[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Dec. 10, 2009
No. 08-17188 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A095-225-239
JEAN HERODE MOROSE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 10, 2009)
Before TJOFLAT, EDMONDSON and PRYOR, Circuit Judges.
PER CURIAM:
Jean Herode Morose, a native and citizen of Haiti, petitions for review of the
order by the Board of Immigration Appeals (“BIA”) that affirmed the decision of
the Immigration Judge (“IJ”). The decision denied asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). No reversible
error has been shown; we dismiss the petition in part and deny it in part.
We first conclude that we lack jurisdiction over Morose’s CAT relief claim.
The government points out -- and Morose concedes -- that he failed to raise his
CAT relief claim before the BIA; thus, he failed to exhaust his administrative
remedies on this claim. See Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003)
(we lack jurisdiction to consider unexhausted claims; and to exhaust a claim, a
petitioner must raise it before the BIA). Morose argues that because the BIA sua
sponte addressed his claim for CAT relief, we should now exercise jurisdiction
over it. But this argument is contrary to our Court’s precedent, see Amaya-
Artunduaga v. U.S. Attorney Gen., 463 F.3d 1247, 1250 (11th Cir. 2006); and we
dismiss the petition on CAT relief.
About Morose’s asylum and withholding of removal claims, we review the
BIA’s decision in this case because the BIA did not expressly adopt the IJ’s
decision. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (noting
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that we review the BIA’s decision; but “[i]nsofar as the [BIA] adopts the IJ’s
reasoning, we will review the IJ’s decision as well”). We review legal
determinations de novo. Id. Factual determinations are reviewed under the
“highly deferential” substantial evidence test; and we must “affirm the . . . decision
if it is supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Forgue v. U.S. Attorney Gen., 401 F.3d 1282, 1286 (11th
Cir. 2005) (citation omitted). To reverse a fact determination, we must conclude
“that the record not only supports reversal, but compels it.” Mendoza v. U.S.
Attorney Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
An alien may obtain asylum if he is a “refugee,” that is, a person unable or
unwilling to return to his country of nationality “because of persecution or a well-
founded fear of persecution on account of” a protected ground, including political
opinion. 8 U.S.C. §§ 1101(a)(42)(A); 1158(a)(1), (b)(1). The asylum applicant
bears the burden of proving statutory “refugee” status with specific and credible
evidence. Forgue, 401 F.3d at 1286-87.
Here, Herode sought relief based on imputed political opinion. Herode, who
was an electrician in Haiti, alleged that he did some work for a man named
Polinice and that Polinice did not pay him for this work. Herode made several
unsuccessful attempts to collect the debt from Polinice. Later, four men came to
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Herode’s shop and beat up Herode. Herode testified that he believed these men
were from the Lavalas party because the men accused Morose of opposing Lavalas.
Morose then went into hiding in Haiti and fled eventually to the United States.
While he was in hiding, his shop was burned; Morose believed that the same
persons who beat him also burned his shop.
The IJ determined that Morose presented insufficient evidence to sustain his
burden of proof for relief: he failed to tie the events that happened to him to a
protected ground. The BIA agreed, concluding that nothing Morose testified to
showed that what happened to him was politically motivated. On appeal, Morose
argues that he demonstrated entitlement to relief based on his imputed political
opinion.1
After review, we conclude that substantial evidence supports the BIA’s
conclusion that the attacks on Morose were not politically motivated; and the
record does not compel reversal. While Morose asserts that his beating and the
later burning of his shop constituted past persecution and justified a well-founded
fear of future persecution, he failed to connect these incidents to a protected
1
Morose also argues that the BIA engaged in impermissible fact-finding in violation of 8
C.F.R. § 1003.1(d)(3)(i). He appears to base this argument on a sentence in the BIA order
concluding that “[u]pon de novo review,” Morose was unentitled to relief. But the order makes
clear that the BIA made no impermissible fact-findings and, instead, stated that the facts as
determined by the IJ were not in dispute. The BIA simply applied these facts to the appropriate
legal standard. See 8 C.F.R. § 1003.1(d)(3)(ii) (the BIA “may review questions of law,
discretion, and judgment . . . de novo”).
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ground. Morose’s testimony demonstrated that he was engaged in a private dispute
with a customer over payment; nothing evidenced that the customer was connected
to Lavalas or that Morose’s beating and the later burning of his shop was
politically motivated. Morose admitted that he belonged to no political party or
organization in Haiti. And he testified only vaguely that he assumed the men were
from Lavalas because “during that period they were the ones . . . mistreating
people.” Without a connection to a protected ground, Morose cannot demonstrate
that he is entitled to asylum. See Ruiz v. U.S. Attorney Gen., 440 F.3d 1247, 1258
(11th Cir. 2006) (“evidence that either is consistent with acts of private violence or
the petitioner’s failure to cooperate with guerillas, 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.”).2
Herode’s failure to establish eligibility for asylum forecloses his eligibility
for withholding of removal. See Forgue, 401 F.3d at 1288 n.4.
PETITION DISMISSED IN PART AND DENIED IN PART.
2
Morose’s argument that the IJ failed to give proper consideration to his claims of a well-
founded fear of future persecution and for withholding of removal is unavailing. Morose fails to
appreciate that both the IJ and the BIA disposed of these claims because he failed to demonstrate
a connection to a protected ground and, thus, did not need to analyze the claims further.
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