[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 19, 2008
THOMAS K. KAHN
No. 07-13631
CLERK
Non-Argument Calendar
________________________
BIA No. A75-864-921
WILMER ARTEAGA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 19, 2008)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Wilmer Arteaga, a native and citizen of Venezuela, appeals the order of the
Board of Immigration Appeals (“BIA”) affirming without opinion the immigration
judge’s (“IJ’s”) order of removal, denial of asylum and withholding of removal
under the Immigration and Nationality Act (“INA”), and denial of relief under the
United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (“CAT”), INA §§ 208, 241, 8 U.S.C. §§ 1158,
1231, 8 C.F.R. § 208.16(c).
Arteaga argues that the BIA erred in finding that he had not established past
persecution or a well-founded fear of future persecution on account of his imputed
political opinion. Arteaga also argues, for the first time on appeal, that he
established past-persecution or a well-founded fear of future persecution on
account of his membership in a particular social group. Arteaga fails, however, to
provide any argument on the BIA’s denial of CAT relief. For the reasons
discussed below, we deny the petition as to Arteaga’s asylum and withholding-of-
removal claims, to the extent they are based on his imputed political opinion; deny
the petition as to Arteaga’s CAT claim; and dismiss the petition as to Arteaga’s
asylum and withholding-of-removal claims based on his membership in a
particular social group.
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I.
In his application for asylum, withholding of removal, and CAT relief and at
his individual hearing, Arteaga alleged the following. His father was a member of
the Democratic Action Party of Venezuela, which opposed Hugo Chavez’s
presidency. As part of his political opposition, his father participated in an anti-
Chavez march on April 11, 2002, in Caracas, Venezuela. His father also signed a
presidential recall referendum against Chavez in August 2004. Arteaga also
opposes Chavez.
As a result of his father’s political activity, Arteaga’s family suffered the
following persecution. While his father marched against Chavez, his father was
“struck and threatened.” After the march, his father received “late-night telephone
calls” at home. One of the callers threatened his father’s life and told his father
that he or she “knew the whereabouts of a member of his family who lived in the
[United] [S]tates.” These “constant” threatening telephone calls continued from
December 2002 until February 2003. Arteaga’s father also received calls in
February 2004, warning him to be careful because he was being watched. While
most of the callers were anonymous, others identified themselves as being
members of the pro-Chavez “Movement of the Fifth Republic.”
After his father signed the referendum, his father was “blacklisted” and
made unemployable, and Arteaga’s family was constantly surveilled by Chavez’s
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party. Because of the stress of the phone calls and other events, his father suffered
a neuromuscular paralysis in October 2002. The illness left his father incapacitated
for four months and his father continued to suffer to a lesser degree until the time
of Arteaga’s hearing. In February 2004, his father was “taken at gunpoint in a
pickup truck,” told that he should cease his opposition activity or Arteaga’s family
would suffer “serious consequences,” and “stripped of his possessions[] and the
money that he was about to deposit in the bank.”
Moreover, the persecution was not limited to Arteaga’s father and his
immediate family. In 2005, the home of one of Arteaga’s cousins was broken into.
While the police said that it was a “regular robbery,” Arteaga’s cousin and family
knew that it was Chavez supporters
Arteaga admitted, however, that his father no longer is as active in the
Democratic Action Party because of health problems and that no other family
member currently participated. Arteaga also admitted that, at the time of the
hearing, his daughter, mother, father, brother, and sister remained in Caracas,
Venezuela.
The IJ denied Arteaga’s request for relief. The IJ found that Arteaga had not
demonstrated past persecution. The IJ reasoned that Arteaga “was never in
Venezuela during the time of Hugo Chavez” and thus never was “affected,
bothered, jailed, or put at risk at all in Venezuela.” Regarding Arteaga’s father, the
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IJ reasoned that the phone calls to Arteaga’s father constituted mere harassment
and that Arteaga had not provided any evidence corroborating his testimony that
his father was injured, such as medical records, or that his cousin’s home was
broken into, such as police reports. The IJ also found that Arteaga had not
demonstrated that he had a reasonable fear of being persecuted if he returned to
Venezuela. The IJ reasoned that the record provided no indication that Arteaga’s
mother, brother, or sister ever were harmed even though they remained in Caracas,
Venezuela. On appeal, the BIA affirmed and adopted the IJ’s opinion.
II.
When the BIA affirms without opinion the IJ’s decision, as here, the IJ’s
decision becomes the final agency determination subject to review. See Mendoza
v. U.S. Att’y Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003). To the extent that
the IJ’s decision was based on a legal determination, our review is de novo.
