[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13146 ELEVENTH CIRCUIT
FEBRUARY 23, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency Nos. A098-739-989,
A098-739-990
ALBERTO ARAGON RUIZ,
JUAN DAVID ARAGON TORRES,
OSCAR ALBERTO ARAGON TORRES,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 23, 2010)
Before BIRCH, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Alberto Aragon Ruiz (“Aragon”) and his sons, Juan David Aragon Torres
and Oscar Alberto Aragon Torres, petition for review of the Board of Immigration
Appeals’s (BIA’s) decision affirming the Immigration Judge’s (IJ’s) denial of their
application for asylum and withholding of removal under the Immigration and
Nationality Act (“INA”), and protection under the Convention Against Torture
(“CAT”).1 Aragon, a citizen of Colombia, claimed past persecution and a well-
founded fear of future persecution by the Revolutionary Armed Forces of
Colombia (“FARC”) based on his membership in the Conservative Party and his
participation in social brigades. After review, we dismiss in part and deny in part
the petition for review.
To establish eligibility for asylum, an applicant must show either past
persecution or a well-founded fear of future persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.
INA § 101(a)(42); 8 U.S.C. § 1101(a)(42)(A); Sepulveda v. U.S. Att’y Gen., 401
1
Aragon’s two sons were included on the asylum application as derivative beneficiaries.
Although our opinion refers only to Aragon, our holding as to the asylum and CAT claims
applies equally to his sons. We deny the sons’ withholding of removal claim, because “there are
no derivative benefits associated with a grant of withholding of removal.” See Delgado v. U.S.
Att’y Gen., 487 F.3d 855, 862 (11th Cir. 2007). Further, Aragon has abandoned any challenge to
the denial of CAT relief, as he has failed to offer substantive argument on this claim or cite
applicable law in his appeal brief. See Sing v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir.
2009) (noting that when an appellant fails to offer argument on an issue, or makes only passing
references to the issue, the issue is deemed abandoned). Thus, the only claims we address are
the petitioners’ joint claim for asylum and Aragon’s claim for withholding of removal.
2
F.3d 1226, 1230-31 (11th Cir. 2005); 8 C.F.R. § 208.13(a), (b).2 In determining
whether an applicant suffered past persecution, the BIA considers the cumulative
impact of the alleged incidents of mistreatment. Delgado v. U.S. Att’y Gen., 487
F.3d 855, 861 (11th Cir. 2007).
Although the INA does not define persecution, this Court has recognized
that it is “an extreme concept requiring more than a few isolated incidents of verbal
harassment or intimidation.” Ruiz v. Gonzales, 479 F.3d 762, 766 (11th Cir. 2007)
(quotation marks omitted). Accordingly, this Court has concluded that threats in
conjunction with brief detentions or a minor physical attack that does not result in
serious physical injury do not rise to the level of persecution. See, e.g., Djonda v.
U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (36-hour detention, beating
and threat of arrest); Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290-91 (11th Cir.
2006) (5-day detention).3
2
Similarly, an alien seeking withholding of removal must show that it is more likely than
not that she will be persecuted on account of race, religion, nationality, membership in a
particular social group, or political opinion upon being returned her country. INA § 241(b)(3), 8
U.S.C. § 1231(b)(3); Sepulveda, 401 F.3d at 1232. Because this standard is more stringent than
the standard for asylum, an alien who fails to establish asylum eligibility generally cannot satisfy
the higher burden for withholding of removal. Id. at 1232-33.
3
Because the BIA adopted the IJ’s reasoning as to Aragon’s statutory eligibility, we
review both the BIA’s and the IJ’s decisions. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). We review the factual determination that an alien is statutorily ineligible for
asylum or withholding of removal under the “highly deferential” substantial evidence test, which
requires that we affirm the BIA’s decision if it is “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Id. (quotation marks omitted). Thus,
we reverse “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.” Mehmeti
3
Here, we cannot say that the evidence compels the conclusion that Aragon
suffered past persecution. According to Aragon’s asylum application and credited
hearing testimony, while Aragon was participating in the brigades in 1998 and
1999, the FARC approached him two times, ordered him to stop and threatened
him. Aragon stopped working with the brigades, but resumed again in June 2003.
In February 2004, armed FARC members stopped Aragon after a social
brigade, took down information from his citizenship card and forced him to leave
the area. In April 2004, after another social brigade in the mountains, Aragon was
detained by the FARC, driven to the top of a mountain, interrogated about the
social brigades and then released unharmed.4 Shortly thereafter, Aragon began
receiving threatening phone calls.
In May 2004, the FARC kidnapped Aragon’s oldest son, Oscar, as he was
leaving university classes. The FARC called Aragon and explained that they
wanted to show him they were serious and they could hurt him if they wanted to.
