[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-14448 ELEVENTH CIRCUIT
JUNE 18, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency Nos. A97-923-550
A97-923-551
MARCOS ANTONIO RIVODO,
LUZ ANTONIA RODRIGUEZ,
VANESA ALEXANDRA RIVODO,
MARY ANGELICA RIVODO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 18, 2008)
Before DUBINA, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Marcos Antonio Rivodo, also on behalf of his wife, Luz Antonia Rodriguez,
and his two minor children (“petitioners”), seeks review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the immigration judge’s (“IJ”)
order denying asylum, withholding of removal, and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (“CAT”). First, petitioners, natives and citizens of
Venezuela, argue that the IJ erred in denying their application for asylum and
withholding of removal because Rivodo’s testimony was credible and consistent
with the statements in the application and demonstrated that he had suffered past
persecution at the hands of the Tupamaraos. According to Rivodo, the
Tupamaraos were an organized group of street criminals who had been granted the
status of a political party by Venezuelan President Hugo Chavez. Rivodo argues
that the Tupamaraos threatened and attacked him and his family members based
on the group members’ belief that he was a spy against the Chavez government.
Petitioners assert that the IJ’s findings that there was no corroborating evidence
concerning Rivodo’s claims and no evidence of a nexus between the alleged
persecution and a protected ground contradicted the IJ’s earlier determination that
Rivodo’s testimony was credible and consistent. Petitioners further argue that
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Rivodo’s testimony demonstrated a well-founded fear of future persecution if he
were to return to Venezuela.
For the reasons set forth more fully below, we deny the petition for review
in part and dismiss the petition for review in part.
I.
Because the BIA summarily affirmed the IJ without an opinion, we review
the IJ’s decision. See Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.
2005). We review factual determinations using the substantial evidence test.
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). We will affirm
if the decision “is supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Id. (quotation omitted). We review the record
evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision. Id. To conclude that the IJ should
be reversed, we “must find that the record not only supports that conclusion, but
compels it.” Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002)
(quotation omitted). “[T]he mere fact that the record may support a contrary
conclusion is not enough to justify a reversal of the administrative findings.”
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). To the
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extent the IJ’s decision was based on a legal determination, review is de novo.
Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001).
The Attorney General or the Secretary of Homeland Security has discretion
to grant asylum if an alien meets the INA’s definition of a “refugee.” See 8 U.S.C.
§ 1158(b)(1)(A); INA § 208(b)(1)(A). A “refugee” is:
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 . . . .
8 U.S.C. § 1101(a)(42)(A); INA § 101(a)(42)(A). The asylum applicant carries
the burden of proving statutory “refugee” status. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). In order to carry this burden, the alien must establish
(1) past persecution on account of a statutorily listed factor, or (2) a “well-founded
fear” that the statutorily listed factor will cause future persecution. 8 C.F.R.
§ 208.13(a), (b); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230-31 (11th Cir.
2005). We require the applicant to present “specific, detailed facts showing a
good reason to fear that he or she will be singled out for persecution on account
of” a protected ground. Al Najjar, 257 F.3d at 1287 (quotation omitted). We have
stated that “persecution is an extreme concept, requiring more than a few isolated
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incidents of verbal harassment or intimidation,” and “[m]ere harassment does not
amount to persecution.” Sepulveda, 401 F.3d at 1231 (quotations omitted).
Evidence that merely shows that the applicant has experienced acts of private
violence or has been the victim of criminal activity does not constitute evidence of
persecution based on a statutorily protected ground. Ruiz v. U.S. Att’y Gen., 440
F.3d 1247, 1258 (11th Cir. 2006).
We have held that “[a]n imputed political opinion, whether correctly or
incorrectly attributed, may constitute a ground for a well-founded fear of political
persecution within the meaning of the INA.” Al Najjar, 257 F.3d at 1289
(quotation omitted). “An asylum applicant may prevail on a theory of imputed
political opinion if he shows that the persecutor falsely attributed an opinion to
him, and then persecuted him because of that mistaken belief about his views.” Id.
(alterations and quotations omitted). Where the perpetrator of violence against a
petitioner was unidentified, we have held that there was an absence of the
necessary nexus between the alleged persecution and the alleged political opinion,
which did not compel the conclusion that the threats were politically motivated.
See Silva v. United States Att’y Gen., 448 F.3d 1229, 1239 (11th Cir. 2006);
Sepulveda, 401 F.3d at 1231-32.
