[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 18, 2009
No. 08-16712 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A095-264-794, A095-264-795
LORENZO FRANCISCO-NICOLAS,
ANGELINA MATIAS-DIEGO,
EULALIA REGINA FRANCISCO-MATIAS,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 18, 2009)
Before BIRCH, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Lorenzo Francisco-Nicolas (“Francisco”), his wife, Angelina Matias Diego,
and their minor daughter, Eulalia Regina Francisco-Matias (collectively,
“Petitioners”), natives and citizens of Guatemala, through counsel, petition for
review of the Board of Immigration Appeals’ (“BIA”) final order affirming the
immigration judge’s (“IJ”) denial of asylum and withholding of removal under the
INA. On appeal, the Petitioners assert that the BIA erred and abused its discretion
in affirming the IJ’s decision denying the Petitioners’ applications for relief. They
argue that they established by clear and convincing evidence that Francisco, a
Mayan, was the subject of past persecution and would be subject to future
persecution if returned to Guatemala on account of his membership in that
indigenous group.1
When the BIA issues a decision, we review only that decision, except
to the extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft,
257 F.3d 1262, 1284 (11th Cir. 2001). In this case, the BIA agreed with but did
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The Government asserts that we lack jurisdiction to hear the Petitioners claims (1)
that Francisco suffered past persecution in Guatemala because they failed to raise the claim
before the BIA, and (2) that Francisco suffered past persecution or has a well-founded fear of
future persecution on account of his Mayan ethnicity because they failed to argue the issue
before the IJ. We disagree. First, Francisco specifically stated that he suffered past persecution
in his brief on appeal to the BIA. Second, Francisco indicated from the beginning in his asylum
application that he was entitled to relief on the basis of race. The fact that he later referred to his
“Mayan ethnicity,” or his membership in an “indigenous group,” as his basis for relief rather
than his “race” is not important in the analysis, because it was clear that his claims stemmed
from the fact that he is Mayan. Accordingly, we find that Francisco sufficiently exhausted these
issues before the agency and, therefore, we have jurisdiction to hear his claims.
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not expressly adopt the IJ’s opinion. Therefore, we review just the BIA’s decision.
The BIA’s factual determinations are reviewed under the substantial
evidence test, and 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 (citations and internal quotations omitted).
We cannot find or consider facts not raised in the administrative record, nor can we
reweigh the evidence from scratch. Adefemi v. Ashcroft, 386 F.3d 1022, 1027
(11th Cir. 2004) (en banc). We cannot reverse the BIA’s factual findings unless
the record compels it, and the fact that the record also supports the petitioner’s case
is not enough to reverse. Id. at 1029.
An alien who arrives in or is present in the United States may apply for
asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of Homeland
Security or the Attorney General has discretion to grant asylum if the alien meets
the INA’s definition of a “refugee.” INA § 208(b)(1), 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.
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INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the
burden of proving statutory “refugee” status. Id. at 1284.
To establish asylum eligibility, the alien must, with specific and credible
evidence, establish (1) past persecution on account of a statutorily protected
ground, or (2) a “well-founded fear” that the protected ground will cause future
persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. A showing of
past persecution creates a rebuttable presumption of a well-founded fear of future
persecution. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005);
8 C.F.R. § 208.13(b)(1). To otherwise establish a well-founded fear, “an applicant
must demonstrate that his or her fear of persecution is subjectively genuine and
objectively reasonable.” Al Najjar, 257 F.3d at 1289. An alien must establish a
nexus between a statutorily protected ground and the feared persecution by
presenting “specific, detailed facts showing a good reason to fear that he or she
will be singled out for persecution on account of” the protected ground.
D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004). The asylum
applicant need not show that he will be singled out for persecution, however, if he
establishes (1) “that there is a pattern or practice” in his country of persecuting a
group of persons similarly situated to him on account of a protected ground, and
(2) a reasonable fear of persecution based upon his inclusion in, and identification
with, such group of persons. 8 C.F.R. § 208.13(b)(2)(iii).
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To qualify for withholding of removal under the INA, an alien must show
that, if returned to his country, the alien’s life or freedom would be threatened on
account of race, religion, nationality, membership in a particular social group, or
political opinion. INA § 241(b)(3); 8 U.S.C. § 1231(b)(3). If a petitioner is unable
to meet the standard of proof for asylum, he is generally precluded from qualifying
for withholding of removal. Al Najjar, 257 F.3d at 1292-93.
Substantial evidence supports the BIA’s conclusion that the Petitioners
failed to show past persecution on account of a protected ground. Francisco does
not claim that he was harmed or threatened in any way during the time his father
was killed, and there is no evidence in the record to suggest that the guerillas
targeted him or even his father because of ethnicity, membership in a particular
social group, or any other protected ground.
Substantial evidence also supports the BIA’s conclusion that the Petitioners
failed to show a well-founded fear of future persecution on account of a protected
ground. While the Country Report indicates that members of indigenous groups
are subject to pervasive discrimination, the record does not compel the conclusion
that Francisco has good reason to fear mistreatment that would rise to the level of
persecution in Guatemala based on his membership in an indigenous group.
Because Petitioners have failed to establish that they suffered from past
persecution or have a well-founded fear of future persecution on account of
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Francisco’s status as an ethnic Mayan, they are not entitled to asylum relief.
Because the Petitioners failed to meet the standard of proof for asylum, they are
precluded from qualifying for withholding of removal. Accordingly, we must deny
the petition.
PETITION DENIED. 2
2
Petitioners’ request for oral argument denied.
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