[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 2, 2012
No. 11-12507
Non-Argument Calendar JOHN LEY
CLERK
________________________
Agency No. A088-006-762
CESAR AUGUSTO LEON CARABALLO,
lllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllllRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 2, 2012)
Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges.
PER CURIAM:
Cesar Leon Caraballo, a native and citizen of Venezuela, seeks review of
the Board of Immigration Appeals’ (BIA) order affirming the Immigration Judge’s
(IJ) denial of asylum, withholding of removal, and CAT relief. On appeal, Leon
argues (1) he demonstrated past persecution, and (2) independently established a
well-founded fear of future persecution.1 After review, we deny Leon’s petition.2
I.
Leon contends the BIA erred by relying on the fact that the incidents of
alleged persecution occurred years before Leon’s departure from Venezuela. He
also argues he established persecution based on the nature of the incidents, which
involved attacks with a knife.
We have stated that “persecution is an extreme concept, requiring more than
a few isolated incidents of verbal harassment or intimidation.” De Santamaria v.
1
Although Leon also challenges the IJ’s adverse-credibility finding, we need not address
this issue. Even assuming arguendo Leon’s testimony was credible, he still fails to demonstrate
eligibility for asylum relief and withholding of removal. Moreover, because Leon did not raise
his claim for CAT relief before the BIA or this Court, that claim is both unexhausted and
abandoned. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006);
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
The BIA did not expressly adopt the IJ’s reasoning, but agreed with the IJ’s reasoning
and findings such that we will review both decisions. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). We review the BIA’s factual determinations under the substantial evidence test.
D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817-18 (11th Cir. 2004). Under this test, we
“must affirm the BIA’s decision if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Id. at 818.
2
U.S. Att’y Gen., 525 F.3d 999, 1008 (11th Cir. 2008). Although we have also
stated that “[m]inor physical abuse” does not amount to persecution, Kazemzadeh
v. U.S. Att’y Gen., 577 F.3d 1341, 1353 (11th Cir. 2009), we have rejected a rigid
physical injury requirement, De Santamaria, 525 F.3d at 1008. Rather, we will
consider the cumulative impact of mistreatment, even though each instance of
mistreatment, when considered alone, may not amount to persecution. Id.
The record does not demonstrate that the incidents described by Leon were
more than isolated acts. Although the attacks were reprehensible, they were not as
severe as other acts this Court has held to constitute persecution. See, e.g., Mejia
v. U.S. Att’y Gen., 498 F.3d 1253, 1257–58 (11th Cir. 2007) (holding that threats
and attempted attacks over an 18-month period, culminating in an attack at
gunpoint during which FARC members threatened the petitioner and broke his
nose with the butt of a rifle, constituted persecution). Moreover, there is some
indication Leon may have been the victim of criminal acts, rather than politically-
motivated violence. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir.
2006) (holding that evidence that is consistent with acts of private violence or that
merely shows a person has been the victim of criminal activity does not constitute
evidence of persecution based on a statutorily protected ground). Considering the
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cumulative impact of the mistreatment against Leon, substantial evidence supports
the BIA’s determination that he has not demonstrated past persecution.
II.
Leon also contends that even if he did not establish past persecution, he
independently established a well-founded fear of future persecution. He claims he
fears persecution based on his membership in ORVEX, an organization of
Venezuelans in exile who protest the Chavez regime.
If the alien “cannot show past persecution, then the petitioner must
demonstrate a well-founded fear of future persecution that is both subjectively
genuine and objectively reasonable.” Ruiz, 440 F.3d at 1257. “The subjective
component can be proved by the applicant’s credible testimony that he or she
genuinely fears persecution, while the objective component can be fulfilled either
by establishing past persecution or that he or she has a good reason to fear future
persecution.” Id. (quotations omitted). The petitioner must establish “a
reasonable possibility he or she would be singled out individually for persecution,
or that she is a member of, or is identified with, a group that is subjected to a
pattern or practice of persecution.” Djonda v. U.S. Att’y Gen., 514 F.3d 1168,
1174 (11th Cir. 2008) (quotations and citation omitted).
4
The BIA’s decision that Leon failed to establish a well-founded fear of
future persecution is supported by substantial evidence. Leon made multiple
return trips to Venezuela between 1995 and 1999, but did not apply for asylum
upon re-entering the United States after those trips. Rather, Leon waited until
2007 to file an application for asylum, which undermines the credibility of his
subjective fear. To the extent Leon claims he can establish a well-founded fear of
future persecution based on his association with ORVEX, substantial evidence
supports the BIA’s conclusion that the Venezuelan government would not seek out
Leon due to his involvement in the group. Because the standard for withholding
of removal is more stringent than that for asylum, the same substantial evidence
that supports the denial of asylum also supports the denial of withholding of
removal. See D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004).
PETITION DENIED.
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