[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-17185 ELEVENTH CIRCUIT
JULY 24, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency Nos. A094-882-827,
A094-882-828
MARIO ERNESTO ALVARADO-MONTERROSA,
ROSA LISET ALVARADO DE ALVARADO,
ALEJANDRA LISET ALVARADO,
EMILIA GRACIELA ALVARADO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 24, 2009)
Before BIRCH, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Mario Alvarado-Monterrosa and his family, Rosa Liset Alvarado De
Alvarado, Alejandra Liset Alvarado, and Emilia Graciela Alvarado, all natives and
citizens of El Salvador, appeal the order by the Board of Immigration Appeals
(“BIA”) affirming 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). Alvarado-Monterrosa
claimed that he witnessed and reported gang members committing crimes, and had
been and would be persecuted by the gang members on account of his imputed
political opinion and membership in a particular social group comprised of people
who witness and report gang crimes. For the reasons set forth below, we deny the
petition.
I.
Alvarado-Monterrosa testified that, on October 15, 2005, the family home
was robbed. The next day, he reported the robbery to the police. Then, on October
27, 2005, he witnessed gang members attempting to break into his neighbor’s
home. He called the police. Before the police arrived, however, the gang
members fled. After the police left, the gang members returned. One of them told
him that they would return for him and that he would be sorry. He reported this
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threat to the police, and the police advised that he take it seriously. Thereafter, he
would stand by his window and monitor the neighborhood from 1 a.m. to 4 p.m.
each night. On four such occasions, he received telephone calls. Normally, the
caller did not speak. During the last call, however, the caller stated, “[N]ow you’re
not alone.” This scared him because it was true. Later, caretakers of a farm owned
by his family conveyed to him that, on November 13, 2005, gang members had
visited the farm looking for him and making threats against him. He did not report
this event to the police because he was afraid that the gang members would harm
the caretakers. Based on these events, he and his family fled El Salvador. His
mother originally fled with him and his family. However, she decided to return to
El Salvador. She currently lives in the home in which he and his family previously
lived. She had since advised him that the area remained dangerous and that she did
not leave home after 6 p.m. Indeed, after she returned, in February 2006, the home
was robbed again and a car window was broken.
The IJ denied Alvarado-Monterrosa’s application. The IJ reasoned that he
failed to establish that he was persecuted on account of a protected ground. First,
regarding his claims of persecution based on his political opinion, the record did
not contain any evidence suggesting that the gang members targeted him because
of his political opinion, imputed or otherwise. Specifically, it did not appear that
the gang members had imputed a political opinion to him based on his reporting
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their crimes, and reporting crimes did not otherwise constitute an expression of
political opinion. Also, regarding his claims of persecution based on his
membership in a particular social group, namely, witnesses of crimes by gang
members, such witnesses did not constitute a particular social group because they
could not be defined with the requisite particularity and did not possess immutable
characteristics. Likewise, the threats by the gang members did not constitute
persecution, but merely harassment, intimidation, and criminal activity.
Furthermore, any fear from him and his family was not objectively reasonable,
especially as his mother continued to reside in the home unharmed. Because he
had not demonstrated asylum eligibility, he could not demonstrate withholding-of-
removal eligibility. Also, because the record did not contain any evidence
suggesting that the government acquiesced to the gang members’ violence, he
could not establish CAT-relief eligibility.
On appeal, the BIA dismissed Alvarado-Monterrosa’s appeal and affirmed
the IJ’s decision, “for the reasons stated therein.” The BIA specifically noted that
the IJ correctly found that the harm suffered by him and his family did not rise to
the level of persecution, he failed to demonstrate a nexus between this harm and a
protected ground, and he failed to show that more likely than not he and his family
would be tortured at the hand, or with the acquiescence, of the government.
II.
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When the BIA affirms the IJ’s decision, but issues a separate opinion, 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, the BIA issued a separate opinion, but stated therein that it was
adopting the IJ’s reasoning and specified that the IJ conclusions regarding past
persecution, nexus, and withholding of removal and CAT, were correct.
Accordingly, we will review the IJ’s opinion. See id.
In conducting this review, we review the IJ’s legal determinations de novo
and factual determinations under the substantial evidence test. 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 v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
An alien who arrives in or is present in the United States may apply for
asylum, withholding of removal, and CAT relief. INA §§ 208, 241; 8 U.S.C.
