, the BIA
agreed with the IJ’s reasoning. Therefore, we will review both the IJ’s and the
BIA’s decision. Id.
We review the IJ and the BIA’s legal conclusions de novo, and their factual
findings under the substantial evidence test. Hernandez v. U.S. Att’y Gen., 513
F.3d 1336, 1339 (11th Cir. 2008) (per curiam). Under this highly deferential
standard, we view the record in the light most favorable to the BIA’s decision
unless the record compels it; “the mere fact that the record may support a contrary
conclusion is not enough to justify a reversal of the administrative findings.”
Rivera v. U.S. Att’y Gen., 487 F.3d 815, 820 (11th Cir. 2007) (citation and
quotation omitted).
III.
A. Asylum
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An application for asylum must be “filed within [one] year after the date of
the alien’s arrival in the United States.” INA § 208(a)(2)(B), 8 U.S.C. §
1158(a)(2)(B). The lone exception applies when the alien proves “the existence of
changed circumstances which materially affect the applicant’s eligibility for
asylum or extraordinary circumstances relating to the delay in filing an application
within the period specified.” INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). With
respect to whether an application is timely, “[n]o court shall have jurisdiction to
review any determination of the Attorney General.” INA § 208(a)(3), 8 U.S.C. §
1158(a)(3). We have held that this provision deprives us of jurisdiction to
determine “whether an alien filed within one year or established extraordinary
circumstances to excuse an untimely filing.” Sanchez Jiminez v. U.S. Att’y Gen.,
492 F.3d 1223, 1231 (11th Cir. 2007) (citation omitted). In addition, we lack
jurisdiction to review any issue that is not administratively exhausted, including
matters not raised before the BIA. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1);
Camacho-Salinas v. U.S. Att’y Gen., 460 F.3d 1343, 1346–47 n.1 (11th Cir. 2007)
(per curiam).
In this case, we are statutorily precluded from determining whether Cruz-
Solis’ asylum application was timely or whether its untimely filing was justified
by extraordinary circumstances. INA § 208(a)(3), 8 U.S.C. § 1158(a)(3). In any
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event, Cruz-Solis did not challenge the denial of asylum or the finding of
untimeliness before the BIA. Because Cruz-Solis did not exhaust his
administrative remedies, we do not have jurisdiction to hear this claim.
Accordingly, we dismiss this claim.
B. Credibility Determination and Withholding of Removal
Adverse credibility determinations are factual findings and are also “subject
to the substantial evidence test, and may not be overturned unless the record
compels that result.” Alim v. Gonzales, 446 F.3d 1239, 1254 (11th Cir. 2006).
An alien is entitled to withholding of removal under the INA, if he can show
that his “life or freedom would be threatened . . . because of the alien’s race,
religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A). An applicant seeking such relief bears the burden to
show either: (1) past persecution in his country based on a protected ground, or (2)
that it is more likely than not that he would be persecuted on account of the
protected ground if he returned to his country. Tan v. U.S. Att’y Gen., 446 F.3d
1369, 1375 (11th Cir. 2006). This standard is more stringent than the standard for
asylum. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (per
curiam).
“[P]ersecution is an extreme concept, requiring more than a few isolated
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incidents of verbal harassment or intimidation, and []mere harassment does not
amount to persecution.” Id. at 1231 (alteration omitted) (citation and quotation
omitted). We are more likely to conclude that the record compels a finding of past
persecution when the applicant has suffered physical injury along with death
threats. Compare Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007)
(per curiam) (threats at gunpoint and severe beating constituted past persecution);
with Sepulveda, 401 F.3d at 1232–33 (death threats without injury did not
constitute past persecution).
Further, any persecution must be “on account of” a protected ground, which
in the present case, would be Cruz-Solis’ political beliefs or his Mayan ancestry.
INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S. Ct. 812, 816 (1992). Evidence
consistent with private acts of violence or failure to cooperate with guerillas does
not constitute persecution on account of a protected ground. Ruiz v. U.S. Att’y
Gen., 440 F.3d 1247, 1258 (11th Cir. 2006) (per curiam). In addition, where a
petitioner’s family remains in the country or region unharmed, it may contradict
claims of a well-founded fear of future persecution. See id. at 1259.
Cruz-Solis did not challenge the IJ’s adverse credibility determination
before the BIA. Therefore, we lack jurisdiction to consider it. See Camacho-
Salinas, 460 F.3d at 1346–47 n.1. However, even if the IJ had not made an
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explicit adverse credibility determination, Cruz-Solis was not harmed, and an
isolated threat by the Ladinos is not extreme enough to be considered persecution,
neither was the threat of harm based on a protected status. See Ruiz, 440 F.3d at
1258. Accordingly, Cruz-Solis has not demonstrated eligibility for withholding of
removal.
C. CAT Relief
To qualify for CAT relief, an applicant carries the burden of proof to
“establish that it is more likely than not that he [] would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). Torture is the
intentional infliction of “severe pain or suffering, whether physical or mental.” 8
C.F.R. § 208.18(a)(1). The regulations require the applicant to demonstrate that
the torture would be inflicted “‘by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.’”
Sanchez Jimenez, 492 F.3d at 1239 (quoting 8 C.F.R. § 208.18(a)(1)).
Here, the record reflects that Cruz-Solis’ mother remains unharmed in
Guatemala, approximately a half hour to one hour from where they used to live.
AR at 78. Although Cruz-Solis presented evidence of an isolated threat, the
incident involved his father, which does not establish that it is more likely than not
that Cruz-Solis will suffer torture if he returned. Finally, Cruz-Solis has not met
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his burden to demonstrate he would be tortured by the government or by those
acting with its acquiescence in Guatemala. Thus, he is not entitled to CAT relief.
Accordingly, the petition is denied.
DISMISSED IN PART, DENIED IN PART.
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