Case: 18-10068 Date Filed: 12/13/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10068
Non-Argument Calendar
________________________
Agency No. A213-093-891
FIDEL ENRIQUE GOMEZ HERNANDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 13, 2018)
Before TJOFLAT, NEWSOM and BLACK, Circuit Judges.
PER CURIAM:
Case: 18-10068 Date Filed: 12/13/2018 Page: 2 of 8
Fidel Gomez Hernandez petitions for review of the Board of Immigration
Appeals’ (BIA) final order affirming the Immigration Judge’s (IJ) denial of his
application for asylum, withholding of removal, and relief under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT). He brings several issues on appeal, which we address in turn. After
review, 1 we dismiss the petition in part, and deny in part.
I. DISCUSSION
A. Asylum and Withholding of Removal
The Department of Homeland Security (DHS) has discretion to grant asylum
if the alien establishes that he is a “refugee.”
8 U.S.C. § 1158(b)(1)(A). A refugee
is a person “who is unable or unwilling to return to, and is unable or unwilling to
avail himself or herself of the protection of, [his or her country of nationality]
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.”
8 U.S.C. § 1101(a)(42)(A). Generally, an applicant for asylum must establish
1
We review only the decision of the BIA, except to the extent the BIA expressly adopts
the IJ’s decision. Al Najjar v. Ashcroft,
257 F.3d 1262, 1284 (11th Cir. 2001). Factual findings
are reviewed under the substantial evidence test. Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226,
1230 (11th Cir. 2005). We must affirm a fact-finding “if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Silva v. U.S. Att’y
Gen.,
448 F.3d 1229, 1236 (11th Cir. 2006) (quotations omitted). Under this highly deferential
standard of review, “we view the record evidence in the light most favorable to the agency’s
decision and draw all reasonable inferences in favor of that decision.”
Id. (quotations omitted).
Thus, a decision can only be reversed if “the evidence compels a reasonable fact finder to find
otherwise.” Sepulveda,
401 F.3d at 1230 (quotations omitted). We review due process
challenges de novo. Lapaix v. U.S. Att’y Gen.,
605 F.3d 1138, 1143 (11th Cir. 2010).
2
Case: 18-10068 Date Filed: 12/13/2018 Page: 3 of 8
either (1) past persecution on account of a protected ground, or (2) a well-founded
fear of future persecution on account of a protected ground. Sepulveda v. U.S.
Att’y Gen.,
401 F.3d 1226, 1230–31 (11th Cir. 2005).
1. Past persecution
To establish eligibility for asylum based on past persecution, the applicant
must show (1) he was persecuted, and (2) the persecution was on account of a
protected ground. Sanchez Jimenez v. U.S. Att’y Gen.,
492 F.3d 1223, 1232 (11th
Cir. 2007). Persecution itself is an “extreme concept, requiring more than a few
isolated incidents of verbal harassment or intimidation.”
Id. (quotations omitted).
Substantial evidence supports the denial of Gomez’s asylum claim because
the record does not compel the conclusion that Gomez demonstrated past
persecution on account of his political beliefs.2 The record does not compel a
finding Gomez was targeted in the shooting incident on August 9, 2016, because of
his political beliefs. See Rodriguez Morales v. U.S. Att’y Gen.,
488 F.3d 884, 891
(11th Cir. 2007) (stating where the evidence equally supports an inference of
persecution based on a protected ground, and an inference of persecution based on
an unprotected ground, the record does not “compel” this Court to hold otherwise).
2
On appeal, Gomez asserts the August 2016 incidents alone were sufficient to establish
past persecution. He only references his allegations of economic persecution in the context of
establishing he demonstrated an objective fear of future persecution. However, even including
the claimed economic persecution, substantial evidence supports the BIA’s and IJ’s conclusion.
3
Case: 18-10068 Date Filed: 12/13/2018 Page: 4 of 8
Moreover, there is insufficient evidence to compel a finding Gomez’s
shooters were part of the Colectivos, where the only evidence Gomez offered to
this effect was his testimony that they were dressed similarly and rode
motorcycles. The Colectivos did not later claim responsibility for the attack or
openly admit their involvement and the shooters did not individually identify
themselves. See Sanchez Jimenez
492 F.3d at 1234 n.10 (holding the record
compelled a finding of past persecution when the applicant testified that, after the
shooting, members of the organization called him to claim responsibility for the
attack and reiterated their threats against him and his family). Thus, it is not clear
the shooting incident was motivated by Gomez’s political beliefs as opposed to
Venezuela’s general criminal unrest. See Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247,
1258 (11th Cir. 2006) (explaining evidence consistent with acts of private violence
or that merely showing a person has been the victim of criminal activity does not
constitute evidence of persecution on account of a statutorily protected ground).
Furthermore, the record does not compel a finding the two August 2016
incidents were orchestrated by the same people such that they should have been
considered together as past persecution. The differences in the pattern of behavior
and words used in the written threat and the shooting do not compel a finding the
two were related, and closeness in time is not enough to link the events together.
See Silva v. U.S. Att’y Gen.,
448 F.3d 1229, 1239 (11th Cir. 2006) (determining the
4
Case: 18-10068 Date Filed: 12/13/2018 Page: 5 of 8
evidence did not compel a finding the applicant was targeted on account of her
political beliefs when she offered no evidence, apart from temporal proximity,
connecting a shooting to a threatening note concerning her political activity).