§§ 1158, 1231; 8 C.F.R. § 208.16(c). To qualify for asylum, the alien must prove
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that he is a refugee. Al Najjar, 257 F.3d at 1284 (citing 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 on account 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 a group of similarly situated people, to which the petitioner
belonged, on account of a protected ground. 8 C.F.R. § 208.13(b)(1), (b)(2)(i) and
(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. 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).
“Persecution” 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
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Cir. 2005) (quotations omitted) (concluding that “menacing” telephone calls and
threats to the alien and her brother did not constitute past persecution). Likewise,
“evidence that either is consistent with acts of private violence . . . , or 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)). Likewise,
to qualify for CAT relief, the alien must prove that it is more likely than not that he
would be tortured by, or with the consent or acquiescence of, a public official or
person acting in an official capacity upon return to his country. See id. at 1303; 8
C.F.R. § 208.18(a). Because the more-likely-than-not standard that applies to
withholding of removal and CAT claims is more stringent than the well-founded-
fear standard that applies to asylum claims, ineligibility for asylum generally
precludes withholding of removal and CAT relief eligibility. Al Najjar, 257 F.3d
at 1292-93, 1303-04.
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III.
As an initial matter, Alvarado-Monterrosa’s appellate arguments that the
BIA did not adequately consider the record as a whole or whether he was entitled
to CAT relief are without merit, as the BIA expressly stated that it had considered
the evidence de novo and specifically addressed the IJ’s conclusion regarding CAT
relief. Regarding the merits, substantial evidence supports the IJ’s denial of
asylum. See id. at 1283-84. As the IJ found, Alvarado-Monterrosa failed to
establish that he suffered past persecution. See 8 C.F.R. § 208.13(a), (b); Al
Najjar, 257 F.3d at 1287. The record demonstrates that gang members broke into
and robbed his home, made “mara signs” at him and threatened to return and make
him sorry, called him in the middle of the night and largely remained silent, passed
along threats on his life through his caretakers, and broke into his home after he
fled El Salvador. The record does not contain any evidence that gang members
ever physically harmed or otherwise approached him or his family. Without such
evidence, these events are the sort of harassment and intimidation that this Court
has held do not constitute the extreme behavior that qualifies as persecution. See
Sepulveda, 401 F.3d at 1231. Specifically, the calls, in which no threats were
made, do not constitute persecution. See id. Also, the threats made to him and
passed along through his caretakers are akin to threatening calls and thus do not
constitute persecution. See id. Furthermore, the home break-ins appear to have
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been mere criminal activity, especially as the record does not contain any evidence
that the gang members who perpetrated the break-ins attempted to make contact
with the inhabitants of the home, such that it appears they wanted only to steal
certain items. See Ruiz, 440 F.3d at 1258.
As the IJ also found, Alvarado-Monterrosa failed to establish that he had a
well-founded fear of future persecution. See 8 C.F.R. § 208.13(a), (b); see Al
Najjar, 257 F.3d at 1287. Although he testified that he subjectively feared the
possibility of being harmed, the record does not demonstrate that his fears were
objectively reasonable. See 8 C.F.R § 208.13(b)(1), (b)(2)(i) and (iii); Al Najjar,
257 F.3d at 1289. His mother remains in El Salvador, living in the house that gang
members robbed. See Ruiz, 440 F.3d at 1259. Also, although she reported that the
area remained dangerous and gang members robbed the home again, the record
does not contain any evidence that gang members continued to threaten or look for
him.1
Substantial evidence also supports the IJ’s denial of withholding of removal
and CAT relief. See Al Najjar, 257 F.3d at 1283-84. As the IJ found, because
Alvarado-Monterrosa did not satisfy his burden of proving asylum eligibility, he
1
Alvarado-Monterrosa’s failure to establish past persecution or a well-founded fear of
future persecution is sufficient grounds on which to affirm the IJ’s denial of relief and deny the
petition. It is not necessary, therefore, for us to separately address the IJ’s finding that he failed
to establish the requisite nexus or his and the government’s arguments on this matter.
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necessarily cannot satisfy his burden of proving withholding-of-removal eligibility.
See id. at 1292-93. Also as the IJ found, because the record does not contain any
evidence suggesting that he or his family will be tortured at the hand, or with the
acquiescence, of the government, he did not satisfy his burden of proving CAT-
relief eligibility. See id. at 1303; 8 C.F.R. § 208.18(a). Accordingly, we deny the
petition.
PETITION DENIED.
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