[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 16, 2008
No. 07-13987 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A79-421-665
STANLEY TOUSSAINT,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 16, 2008)
Before TJOFLAT, BLACK and FAY, Circuit Judges.
PER CURIAM:
Stanley Toussaint, a native and citizen of Haiti, appeals the Board of
Immigration Appeals’s (“BIA”) denial of 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, or Degrading Treatment or Punishment (“CAT”). Toussaint 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.
Toussaint 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. Toussaint fails, however, to provide any
argument on the BIA’s denial of withholding of removal and CAT relief. For the
reasons discussed below, we deny the petition as to Toussaint’s asylum claim, to
the extent that it is based on his imputed political opinion; deny the petition as to
Toussaint’s withholding of removal and CAT claims; and dismiss the petition as to
Toussaint’s asylum claim based on his membership in a particular social group.
I.
In his application for asylum, withholding of removal, and CAT relief,
Toussaint alleged that he had been and would be persecuted because of his father’s
political activity in Haiti. Specifically, Toussaint explained that his father had
served as a judge, attorney, and Senate treasurer. While these positions opened
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many doors for Toussaint’s family, they also exposed the family to danger. When
now-former President Jean-Bertrand Aristide and his Lavalas political party were
in power, members of the opposition party viewed Toussaint’s father as pro-
Lavalas and threatened him with harm. When Aristide was removed from power
in 2004, Lavalas supporters viewed Toussaint’s father as pro-opposition and
threatened him with harm. Because of these threats, Toussaint’s family had been
forced into hiding, and Toussaint had been forced to flee to the United States.
Toussaint feared that, if he returned to Haiti, Lavalas supporters would target him
for failing to support the Lavalas party. He feared that he would be tortured
because Lavalas supporters commonly used torture as a means of overcoming
political opposition.
At his individual hearing, Toussaint testified that because of his father’s
precarious political position, his family had been persecuted by both Lavalas
supporters and the opposition, known as the “Convergence.” The persecution from
Lavalas supporters consisted of constant threats to his father. The persecution
from the Convergence consisted of, in June 2000, spray painting a Creole slang
term for “problem person” on Toussaint’s family’s house, Toussaint’s father’s car,
and Toussaint’s father’s office door.
Because of this persecution, Toussaint’s father sent him to the United States.
However, Toussaint’s father could not obtain visas for Toussaint’s two older
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brothers, one older sister, and one younger sister because Haitian law required visa
applicants over the age of 18 to individually apply for a visa and prove individual
wealth. Thus, Toussaint’s family remained in Haiti. Indeed, although his father
had visited him in the United States on three occasions, he had returned to Haiti
after each visit. Toussaint’s last communication with his father was four months
before the hearing. At that time, Toussaint’s father told him that condition in Haiti
remained “not good.”
An immigration judge (“IJ”) denied Toussaint’s application for asylum,
withholding of removal, and CAT relief. On appeal, the BIA affirmed the IJ’s
denial. The BIA reasoned that Toussaint had not established past persecution, as
the alleged harm that Toussaint and his family suffered did not rise to the level of
persecution. The BIA also reasoned that the IJ correctly found that Toussaint had
not established a well-founded fear of future persecution, especially as his family
remained unharmed in Haiti.1
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We note that the parties disagree on the scope of our review. Toussaint argues that we
should review the IJ’s and BIA’s decisions, while the government argues that we should review
the BIA’s decision only. When the BIA issues a summary affirmance of the IJ’s decision, we
review the IJ’s opinion. See Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1284 n.1 (11th Cir.
2003). When the BIA affirms the IJ’s decision, but issues a separate opinion, however, we
review the BIA’s opinion “except to the extent that [the BIA] expressly adopts the IJ’s opinion.”
Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004). Here, we find that the
BIA issued a separate opinion. See id. The reasoning offered by the BIA diverged in two
important respects from that of the IJ. First, the IJ’s decision did not contain a clear past
persecution finding, but the BIA’s did. Second, the IJ’s decision contained an express adverse
credibility finding, but the BIA’s opinion said nothing of Toussaint’s credibility or the
believability of his story. Therefore, we will review only the BIA’s opinion, and will not address
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II.