D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). We review
the IJ’s factual determinations, however, under the substantial evidence test. Al
Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001). Under this test,
which is “highly deferential,” we “must affirm the [IJ’s] decision if it is supported
by reasonable, substantial, and probative evidence on the record considered as a
whole.” Id. (quotation omitted). In order to reverse a finding of fact, “we must
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find that the record not only supports reversal, but compels it.” Mendoza, 327 F.3d
at 1287.
In conducting our review, we will not consider arguments presented before
the IJ or BIA but not discussed on appeal. Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005) (explaining that “[w]hen an appellant fails to offer
argument on an issue, that issue is abandoned”). Also, we lack jurisdiction to
consider arguments raised for the first time on appeal. Al Najjar, 257 F.3d at 1294
(explaining that “a court lacks jurisdiction to consider a claim which has not first
been presented to the Board, as an alien must exhaust the administrative remedies
available to him prior to obtaining judicial review”).
An alien who arrives in or is present in the United States may apply for, inter
alia, asylum and withholding of removal. INA §§ 208(a)(1), 241, 8 U.S.C.
§§ 1158(a)(1), 1231(b)(3)(A), 8 C.F.R. § 208.16(c). To qualify for asylum, the
alien must prove that he is a refugee. Al Najjar, 257 F.3d at 1284 (citing 8 U.S.C.
§ 1101(a)(42)(A)). A refugee is defined in the INA as:
any person who is outside any country of such person’s nationality . . .
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.
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INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). To establish refugee status, the
alien must establish, through specific, detailed facts, (1) his past persecution on
account of a protected ground, or (2) his “well-founded fear” that he will be
persecuted in the future because of a protected ground. 8 C.F.R. § 208.13(a), (b);
see Al Najjar, 257 F.3d at 1287.
A well-founded fear of future persecution may be established by showing
(1) past persecution that creates a rebuttable presumption of a well-founded fear of
future persecution based on a protected ground, (2) a reasonable possibility of
personal persecution based on a protected ground, or (3) a pattern or practice in the
subject country of persecuting members of a statutorily defined group of which the
alien is a part. 8 C.F.R § 208.13(b)(1), (b)(2)(i) and (iii). In establishing the
possibility of personal persecution, the alien must present “specific, detailed facts
showing a good reason to fear that he or she will be singled out for persecution.”
Huang v. U.S. Att’y Gen., 429 F.3d 1002, 1009 (11th Cir. 2005) (quotation
omitted). We have suggested that an alien’s allegations of a future threat are less
persuasive if the alien’s family remains in his country without incident. See Ruiz
v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006).
In establishing a pattern or practice of persecution, the alien need not prove
that he would be singled out for persecution if he demonstrates (1) a pattern or
practice of persecution of similarly situated individuals and (2) that his inclusion in
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that group of individuals makes his fear of persecution reasonable. See 8 C.F.R.
§ 208.13(b)(2)(iii). In establishing any of the above, we have held that the alien
must demonstrate that his fear “is subjectively genuine and objectively
reasonable.” Al Najjar, 257 F.3d at 1289.
While the INA does not expressly define “persecution,”we have recognized
that it is “an extreme concept, requiring more than a few isolated incidents of
verbal harassment or intimidation, and that [m]ere harassment does not amount to
persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)
(quotations omitted) (concluding that “menacing” telephone calls and threats to the
alien and her brother did not constitute past persecution). Indeed, in Djonda v.
U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008), we held that a “minor
beating” does not constitute persecution. We also have recognized that evidence
that “merely shows that a person has been the victim of criminal activity[ ] does
not constitute evidence of persecution based on a statutorily protected ground.”
Ruiz, 440 F.3d at 1258.
To qualify for withholding of removal, the alien similarly must show that it
is more likely than not that his life or freedom would be threatened on account of
race, religion, nationality, membership in a particular social group, or political
opinion. Mendoza, 327 F.3d at 1287 (citing 8 U.S.C. § 1231(b)(3)(A)). We have
explained that, because the more-likely-than-not standard that applies to
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withholding of removal claims is more stringent than the well-founded-fear
standard that applies to asylum claims, ineligibility for asylum generally precludes
withholding of removal eligibility. Al Najjar, 257 F.3d at 1292-93.
III.
