[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-13015 March 13, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
Agency Nos. A95-896-009
A95-896-010
ANTONIO CARLOS DE PAULA,
JAQUELINE APARECIDA DA COSTA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 13, 2008)
Before MARCUS, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Antonio Carlos De Paula (“De Paula”), the lead petitioner, and his wife
Jacqueline Aparecida Da Costa (“Da Costa”) seek review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
dismissal of their applications for asylum, withholding of removal, and relief under
the United Nations Convention Against Torture (“CAT”). For the reasons stated
below, we dismiss the petition in part and deny in part.
I. Background
De Paula and Da Costa are both natives and citizens of Brazil. They were
admitted to the United States on March 11, 2001 as non-immigrants with
authorization to remain in the country until September 10, 2001.
On July 25, 2002, De Paula and Da Costa filed applications for asylum and
withholding of removal.1 According to De Paula’s application, he owned and
managed a general store in Petropolis, Brazil, a slum outside of Rio de Janeiro. He
and Da Costa lived behind the store.
De Paula claimed that a street gang forced local businesses to pay a weekly
“tax” or those businesses would be robbed and the proprietors would face potential
physical consequences. De Paula asserted that he refused to pay the gang out of
1
According to the BIA, Da Costa proceeded as a derivative beneficiary. As such, she has
no withholding of removal claim. See Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir.
2007).
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fear that the gang would, over time, gradually increase the rates, making it
impossible to earn a living.
The gang would allegedly rob the stores at night. De Paula alleged that the
gang would turn off the electricity for the entire city block before robbing the
stores so that the proprietors would not see who was robbing them. The block
would then be without electricity for days before electricity would be restored.
Because these robberies happened frequently, De Paula purchased a generator so
that he could have his store back up and running shortly after the gang would visit.
De Paula alleged that one night the generator was functioning and the gang
entered his store. The light allowed De Paula to identify one of the gang
members—a well-known gang leader named Tiaozinho. After being robbed and
physically attacked that night, De Paula went to the police and identified Tiaozinho
as one of the attackers. The police then arrested Tiaozinho and he was in prison
for four days. It is not clear how Tiaozinho was released, but De Paula asserted to
the IJ that Tiaozinho bribed his way out of prison.
De Paula also asserted that in the weeks that followed Tiaozinho’s release,
De Paula was the victim of multiple threats of violence and two beatings. He
claimed that the gang shot at his store, that it made numerous phone calls to him
threatening to kill him and rape his wife, and that the gang wrote in blood on the
store window that it would kill De Paula. On two occasions, De Paula was hurt
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severely; once the gang beat him so seriously that he lost several teeth, and another
time he permanently lost vision in one eye.
De Paula speculated that a police officer tipped off Tiaozinho that De Paula
had turned Tiaozinho into the police. Both De Paula and Da Costa left their home
and moved to Rio de Janeiro for two weeks before coming to the United States.
The IJ dismissed the applications for asylum, withholding of removal, and
relief under the CAT, and the BIA affirmed. This appeal follows.
II. Standard of Review
We review its subject-matter jurisdiction de novo. Brooks v. Ashcroft, 283
F.3d 1268, 1272 (11th Cir. 2002). We also review the BIA’s legal determinations
de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004).
The BIA’s factual determinations are reviewed under the substantial evidence test,
and this court “must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Sanchez
Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1230 (11th Cir. 2007). The substantial
evidence test is “highly deferential” and does not allow “re-weigh[ing] the
evidence from scratch.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir.
2006). “To reverse the [BIA’s] fact findings, [this court] must find that the record
not only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d
1283, 1287 (11th Cir. 2003). When reviewing a CAT claim, we have concluded
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that whether a particular fact pattern constitutes “torture” is a mixed question of
law and fact. Jean-Pierre v. U.S. Att’y. Gen., 500 F.3d 1315, 1322 (11th Cir.
2007).
III. Discussion
A. Timeliness of Asylum Application
An alien can apply for asylum if he “demonstrates by clear and convincing
evidence that the application has been filed within [one] year after the date of the
alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). However, “[a]n
application for asylum of an alien may be considered . . . if the alien demonstrates
to the satisfaction of the Attorney General either the existence of changed
circumstances which materially affect the applicant’s eligibility for asylum or
extraordinary circumstances relating to the delay in filing an application within the
period specified . . .” 8 U.S.C. § 1158(a)(2)(D).
