Denis Adrian Aguilera Fernandez v. U.S. Attorney General ( 2021 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-15144
________________________
Agency No. A201-604-811
DENIS ADRIAN AGUILERA FERNANDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 23, 2021)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and ED CARNES, Circuit
Judges.
PER CURIAM:
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Denis Adrian Aguilera Fernandez, a citizen of Cuba, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order affirming an Immigration
Judge’s (“IJ”) denial of his application for asylum and withholding of removal.
Aguilera Fernandez argues the agency erred when it determined that his past
mistreatment in Cuba did not rise to the level of persecution and that he did not
establish a well-founded fear of future persecution. After careful consideration and
with the benefit of oral argument, we deny Aguilera Fernandez’s petition.
I. BACKGROUND
Aguilera Fernandez is a Cuban citizen. On the night the Cuban government
announced Fidel Castro’s death, he tried to buy alcohol for his friend as a birthday
present. The problem was that the Cuban government had prohibited the purchase
of alcohol in observance of Castro’s death. When Aguilera Fernandez attempted to
buy the alcohol, police officers stopped him and said he was disrespecting Castro’s
memory by “celebrating his death.” AR 219. 1 An argument between the officers
and Aguilera Fernandez ensued, during which Aguilera Fernandez said, “this [is]
what the tyranny would do” and “there [is] no democracy in [Cuba].” Id. The
police officers then hit Aguilera Fernandez and detained him for 24 hours.
In the months following his detention, the Cuban police began surveilling
Aguilera Fernandez’s house and interviewing his neighbors. Police officers also
1
“AR” refers to the administrative record.
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periodically went to his house unannounced, asked him questions, and detained
him. From the time Aguilera Fernandez was first detained in November 2016 until
he left Cuba in December 2018, officers arrested and detained him between seven
and ten times. Each detention lasted between eight and 24 hours, and they all took
place around national holidays when police assumed Aguilera Fernandez would be
“on the streets protesting . . . against the government.” AR 223.
While he was detained, Aguilera Fernandez expressed his frustration with
the dictatorship in Cuba, the lack of freedom of speech and expression, and the
Cuban people’s inability to select their own leaders. During the detentions, police
officers “physically attacked” Aguilera Fernandez—they handcuffed him and hit
him in the back and shoulders with their fists, the palms of their hands, and their
knees. AR 225. The officers were “careful[] not to leave any signs or bruises . . .
[as] evidence of what they had done,” however. Id. Aguilera Fernandez said he
never went to a doctor because he was afraid of attracting police attention, but he
also testified that he did not suffer any injuries. He testified that he did not go out
to protest “because [he] was afraid” he would be detained and abused. AR 223.
Sometime in December 2018, Aguilera Fernandez obtained a tourist visa to
Panama and took a flight there. From Panama, he traveled through Costa Rica,
Nicaragua, Honduras, Guatemala, and Mexico before entering the United States.
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After he fled Cuba, police officers visited his house and asked his neighbor and
family about his whereabouts.
Aguilera Fernandez entered the United States at a port of entry in El Paso,
Texas, seeking asylum. The Department of Homeland Security issued him a notice
to appear (“NTA”), charging him as removable as a noncitizen without a valid
entry document. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). He admitted the allegations
in the NTA and conceded removability.
Aguilera Fernandez applied for asylum and withholding of removal.2 At his
merits hearing, Aguilera Fernandez testified that he fled Cuba because he was
detained and beaten by police officers on account of his political opinion. The IJ
found him credible but denied his applications for relief. The IJ determined that he
was ineligible for asylum because he had not met his burden of proving past
persecution or a well-founded fear of future persecution. Specifically, the IJ
concluded that the harm Aguilera Fernandez experienced did not rise to the level of
“severe mistreatment” under De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1009
(11th Cir. 2008), which lists kidnapping, attempted murder, and assault with a
firearm resulting in a broken nose as examples of persecution. AR 117. As to his
well-founded fear of future persecution, the IJ ruled that Aguilera Fernandez had
2
Aguilera Fernandez also sought protection under the Convention Against Torture
(“CAT”), which the IJ and BIA denied. Aguilera Fernandez does not challenge on appeal the
BIA’s denial of his CAT claim.
