Antonio Velasquez Gamas v. U.S. Atty. Gen. , 229 F. App'x 892 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 11, 2007
No. 06-14526 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A98-320-920
ANTONIO VELASQUEZ GAMAS,
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 11, 2007)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Antonio Velasquez Gamas, a citizen of Guatemala, appearing pro se, seeks
review of the Board of Immigration Appeal’s (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) order finding him removable and denying his
application for asylum and withholding of removal under the Immigration and
Nationality Act (“INA”) and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
(“CAT”), INA § 241(b)(3), 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 208.16(c).
On appeal, Gamas asserts that the IJ failed to consider all of the evidence he
presented, and specifically did not consider pictures proving his house had been
burned down. Gamas argues that he must only show a threat or series of threats to
establish persecution, which can be accomplished through credible testimony and,
relying on Ninth and Seventh Circuit cases, he argues that he is not required to
suffer permanent or serious injuries in order to establish that he was persecuted.
Gamas also argues that a political opinion should be attributed to him based upon
his employment by the mayor, and that he provided circumstantial evidence of his
political opinion. Also, Gamas asserts that the IJ erred by not making a specific
finding as to his past persecution. Finally, Gamas argues that the IJ erred by
basing his denial of Gamas’s asylum application on the fact that his family has not
been harmed and that Gamas did not move to another part of Guatemala with them.
When the BIA issues a decision, we review only that decision, except to the
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extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). Because the BIA agreed with the IJ’s findings
as to Gamas’s eligibility for asylum, withholding of removal, and relief under CAT
and made additional observations, we review both decisions. See id.The IJ’s factual determinations are reviewed under the substantial evidence
test, and we will “affirm the [IJ's] decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Forgue v.
U. S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (internal quotations and
citations omitted). “[A] denial of asylum may be reversed only if the evidence
presented by the applicant is so powerful that a reasonable factfinder would have to
conclude that the requisite fear of persecution exists.” Mazariegos v. U.S. Att’y
Gen., 241 F.3d 1320, 1323-24 (11th Cir. 2001) (emphasis in original) (citing I.N.S.
v. Elias-Zacarias, 502 U.S. 478, 481 & n.1, 112 S.Ct. 812, 815 & n.1, 117 L.Ed.2d
38 (1992)). The fact that evidence in the record may also support a conclusion
contrary to the administrative findings is not enough to justify a reversal. Silva v.
U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). Under “the ordinary
remand rule,” circuit courts may not make factual findings in the first instance.
Gonzales v. Thomas, 547 U.S. 183, 126 S.Ct. 1613, 1615, 164 L.Ed.2d 358 (2006).
In Tan v. U.S. Attorney General, 446 F.3d 1369, 1374 (11th Cir. 2006),
which concerned a situation where no adverse credibility finding was made, we
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concluded that an IJ “must . . . consider all evidence introduced by the applicant.”
Id. (quoting Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005), and
citing 8 C.F.R. § 1240.1(c) (“The immigration judge shall receive and consider
material and relevant evidence”)). However, “the Immigration Judge is not
required to discuss every piece of evidence presented before him.” Tan, 446 F.3d
at 1376.
To establish asylum eligibility, the alien must, with specific and credible
evidence, demonstrate (1) past persecution on account of a statutorily listed factor,
or (2) a “well-founded fear” that the statutorily listed factor will cause such future
persecution. 8 C.F.R. § 208.13(a), (b); see Al Najjar, 257 F.3d at 1287.
“Demonstrating such a connection requires the alien to present specific, detailed
facts showing a good reason to fear that he or she will be singled out for
persecution on account of [a statutory factor].” Al Najjar, 257 F.3d at 1287
(internal quotations and citation omitted) (emphasis in original). However, the
alien does not need to prove that he or she would be “singled out” for persecution
if (1) there is a “pattern or practice of persecution” against similarly situated
individuals and (2) his inclusion within that group of individuals makes his fear of
persecution reasonable. See 8 C.F.R. 208.13(b)(2)(iii).
We recognize that “‘persecution’ is an ‘extreme concept,’ requiring ‘more
than a few isolated incidents of verbal harassment or intimidation,’ and that
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‘[m]ere harassment does not amount to persecution.’” Sepulveda v. U.S. Att’y.
Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (citation omitted). In Sepulveda, we
held that menacing telephone calls and threats to the alien, her family members,
and colleagues did not rise to the level of past persecution. Id.If the alien establishes past persecution, it is presumed that his life or
freedom would be threatened upon a return to that country unless the government
shows by a preponderance that the country’s conditions have changed such that the
applicant’s life or freedom would no longer be threatened upon his removal or that
the alien could relocate within the country and it would be reasonable to expect
him to do so. 8 C.F.R. § 208.13(b). An alien who has not shown past persecution
may still be entitled to asylum if he can demonstrate a future threat in his country
to his life or freedom on a protected ground. 8 C.F.R. § 208.13(b)(2). To establish
a well-founded fear, “an applicant must demonstrate that his or her fear of
persecution is subjectively genuine and objectively reasonable.” Al Najjar, 257
F.3d at 1289. However, if the IJ finds that the alien could avoid a future threat by
relocating to another part of his country and it would be reasonable to require the
alien to do so, he cannot demonstrate a well-founded fear of persecution. See 8
C.F.R. § 208.13(b)(1)-(2). Similarly, if an applicant’s family continues to reside in
the area in which the applicant claims that he will be persecuted upon return,
relocation is possible. Ruiz v. U. S. Att’y Gen., 440 F.3d 1247, 1259 (11th
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Cir.2006).
To qualify for withholding of removal under the INA, an alien must show
that his or her life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion. INA
§ 241(b)(3), 8 U.S.C. § 1231(b)(3). The evidentiary burden for withholding of
removal is greater than that imposed for asylum; accordingly, if an alien has not
met the well-founded fear standard for asylum, he generally cannot meet the
standard for withholding of removal. Al Najjar, 257 F.3d at 1292-93.
To qualify for CAT relief, the applicant must establish that it is “more likely
than not” that he would be tortured if removed to the proposed country of removal.
8 C.F.R. § 208.16(c)(2). Like withholding of removal, the evidentiary burden for
CAT relief is greater than that imposed for asylum, and if an alien has not met the
well-founded fear standard for asylum, he generally cannot meet the standard for
CAT relief. Al Najjar, 257 F.3d at 1303.
The IJ properly considered all the evidence. In his decision, the IJ stated
that he had considered “all the evidence of record.” The IJ is required to consider
all the evidence, but he is not required to refer to every piece of evidence. Tan,
446 F.3d at 1376. In his brief, Gamas claims that he has photos to prove his house
was burnt down, however, he never requested that the IJ admit those photos into
evidence. Moreover, we cannot find facts in the first instance. Thomas, 547 U.S.
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at 183, 126 S.Ct. at 1615. Based upon the record, the IJ properly considered all the
evidence.
Substantial evidence supports the IJ’s finding that Gamas did not suffer past
persecution. Contrary to Gamas’s argument, the IJ made a clear finding that
Gamas did not suffer past persecution. Gamas relies on the Ninth Circuit case of
Thomas v. Ashcroft for the proposition that an escalating scheme of threats can
constitute persecution. 359 F.3d 1169, 1179 (9th Cir. 2004), vacated on other
grounds by Gonzales v. Thomas, 547 U.S. 183, 126 S.Ct. 1613, 164 L.Ed.2d 358(2006). Cases from other circuits are not binding on us and are merely persuasive.
Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981). Even so,
Thomas is distinguishable because the “escalating scheme” there included the
petitioners’ pet being killed, their car and house being vandalized, one petitioner
receiving a death threat in front of her child, and petitioners’ child being the target
of a kidnaping. Thomas, 359 F.3d at 1179. Gamas also relies on the Seventh
Circuit case of Begzatowski v. I.N.S., 278 F.3d 665, 670 (7th Cir. 2002), for the
proposition that a petitioner need not suffer permanent injuries to establish
persecution. However, a petitioner must suffer more than a few incidents of verbal
threats. See Sepulveda, 401 F.3d at 1231. Here, Gamas only testified about threats
to his family and an attempt at burning down his house. Without more detail about
the attempt to burn down Gamas’s house, we conclude that substantial evidence
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supports the IJ’s finding that Gamas failed to demonstrate past persecution.
Substantial evidence supports the IJ’s finding that Gamas could relocate
within Guatemala. Although Gamas testified that he could not safely relocate to
Mixco, he admitted he had not tried to avoid persecution by relocating within
Guatemala. Additionally, Gamas’s mother, brother, and sister had relocated to
Mixco and had been living there without incident. See Ruiz, 440 F.3d at 1259.
While Gamas and the government argue over whether or not Gamas’s claims
of past persecution were related to his political opinion, the answer does not affect
the outcome of Gamas’s petition. Assuming arguendo that Gamas suffered past
persecution on account of his political opinion, he still would not be able to
overcome the IJ’s finding that he could relocate within Guatemala, which prevents
Gamas from establishing a well-founded fear of future persecution. See 8 C.F.R.
§ 208.13(b)(1)-(2). Therefore, we need not address the arguments regarding
Gamas’s political opinion.
In conclusion, substantial evidence supports the IJ’s and BIA’s conclusion
that Gamas failed to carry his burden of establishing past persecution or a well-
founded fear of future persecution, which precluded him from being granted
asylum. Therefore, the IJ’s and BIA’s conclusion that Gamas could not satisfy the
greater burdens applicable to withholding of removal and CAT relief is also
supported by substantial evidence. Accordingly, Gamas’s petition is denied.
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PETITION DENIED.
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