[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11936 ELEVENTH CIRCUIT
OCTOBER 6, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency Nos. A97-927-671,
A97-927-672
LUZ M. QUIJANO,
JAIME QUIJANO-GONZALEZ,
DAVID QUIJANO-PEREZ,
JOHN QUIJANO-PEREZ,
Petitioners-Appellants,
versus
U.S. ATTORNEY GENERAL,
Respondent-Appellee.
________________________
No. 08-17156
Non-Argument Calendar
________________________
Agency Nos. A097-927-671,
A097-927-672
LUZ M. QUIJANO,
a.k.a. Luz Marina Perez Roa,
JAIME QUIJANO-GONZALEZ,
DAVID QUIJANO-PEREZ,
JOHN QUIJANO-PEREZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent-Appellee.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 6, 2009)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
In this consolidated case, petitioners Luz Quijano (“Luz”), her husband,
Jaime Quijano-Gonzalez (“Jaime”), and their children, David Quijano-Perez
(“David”) and John Quijano-Perez (“John”), through counsel,1 seek review of the
BIA’s decision affirming the IJ’s order finding them removable and denying their
application for asylum and withholding of removal.
1
Because Luz listed Jaime, David, and John as derivative applicants, the basis for their
asylum claims is the same as hers. See 8 U.S.C. § 1158(b)(3); Delgado v. U.S. Att’y Gen., 487 F.3d
855, 862 (11th Cir. 2007) (holding that the withholding of removal statute does not create derivative
rights). Accordingly, we will only refer to Luz for the sake of convenience.
2
On appeal, Luz first argues that we should waive the one-year deadline for
filing an asylum application, due to extraordinary circumstances. Second, she
argues that the BIA’s finding that she failed to establish past persecution or a clear
probability of future persecution is not supported by substantial evidence. Finally,
she argues, in passing, that the IJ was biased against her.2
I.
We review our subject matter jurisdiction de novo. Frech v. U.S. Atty. Gen.,
491 F.3d 1277, 1280 (11th Cir. 2007). An alien can apply for asylum if he
“demonstrates by clear and convincing evidence that the application has been filed
within [one] year after the date of the alien’s arrival in the United States.” 8 U.S.C.
§ 1158(a)(2)(B). The BIA may consider a late application “if the alien
demonstrates . . . either the existence of changed circumstances which materially
affect the applicant’s eligibility for asylum or extraordinary circumstances relating
to the delay in filing an application within the period specified.” 8 U.S.C.
§ 1158(a)(2)(D).
Section 1158(a)(3), however, divests us of jurisdiction to review any such
2
Following denial of her asylum request, Luz moved the BIA for reconsideration, which the
BIA denied, but she does not address this motion on appeal. Likewise, she does not challenge the
denial of relief under the United Nations Convention Against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment (“CAT”). Accordingly, she has waived any such claims.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (holding that issues not raised
on appeal are deemed abandoned).
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determination. 8 U.S.C. § 1158(a)(3); Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,
1287 (11th Cir. 2003). In addition, we have held that § 106(a)(1)(A)(ii) of the
REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310, which amended the
INA to provide for appellate jurisdiction over “constitutional claims or questions of
law,” did not affect our prior precedents. See Chacon-Botero v. U.S. Att’y Gen.,
427 F.3d 954, 957 (11th Cir. 2005); 8 U.S.C. § 1252(a)(2)(D).
Because we lack jurisdiction to consider Luz’s untimely asylum claim, or the
derivative asylum claims of Jaime, David, and John, we dismiss the petition in this
respect.
II.
When the BIA issues a decision but does not expressly adopt the IJ’s
opinion we review only the BIA’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001). We review the BIA’s legal conclusions de novo and its
factual determinations under the substantial evidence 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.” Al Najjar, 257 F.3d at 1283-84
(quotation omitted). The substantial evidence test is “highly deferential” and does
not allow “reweigh[ing] the evidence from scratch.” Silva v. U.S. Att’y Gen., 448
F.3d 1229, 1236 (11th Cir. 2006) (quotations omitted). “To reverse the . . . fact
findings, we must find that the record not only supports reversal, but compels it.”
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Mendoza, 327 F.3d at 1287.
An alien seeking withholding of removal must show that her “life or
freedom would be threatened . . . because of the alien's race, religion, nationality,
membership in a particular social group, or political opinion” if she returned to the
country in question. 8 U.S.C. § 1231(b)(3)(A). To do so, she must demonstrate that
she “more-likely-than-not would be persecuted or tortured upon h[er] return to the
country in question.” Mendoza, 327 F.3d at 1287.
While the INA does not define persecution, we have held that an alien must
present “specific, detailed facts showing a good reason to fear that . . . she will be
singled out” on account of a statutory factor. Al Najjar, 257 F.3d at 1287 n.16
(quotation omitted). Further, “persecution is an extreme concept, requiring more
than a few isolated incidents of verbal harassment or intimidation.” Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (quotations omitted). “In
determining whether an alien has suffered past persecution, the IJ [or BIA] must
consider the cumulative effect of the allegedly persecutory incidents.” De
Santamaria v. United States Att’y Gen., 525 F.3d 999, 1008 (11th Cir. 2008).