Regarding Arteaga’s imputed-political-opinion asylum claim, we hold that
substantial evidence supports the IJ’s finding that Arteaga did not establish that he
suffered past persecution or had a well-founded fear of suffering future
persecution. See Al Najjar, 257 F.3d at 1283-84. As to past persecution, Arteaga
offered no evidence that he personally suffered any treatment resembling
persecution. Also, although we recognize that we have not clarified whether the
treatment of Arteaga’s family by itself is relevant to whether Arteaga demonstrated
past persecution for asylum purposes, we find that we need not resolve this issue
here because the treatment of Arteaga’s father and cousin did not rise to the level
of persecution. Specifically, the threatening telephone calls that Arteaga’s father
received, though “constant,” constitute mere verbal harassment. See Sepulveda,
401 F.3d at 1231. Also, without any evidence beyond what Arteaga offered, the
record does not compel a finding that the beating that Arteaga’s father allegedly
received at the anti-Chavez march was something more than “minor.” See Djonda,
514 F.3d at 1174; Mendoza, 327 F.3d at 1287. Likewise, the police determined
that the break-in of Arteaga’s cousin’s house simply was “regular” criminal
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activity, and Arteaga did not offer any evidence compelling a finding that his
cousin’s house was broken into by Chavez supporters because of his cousin’s
political opinions. See Ruiz, 440 F.3d 1258; Mendoza, 327 F.3d at 1287. Thus,
Arteaga did not establish that he suffered past persecution.
As to a well-founded fear of future persecution, Arteaga is not entitled to the
rebuttable presumption of this fear based on a showing of past persecution, for the
reasons discussed above. See 8 C.F.R. § 208.13(b)(1). The record also does not
include the necessary facts suggesting that Arteaga likely will be singled out for
political persecution. See 8 C.F.R. § 208.13(b)(2)(i); Huang, 429 F.3d at 1009.
Specifically, Arteaga testified that his father no longer participates with the
Democratic Action Party, such that it is possible the Chavez supporters in question
no longer are interested in Arteaga’s father, much less Arteaga. Also, Arteaga did
not testify that he ever participated in opposition politics like his father. Likewise,
while Arteaga testified that he does oppose Chavez like his father, he offered
nothing to suggest that Chavez’s supporters know of this political belief. See
Elias-Zacarias, 502 U.S. at 482-83, 112 S.Ct. at 816. Thus, it is very possible that
the Chavez supporters in question never were interested in Arteaga. Furthermore,
while Arteaga’s mother, brother, and sister live in Caracas, Venezuela, Arteaga did
not testify that they ever have been harmed by the Chavez supporters, such that it is
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possible that the Chavez supporters in question did not have interest in anyone
beyond Arteaga’s father. See Ruiz, 440 F.3d at 1259.
The record further does not include the necessary facts that Arteaga is a
member of a group that Chavez’s supporters have a pattern and practice of
persecuting. See 8 C.F.R § 208.13(b)(2)(iii). Even assuming that Chavez’s
supporters have a pattern and practice of persecuting the opposition, Arteaga did
not establish that he is a member of the opposition that Chavez’s supporters
persecute. See 8 C.F.R § 208.13(b)(2)(iii). As stated above, Arteaga did not
testify that he ever attended opposition meetings or that the Chavez supporters
knew of his political beliefs. Thus, Arteaga did not establish that he has a well-
founded fear of future persecution.
Regarding Arteaga’s imputed-political-opinion withholding-of-removal
claim, we hold that substantial evidence also supports the IJ’s finding that Arteaga
did not qualify for this form of relief. See Al Najjar, 257 F.3d at 1283-84.
Because Arteaga did not establish that he had a well-founded fear of future
persecution, as stated above, he cannot establish that it is more likely than not that
he will be persecuted if returned to Venezuela. See id. at 1292-93. Accordingly,
we deny the petition as to Arteaga’s claim that he merited asylum or withholding
of removal on account of his imputed political opinion.
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Regarding Arteaga’s social-group asylum and withholding-of-removal
claims, we hold that we lack jurisdiction to consider this request for relief. See Al
Najjar, 257 F.3d at 1294. Arteaga did not raise this argument before the IJ or BIA.
Accordingly, we dismiss the petition as to Arteaga’s claim that he merited asylum
or withholding of removal on account of his membership in a particular social
group.
Regarding Arteaga’s CAT-relief request, we hold that Arteaga abandoned
any argument that the IJ erred in denying his application as to this form of relief.
See Sepulveda, 401 F.3d at 1228 n.2. Arteaga failed to provide any argument on
this matter in his brief on appeal. See id. Accordingly, we affirm the IJ’s denial
of CAT relief.
PETITION DENIED IN PART, DISMISSED IN PART.
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