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not established that the Cuban government would target or single him out for
persecution upon return to Cuba. The IJ acknowledged the Cuba Country
Conditions Report’s indication that individuals who are returned to Cuba may be
prosecuted for past criminal behavior but found no evidence in the report to
suggest those individuals would be tortured. Because the IJ found Aguilera
Fernandez ineligible for asylum, the IJ also found him ineligible for withholding of
removal because withholding of removal carries a “higher burden [of proof].” AR
119.
The BIA affirmed the IJ’s decision, agreeing that Aguilera Fernandez’s
detentions and assaults did “not cumulatively rise in severity to the level of
persecution as a matter of law” and that he had not established a well-founded fear
of future persecution in Cuba. AR 4. The BIA further agreed with the IJ’s
conclusion that Aguilera Fernandez’s failure to meet the “well-founded fear”
standard for asylum foreclosed his meeting the more stringent standard for
withholding of removal. Id.Aguilera Fernandez timely petitioned this Court for review.
II. STANDARD OF REVIEW
We review the BIA’s decision and the IJ’s decision to the extent that the
BIA expressly adopts the IJ’s opinion or reasoning. Seck v. U.S. Att’y Gen.,
663 F.3d 1356, 1364 (11th Cir. 2011). Here, the BIA issued its own opinion but
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affirmed and agreed with the IJ’s decision and reasoning. We therefore “review
the IJ’s opinion, to the extent that the BIA found that the IJ’s reasons were
supported by the record.” Id. (internal quotation marks omitted).
We review the agency’s legal conclusions de novo and its factual findings
under the substantial-evidence test. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d
1341, 1350 (11th Cir. 2009). The agency’s determination that a petitioner failed to
establish past persecution is a factual finding we review under the substantial-
evidence test.3 Under the substantial-evidence test, we must affirm the agency’s
factual findings if they are “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Lingeswaran v. U.S. Att’y Gen.,
969 F.3d 1278, 1286 (11th Cir. 2020) (internal quotation marks omitted). We view
the record evidence in the light most favorable to the agency’s decision and draw
all reasonable inferences in its favor. Adefemi v. Ashcroft, 386 F.3d 1022, 1027
3
Aguilera Fernandez argues that because the IJ determined his testimony was credible,
the facts are undisputed and therefore we must review his past persecution claim de novo. We
disagree. We have consistently held that our review of the agency’s determination that a
noncitizen has not established persecution is limited to whether the decision was supported by
substantial evidence. See Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir.
2007) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). Thus, to reverse the agency’s
“fact findings” that a noncitizen has not suffered past persecution or a well-founded fear of
persecution, we must conclude that the record compels reversal. Id. (internal quotation marks
omitted); see, e.g., Kazemzadeh, 577 F.3d at 1352–53 (reviewing adverse past-persecution
finding under the substantial-evidence test); Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290 (11th
Cir. 2006) (same); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (same);
see also Shi v. U.S. Att’y Gen., 707 F.3d 1231, 1235–36 (11th Cir. 2013) (“determining what
constitutes persecution is a highly fact-intensive inquiry”).
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(11th Cir. 2004) (en banc). Thus, we reverse only if the record “compels” reversal
of the agency’s findings of fact. Id.III. DISCUSSION
The Attorney General has discretion to grant asylum to any noncitizen who
meets the Immigration and Nationality Act’s definition of a “refugee.” 8 U.S.C.
§ 1158(b)(1)(A). A “refugee” is a person who is unable or unwilling to return to
his home country because of past persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular social group,
or political opinion. Id. § 1101(a)(42)(A); see Kazemzadeh, 577 F.3d at 1351. To
establish asylum eligibility, an applicant must demonstrate that he faced past
persecution or has a well-founded fear of future persecution on account of a
protected ground. 8 C.F.R. § 1208.13(a), (b).
An applicant who establishes past persecution is presumed to have a well-
founded fear of future persecution, a presumption that may be rebutted if the
government shows either “a fundamental change in circumstances” in the
applicant’s home country or that the applicant “could avoid future persecution by
relocating” to another the part of the country. Id. § 1208.13(b)(1)(i)(A), (B). Even
where an applicant has not suffered past persecution, he may establish a well-
founded fear of persecution by “showing a good reason to fear that he will be
singled out for persecution” on account of a protected ground if returned to his
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home country, Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006)
(internal quotation marks omitted), or proving that he is a member of, or is
identified with, a group that is subjected to a “pattern or practice” of persecution in
his home country, 8 C.F.R. § 1208.13(b)(2)(iii). The applicant’s fear of
persecution must be “subjectively genuine and objectively reasonable.” Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (internal quotation marks
omitted).
