[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
MAY 27, 2011
No. 10-13058 JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A087-387-836
DORINDA LEISES VILLAR DE MALAVE,
KARLA MARIELA MALAVE LEISES,
CARLOS ALEJANDRO MALAVE LEISES,
JUAN CARLOS MALAVE ALVAREZ DE LUGO,
lllllllllllllllllllll Petitioners,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 27, 2011)
Before EDMONDSON, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Dorinda Leises Villar de Malave (“Leises”) and her two children, derivatively,
petition for review of the Board of Immigration Appeals’s (“BIA”) final order
affirming the Immigration Judge’s (“IJ”) denial of asylum, withholding of removal,
and relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158,
1231(b)(3)(A); 8 C.F.R. § 208.16(c). Leises argues that: (1) her experiences in
Venezuela, taken cumulatively, constituted past persecution and occurred on account
of a protected ground, and (2) she has a well-founded fear of future persecution.
After thorough review, we grant the petition for review, vacate the agency’s decision,
and remand for further proceedings.
We review only the BIA’s decision as the final judgment, but where the BIA
agrees with the IJ about an issue, we review the decisions of both the IJ and the BIA
regarding that issue. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir.
2009). Here, the BIA agreed with the IJ’s finding that Leises failed to establish past
persecution or a well-founded fear of future persecution on account of a protected
ground. Specifically, the BIA agreed with the IJ that Leises’s experiences in
Venezuela did not rise to the level of persecution. Therefore, we review both the
BIA’s and the IJ’s findings with respect to these issues. See id.
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We review the IJ’s 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.”
Id. at 1350-51 (quotations omitted). Under the substantial-evidence test, we may
reverse a finding of fact “only when the record compels a reversal; the mere fact that
the record may support a contrary conclusion is not enough to justify a reversal of the
administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004)
(en banc). We review the IJ’s and the BIA’s legal conclusions de novo.
Kazemzadeh, 577 F.3d at 1350.
An alien may receive asylum in the United States if she is a “refugee” within
the meaning of the Immigration and Nationality Act (“INA”). Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005). The INA defines a refugee as a
person who cannot return to his home country due to “persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). Thus, to be
eligible for asylum, an alien must establish, with credible evidence, either past
persecution or a well-founded fear of future persecution, both on account of a
protected ground. Sepulveda, 401 F.3d at 1230-31. “[A] showing of past persecution
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creates a rebuttable presumption of a well-founded fear of future persecution.” De
Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1007 (11th Cir. 2008).
An alien need not establish past persecution to qualify for asylum based on a
“well-founded fear” of future persecution. Kazemzadeh, 577 F.3d at 1352. To
establish such independent well-founded fear, an alien needs to show “a reasonable
possibility” of suffering persecution upon return to her home country. Mehmeti v.
U.S. Att’y Gen., 572 F.3d 1196, 1200 (11th Cir. 2009).
To qualify for withholding of removal under the INA, an alien must establish
that, if returned to her country, the alien’s life or freedom would be threatened on
account of a protected ground, namely, race, religion, nationality, membership in a
particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). The standard
for establishing a claim for withholding of removal is substantially the same as for
asylum, except that an alien cannot qualify for such relief without a presumption or
a showing of a well-founded fear of future persecution, and, if the alien fails to
establish past persecution, she must demonstrate a “more likely than not” probability
of future persecution rather than the “reasonable possibility” required for asylum.
Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006); 8 C.F.R. § 208.16(b).
Consequently, an alien generally cannot qualify for withholding of removal if she is
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unable to meet the lower standard of proof for asylum. Al Najjar v. Ashcroft, 257
F.3d 1262, 1292-93 (11th Cir. 2001).
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 have held that menacing phone calls and
threats to an alien, coupled with a bombing at the restaurant where she worked, did
not compel a finding of persecution. Id. We have also 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); see also
Kazemzadeh, 577 F.3d at 1353 (concluding that no persecution existed where the
petitioner was arrested for participating in a student demonstration, interrogated and
beaten for five hours, detained for four days, and monitored by authorities after his
release).
On the other hand, persecution may well exist where an alien has suffered a
direct threat to her life, even absent physical harm. Specifically, we have found
persecution where the alien was shot at while driving. Sanchez Jimenez v. U.S. Att’y
Gen., 492 F.3d 1223, 1233-34 (11th Cir. 2007). In Sanchez Jimenez, the alien
received numerous intensifying death threats from the Revolutionary Armed Forces
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of Colombia (“FARC”), and several FARC members attempted to kidnap his
daughter. Id. at 1228-29. The alien’s only physical altercation with the FARC
occurred when two armed men on motorcycles followed the alien on his way home
and fired on his car, leaving several bullet holes. Id. at 1229. The alien managed to
evade the attackers and suffered no harm. Id. In reversing the IJ’s finding of no
persecution, we stated: “We have no difficulty concluding that intentionally being
shot at in a moving car multiple times by two armed men on motorcycles qualifies as
‘extreme’ under any definition. Put simply, attempted murder is persecution.” Id. at
1233. We also observed that a lack of physical harm “does not undermine the basic
conclusion that being shot at while driving is sufficiently ‘extreme’ to constitute
persecution.” Id.