Finally, the record does not compel a finding Gomez demonstrated past
persecution based on the August 19 note alone, because the record does not compel
the determination that this threat, even though it contained a threat directed to
multiple people within it, rises to the level of past persecution. See Sepulveda,
401
F.3d at 1231 (concluding threats to the petitioner, her brother, and university group
did not rise to the level of past persecution).
2. Future persecution
To establish eligibility for asylum based on a well-founded fear of future
persecution, the applicant must prove (1) he had a “subjectively genuine and
objectively reasonable fear of persecution” and (2) such fear of persecution was on
account of a protected ground. Sanchez Jimenez,
492 F.3d at 1232. If the
applicant cannot demonstrate past persecution, he bears the burden of showing it
would be unreasonable for him to relocate, unless the persecution was by the
government or is government-sponsored.
8 C.F.R. § 208.13(b)(3)(i).
The record also does not compel the conclusion Gomez demonstrated a well-
founded fear of future persecution on account of his political beliefs. As an initial
matter, Gomez’s argument the BIA failed to find he had a well-founded fear of
5
Case: 18-10068 Date Filed: 12/13/2018 Page: 6 of 8
future persecution is misplaced. The BIA specifically noted that, because Gomez
did not show past persecution, Gomez also failed to demonstrate a well-founded
fear of future persecution. The BIA also agreed with the IJ’s conclusion that
Gomez failed to demonstrate he could not safely relocate within Venezuela or that
government authorities were unable or unwilling to control potential persecutors,
both elements of establishing a fear of future persecution.
To the extent Gomez exhausted the claim the Interpol warrant justifies a fear
of future persecution, he still has not demonstrated an objective fear he would be
singled out for persecution if he were to return to Venezuela. See Sanchez
Jimenez,
492 F.3d at 1232. The warrant does not indicate a threat of harm, has no
obvious connection to his political beliefs or activity, and does not demonstrate
anything more than an allegation of general criminal activity regarding a financial
transaction. Furthermore, Gomez has not shown that he could not reasonably
relocate anywhere within Venezuela, specifically when he showed he was able to
travel in and out of the country during 2012 to 2015 and lived in Venezuela for at
least seven years between 2009 and 2016 without incident. Thus, the record does
not compel a finding that Gomez has a well-founded fear of future persecution on
account of a protected ground. Accordingly, substantial evidence supports the IJ’s
and BIA’s denial of Gomez’s asylum and withholding of removal claims. 3
3
If an applicant fails to establish eligibility for asylum, “he necessarily cannot meet the
6
Case: 18-10068 Date Filed: 12/13/2018 Page: 7 of 8
B. CAT Relief
Gomez did not exhaust his administrative remedies with respect to his CAT
claim because he did not set forth any meaningful arguments regarding his
eligibility for CAT relief in his pleadings to the BIA. We lack jurisdiction to
entertain arguments not raised before the BIA. Amaya-Artunduaga v. U.S. Att’y
Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006). Thus, we dismiss Gomez’s appeal of
his CAT claim.
8 U.S.C. § 1252(d)(1).
C. Due Process
Due process requires an alien be given both notice and the opportunity to be
heard in removal proceedings. Lapaix v. U.S. Att’y Gen.,
605 F.3d 1138, 1143
(11th Cir. 2010). To show his due process rights were violated, a petitioner must
show that he was deprived of liberty without due process of law and the purported
errors caused him substantial prejudice.
Id. To show substantial prejudice, the
alien must show, “in the absence of the alleged violations, the outcome of the
proceeding would have been different.”
Id.
Gomez’s due process rights were not violated because he was afforded a full
and fair hearing and he cannot show that any of the purported errors caused him
substantial prejudice. First, the IJ’s questioning during the hearing was not so
more stringent burden for withholding of removal.” Amaya-Artunduaga v. U.S. Att’y Gen.,
463
F.3d 1247, 1249 n.3 (11th Cir. 2006). Accordingly, as substantial evidence supports the IJ’s and
BIA’s denial of Gomez’s asylum claims, substantial evidence also supports the IJ’s and BIA’s
denial of withholding of removal.
7
Case: 18-10068 Date Filed: 12/13/2018 Page: 8 of 8
egregious that it prevented significant parts of his testimony from being developed.
Gomez was able to testify about the facts he alleged in his application and attached
documents, and he gave no indication during the hearing that he needed or wanted
to testify more. The IJ has authority to question the asylum applicant directly, and
the questions were not inappropriate. See Stevens v. Osuna,
877 F.3d 1293, 1302
(11th Cir. 2017) (stating an IJ has explicit statutory authority to question the
asylum applicant and any witnesses). Second, the purported error of ignoring the
Interpol warrant did not cause Gomez substantial prejudice because there is no
indication the IJ ignored the evidence or that, even if he had explicitly discussed it,
there would have been a different conclusion. Gomez’s counsel engaged in a
direct colloquy with the IJ, during which he could have discussed the Interpol
warrant, but did not. Thus, the IJ did not deprive Gomez of his due process rights.
II. CONCLUSION
Substantial evidence supports the IJ’s and BIA’s denial of Gomez’s asylum
and withholding of removal claims because he could not demonstrate past
persecution or a well-founded fear of future persecution. We lack jurisdiction to
review the denial of Gomez’s CAT claim. Finally, Gomez’s due process rights
were not violated during the merits hearing. Accordingly, we dismiss in part and
deny in part Gomez’s petition for review.
PETITION DISMISSED IN PART AND DENIED IN PART.
8