We previously have refused to reverse the BIA in non-violent scenarios,
including (1) where a petitioner was detained for five days based on his religious
beliefs, “during which he was not harmed,” but was subjected to psychological
coercion, Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290-91 (11th Cir. 2006), and
5
(2) where a petitioner received “menacing telephone calls and threats” and the
restaurant where she worked was bombed, Sepulveda, 401 F.3d at 1231.
Nevertheless, we have rejected “a rigid requirement of physical injury.” De
Santamaria, 525 F.3d at 1008.
The extreme scenarios that have compelled us to grant petitions on the basis
of past persecution include: (1) “repeated death threats, two physical attacks, the
murder of a family friend, and a kidnapping cut short only by a harrowing escape,”
id. at 1009; (2) where “the FARC pointed a gun at [the petitioner’s] head and then
broke his nose with the butt of a rifle,” Mejia v. U.S. Att’y Gen., 498 F.3d 1253,
1257 (11th Cir. 2007); and (3) where “two FARC members on motorcycles
followed [the petitioner] and intentionally shot at him in his moving car,” Sanchez
Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1234 (11th Cir. 2007).
If an alien establishes past persecution based on a protected ground, she is
entitled to a rebuttable presumption that she will face persecution upon her return
to that country. Sepulveda, 401 F.3d at 1231. Otherwise, to establish eligibility
for withholding of removal, an alien must show that it is “more likely than not [that
she] will be persecuted or tortured” based on a protected ground, upon returning to
her country. Id. at 1232 (quotation omitted) (holding that the petitioner did not
have a well-founded fear of future persecution based on the passage of time since
she fled and the fact that millions around the country shared her political views); 8
6
U.S.C. § 1231(b)(3). We have held that a petitioner’s claim of future persecution
“was contradicted by his testimony that his son and his parents [had] remained
unharmed in the region of Colombia where [he] allegedly was threatened.” Ruiz v.
U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006).
Assuming that the Revolutionary Armed Forces of Colombia (“FARC”)
targeted Luz, at least in part, based on her Pentecostal religious beliefs, substantial
evidence supports the BIA’s conclusion that their actions did not rise to the level of
past persecution. While Luz alleged persecution based on (1) a brief detention and
interrogation by FARC members at her church, (2) threatening calls and pamphlets
she received after Jaime interviewed a FARC defector on his Christian radio show,
and (3) non-violent incidents at her children’s school where unknown persons
removed or attempted to remove personal records and attempted to sign her
children out of school, these events are distinguishable from the cases in which we
held that the record compelled a finding of past persecution because those cases
involved violent attacks. The present case is more similar to the brief detention
and harassment involved in Zheng and Sepulveda, in which we refused to grant the
petitions.
Because Luz did not establish past persecution, she was not entitled to a
presumption of future persecution. The record does not compel the conclusion that
Luz likely will be singled out for future persecution based on a protected ground
7
upon her return, because (1) she waited over three years after arriving in the United
States before filing for asylum, which undercuts her claim that she actually fears
persecution, (2) more than nine years have elapsed since Jaime interviewed the
FARC defector, and (3) Luz’s father – a religious leader in the same Pentecostal
Church allegedly targeted by the FARC – has remained in Colombia unharmed.
Accordingly, substantial evidence supports the BIA’s denial of withholding of
removal.
III.
We review constitutional challenges de novo. Ali v. U.S. Att’y Gen., 443
F.3d 804, 808 (11th Cir. 2006). Nevertheless, “[w]hen an appellant fails to offer
argument on an issue, that issue is abandoned.” Sepulveda, 401 F.3d at 1228 n.2;
Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318 n.2 (11th Cir. 2006)
(declining to address a due process claim where the appellant presented “absolutely
no argument or citation of authority in support”). We hold pleadings drafted by
lawyers to a more stringent standard than pro se pleadings. Alba v. Montford, 517
F.3d 1249, 1252 (11th Cir.), cert. denied, 129 S.Ct. 632 (2008).
“[T]he Fifth Amendment entitles aliens to due process of law in deportation
proceedings.” Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 1449, 123
L.Ed.2d 1 (1993). Due process requires “a full and fair hearing.” Ibrahim v. INS,
821 F.2d 1547, 1550 (11th Cir. 1987). To prevail on a due process challenge,
8
however, an alien must show substantial prejudice – namely, that the outcome
would have differed “in the absence of the alleged procedural deficiencies.” Patel
v. U.S. Att’y Gen., 334 F.3d 1259, 1263 (11th Cir. 2003).
To the extent Luz, with the benefit of counsel, attempts to challenge the
fairness of her asylum hearing by claiming that the IJ was biased, she has
abandoned this issue by failing to present any supporting legal analysis. Even
assuming, arguendo, that she properly challenged the IJ’s objectivity based on his
findings that (a) the FARC’s actions were not related to a protected ground, and
(b) in any event, she could avoid the FARC by relocating, she has not shown that
any alleged bias resulted in substantial prejudice to her case because those issues
did not determine the outcome, as discussed above. Therefore, we deny the
petition for review in this respect as well.
PETITION DISMISSED IN PART, DENIED IN PART.
9