In order to file his asylum application within one-year of arrival, De Paula
would have had to have filed his application by March 11, 2002. Instead, he filed
it on July 25, 2002. Although he filed the application late, De Paula posits that it
was filed within a reasonable period of the expiration of his lawful status in
September 2001. He also states that his tardiness should be forgiven since
exceptional circumstances exist; he cannot speak English and he did not know of
the one-year requirement.
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The government contends that this court lacks jurisdiction to review whether
De Paula filed his application for asylum in a timely manner.
We have already concluded that section 1158(a)(3) divests our court of
jurisdiction to review a decision regarding whether an alien complied with the
one-year time limit or established extraordinary circumstances that would excuse
his untimely filing. See Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957
(11th Cir. 2005). Thus, we have no jurisdiction over the asylum claim, and we
dismiss the petition in part.
B. Withholding of Removal
In a withholding of removal claim, an alien may 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. 8 U.S.C. §
1231(b)(3)(A). The alien must show that it is “more likely than not that [he] will
be persecuted or tortured upon being returned to [his] country.” Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). The applicant must show that
his fear of persecution is subjectively genuine and objectively reasonable. Id. at
1231.
One way an applicant can meet this burden is to show that he suffered “past
persecution on a protected ground.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,
1287 (11th Cir. 2003). De Paula bases his withholding of removal contention on
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the argument that he faced past persecution. He argues (1) that his refusal to pay
the gang was political expression, and (2) that as a Brazilian business owner, he is
a member of a particular social group. The BIA dismissed these contentions.
We conclude that the BIA did not err. De Paula was the victim of severe
threats and violence, but he was not threatened and attacked because of his political
beliefs; the facts establish that he was a victim of an organized crime scheme. The
facts indicate that he would have been a victim regardless of his political beliefs.
His refusal to pay a “tax” to local thugs does not constitute a “political belief” for
withholding of removal purposes.
Also, De Paula’s occupation as a business owner does not qualify him as a
member of a “social group” for withholding of removal purposes. Congress and
this court have not defined “particular social group.” Castillo-Arias v. U.S. Att’y
Gen., 446 F.3d 1190, 1196 (11th Cir. 2006), cert. denied, 127 S.Ct. 977 (2007).
This court has concluded, however, that the members of a “particular social group”
must share a “common, immutable characteristic” such as “sex, color, or kinship
ties, or in some circumstances . . . a shared past experience such as former military
leadership or land ownership.” Id. at 1193 (quoting Matter of Acosta, 19 I. & N.
Dec. 211, 233 (BIA 1985)). The characteristic “must be one that members of the
group either cannot change or should not be required to change because it is
fundamental to their individual identities or consciences.” Id. An occupation is
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not an “immutable characteristic.” Therefore, owning a business in Brazil does not
alone constitute a “particular social group.”
C. CAT Relief
To be entitled to relief under the CAT, an applicant must establish that it is
“more likely than not that he or she would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 208.16(c)(2). “Torture” is defined as
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected or having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
8 C.F.R. § 208.18(a)(1). To acquiesce, the government must be aware of
misconduct that it has a duty to prevent, and it must fail to intervene. 8 C.F.R. §
208.18(a)(7).
De Paula speculates that the police were somehow involved in his suffering;
he bases this assertion on the facts that Tiaozinho was released after only serving
four days in jail and that Tiaozinho “knew” that De Paula had spoken with the
police. But a review of the record reveals that De Paula failed to meet his burden
because he offered no evidence to support a link between the gang and the
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police—he only speculated that such a link existed. One could just as easily
speculate that Tiaozinho was released on bail and that Tiaozinho “knew” De Paula
had contacted the police because De Paula’s lights were on the last time the gang
robbed De Paula. Moreover, the evidence shows that the police arrested Tiaozinho
and that De Paula failed to report the subsequent beatings. Thus, after reviewing
the record, we cannot say that it compels reversal.
III. Conclusion
For the reasons stated above, we DISMISS IN PART AND DENY IN
PART.
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