[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-13637 MARCH 15, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
Agency No. A098-926-625
ALONSO JAVIER BARRAZA VALBUENA, et al.,
llllllllllllllllllllllllllllllllllllllllPetitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllllllllllllllllllllllRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 15, 2012)
Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
In this immigration case we are called to review the Board of Immigration
Appeals’s (“BIA”) ruling that the petitioners did not establish a well-founded fear
of persecution on account of their political opinions. We find that substantial
evidence supports the ruling, and we deny the petition.
Lead petitioner, Alonso Javier Barraza Valbuena (“Valbuena”), and his
wife, Rebeca Alejandra Rodriguez Urdaneta (collectively “Petitioners”), applied
for asylum pursuant to 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. §
1231, and protection under the Convention Against Torture (“CAT”), 8 C.F.R. §§
1208.16–.18. Their applications are based on allegations of fear that arose from
conflicts with two members of the Venezuelan National Guard. The substance of
the conflict includes claims that the National Guard members improperly detained
Petitioners overnight and then stole their sound equipment. After the incident was
reported to the police, the National Guard members made various threats, attacks,
and demands for money. The BIA dismissed the appeal, reasoning that Petitioners
failed to show a nexus between the abuse and a statutorily protected ground for
asylum or withholding of removal. Additionally, the BIA did not believe the
record supported a conclusion that the Venezuelan government was unwilling or
unable to protect Petitioners. Finally, because the incidents occurred over 10
years ago, the BIA concluded that Petitioners did not have a well-founded fear of
future persecution.
“We review only the [BIA’s] decision, except to the extent that it expressly
2
adopts the [immigration judge’s] opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001). Here, the BIA did not adopt the IJ’s opinion, so we review
only the BIA’s decision. “[W]e view the record evidence in the light most
favorable to the agency’s decision and draw all reasonable inferences in favor of
that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en
banc). The reviewing court “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 1284 (internal quotation marks omitted).
Asylum is only available to applicants who prove that they are a “refugee”
within the meaning of the Immigration and Nationality Act. 8 U.S.C.
§ 1158(b)(1). A “refugee” is:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, 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). The asylum applicant carries the burden of proving
statutory “refugee” status. Al Najjar, 257 F.3d at 1284 (citing 8 C.F.R.
§ 208.13(a)).
3
As an initial matter, we lack jurisdiction to consider Valbuena’s claim that
he was persecuted because of his association with a particular social group. This
claim is not exhausted because Valbuena did not make it in his asylum application
and did not argue it before the immigration judge, and we cannot consider claims
for which administrative remedies have not been exhausted. Amaya-Artunduaga
v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam).
We are not compelled to reverse the BIA’s finding that Valbuena failed to
show that any persecution he may have suffered was on account of his imputed
political opinion. When the record is viewed as a whole, substantial evidence
supports the conclusion that the National Guard members were motivated by greed
and retaliation for Valbuena’s decision to report misconduct to the police. We
also agree that the record does not support the conclusion that the Government is
unwilling or unable to protect Petitioners or that they have a well-founded fear of
future persecution. Accordingly, Petitioners are not eligible for asylum.
Because Petitioners have failed to establish their eligibility for asylum, they
have, by extension, failed to satisfy the more stringent burden for withholding of
removal or protection under CAT. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282,
1288 n.4 (11th Cir. 2005).
Upon review of the entire record on appeal, and after consideration of the
4
parties’ appellate briefs, we deny the petition.
PETITION DENIED.
5