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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15697
Non-Argument Calendar
________________________
Agency No. A088-012-496
RICHARD LLOYD STEWART,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 3, 2018)
Before TJOFLAT, JORDAN, and HULL, Circuit Judges.
PER CURIAM:
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Richard Lloyd Stewart petitions for review of the Board of Immigration
Appeals’ affirmance of an Immigration Judge’s denial of his application for
withholding of removal under § 241(b)(3) of the Immigration Nationality Act, 8
U.S.C. §1231(b)(3), and withholding of removal under the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“CAT”), 8 C.F.R. § 208.16(c). After review, we deny Mr. Stewart’s
petition.
I
Mr. Stewart, a native and citizen of Jamaica, entered the United States on or
about March 31, 1993, on a non-immigrant B-2 visa with authorization to remain
in the United States not longer than six months. He remained in the United States,
however, and on April 29, 2014, was convicted in the United States District Court
for the Middle District of Florida of the offense of making a false claim of United
States citizenship, in violation of 18 U.S.C § 911, and sentenced to time served. On
May 2, 2014, the Department of Homeland Security initiated removal proceedings
against Mr. Stewart through the issuance of a Notice to Appear. Mr. Stewart then
applied for withholding of removal and CAT protection.
At his merits hearing on May 17, 2016, Mr. Stewart testified that he is afraid
of returning to Jamaica because of his sexual orientation. Mr. Stewart identifies
himself as bisexual. He is currently married and has five children with different
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mothers. Mr. Stewart stated that while attending boarding school in Jamaica he
suffered verbal and physical abuse by his classmates because they perceived him
as gay. He specified one incident in which he was beaten and tied up to a bed by
his roommates because of his sexual orientation.
The IJ, however, found Mr. Stewart not credible and determined that the
past harm in Mr. Stewart’s case did not rise to the level of persecution. The IJ also
concluded that Mr. Stewart failed to prove that he more likely than not will suffer
future harm or persecution in Jamaica. Lastly, the IJ determined that Mr. Stewart
was not likely to suffer torture if returned to Jamaica. Therefore, the IJ denied Mr.
Stewart’s claims for relief. Mr. Stewart appealed the IJ’s order to the BIA, which
affirmed without addressing Mr. Stewart’s credibility. Mr. Stewart now seeks our
review of these decisions. 1
II
“We review the decision of the Board, and we review the decision of the
Immigration Judge to the extent that the Board expressly adopted the opinion of
the Immigration Judge.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350
(11th Cir. 2009) (citations omitted). We review conclusions of law de novo, and
factual findings for substantial evidence to support them. See id. “Under the
substantial evidence standard, we view the record evidence in the light most
1
Mr. Stewart conceded that he was not eligible for asylum due to his untimely filing of this
application.
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favorable to the agency’s decision and draw all reasonable inferences in favor of
that decision.” Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1308 (11th Cir. 2013)
(citations omitted). We will affirm the BIA’s decision if it is “supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Kazemzadeh, 577 F.3d at 1351 (citations omitted).
III
A
An applicant seeking withholding of removal must establish that his life or
freedom would be threatened in his home country because of his “race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). The applicant may satisfy this burden by establishing that he
suffered persecution in the past based on the protected ground, or that it is more
likely than not that he will be persecuted on account of a protected ground if
returned to his home country. See Rodriguez, 735 F.3d at 1308. See also 8 C.F.R. §
1208.16(b). A finding of past persecution creates a rebuttable presumption that the
applicant’s life or freedom would be threatened upon return to his country. See
Rodriguez, 735 F.3d at 1308. In such cases, the DHS bears the burden of proving
by a preponderance of the evidence that there has been a fundamental change in
circumstances of the applicant, or there is a possibility of safe relocation to another
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part of the applicant’s native country, such that the applicant’s life or freedom
would not be threatened. See 8 C.F.R § 1208.16(b)(1)(i)-(ii).
