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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12667
Non-Argument Calendar
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Agency No. A077-888-288
RAFAEL EMILIO ARCILA PEREZ,
EMILY GABRIELA ARCILA HERRERA,
RAFAEL EDUARDO ARCILA HERRERA,
RAFAEL ENRIQUE ARCILA HERRERA,
YENNY GRACIELA HERRERA PARRA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(June 23, 2014)
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Before PRYOR, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Rafael Arcila Perez, his wife Yenny Herrera Parra, and their children, Rafael
Enrique Arcila Herrera, Rafael Eduardo Arcila Herrera, and Emily Arcila Herrera,
all natives and citizens of Venezuela, seek review of the Board of Immigration
Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of
their applications for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture (“CAT”). The petitioners do not challenge
the denial of their claims for asylum and CAT relief. They do challenge, however,
the denial of their claims for withholding of removal, on two grounds. First, they
argue that the IJ’s adverse-credibility determination was erroneous, and that, by not
reviewing the IJ’s credibility finding, the BIA violated their rights under the Fifth
Amendment’s Due Process Clause. Further, the petitioners also argue that the IJ
and the BIA erred in finding that they did not establish past persecution or a clear
probability of future persecution.
I.
We review de novo our own subject-matter jurisdiction. Sanchez Jimenez v.
U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007). An alien applying for
asylum 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
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States.” 8 U.S.C. § 1158(a)(2)(B). An untimely asylum application can be
considered upon a showing of changed circumstances that materially affect
eligibility or extraordinary circumstances relating to the delay. Id.
§ 1158(a)(2)(D). We are precluded, however, from reviewing the BIA’s
determination regarding the timeliness of an asylum application or whether an
applicant demonstrated changed or extraordinary circumstances to allow for a late
filing. Id. § 1158(a)(3); see Sanchez Jimenez, 492 F.3d at 1231. Additionally, we
lack jurisdiction to consider a claim that was not raised before the BIA, even when
the BIA sua sponte considered the claim. Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006).
The IJ determined that the petitioners were not eligible for asylum because
they did not apply within one year of their arrival in the United States, and they did
not demonstrate any extraordinary circumstances that could excuse their delay.
The BIA, noting that the petitioners had not challenged the IJ’s dismissal of their
asylum claim, affirmed the IJ’s dismissal of that claim. Consequently, we lack
jurisdiction over the petition for review of the denial of the petitioners’ asylum
claim. See 8 U.S.C. § 1158(a)(3); Sanchez Jimenez, 492 F.3d at 1231. Similarly,
as the petitioners failed to challenge the IJ’s denial of their CAT claim before the
BIA, their CAT claim is not exhausted, and we lack jurisdiction to consider it. See
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Amaya-Artunduaga, 463 F.3d at 1250. Accordingly, we dismiss the petition for
review as to the petitioners’ claims for asylum and CAT relief.
II.
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). Additionally, we review constitutional
challenges, including alleged due process violations, de novo. Lapaix v. U.S. Att’y
Gen., 605 F.3d 1138, 1143 (11th Cir. 2010).
The Fifth Amendment right to due process applies to non-citizens in removal
proceedings. Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 1449, 123
L.Ed.2d 1 (1993). “In order to establish a due process violation, an alien must
show that he was deprived of liberty without due process of law, and that the
asserted error caused him substantial prejudice.” Gonzalez-Oropeza v. U.S. Att’y
Gen., 321 F.3d 1331, 1333 (11th Cir. 2003) (citation omitted). To establish
substantial prejudice, an alien must demonstrate that “the outcome would have
been different” had the alleged violation not occurred. See Ibrahim v. I.N.S., 821
F.2d 1547, 1550 (11th Cir. 1987).
The BIA did not err by failing to review the IJ’s finding that Arcila Perez’s
testimony was not credible. The BIA found that, even presuming that Arcila
Perez’s testimony was credible, he still failed to demonstrate either past
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persecution or a clear probability of future persecution. Thus, the BIA did not
address the IJ’s adverse-credibility finding. As such, the issue of whether that
finding was erroneous is not properly before us. See Al Najjar, 257 F.3d at 1284.
