[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12422 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 17, 2010
________________________ JOHN LEY
CLERK
Agency No. A070-847-790
FRANCISCO MARTIN-PABLO,
llllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 17, 2010)
Before TJOFLAT, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Francisco Martin-Pablo, a native and citizen of Guatemala, through counsel,
seeks review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) order denying him asylum and withholding of removal
under the Immigration and Nationality Act (“INA”), INA §§ 208, 241, 8 U.S.C. §§
1158, 1231. Martin-Pablo claims that he was persecuted in Guatemala – and
would be again – on account of his political opinion. The BIA found that Martin-
Pablo failed to demonstrate that he was persecuted in Guatemala because of his
political opinion or that he has a well-founded fear that he will be persecuted in
that country. Because substantial evidence supports the BIA’s findings, we deny
Martin-Prado’s petition for review.
Where, as here, the BIA issues a decision and does not adopt the IJ’s order,
we review only the BIA’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). To the extent that the BIA’s decision was based on a legal
determination, we review 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; 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 (quotation marks omitted). We will not
reverse a factual finding unless “the evidence compels a reasonable fact finder to
find otherwise.” Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006)
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(quotation marks omitted).
To establish eligibility for asylum, an applicant must show that he suffered
past persecution or has a well-founded fear of future persecution on account of his
race, religion, nationality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1101(a)(42)(A); Silva v. U.S. Att’y Gen., 448 F.3d 1229,
1236 (11th Cir. 2006). A showing of past persecution creates a rebuttable
presumption of a well-founded fear of future persecution; absent such a showing,
an applicant must prove a subjectively genuine and objectively reasonable fear of
future persecution. Silva, 448 F.3d at 1236. To qualify for withholding of
removal, an applicant must establish that it is more likely than not that his life or
freedom will be threatened in that country on account of a protected ground. 8
U.S.C. § 1231(b)(3)(A); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th
Cir. 2005).
Turning first to Martin-Pablo’s asylum claim, the record does not compel
the conclusion that he was persecuted in Guatemala on account of his political
opinion. The only evidence of persecution was Martin-Pablo’s testimony
regarding a single incident where guerrilla soldiers pushed, shoved, and threatened
him after he refused to join their ranks. Given that Martin-Pablo testified that he
was never detained nor physically harmed by the guerrillas, substantial evidence
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supports the BIA’s finding that this incident did not rise to the level of
persecution. See Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1333 (11th Cir. 2010)
(explaining that “persecution is an extreme concept, requiring more than a few
incidents of verbal harassment or intimidation” (quotation marks omitted)).
Moreover, substantial evidence supports the BIA’s finding that Martin-
Pablo failed to demonstrate a nexus between this single instance of alleged
persecution and any protected ground. Martin-Pablo presented no evidence
compelling the conclusion that the guerillas threatened him because of his political
opinion; rather, he testified that he refused to join them because he did not want to
leave his family. See Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890
(11th Cir. 2007) (holding that it is insufficient for an applicant to establish that he
was persecuted due to his refusal to cooperate with guerrillas).
Nor does the record compel the conclusion that Martin-Pablo has a well-
founded fear of persecution on account of his political opinion. “Demonstrating
such a connection requires the [applicant] to present specific, detailed facts
showing a good reason to fear that he or she will be singled out for persecution on
account of such an opinion.” Al Najjar, 257 F.3d at 1287 (quotation marks
omitted). Martin-Pablo presented no evidence that he or his family were ever
threatened or harmed in the two decades following his lone encounter with the
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guerrillas, even though he remained in Guatemala for two years following this
incident and visited the country for one month in 2002. Although he testified that
he fears returning to Guatemala because of widespread violence and criminal
activity there, substantial evidence supports the BIA’s determination that Martin-
Pablo failed to prove a well-founded fear of future persecution.
As for Martin-Pablo’s withholding of removal claim, for the reasons stated
above, substantial evidence supports the BIA’s finding that he failed to show that
it is more likely than not that his life or freedom would be threatened in Guatemala
on account of his political opinion. Because this is a more stringent standard than
the “well-founded fear” standard for asylum claims, Martin-Pablo’s inability to
establish eligibility for asylum precludes him from qualifying for withholding of
removal. Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1345 (11th Cir. 2008).
For the foregoing reasons, we deny this portion of Martin-Pablo’s petition for
review.1
PETITION DISMISSED, in part, and DENIED, in part.
1
Martin-Pablo also seeks review of the BIA’s decision affirming the IJ’s denial of relief
under the United Nations Convention Against Torture and Other Cruel, Inhumane, and
Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). However, we lack
jurisdiction to review Martin-Pablo’s CAT claim because he did not raise it in his brief to the
BIA, and thereby failed to exhaust his administrative remedies. See Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (holding that failure to exhaust eliminates
appellate jurisdiction, even when the BIA sua sponte considers the claim). Therefore, we dismiss
this portion of Martin-Pablo’s petition for review.
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