Oscar was released unharmed two hours later a few blocks from his house. On
June 13, 2004, Aragon sent Oscar to live with his sister in Miami.
v. U.S. Att’y Gen., 572 F.3d 1196, 1199 (11th Cir. 2009).
4
Although Aragon did not present evidence of the length of this detention, from his
application and testimony, it appears he was released as soon as the interrogation was over and
thus that he was not detained for very long.
4
The threatening phone calls continued. The FARC told Aragon that, like his
son, he should leave the country or they “would continue with [his] other children
. . . .” Aragon sent his three remaining sons to live with relatives outside Cali. On
February 22, 2005, Aragon and his youngest son, Juan, left for the United States.
Aragon’s other two sons remained with relatives in Colombia until May 2006,
when they went to live with their mother in Spain.5
These threats and brief detentions, which did not result in any harm, fall
short of the extreme mistreatment found in other cases in which this Court has
concluded that the record compelled a conclusion that the petitioner was
persecuted. See, e.g., De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008-10
(11th Cir. 2008) (involving repeated death threats, torture and murder of
petitioner’s groundskeeper, assault resulting in hospitalization, kidnapping and
beating with guns resulting in hospitalization); Niftaliev v. U.S. Att’y Gen., 504
F.3d 1211, 1215-17 (11th Cir. 2007) (involving threats, numerous interrogations
and beatings during a 15-day detention that resulted in two-month hospitalization,
and two subsequent physical attacks after petitioner fled to Argentina); Mejia v.
U.S. Att’y Gen., 498 F.3d 1253, 1257-58 (11th Cir. 2007) (involving written
threats and “condolence” letter, assault with a rock and detention at gunpoint,
5
Aragon could not take his two middle sons to the United States because they did not
have visas. Aragon left for the United States with Juan, who was a minor, as soon as Aragon
received permission from his ex-wife to take Juan out of the country.
5
during which petitioner was thrown to the ground and hit with a gun, breaking his
nose and requiring surgery); Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223,
1233 (11th Cir. 2007) (involving attempted murder of petitioner, attempted
kidnapping of his daughter, and death threats); Delgado v. U.S. Att’y Gen., 487
F.3d 855, 861-62 (11th Cir. 2007) (involving threatening phone calls, car
vandalization, detention by masked men who pointed and mock fired unloaded
guns at petitioners, and a severe beating requiring medical treatment).
Both Aragon’s own detention and the kidnapping of his son were relatively
brief and in both instances the FARC released them voluntarily. Neither Aragon
nor anyone else connected to him suffered any physical harm. Although we have
never held that physical harm is a prerequisite to finding persecution, the
conditions under which Aragon and his son were detained did not have the kind of
apprehension of imminent serious physical harm or death that this Court has held
was persecution even absent physical harm. See Sanchez Jimenez, 492 F.3d at
1233 (concluding that attempted murder in which FARC shot at alien while he
traveled in his car was “sufficiently extreme” to constitute persecution despite lack
of physical injury).
Because Aragon did not establish past persecution, he was not entitled to a
presumption that he has a well-founded fear of future persecution. See Mejia v.
U.S. Atty. Gen., 498 F.3d 1253, 1257 (11th Cir. 2007). To show a well-founded
6
fear of future persecution, an alien must show “that there is a reasonable
probability of suffering such persecution if he or she were to return to that
country.” Id. at 1256. Absent a presumption, the IJ concluded that the events that
did not constitute past persecution also did not support a claim of a well-founded
fear and that any fear was further attenuated by the passage of time.
Furthermore, the fact that the FARC is present throughout Colombia, and
beyond the control of Colombian authorities, does not necessarily indicate that if
Aragon returned to Colombia the FARC would show a particular interest in him.
Indeed, Aragon presented no evidence that the FARC has continued to look for
him or threaten him or his family in Colombia. Moreover, as the BIA recognized,
there is evidence that Aragon made numerous business trips to the United States
after the FARC threats began in 1999. The last of these trips occurred in August
2004, after his April 2004 detention and his son’s May 2004 kidnapping. See De
Santamaria, 525 F.3d at 1011 (“An asylum applicant’s voluntary return to his or
her home country is a relevant consideration in determining whether the asylum
applicant has a well-founded fear of future persecution.”). Under the
circumstances, we cannot say the evidence compels a conclusion that Aragon had a
well-founded fear of persecution.
Because Aragon did not establish either past persecution or a well-founded
fear of future persecution, he did not demonstrate eligibility for asylum. See
7
Mehmeti, 572 F.3d at 1199. Having failed to demonstrate eligibility for asylum, it
follows that Aragon was similarly ineligible for withholding of removal. See Silva
v. U.S. Att’y Gen., 448 F.3d 1229, 1243 (11th Cir. 2006). Accordingly, we deny
Aragon’s petition as to his claims of asylum and withholding of removal and
dismiss his petition as to the denial of CAT relief.
PETITION DISMISSED IN PART AND DENIED IN PART.
8