[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 20, 2005
No. 04-12673
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A78-602-188
BELAYNESH GEBREMARIAM,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 20, 2005)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Petitioner Belaynesh Gebremariam, through counsel, petitions this court for
review of the Board of Immigration Appeal’s (“BIA”) order affirming the
Immigration Judge’s (“IJ”) decision denying her application for asylum under the
Immigration and Nationality Act (“INA”). Because Gebremariam’s immigration
proceedings commenced after April 1, 1997, the effective date of IIRIRA, this case
is governed by the permanent provisions of the INA, as amended by IIRIRA. See
Antipova v. U.S. Attorney Gen., 392 F.3d 1259, 1264 (11th Cir. 2004); Gonzalez-
Oropeza v. U.S. Attorney Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).
Gebremariam argues that she had demonstrated past persecution based on
the fact that when she previously returned to Ethiopia after traveling to the United
States, she was detained, beaten, and interrogated because she was an Ethiopian
citizen of Eritrean descent. She argues that it is well established that detention and
physical beatings can constitute persecution sufficient to qualify for asylum. She
avers that she has a well-founded fear of future persecution because she has
already been persecuted and because there has not been a change in her
circumstances.
We review the BIA’s factual determinations under the substantial evidence
test and “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, 1283-84 (11th Cir. 2001) (quotation omitted).
Under this highly deferential standard of review, we must defer to the BIA’s
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decision as supported by substantial evidence, unless the evidence would compel a
reasonable fact finder to find otherwise. INS v. Elias-Zacarias, 502 U.S. 478, 481
n.1, 112 S.Ct. 812, 815 n.1, 117 L.Ed.2d 38 (1992); see also INA § 242(b)(4)(B), 8
U.S.C. § 1252(b)(4)(B) (“administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary”).
Any alien who arrives in or is present in the United States may apply for
asylum, which the Attorney General (“AG”) has discretion to grant if the alien is a
“refugee” as defined in 8 U.S.C. § 1101(a)(42)(A). Al Najjar, 257 F.3d at 1284
(citation omitted). That statute 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 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. . . .
8 U.S.C. § 1101(a)(42)(A) (emphasis added). The asylum applicant carries the
burden of proving statutory “refugee” status and thereby establishing asylum
eligibility. 8 C.F.R. § 208.13(a). If she meets that burden, the AG may exercise
his discretion to grant asylum. Al Najjar, 257 F.3d at 1284. Here, because the IJ
determined that Gebremariam failed to establish eligibility for asylum, he did not
address whether he would exercise his discretion. Accordingly, we need only
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address whether substantial evidence supports the finding that Gebremariam failed
to show statutory eligibility for asylum, i.e., past persecution or a well-founded
fear of future persecution on account of her race or nationality. See id. at 1285.
To establish asylum eligibility, the alien must establish, with specific,
detailed, and credible evidence (1) past persecution on account of her race,
nationality, or other statutorily listed factor, or (2) a “well-founded fear” that her
race, nationality, or other statutorily listed factor will cause future persecution. Al
Najjar, 257 F.3d at 1287; see also 8 C.F.R. § 208.13(a), (b). “[A]n applicant must
demonstrate that his or her fear of persecution is subjectively genuine and
objectively reasonable.” Sepulveda v. U.S. Attorney Gen., No. 03-14932,
manuscript. op. at 9 (11th Cir. Mar. 2, 2005) (quotation omitted). Establishing a
nexus between the statutorily listed factor and the feared persecution “requires the
alien to present specific, detailed facts showing a good reason to fear that he or she
will be singled out for persecution on account of” the statutorily listed factor.
D-Muhumed v. Attorney Gen., 388 F.3d 814, 818 (11th Cir. 2004) (quotation
omitted).
If the alien demonstrates past persecution, she is presumed to have a well-
founded fear of future persecution unless the government can rebut the
presumption. 8 C.F.R § 208.13(b)(1). If, however, the alien does not establish
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past persecution, she bears the burden of demonstrating a well-founded fear of
persecution by showing that (1) she fears persecution based on her nationality or
other statutorily listed factor; (2) there is a reasonable possibility she will suffer
persecution if removed to her native country; and (3) she could not avoid
persecution by relocating to another part of her country, if under all the
circumstances it would be reasonable to expect relocation. See 8 C.F.R.
§ 208.13(b)(2), (3)(i).
Persecution is an “extreme concept requiring more than a few isolated
incidents of verbal harassment or intimidation.” Sepulveda, No. 03-14932,
manuscript op. at 8 (quotation omitted). Courts have generally held that it is
conduct that is egregious, sustained, and rises above mere unpleasantness or even
basic suffering. See e.g., Nelson v. INS, 232 F.3d 258, 263-64 (1st Cir. 2000)
(citing various cases regarding past persecution and finding that three episodes of
solitary confinement accompanied by physical abuse did not constitute
persecution).
Here, the record contains substantial evidence supporting the BIA’s finding
that Gebremariam has not suffered past persecution or has a well-founded fear of
future persecution. See Al Najjar, 257 F.3d at 1283-84. As to past persecution,
first, although Gebremariam claims she suffered hostile conditions while
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imprisoned for 14 days, although unpleasant, this does not rise to the level of past
persecution. See e.g., Nelson v. INS, 232 F.3d at 263. Second, Gebremariam’s
additional claims of her family being evicted while she was in jail and her losing
her job do not demonstrate past persecution because she does not provide evidence
that it was on account of one of the five statutory factors or explain why she was
able to leave Ethiopia to visit the United States on several occasions without any
problems from the Ethiopian government after she lost her job because she was
Eritrean. Thus, the evidence does not compel a reasonable fact finder to find that
Gebremariam suffered past persecution on account of her race or nationality. See
Elias-Zacarias, 502 U.S. at 481 n.1, 112 S.Ct. at 815 n.1.
In addition, Gebremariam failed to show that she had a well-founded fear of
future persecution. According to the country reports in the record, the Ethiopian
government no longer detains or deports Eritreans and Ethiopians of Eritrean
origin without due process. Gebremariam also had family in Ethiopia who have
not been deported or harmed. Therefore, Gebremariam failed to carry her burden
of establishing past persecution or a well-founded fear of future persecution, which
precludes her from being granted asylum.
Because Gebremariam did not raise before the BIA withholding of removal
under the INA or relief pursuant to the United Nations Convention Against Torture
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and Other Cruel, Inhuman, or Degrading Treatment or Punishment, to the extent
she raises those claims in her brief before us, her claims are unexhausted and we
are without jurisdiction to entertain them. See 8 U.S.C. § 1252(d)(1);
Fernandez-Bernal v. U.S. Attorney Gen., 257 F.3d 1304, 1317 n.13 (11th Cir.
2001).
For the foregoing reasons, we deny Gebremariam’s petition for review.
PETITION DENIED.
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