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To establish eligibility for withholding of removal under the INA, the
applicant must show that his life or freedom would be threatened based on a
protected ground. Ruiz, 440 F.3d at 1257. “The burden of proof for withholding
of removal, however, is ‘more likely than not,’ and, thus, is ‘more stringent’ than
the standard for asylum relief.” Id. (citation omitted). An applicant who fails to
establish eligibility for asylum on the merits necessarily fails to establish
eligibility for withholding of removal. Forgue, 401 F.3d at 1288 n.4.
Here, substantial evidence supports the IJ’s conclusion that Rivodo failed to
demonstrate that he experienced past persecution, or had a well-founded fear of
future persecution, based on an imputed political opinion. According to Rivodo’s
testimony, he began to receive death threats after he reported his co-workers’ theft
of company inventory to the police in October 2002. His co-workers indicated
that they would find the person who reported them and kill him. Several months
later, in June 2003, he was physically attacked by two unidentified men who
followed him on his way to work. Additionally, unidentified men broke into his
mother-in-law’s home and painted threats on the walls, and his cousin-in-law was
kidnapped and held for approximately 20 days. Although Rivodo was physically
attacked and his relatives also experienced threats and violence, the record does
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not compel the conclusion that Rivodo and his family members were targeted in
order to punish him for an imputed political opinion.
Arguably, the incident in which Rivodo was beaten and threatened with
death, in conjunction with the attacks on his family members that were
accompanied by threats, rose to the level of persecution. See Meija v. U.S. Att’y
Gen., 498 F.3d 1253, 1257 (11th Cir. 2007) (holding that petitioner suffered past
persecution after considering the cumulative impact of repeated physical attacks
accompanied by death threats). However, even if Rivodo could establish
persecution on the basis of the incidents he recounts, he did not establish the
necessary nexus between the persecution and his political opinion. See Sepulveda,
401 F.3d at 1230-31. Rivodo did not present any evidence concerning the
existence of the Tupamaraos or his co-workers’ membership in that group and
further failed to show that he was targeted by the Tupamaraos because they
believed that he was actively opposed to the Chavez government. Rather,
substantial evidence supports the conclusion that he was targeted because of his
participation in the investigation of his co-workers’ criminal activity, and not for
persecution based on an imputed political opinion. See Ruiz, 440 F.3d at 1258.
Further, Rivodo was unable to identify, by appearance, voice, or the perpetrators’
self-identification, any person associated with the Tupamaraos as a perpetrator of
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the incidents he recounts. See Silva, 448 F.3d at 1239; Sepulveda, 401 F.3d at
1231-32.
Because Rivodo did not establish the necessary nexus, he also could not
show that he had a well-founded fear of future persecution based on imputed
political opinion. Therefore, substantial evidence supports the IJ’s finding that
petitioners failed to establish eligibility for asylum. Petitioners also failed to
establish eligibility for withholding of removal because they did not meet the
lower standard for asylum. See Forgue, 401 F.3d at 1288 n.4. Accordingly, we
deny the petition for review in this respect.
II.
We review our subject-matter jurisdiction de novo. Gonzalez-Oropeza v.
U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). “The exhaustion
requirement applicable to immigration cases is found in 8 U.S.C. § 1252(d)(1),
which provides that ‘[a] court may review a final order of removal only if . . . the
alien has exhausted all administrative remedies available to the alien as of right.’”
Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003). We have “interpreted that
requirement to be jurisdictional, so we lack jurisdiction to consider claims that
have not been raised before the BIA.” Id.
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Although petitioners made a brief reference to the IJ’s denial of CAT relief
in their brief before the BIA, they made no argument related to that claim and set
forth no applicable rules of law. Therefore, petitioners failed to exhaust their
administrative remedies with respect to their claim for CAT relief, and we lack
jurisdiction to consider it. Sundar, 328 F.3d at 1323. Further, aside from a brief
reference, the petitioners do not raise any argument in their brief before this Court
regarding the IJ’s denial of their application for CAT relief. Accordingly, even if
petitioners had exhausted these claims before the BIA, they have since abandoned
them on review. Sepulveda, 401 F.3d at 1228 n.2 (holding that, where an
appellant fails to raise arguments regarding an issue on appeal, that issue is
deemed abandoned). Accordingly, we dismiss the petition for review in this
respect.
In light of the foregoing, the petition for review is
DENIED IN PART, DISMISSED IN PART.
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