Where an applicant is unable to meet the well-founded fear standard for
asylum, he generally fails to establish the “more stringent standard” for
withholding of removal. Id. at 1232–33.
Aguilera Fernandez challenges the agency’s denial of his applications for
asylum and withholding of removal, asserting that the agency erred in determining
that his mistreatment at the hands of Cuban police officers did not rise to the level
of persecution and he did not have a reasonable fear of future persecution if
returned to Cuba. We address his arguments in turn.
a. The Record Does Not Compel the Conclusion that Aguilera
Fernandez Suffered Past Persecution.
Aguilera Fernandez argues that the IJ and BIA erred in concluding that his
repeated detentions and beatings by the Cuban police did not constitute
persecution. We must set aside whether the evidence would support a conclusion
that the Cuban police persecuted Aguilera Fernandez because “[o]ur review is
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more limited.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006).
Under the “highly deferential substantial evidence test,” id., we do not ask whether
the record might support a claim for relief; instead, we ask whether it compels us
to reverse the agency’s contrary determination, Djonda v. U.S. Att’y Gen., 514 F.3d
1168, 1175 (11th Cir. 2008). Here, the record does not compel reversal of the
agency’s finding that Aguilera Fernandez’s past mistreatment did not constitute
persecution.
Persecution is “an extreme concept that does not include every sort of
treatment our society regards as offensive.” Shi v. U.S. Att’y Gen., 707 F.3d 1231,
1235 (11th Cir. 2013) (internal quotation marks omitted). Persecution “requires
more than a few isolated incidents of verbal harassment or intimidation,
unaccompanied by any physical punishment, infliction of harm, or significant
deprivation of liberty.” Id. (internal quotation marks omitted). In determining
whether a petitioner suffered past persecution, we must “evaluate the harms [he]
suffered cumulatively—that is, even if each fact considered alone would not
compel a finding of persecution, the facts taken as a whole may do so.” Id. Such a
determination is “a highly fact-intensive inquiry” that requires considering “the
totality of the circumstances on a case-by-case basis.” Id. at 1235–36.
We have held that brief detentions and minimal physical violence do not
compel a finding of persecution. See Kazemzadeh, 577 F.3d at 1353. In
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Kazemzadeh, for example, we concluded that evidence that the petitioner was
arrested, interrogated and beaten for five hours, and detained for four days did not
compel a finding of persecution. Id. at 1352–53. In Djonda, we held that evidence
that the petitioner was imprisoned for 36 hours and beaten with a belt and kicked
by police officers, but suffered only minor scratches and bruises, did not compel a
finding that the petitioner had been persecuted. 514 F.3d at 1171, 1174. And in
Zheng v. U.S. Att’y Gen., we held that the record did not compel a finding of
persecution where the petitioner was detained for five days and forced to sign a
pledge to stop practicing Falun Gong, a movement banned by the Chinese
government in 1999; to watch anti-Falun Gong videos; and to stand in the sun for
two hours. 451 F.3d 1287, 1289, 1291 (11th Cir. 2006).
By contrast, “severe” and “extreme” mistreatment do compel a finding of
persecution. De Santamaria, 525 F.3d at 1009. For instance, in De Santamaria,
we concluded that the petitioner suffered persecution when members of the
Revolutionary Armed Forces of Colombia (“FARC”) threatened her with death;
assaulted and dragged her out of her vehicle by her hair; tortured and murdered her
family groundskeeper; and then kidnapped, beat, and warned her of her imminent
murder. Id. at 1008–09. Similarly, we determined there had been past persecution
in Mejia v. U.S. Att’y Gen., where the petitioner endured “threats and attempted
attacks over an 18-month period, which culminated when [the petitioner was]
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stopped on a roadway by three armed members of the FARC, who threatened
[him] at gunpoint, threw him to the ground, and smashed him in the face with the
butt of a rifle, breaking his nose.” 498 F.3d 1253, 1257–58 (11th Cir. 2007). And
in Delgado v. U.S. Att’y Gen., we ruled that a father and son met their burden of
demonstrating persecution where unknown masked men had pointed unloaded
guns at them, pulled the triggers, and threatened them with death if they continued
to speak out against an organization supporting Hugo Chavez; they received
threatening phone calls; and the son was attacked and beaten until he was almost
unconscious. 487 F.3d 855, 859, 861–62 (11th Cir. 2007).
