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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12414
Non-Argument Calendar
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Agency No. A208-054-441
ARCHIVALDO ANTONIO CHOW DAVILA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 21, 2021)
Before JORDAN, GRANT, and LAGOA, Circuit Judges.
PER CURIAM:
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Archivaldo Antonio Chow Davila seeks review of the Board of Immigration
Appeals’s (“BIA”) final order affirming the immigration judge’s denial of his
application for asylum and withholding of removal. He argues the BIA did not give
reasoned consideration to, or make adequate findings based on, his application for
asylum and withholding removal with respect to his showings of past persecution
and of the nexus of that persecution to his political opinion. Because substantial
evidence supports the BIA’s decision, we deny Davila’s petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 2012, Davila, a native and citizen of Nicaragua, entered the
United States through Miami on a Temporary Visitor for Pleasure (B-2) visa,
authorizing him to remain in the country through May 3, 2013. Davila overstayed
his visa, and in February 2017, the Department of Homeland Security (“DHS”)
served him with a notice to appear and charged him as removable under 8 U.S.C. §
1227(a)(1)(B). At that time, he applied for asylum and for withholding of removal
under both the Immigration and Nationality Act (“INA”) and the United Nations
Convention Against Torture (“CAT”).
Davila claimed political persecution in his asylum application. His father was
a journalist in Nicaragua and was imprisoned and tortured because of his articles
about the government. Davila had refused to join the Sandinista party, and,
following this refusal, he claimed that he was harassed, threatened with violence and
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death, and had all his belongings stolen, by pro-Sandinista gangs, all of which went
ignored by police. Because he refused to sign government documents self-
identifying as a member of the Sandinista party, the government denied him an
identification card, rendering him unemployable throughout the country. Davila also
claimed that he feared to return to Nicaragua because of the gangs who worked for
the government.
An immigration judge held a merits hearing. Davila testified that
government-affiliated gangs would kill him if returned to Nicaragua. He gave three
examples of past gang intimidation. In 2006, he was robbed of his shoes at gunpoint
by two gang members, which he reported to police who did nothing. In 2010, he
was robbed at knifepoint by two gang members who worked for the government.
When he reported this incident to police, they said that they had no resources and
asked him for money to investigate. In 2011, two gang members broke into his
house with weapons, robbed the house, and threatened to kill him and his family if
they reported to the police. One of the topics the immigration judge focused on at
the hearing was the dilatory nature of Davila filing his application. When the
immigration judge asked if there was any reason Davila did not file the application
sooner than five years after entering the United States, Davila responded: “I didn’t
know the immigration laws. I was afraid.” Davila also admitted he never sought
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out an immigration attorney nor went to an agency as he did not “have the time and
money” and had to support his wife and daughter.
In an oral decision following the hearing, the immigration judge found that
Davila did not timely file his asylum application, failed to show cause for the late
filing, and thus was not entitled to asylum. The immigration judge also analyzed
Davila’s claims, noting that, while Davila alleged multiple instances of encounters
with government-backed gangs in Nicaragua, at no point did he claim that he was
physically harmed. Furthermore, the immigration judge found that reporting the
incidents to the police diminished Davila’s fear of the gang members actually
harming him and that Davila did not offer any evidence establishing that the
robberies were committed against him “because of” his political views. And because
Davila failed to satisfy the lower burden of proof required for asylum, the
immigration similarly found he failed to satisfy the standard of eligibility for
withholding of removal. The immigration judge also found that Davila was not
entitled to CAT relief. Accordingly, the immigration judge ordered Davila removed
from the United States to Nicaragua.
Davila appealed to the BIA, where he argued, among other things, the
immigration judge did not “give adequate weight” to his testimony that was
sufficiently detailed and credible evidence of intimidation, death threats, and
multiple robberies at gun- and knifepoint. He also argued the immigration judge’s
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finding that his contacting police was enough to diminish the threat to him and his
fear of harm was clearly erroneous.
The BIA dismissed the appeal, affirming the immigration judge’s finding that
that Davila’s asylum application was time-barred. The BIA found that Davila did
not provide evidence of Nicaragua’s changed-country conditions to justify his
untimely application nor provide evidence that he filed his application without delay
after the purported changed-country conditions. The BIA also found no clear error
in the immigration judge’s finding that Davila was not targeted in Nicaragua for
harm in the past and would not be targeted for harm in the future on account of any
protected ground under the INA. The BIA explained that the evidence reflected that
he was simply the “victim of crime” and that he had failed to meet his burden of
proof.
Davila now petitions for our review of the BIA’s order. We have jurisdiction.
See 8 U.S.C. § 1252(a)(1).
II. STANDARD OF REVIEW
Generally, we review only the decision of the BIA unless the BIA expressly
adopted or explicitly agreed with the immigration judge’s opinion. Ayala v. U.S.
Att’y Gen.,
605 F.3d 941, 947–48 (11th Cir. 2010). Because the BIA here agreed
with the immigration judge’s reasoning, we review both decisions.