A particular social group “refers to persons who share a common, immutable
characteristic ‘that the members of the group either cannot change, or should not
be required to change because it is fundamental to their individual identities or
consciences.’” Rodriguez, 735 F.3d at 1310. Here, the IJ and the BIA agreed that
Mr. Stewart established his membership of a cognizable particular social group
based on his sexual orientation.
B
Persecution is “an extreme concept that . . . requires more than a few isolated
incidents of verbal harassment or intimidation, unaccompanied by any physical
punishment, infliction of harm, or significant deprivation of liberty.” Shi v. U.S.
Att’y Gen., 707 F.3d 1231, 1235 (11th Cir. 2013) (citations omitted). Cases of
political persecution in which petitioners suffered minor physical abuse combined
with harassment have been held to not rise to the level of persecution. See Djonda
v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (petitioner held in prison
for thirty-six hours and beaten, suffering scratches and bruises, but not bone
fractures); Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000) (fear of re-
education and indoctrination in communist theory and of being used for
propaganda purpose not enough to constitute persecution).
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Mr. Stewart testified that while in boarding school in Jamaica his classmates
targeted him on a constant basis and would tie him to a bed and beat him. Mr.
Stewart failed, however, to provide any details of the beatings and failed to provide
any other type of evidence to support his claims. He did not provide any evidence
of the severity, extent, or frequency of the beatings, nor of any injuries that he may
have suffered.
Thus, the BIA did not err in concluding that Mr. Stewart failed to prove past
persecution by a preponderance of the evidence. To the contrary, substantial record
evidence supports the BIA’s conclusion.
C
“An alien who cannot show past persecution can still qualify for withholding
of removal by showing that it is ‘more likely than not’ that he will be persecuted
on account of a protected ground.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d
1223, 1238 (11th Cir. 2007) (citations omitted). See also 8 C.F.R. §1208.16(b)(2).
An individual is not required to show that he would be singled out for persecution
if he establishes that there is a pattern or practice in his home country of
persecution of a group of persons, similarly situated to him, of which he is
included, and that it is more likely than not that his life or freedom would be
threatened if he returned to that country. See id.
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Here, the BIA accepted Mr. Stewart’s inclusion in and identification with
the LGBTI community, but it determined that he failed to show that Jamaica has a
current pattern or practice of persecution for LGBTI individuals, such that his life
or freedom would more likely than not be threatened. The BIA relied on recent
evidence showing improvements in the conditions for and treatment of the LGBTI
community in Jamaica. For instance, the Jamaica 2015 Human Rights Report noted
that Jamaica has not enforced its “anti-buggery” law against two same-sex
consenting adults, but only in cases of sexual assault or child molestation. See AR
at 285. Further, it noted that the Jamaican Ministry of Health and the NGO J-
FLAG trained more than 200 healthcare workers to sensitize them to LGBTI
patients. See id. Thus, substantial evidence supports the BIA’s conclusion that Mr.
Stewart failed to prove that he was more likely than not to suffer future threats to
his life and liberty if returned to Jamaica.
IV
The BIA also denied Mr. Stewart’s application for withholding of removal
under the CAT. Mr. Stewart bore the burden of proving by a preponderance of the
evidence that he would more likely than not be tortured if returned to Jamaica. See
8 C.F.R. §1208.16(c)(2). Torture is defined as “any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person . . .
when such pain or suffering is inflicted by or at the instigation of or with the
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consent or acquiescence of a public official or other person acting in an official
capacity.” Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1232 (11th Cir.
2013) (quoting 8 C.F.R. § 208.18(a)(1)).
Here, Mr. Stewart failed to prove both that he suffer severe pain or suffering
and that such pain or suffering would be inflicted, instigated, or acquiesced to by a
public official. See id. There is substantial record evidence to show that the
Jamaica government does not inflict, instigate or acquiesce in the suffering or pain
of the LGBTI Jamaicans. To the contrary, the Jamaica 2015 Human Rights Report
shows that the government, with the help of NGOs, is working on improving the
conditions for LGBTI Jamaicans. See AR at 285.
V
Because there is reasonable, substantial, and probative record evidence to
support the BIA’s decision, we deny Mr. Stewart’s petition.
PETITION DENIED.
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