After reviewing the record, we cannot say it compels a finding that Aguilera
Fernandez was persecuted. He testified that over the course of two years he was
detained between seven and ten times, for eight to 24 hours at a time, around
national holidays and events. Although police hit him during these detentions, he
said he never suffered any injuries. To be sure, “we have not required [a showing
of] serious physical injury where the petitioner demonstrates repeated threats
combined with other forms of severe mistreatment.” De Santamaria, 525 F.3d at
1009 (collecting cases). Nevertheless, even when viewed cumulatively, Aguilera
Fernandez has not shown that the Cuban police subjected him to the kind of
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“severe mistreatment” akin to that in De Santamaria, Mejia, and Delgado. 4 We
acknowledge that the Cuban police’s treatment was harmful, but the record does
not compel the finding that the harm amounted to persecution.
Aguilera Fernandez also contends that the agency erred by failing to address
the reason why Cuban police detained and beat him (that is, to prevent him from
protesting the government). He argues, based on language in Shi, that he suffered
persecution because he was prevented from voicing his political beliefs and that
the agency failed to give his case reasoned consideration because it ignored this
motivation behind his detentions and beatings. See Shi, 707 F.3d at 1236
(observing that evidence showing Chinese authorities suppressed petitioner’s
religious practice “strongly cut[] in favor of finding persecution”). We reject his
arguments for two reasons.
First, Shi did not decide that evidence a petitioner was prevented from
exercising a fundamental right—there, the petitioner’s religious practice—is
sufficient to compel a finding of past persecution. Instead, as we do here, we
4
Aguilera Fernandez notes that the United States Citizenship and Immigration Services
(“USCIS”) training manual provides that “multiple brief detentions” may amount to persecution.
See USCIS Refugee, Asylum, & Int’l Operations Directorate, Definition of Persecution and
Eligibility Based on Past Persecution 20 (Dec. 20, 2019). In that regard, the manual is generally
consistent with our case law that, depending on the circumstances, multiple brief detentions may,
but do not always, amount to persecution. But the training manual’s guidance does not bind us.
See Bradley v. Sebelius, 621 F.3d 1330, 1338 (11th Cir. 2010) (“[A]gency interpretations
contained in policy statements, manuals, and enforcement guidelines are not entitled to the force
of law.” (internal quotation marks omitted)).
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evaluated the “totality of the circumstances presented in [the] case,” only one of
which was that the petitioner was prevented from practicing his religion. Id. at
1236. The petitioner in Shi was also detained for seven consecutive days;
interrogated twice, during which police slapped him in the face, kicked his chair
out from underneath him, and threatened to beat him with a baton; and handcuffed
to an iron bar and left overnight outside in the rain, after which he became so sick
that police released him for fear that he would die in their custody. Id. at 1232–33.
We concluded that the cumulative effect of all these harms compelled a finding of
persecution. Id. at 1239. Here, we accept Aguilera Fernandez’s contention that
Cuban police targeted him on account of his political opinion and sought to prevent
him from voicing his political beliefs. Even so, when we consider the totality of
the circumstances, the record does not compel the conclusion that Aguilera
Fernandez was persecuted.
Second, the agency afforded reasoned consideration to Aguilera Fernandez’s
arguments. We have sustained reasoned-consideration claims in circumstances
where the agency “misstates the contents of the record, fails to adequately explain
its rejection of logical conclusions, or provides justifications for its decision which
are unreasonable and which do not respond to any arguments in the record.” Ali v.
U.S. Att’y Gen., 931 F.3d 1327, 1334 (11th Cir. 2019) (internal quotation marks
omitted). None of these circumstances applies here. In fact, the IJ explicitly
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addressed Aguilera Fernandez’s testimony that Cuban police detained and beat him
to prevent him from speaking out against the government, explaining that the
detentions and beatings “coincided with national events that prevented [him] from
protesting or otherwise agitating, or, in the police’s opinion, drawing attention to
counter government positions during times of national importance . . . . [Police
would] place him into custody, and there would be a beating either right after or
right before [he] remonstrated and spoke up for his political beliefs.” AR 116.
Thus, we are left “with the conviction that the [agency] has heard and thought
[about Aguilera Fernandez’s case] and not merely reacted.” Ali, 931 F.3d at 1333
(internal quotation marks omitted).
Aguilera Fernandez cites Ali for support here, but his reliance is misplaced.
