[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14554 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 21, 2011
________________________ JOHN LEY
CLERK
Agency No. A099-577-458
NILESH UPENDRA SHAH,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 21, 2011)
Before CARNES, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Nilesh Upendra Shah, a native and citizen of India, seeks review of the final
order of the Board of Immigration Appeals affirming the immigration judge’s
(“IJ”) denial of Shah’s application for asylum, withholding of removal, and relief
under the United Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). On
appeal, Shah argues that the record compels reversal because the Shiv Sena
political party in India threatened him, attacked him on two occasions (including
once with a pipe), broke his mother’s arm, and harassed him and his family in
several cities over a three-year period. Shah argues that the cumulative effect of
these events amounted to persecution in retaliation for Shah’s expressing his
political objections to Shiv Sena members visting his family’s home. Shah also
argues that the BIA erred by concluding that he failed to establish a well-founded
fear of future persecution.1
We review the BIA’s decision as the final judgment, unless the BIA has
expressly adopted the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th
Cir. 2007). In this case, the BIA wrote its own opinion, so we review only the
1
As an initial matter, we note that Shah’s appellate brief does not address his
claims for withholding of removal and CAT relief. If a petitioner fails to offer argument on an
issue, that issue is abandoned. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005). Because Shah failed to address withholding removal and CAT relief in his brief, Shah
abandoned these claims. See id. Moreover, although the BIA ruled sua sponte on withholding of
removal and CAT relief, the issue is unexhausted because Shah failed to present these issues to
the BIA. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1249-51 (11th Cir. 2006).
Accordingly, we decline to address the claims.
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BIA’s decision.
We review the BIA’s factual determinations under the substantial evidence
test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). 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 v. Ashcroft,
257 F.3d 1262, 1284 (11th Cir. 2001) (internal quotations omitted). Under this
test, we view “the record evidence in the light most favorable to the agency’s
decision and draw all reasonable inferences in favor of that decision.” Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). Accordingly, “[t]o
conclude the BIA’s decision should be reversed, we must find that the record not
only supports the conclusion, but compels it.” Ruiz, 479 F.3d at 765 (internal
quotations omitted).
An alien who arrives in or is present in the United States may apply for
asylum. The Attorney General or Secretary of Homeland Security has discretion
to grant asylum if the alien is a “refugee,” as defined by INA § 101(a)(42)(A),
8 U.S.C. § 1101(a)(42)(A). INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A).
Section 1101(a)(42)(A) of Title 8 of the United States Code defines a refugee as:
any person who is outside any country of such person’s nationality,
or, in the case of a person having no nationality, is outside any
country in which such person last habitually resided, and who is
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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). The asylum applicant carries the
burden of proving her status as a statutory “refugee” and thereby establishing
eligibility for asylum. Al Najjar, 257 F.3d at 1284. “To establish asylum
eligibility based on political opinion, the alien carries the burden to prove, with
credible evidence, either that (1) he suffered past persecution on account of his
political opinion, or (2) he has ‘a well-founded fear’ that his political opinion will
cause him to be persecuted.” Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884,
890 (11th Cir. 2007).
“To establish asylum based on past persecution, the applicant must prove
(1) that she was persecuted, and (2) that the persecution was on account of a
protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006).
To establish a “well-founded fear” of future persecution, “an applicant must
demonstrate that his or her fear of persecution is subjectively genuine and
objectively reasonable.” Al Najjar, 257 F.3d at 1289. An asylum applicant can
establish a well-founded fear of future persecution by presenting “specific,
detailed facts showing a good reason to fear that he or she will be singled out for
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persecution on account of” the statutorily listed factor. Id. at 1287 (quotation
omitted). Alternatively, an applicant can establish a well-founded fear of
persecution by establishing that there is a pattern or practice of persecution of
persons similarly situated on account of the statutorily listed factor. 8 C.F.R.
§ 208.13(b)(2)(iii).
However, not all “exceptional treatment” constitutes persecution. Zheng v.
U.S. Att’y Gen., 451 F.3d 1287, 1290 (11th Cir. 2006). Persecution is “an extreme
concept, requiring more than a few isolated incidents of verbal harassment or
intimidation, and . . . mere harassment does not amount to persecution.” Id.
(quotation omitted). “In determining whether an alien has suffered past
persecution, the IJ must consider the cumulative effects of the incidents.”
Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007). 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. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005).
Similarly, we rejected a claim of persecution where an alien, in addition to
receiving threats, was detained at a police station for 36 hours, was kicked and
beaten with a belt, and suffered multiple scratches and bruises. Djonda v. U.S.
Att’y Gen., 514 F.3d 1168, 1171, 1174 (11th Cir. 2008); see also Kazemzadeh v.
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U.S. Att’y Gen., 577 F.3d 1341, 1353 (11th Cir. 2009) (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); Zheng, 451 F.3d at 1289-91
(concluding that an alien did not suffer persecution where authorities detained him
for five days, forced him to watch re-education materials, made him stand in the
sun for two hours, and after his release, monitored him and occasionally searched
his residence).
On the other hand, we upheld a persecution claim where an alien received
numerous death threats, was dragged out of her car by her hair and beaten, had her
groundskeeper tortured and killed by attackers looking for her, and was kidnapped
and beaten before being rescued by government forces. De Santamaria v. U.S.
Att’y Gen., 525 F.3d 999, 1008-09 (11th Cir. 2008). Similarly, we agreed that an
alien suffered persecution where he received numerous death threats over an
18-month period and was twice physically attacked, including having his nose
broken with the butt of a rifle. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1257-58
(11th Cir. 2007); see also Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211, 1217 (11th
Cir. 2007) (accepting a persecution claim where the petitioner suffered “numerous
beatings, arrests, searches, and interrogations” and spent 15 days in detention
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where he was “deprived of food, beaten, and threatened at gunpoint”).
Substantial evidence supports the BIA’s conclusion that incidents between
Shah and the Shiv Sena supporters did not amount to persecution. Although Shah
was attacked twice, the attacks were of short duration and caused only minimal
injury, the attackers ran away after each encounter, and Shah was able to continue
his job and school work despite the encounters. Although “scary,” the beatings,
vague threats, and harassment—considered either individually or
collectively—were not so “extreme” that they amounted to persecution. See
Zheng, 451 F.3d at 1290. Substantial evidence also supports the BIA’s conclusion
that Shah’s fear of persecution was objectively unreasonable because he could
safely relocate within India. As the BIA noted, Shah has never voted in an Indian
election and conceded that he was not a high-profile political activist. Shah’s
parents have remained in India without incident since September 2007, and Shah
conceded that the Congress party that he supports won the 2004 election and
remains in power. Because substantial evidence supports the BIA’s findings that
Shah established neither past persecution nor a well-founded fear of future
persecution, we deny the petition for review.
PETITION DENIED.
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