[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 5, 2010
No. 08-13841 JOHN P. LEY
Non-Argument Calendar ACTING CLERK
________________________
Agency No. A96-440-702
SUGENG SUWANDI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 5, 2010)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Sugeng Suwandi, a native and citizen of Indonesia, through counsel, seeks
review of the Board of Immigration Appeals’s (BIA’s) order dismissing his appeal
of the Immigration Judge’s (IJ’s) order denying his application for asylum and
withholding of removal under the Immigration and Nationality Act (INA), and
relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment (CAT), pursuant to INA §§ 208,
241, 8 U.S.C. §§ 1158, 1231; 8 C.F.R. § 208.16(c). Suwandi claims that he was
persecuted because of his status as a Chinese Christian. We address each claim in
turn.
I. Due Process
Suwandi argues that his due process rights were violated because he did not
receive a full and fair hearing as the IJ did not adequately question him regarding
his allegations that he was persecuted on the basis of his race or religion. However,
we “lack jurisdiction to consider a claim raised in a petition for review unless the
petitioner has exhausted his administrative remedies with respect thereto.” Amaya-
Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006); see 8 U.S.C.
§ 1252(d)(1) (stating the exhaustion requirement applicable to immigration cases).
Although exhaustion may not apply to all due process claims, it applies to claims
for which the BIA can provide a remedy. Amaya-Artunduaga, 463 F.3d at 1251.
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Because he failed to exhaust his administrative remedies, we lack jurisdiction to
consider Suwandi’s due process claim.
II. Asylum
Suwandi claims that the IJ erred in denying his claim for asylum, and the
BIA erred in dismissing his appeal. He argues that the events he described proved
that he had both a subjective and objective well-founded fear of future persecution.
An alien can apply for asylum if he or she “demonstrates 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.” INA § 208(a)(2)(B), 8 U.S.C.
§ 1158(a)(2)(B). However, we do not have jurisdiction to review an agency’s
determination that an applicant’s asylum application was untimely, except to the
extent that the applicant’s claim raises questions of law or constitutional claims.
See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). Moreover, “[w]hen an appellant fails to
offer argument on an issue, that issue is abandoned.” Sepulveda v. U.S. Atty. Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
Suwandi abandoned his asylum claim because the timeliness of the claim
was dispositive, and he failed to address the timeliness issue on appeal. Even if the
issue were not abandoned, we lack jurisdiction to review whether Suwandi’s
asylum application was untimely because he has not raised any questions of law or
constitutional claims in that regard.
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III. Withholding of Removal
Suwandi argues that he qualifies as a refugee on the basis of past persecution
because his life repeatedly was threatened by an organization and individuals that
had demonstrated an ability and an inclination to carry out their threats, although
he does not identify the organization. Suwandi also argues that, based on the
documentary evidence he presented, it is objectively reasonable that he would be
targeted if he were forced to return to Indonesia. Finally, Suwandi notes that the
overwhelming evidence demonstrates that he was persecuted on account of his race
and religion.
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). Here, the BIA agreed with some of the IJ’s
findings but also made additional observations, so we review both the IJ’s and the
BIA’s decisions.
To the extent that the BIA’s decision was based on a legal determination,
review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001). The BIA’s factual determinations are reviewed under the substantial-
evidence test, and 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, 257 F.3d at 1283-84 (citation omitted). The substantial
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evidence test is “deferential” and does not allow “re-weigh[ing] the evidence from
scratch.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001).
In a withholding-of-removal claim, an alien shall not be removed to a
country if his life or freedom would be threatened 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). The alien must show that it is “more likely than
not [he] will be persecuted or tortured upon being returned to [his] country.”
Sepulveda, 401 F.3d at 1232 (quotation omitted). This standard is more stringent
than the “well-founded fear” standard for asylum. Mazariegos, 241 F.3d at 1324
n.2. “[P]ersecution is an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation, and . . . mere harassment does not
amount to persecution.” Sepulveda, 401 F.3d at 1231 (quotations omitted).
If the alien establishes past persecution in his country based on a
protected ground, it is presumed that his life or freedom would be
threatened upon return to his country unless the INS shows by a
preponderance of the evidence that, among other things, (1) the
country’s conditions have changed such that the applicant’s life or
freedom would no longer be threatened upon his removal; or (2) that
the alien could avoid a future threat to his life or freedom by
relocating to another part of the proposed country of removal, and it
would be reasonable to expect him to do so.
Mendoza, 327 F.3d at 1287. “An alien who has not shown past persecution,
though, may still be entitled to withholding of removal if he can demonstrate a
future threat to his life or freedom on a protected ground in his country.” Id.
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Having reviewed the record, we find no error in the BIA’s determination that
Suwandi’s experiences did not constitute past persecution as all three of the
instances of alleged persecution appeared to be criminally motivated, having no
demonstrated nexus with any protected ground. We do not find that the BIA erred
in concluding that Suwandi failed to meet his burden of proof for withholding of
removal.
IV. CAT Relief
Suwandi argues that he qualifies for CAT relief because he was persecuted
in the past and has a well-founded fear of future persecution. This Court lacks
jurisdiction to consider a claim not raised before the BIA, even when the BIA sua
sponte considers the claim. See Amaya-Artunduaga, 463 F.3d at 1250. Thus,
because he failed to raise it before the BIA, we lack jurisdiction to consider
Suwandi’s CAT claim.
PETITION DISMISSED IN PART, DENIED IN PART.
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