We review the BIA’s legal determinations de novo and factual
determinations under the “substantial evidence test.” See D-Muhumed v. U.S.
Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004); Al Najjar v. Ashcroft, 257 F.3d
1262, 1283-84 (11th Cir. 2001). Under this test, which is “highly deferential,” 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 (quotation omitted). In order to reverse a finding of fact, “we must 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
any issues dealing with Toussaint’s credibility. See id.
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alia, asylum. INA §§ 208(a)(1), 241, 8 U.S.C. §§ 1158(a)(1). 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.
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.”
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Huang v. U.S. Att’y Gen., 429 F.3d 1002, 1009 (11th Cir. 2005) (quotation
omitted). 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 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, 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, 401 F.3d at 1231 (quotations omitted) (concluding that
“menacing” telephone calls and threats to the alien and her brother did not
constitute past persecution).
III.
As to Toussaint’s imputed-political-opinion asylum claim, we hold that
substantial evidence supports the BIA’s holding that Toussaint did not meet the
requirements to merit asylum. See 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at
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1287. The evidence does not compel a finding that Toussaint suffered past
persecution. See Mendoza, 327 F.3d at 1287. The alleged persecution described
by Toussaint, which consisted of threats and spray-painted slogans on his family’s
house, his father’s car, and his father’s office door, did not rise to the level of
persecution within the meaning of the asylum statutes. See Sepulveda, 401 F.3d at
1231. The threats made on his family, which Toussaint failed to describe in any
detail, constituted mere verbal harassment, at most. The spray-painted slogan
denoting Toussaint’s father as a “problem person” likewise appears to have been
an effort at intimidation, at most.
Likewise, the evidence does not compel a finding that Toussaint has a well-
founded fear of future persecution. See Mendoza, 327 F.3d at 1287. First,
Toussaint did not provide “specific, detailed facts” showing a reasonable
probability that he will be singled out for persecution if returned to Haiti. See 8
C.F.R § 208.13(b)(1), (b)(2)(i) and (iii); Huang, 429 F.3d at 1009. Toussaint did
not illustrate that Lavalas supporters or the Convergence remain interested in his
father or himself. Toussaint also testified that his entire family remains in Haiti.
While Toussaint did not testify that they remain in Haiti unharmed, he provided no
evidence to believe otherwise. This fact suggests that the alleged danger faced by
Toussaint is not as great as he claims. See Ruiz, 440 F.3d at 1259. His
explanation that his siblings had to remain in Haiti because their ages required
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them to individually apply for visas does not diminish this weakening effect, as
Toussaint testified that he had a younger sister at the time who would not have
fallen under Haiti’s individual-application rule and as he did not explain why none
of his siblings attempted to individually apply or otherwise seek asylum in United
States. Second, Toussaint provided no evidence to suggest that he belongs to a
statutorily defined group of individuals that the Lavalas party and the Convergence
have a pattern and practice of persecuting. See 8 C.F.R. § 208.13(b)(1), (b)(2)(i)
and (iii). Because Toussaint did not establish past persecution or a well-founded
fear of future persecution on account of his imputed political opinion, we deny the
petition as to this claim. See D-Muhumed, 388 F.3d at 817.
As to Toussaint’s social-group asylum claim, we hold that we lack
jurisdiction to consider this claim. See Al Najjar, 257 F.3d at 1294. Toussaint did
not raise this argument before the IJ or BIA. Accordingly, we dismiss the petition
as to his claim.
Finally, as to the BIA’s denial of withholding of removal and CAT relief, we
hold that Toussaint has abandoned any argument that this was error. See
Sepulveda, 401 F.3d at 1228 n.2. Toussaint failed to provide any argument on this
matter in his brief on appeal. Accordingly, we deny the petition as to Toussaint’s
withholding-of-removal and CAT-relief claims.
PETITION DENIED IN PART, DISMISSED IN PART.
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