Further, while the petitioners assert that the BIA was under a “mandate,” pursuant
to 8 C.F.R. § 1003.1(d)(3)(i), to review the IJ’s adverse-credibility determination,
the BIA was under no such obligation. See 8 C.F.R. § 1003.1(d)(3)(i) (providing
not that the BIA must review the IJ’s credibility findings, but rather that the BIA
reviews such findings under a clear-error standard of review). Finally, because the
BIA did not adopt the IJ’s adverse-credibility finding, but rather presumed that
Arcila Perez’s testimony was credible, the petitioners were not prejudiced by the
IJ’s original adverse-credibility determination. See Ibrahim, 821 F.3d at 1550.
Accordingly, they cannot establish a due process violation in this respect. See
Gonzalez-Oropeza, 321 F.3d at 1333.
III.
As noted above, we review the BIA’s decision as the final judgment unless
the BIA expressly adopted the IJ’s decision. Al Najjar, 257 F.3d at 1284. When
the BIA explicitly agrees with the findings of the IJ, we will review the decision of
both the BIA and the IJ as to those issues. Ayala v. U.S. Att’y Gen., 605 F.3d 941,
948 (11th Cir. 2010). Because the BIA issued its own opinion in this case, we
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review the BIA’s opinion. See Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir.
2007). Further, because the BIA explicitly agreed with the IJ’s finding that Arcila
Perez demonstrated neither past persecution nor a clear probability of future
persecution, we review the decisions of both the BIA and the IJ as to those issues.
Ayala, 605 F.3d at 948.
We review factual determinations under the substantial-evidence test. Ruiz
v. U.S. Att’y Gen., 440 F.3d 1247, 1254-55 (11th Cir. 2006). The
substantial-evidence test requires us to “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). We must affirm the BIA’s decision “if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Ruiz,
440 F.3d at 1254-55 (quotations omitted). Accordingly, in order for us to conclude
that a finding of fact should be reversed, we must determine that the record
“compels” reversal. Id. at 1255 (quotations omitted).
Under the Immigration and Nationality Act (“INA”) § 208(a), 8 U.S.C.
§ 1158(a), an alien shall not be removed to a country if his life or freedom would
be threatened in such country on account of race, religion, nationality, membership
in a particular social group, or political opinion. INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3). Where an alien requests withholding of removal, he has the burden
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of proof to show his eligibility for such relief under the INA. 8 C.F.R. § 208.16(b);
see Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). An
applicant for withholding of removal may satisfy this burden in one of two ways.
Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). First, he may
attempt to establish past persecution based on a protected ground. Id. In order to
establish eligibility for withholding of removal in this way, the alien must
demonstrate that the past persecution was “at least in part” motivated by a
protected ground. Id. In determining whether an alien has suffered past
persecution, the factfinder must consider the cumulative effect of any allegedly
persecutory incidents. Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir.
2007).
If an alien fails to establish past persecution, he may still be eligible for
withholding of removal if he can show that it is “more likely than not” that, upon
returning to his native country, he would be persecuted on the basis of a protected
ground. Tan, 446 F.3d at 1375 (quotations omitted). This standard is more
stringent than the “well-founded fear of future persecution” required for asylum.
Id. (quotations omitted).
In defining persecution, we have repeatedly stated that “persecution is an
extreme concept, requiring more than a few isolated incidents of verbal harassment
or intimidation, and that mere harassment does not amount to persecution.”
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Sepulveda, 401 F.3d at 1231 (quotations and alterations omitted). Further, we have
held that mere threats also do not constitute persecution. See Silva v. U.S. Att’y
Gen., 448 F.3d 1229, 1237 (11th Cir. 2006) (concluding that a threatening
“condolence note” and other threatening phone calls, without more, were mere
harassment, rather than persecution). Moreover, private acts of violence and
general criminal activity do not qualify as persecution based on a statutorily
protected ground. Ruiz, 440 F.3d at 1258. We have held, however, that
intentionally being shot at can constitute past persecution, even if the attempt was
unsuccessful. Sanchez Jimenez, 492 F.3d at 1233 (concluding that “attempted
murder is persecution”).