The BIA and the IJ need not “address specifically each claim the petitioner
made or each piece of evidence the petitioner presented, but they must consider the
issues raised and announce their decision in terms sufficient to enable a reviewing
court to perceive that they have heard and thought and not merely reacted.” Ayala v.
U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010) (quotations and alterations
omitted). Where the BIA or the IJ has failed to give “reasoned consideration or make
adequate findings,” we remand for further proceedings because we are “unable to
review the decision.” Id. (quotation omitted).
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In this case, substantial evidence does not support the IJ’s and the BIA’s
conclusion that Leises’s experiences did not rise to the level of persecution. See
Sanchez Jimenez, 492 F.3d at 1233-34. In addition to other threatening incidents --
including threatening phone calls and a beating -- Leises experienced a direct attempt
on her life when two individuals on a motorcycle fired on her as she drove to work.
In fact, one of the bullets hit the driver’s door. Despite any factual differences
between this case and Sanchez Jimenez, there we focused largely on the fact that the
attackers fired bullets at the alien, putting his life in immediate danger, and this case
involves an almost identical scenario. Id. at 1233-34. Like in Sanchez Jimenez,
Leises experienced more than just verbal harassment or intimidation, and although
she did not suffer serious physical harm during any of the incidents, a lack of physical
harm does not prevent a finding of persecution in a case such as this one. See id. at
1234. Accordingly, Leises suffered past persecution when men on a motorcycle shot
at her, and “[t]he motorcyclists’ poor marksmanship does not undermine this
conclusion.” Id. at 1234.1
1
The most relevant case the BIA cited in support of its finding of a lack of persecution
was Sepulveda, 401 F.3d at 1231, as described above. However, Sanchez Jimenez specifically
distinguished Sepulveda on the ground that in Sepulveda, “the evidence did not compel the
conclusion that the bomb was ‘directed at’” the alien, and “there appears to have been no
evidence of the reason for the bombing,” while in Sanchez Jimenez, evidence compelled the
conclusion that the shooting was directed at the alien. Sanchez Jimenez, 492 F.3d at 1234 n.10;
see Sepulveda, 401 F.3d at 1231. Here, regardless of whether other incidents were directed at
Leises or her family, no one contests that the car shooting was directed at Leises, especially given
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Moreover, the IJ and the BIA did not adequately address whether Leises’s past
persecution occurred on account of a protected ground. As the record shows, the BIA
appeared to agree with the IJ that Leises failed to establish persecution “on account
of political opinion or imputed political opinion,” but the IJ made no finding as to
whether the 2008 threatening phone calls, the beating, and the car shooting occurred
on account of a protected ground; he only found, in relevant part, that Leises failed
to establish past persecution. See Ayala, 605 F.3d at 949 (“We cannot meaningfully
review the ruling of the Board when it relies entirely on a ruling that the immigration
judge did not make.”). Nor is it clear whether the IJ gave any consideration to
relevant parts of Leises’s testimony (found credible by the IJ) and her asylum
application, which indicate that incidents from 2007 occurred because of Leises’s and
her husband’s participation in political activities. See id. at 949-50 (concluding that
the BIA failed to provide a reasoned explanation for finding no nexus to a protected
ground where the BIA reasoned that “insufficient evidence” of such a nexus existed,
but where neither the BIA nor the IJ acknowledged relevant testimony or reconciled
that testimony with their findings).
that her car was the only one hit among the many surrounding cars, and the shooters wore the
same red berets as individuals who physically beat her at a shopping mall. Accordingly,
Sepulveda does not undermine Leises’s claims. See Sanchez Jimenez, 492 F.3d at 1234 n.10.
8
Furthermore, the BIA and the IJ made insufficient findings as to whether the
government has rebutted the presumption of a well-founded fear of future
persecution, or whether Leises has established an independent well-founded fear of
persecution. As the record shows, the BIA agreed with the IJ that Leises failed to
establish a well-founded fear of future persecution. In addressing Leises’s claims of
future persecution, the IJ stated: “There is not enough there to rise to the level of past
persecution, so she would not have a presumption of a well-founded fear of future
persecution. Without the presumption, the respondent would not be eligible for
asylum or withholding of removal or protection under [CAT].” However, the law is
clear that an alien may “establish a well-founded fear of persecution without proving
past persecution.” Kazemzadeh, 577 F.3d at 1352. In analyzing Leises’s claims, the
IJ either failed to address this independent fear of persecution, or he erroneously
applied the law by stating that future persecution may only be established through a
showing of past persecution. Because we cannot meaningfully review these issues,
we remand this case for further proceedings. See Ayala, 605 F.3d at 948.
PETITION GRANTED; VACATED and REMANDED.
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