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We review legal conclusions de novo. Jeune v. U.S. Att’y Gen.,
810 F.3d 792,
799 (11th Cir. 2016). We review factual determinations under the highly deferential
substantial evidence test. Gonzalez v. U.S. Att’y Gen.,
820 F.3d 399, 403 (11th Cir.
2016). “Under the substantial evidence test, we view record evidence in the light
most favorable to the agency’s decision and draw all reasonable inferences in favor
of that decision,” 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.’” Adefemi v. Ashcroft,
386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc)
(quoting al Najjar v. Ashcroft,
257 F.3d 1262, 1283–84 (11th Cir. 2001)). “[T]he
mere fact that the record may support a contrary conclusion is not enough to justify
a reversal of the [agency’s] findings.”
Id. Rather, the decision “can be reversed only
if the evidence ‘compels’ a reasonable fact finder to find otherwise.” Kueviakoe v.
U.S. Att’y Gen.,
567 F.3d 1301, 1304 (11th Cir. 2009) (quoting Sepulveda v. U.S.
Att’y Gen.,
401 F.3d 1226, 1230 (11th Cir. 2005)).
III. ANALYSIS
To qualify for withholding of removal, an alien bears the burden of showing
either “past persecution in [his] country based on a protected ground,” Tan v. U.S.
Att’y Gen.,
446 F.3d 1369, 1375 (11th Cir. 2006) (quoting Mendoza v. U.S. Att’y
Gen.,
327 F.3d 1283, 1287 (11th Cir. 2003)), or “a future threat to his life or freedom
on a protected ground,” Sanchez v. U.S. Att’y Gen.,
392 F.3d 434, 437 (11th Cir.
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2004) (quoting Mendoza,
327 F.3d at 1287). The INA and DHS regulations establish
five protected grounds: race, religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b); see also
Tan,
446 F.3d at 1375 (holding the alien must show that persecution motivated, at
least in part, by a protected ground). The alien’s burden of production is specific
and credible evidence showing a clear probability to his life or freedom. I.N.S. v.
Stevic,
467 U.S. 407, 424–25 (1984).
Davila raises two arguments on petition for review.1 First, he argues that we
cannot review the decisions of the immigration judge or the BIA because those
decisions were not based on reasoned consideration of the evidence, as the
immigration judge simply disregarded the evidence and testimony he provided. We
disagree. Second, he argues the immigration judge and the BIA erred “in finding
that the harm he experienced did not rise to the level of persecution.” Because
neither the immigration judge nor the BIA based its determination on this reasoning,
this argument is without merit. Rather, the immigration judge and BIA found that
Davila could not establish a nexus between the alleged past harm and one of the five
protected grounds. 2 As for this, we find substantial evidence in support.
1
We note that Davila has abandoned his CAT claim because he does not present any
argument in his briefs as to that claim. See Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1228 n.2
(11th Cir. 2005) (“When an appellant fails to offer argument on an issue, that issue is abandoned.”).
2
We note that our review is limited to the immigration judge’s and the BIA’s denial of
Davila’s withholding of removal claim. Here, the BIA’s denial of the asylum claim was solely on
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Davila further contends that the immigration judge did not consider that he
had witnessed his attackers at political events in support of the Sandinista party, that
he was denied an identity card due to his refusal to support the Sandinista
government, and that he and his father were the subject of credible threats due to
their political opinions against the Sandinista government. The record, however,
contradicts this argument as the immigration judge explicitly considered Davila’s
testimony and, after doing so, found that Davila did not provide any corroboration
for his claim that his father was persecuted by the Nicaraguan government or that he
was unemployed and asking for money on the streets due to the government’s denial
of an identity card.
Moreover, Davila’s contention that the immigration judge and the BIA both
failed to consider his testimony regarding the robberies in 2006, 2010, and 2011 is
also without merit. The immigration judge did consider his testimony, but found
that Davila did not provide any credible evidence or testimony that showed these
crimes were more than just crimes of happen-chance, i.e., Davila did not establish
that he was actually targeted based on a protected ground. Davila even testified that
the gang members wore plain clothes and offered no evidence that they were
members of the Sandinista political party. Additionally, the BIA expressly agreed
the basis that it was time-barred, and we lack jurisdiction to review a denial of an asylum claim on
that basis. See Ruiz v. Gonzales,
479 F.3d 762, 765 (11th Cir. 2007).
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with the immigration judge’s finding that Davila was not targeted on account of any
protected ground, but instead that he was a victim of ordinary crime. See Ruiz v.
U.S. Att’y Gen.,
440 F.3d 1247, 1258 (11th Cir. 2006) (reasoning that evidence that
shows private violence or merely shows that a person has been the victim of criminal
activity does not necessarily constitute evidence of persecution based on a protected
ground).
We have reviewed the administrative record, the immigration judge’s
findings, and the BIA’s order. Because substantial evidence supports the denial of
Davila’s applications, we deny his petition.
PETITION DENIED.
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