The factual context underlying our decision in Sepulveda bears several
similarities to the facts in this case. In Sepulveda, the petitioner was a former
political activist in Colombia who had received threatening phone calls from a
Colombian guerilla group. Sepulveda, 401 F.3d at 1228-29. The callers identified
Sepulveda by name, and they used profanity, told her to stop her political activity,
and made death threats. Id. at 1229. The political group of which Sepulveda was a
member also received threats. Id. The guerilla group also planted a bomb that
exploded inside the restaurant where Sepulveda worked. Id. The guerillas also
threatened her brother. Id. We concluded that neither the restaurant bombing nor
the threats made against Sepulveda, her political group, and her brother rose to the
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level of persecution sufficient to compel reversal of the IJ’s decision. Id. at 1231.
In support, we noted that, while the record permitted a conclusion that the
restaurant bombing was directed at Sepulveda on account of her political activity,
it did not compel such a conclusion. Id.
With regard to future persecution, an alien’s voluntary return to his home
country is a relevant, though not conclusive, consideration in evaluating his
persecution claim. De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1011 (11th
Cir. 2008) (“Voluntary returns to a home country may weaken or undermine an
applicant’s claim of persecution.”). Further, the fact that a petitioner has close
family living unharmed in the region of the home country to which the petitioner
fears returning also contradicts a claim of future persecution. Ruiz, 440 F.3d at
1258-59.
Additionally, the applicant must establish a sufficient nexus between a
protected ground and his alleged persecution. Rodriguez Morales v. U.S. Att’y
Gen., 488 F.3d 884, 890 (11th Cir. 2007). Specifically as to persecution on the
basis of political opinion, the alleged persecution must be on account of the
victim’s political opinion, not the persecutor’s. Sanchez v. U.S. Att’y Gen., 392
F.3d 434, 437-38 (11th Cir. 2004).
Substantial evidence supports the IJ’s and the BIA’s conclusion that Arcila
Perez did not satisfy his burden of proof on his withholding-of-removal claim.
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First, substantial evidence supports the IJ’s and the BIA’s finding that the incidents
described by Arcila Perez did not rise to the level of past persecution. To the
extent that Arcila Perez sought to rely on the insults and threats that he and his
family received, and on his being pushed at the political rally, the IJ and the BIA
correctly concluded that none of these incidents amounted to persecution. See
Silva, 448 F.3d at 1237; Ruiz, 440 F.3d at 1258; Sepulveda, 401 F.3d at 1231.
Furthermore, to the extent that Arcila Perez relied upon a confrontation with five
men, one of whom was armed, as constituting persecution, substantial evidence
supports the IJ’s conclusion that this incident also did not qualify as persecution.
Arcila Perez did not testify that any of the men pointed a gun at him, attempted to
shoot him, or threatened to shoot him. As such, the IJ correctly concluded that this
incident did not rise to the level of persecution. See Sanchez Jimenez, 492 F.3d at
1233.
Further, substantial evidence also supports the IJ’s and the BIA’s conclusion
that Arcila Perez did not establish a clear probability of future persecution if he
were to return to Venezuela. First, that Arcila Perez voluntarily returned to
Venezuela, shortly after his relocation to the United States, weakens his claim that
there is a clear probability of future persecution. See De Santamaria, 525 F.3d at
1011. Additionally, that one of Arcila Perez’s sons remained unharmed in
Venezuela also serves to contradict his claim of a clear probability of future
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persecution. See Ruiz, 440 F.3d at 1258-59. Furthermore, while Arcila Perez
asserted that he would be targeted upon his return to Venezuela because of his
voting record against President Hugo Chavez, he offered no evidence that he
would be specifically targeted in Venezuela, for this or any other reason.
Accordingly, substantial evidence supports the IJ’s and the BIA’s determination
that Arcila Perez failed to establish that it was “more likely than not” that he would
be persecuted if he returned to Venezuela. See Tan, 446 F.3d at 1375.
Finally, while the other petitioners each filed an individual application for
withholding of removal, none of them introduced any additional evidence or
testimony of persecution. Rather, they merely reiterated Arcila Perez’s claims
verbatim. Therefore, as Arcila Perez failed to establish that he was entitled to
withholding of removal, the IJ and the BIA properly found that the other
petitioners had also failed to demonstrate that they were entitled to such relief. For
these reasons, we deny the petition for review as to the petitioners’ claims for
withholding of removal.
PETITION DISMISSED, IN PART, AND DENIED, IN PART.
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