In Ali, we concluded the agency did not give reasoned consideration where it
“fail[ed] to mention . . . five pieces of highly relevant evidence” and “wholly
ignored [the petitioner’s] own [credible] testimony.” Id. at 1336 (internal
quotation marks omitted). Here, by contrast, the IJ recounted Aguilera
Fernandez’s testimony, acknowledging that the detentions prevented him from
protesting and the beatings occurred right after or right before he spoke out against
the government. That the agency “reached a conclusion different from that of
[Aguilera Fernandez] regarding the import of [this evidence] does not mean that
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the [agency’s] decision was not supported by reasoned consideration.” Jeune v.
U.S. Att’y Gen., 810 F.3d 792, 804 (11th Cir. 2016).
b. The Record Does Not Compel the Conclusion that Aguilera
Fernandez Has a Well-Founded Fear of Future Persecution.
Aguilera Fernandez next contends that the IJ and BIA erred in determining
that he does not have a well-founded fear of persecution in Cuba. We disagree.
If an applicant fails to demonstrate past persecution, he may still establish
asylum eligibility based upon a well-founded fear of future persecution. De
Santamaria, 525 F.3d at 1007. “To be well-founded, a fear of persecution must be
both subjectively genuine and objectively reasonable.” Id. at 1011 (internal
quotation marks omitted). The subjective component is generally satisfied by the
applicant’s credible testimony that he genuinely fears persecution. Id. The
objective component requires the petitioner to establish “specific, detailed facts
showing a good reason to fear that he . . . will be singled out for persecution,” Al
Najjar v. Ashcroft, 257 F.3d 1262, 1290 (11th Cir. 2001) (internal quotation marks
omitted), or a “pattern or practice of persecution of a group of which he is a
member,” Lingeswaran, 969 F.3d at 1291 (internal quotation marks omitted); see
8 C.F.R. § 1208.13(b)(2)(iii).
Aguilera Fernandez’s credible testimony that he is afraid the Cuban police
will persecute him upon return establishes that his fear is subjectively genuine;
however, the record does not compel the conclusion that his fear is objectively
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reasonable. Aguilera Fernandez provides the following evidence that he will be
persecuted if returned to Cuba: (1) his testimony, photographs, and a letter from a
neighbor indicating that the Cuban police visited his home and asked about him
after he left Cuba and (2) a 2018 Human Rights Report on Cuba (the “Report”).
Although Aguilera Fernandez’s testimony and documentary evidence indicate that
the Cuban police continued to monitor him after his departure, this evidence does
not compel a finding that that they plan to persecute him. See, e.g., Djonda, 514
F.3d at 1175 (“[W]e must draw all inferences from [petitioner’s] evidence in favor
of the decision of the Board.”). Further, Aguilera Fernandez did not “provide any
evidence that the [Cuban police] told his [family] that they would imprison [him]
for a significant period of time or otherwise harm him.” Lingeswaran, 969 F.3d at
1290.
Similarly, the Report does not compel the conclusion that Aguilera
Fernandez has a well-founded fear of persecution upon his return. It is true that the
Report states the Cuban government “common[ly]” uses “arbitrary arrests and
short term detentions . . . [to] control[] independent public expression and political
activity,” and “monitor[s], infiltrat[es], and suppress[es] independent political
activity.” AR 320–22. Likewise, the Report notes that Cuban police “commit[]
abuses of civil rights and human rights with impunity.” AR 322. However, such
evidence does not establish that Aguilera Fernandez will be singled out for
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persecution. See Ruiz, 440 F.3d at 1259 (concluding that evidence in a country
condition report did not compel reversal of the IJ’s denial of asylum and
withholding of removal because petitioners failed to demonstrate that they would
be singled out for persecution); Sepulveda, 401 F.3d at 1231–32, 1232 n.7
(affirming an IJ’s asylum denial despite evidence of generalized violence in a
country condition report because the petitioner failed to establish she would be
singled out for persecution). And nothing in the Report supports the conclusion
that the mistreatment of political dissidents is “so extreme and pervasive as to
establish a pattern or practice of persecution.” Lingeswaran, 969 F.3d at 1291.
Thus, the agency’s conclusion that Aguilera Fernandez failed to establish a well-
founded fear of future persecution must stand.
***
Because Aguilera Fernandez has not satisfied the “less stringent standard”
for asylum, he cannot meet the burden for withholding of removal. Zheng,
451 F.3d at 1292.
IV. CONCLUSION
For the foregoing reasons, we deny Aguilera Fernandez’s petition for
review.
PETITION DENIED.
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