[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12991 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 30, 2010
________________________ JOHN LEY
CLERK
Agency No. A098-739-973
ANTONIO RAMIREZ-RECINOS,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 30, 2010)
Before TJOFLAT, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Antonio Ramirez-Recinos seeks review of the Board of Immigration Appeals’s
(BIA) denial of his application for asylum and withholding of removal.
Ramirez-Recinos argues that: (1) based on his age when he entered the United States,
he established extraordinary circumstances for his untimely asylum application; and
(2) his application for withholding of removal should have been granted because he
was persecuted in Guatemala. After thorough review, we dismiss the petition in part,
and deny it in part.
We may not review a final order of removal unless “the alien has exhausted all
administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).
The petitioner must administratively exhaust his arguments by raising them before the
BIA. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
We lack jurisdiction to consider unexhausted arguments, even if the BIA considered
those arguments sua sponte. Id.
To apply for asylum, an alien must “demonstrate[] by clear and convincing
evidence that the application has been filed within 1 year after the date of the alien’s
arrival in the United States.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1286 (11th
Cir. 2003) (quoting 8 U.S.C. § 1158(a)(2)(B)). We have “determined that [8 U.S.C.
§] 1158(a)(3) divests [us] of jurisdiction to review a decision regarding whether an
alien complied with the one-year time limit or established extraordinary
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circumstances that would excuse his untimely filing.” Id. at 1287.
We review the Immigration Judge’s (IJ) and the BIA’s factual determinations
under the highly deferential substantial evidence test and will affirm if the decision
“is supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350-51
(11th Cir. 2009) (quotation omitted). Under the substantial evidence test, we can only
reverse a factual finding if the record compels it. Id. at 1351.
To qualify for withholding of removal under the INA, an alien must show that
if returned to his country, his “life or freedom would be threatened in that country
because of [his] race, religion, nationality, membership in a particular social group,
or political opinion.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir.
2005) (quoting 8 U.S.C. § 1231(b)(3)(A)). An alien may make such a showing in one
of two ways. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). “First,
an alien may establish past persecution in [his] country based on a protected ground.”
Id. (quotation omitted). Such past persecution creates a rebuttable presumption that
the alien has a “well-founded fear of future persecution, and the burden then shifts to
the [government] to show that the conditions in the country have changed or the alien
could avoid a future threat through relocation.” Id. (quotation omitted). Second, an
alien can show “that it is more likely than not that [he] would be persecuted on
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account of” a protected ground upon return to his country. Id. (quotation omitted).
We define persecution as “an extreme concept, requiring more than a few
isolated incidents of verbal harassment or intimidation.” Sepulveda, 401 F.3d at 1231
(quotations omitted). To illustrate, we rejected a claim of persecution where an alien,
in addition to receiving threats, was detained at a police station for 36 hours and was
kicked and beaten with a belt, suffering multiple scratches and bruises. Djonda v.
U.S. Att’y Gen., 514 F.3d 1168, 1171, 1175 (11th Cir. 2008). On the other hand, we
upheld a persecution claim where an alien received numerous death threats, was
dragged by her hair out of her car and beaten, had her groundskeeper tortured and
killed by attackers looking for her, and was further kidnaped and beaten. De
Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008-09 (11th Cir. 2008). In evaluating
whether harm constitutes persecution, “[w]e may consider a threatening act against
another as evidence that the petitioner suffered persecution where that act
concomitantly threatens the petitioner.” Id. at 1009 n.7.
As an initial matter, we lack jurisdiction to review the denial of
Ramirez-Recinos’s asylum application. First, Ramirez-Recinos did not raise this
issue in his notice of appeal to the BIA or in his brief to the BIA, and he has therefore
not exhausted his administrative remedies as to this issue. See Amaya-Artunduaga,
463 F.3d at 1250; 8 U.S.C. § 1252(d)(1). Second, even if Ramirez-Recinos had
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exhausted his administrative remedies, we lack jurisdiction to review whether an alien
timely filed his asylum application or established extraordinary circumstances to
excuse an untimely application. See Mendoza, 327 F.3d at 1287. Accordingly, we
dismiss the asylum claim in Ramirez-Recinos’s petition.
Turning to his withholding of removal claim, the record does not compel
reversal of the BIA’s final order to deny withholding of removal. Ramirez-Recinos’s
only harm was a single bruise on his face, which was much less serious than being
detained at a police station for 36 hours, being kicked and beaten with a belt, and
suffering multiple scratches and bruises, which we have held was not persecution.
Djonda, 514 F.3d at 1171, 1175. Although Ramirez-Recinos’s mother was kidnapped
in his presence, there was no evidence that the kidnapping was intended to target
Ramirez-Recinos or that he was personally at risk of being kidnapped.
Furthermore, the evidence established that the country conditions in Guatemala
have changed since Ramirez-Recinos was beaten and his mother was kidnapped. The
year after Ramirez-Recinos left Guatemala, a peace treaty was signed which
prohibited the use of the army to address internal threats. And, Ramirez-Recinos’s
father returned to Guatemala one month after bringing Ramirez-Recinos and his
siblings to the United States, and the father has remained in Guatemala since then
with no incident.
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Based on this evidence, Ramirez-Recinos has failed to show that he would
more likely than not be persecuted if he returned to Guatemala. Accordingly, we
deny his petition as to this claim.
DISMISSED IN PART AND DENIED IN PART.
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