Raul Claudio Moran v. U.S. Attorney General , 232 F. App'x 944 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 13, 2007
No. 07-10661 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A96-275-085 & A96-275-086
RAUL CLAUDIO MORAN,
ANALIA TELMA TARICCO DE MORAN,
ROCIO DEBORA MORAN,
GIMENA MARIEL MORAN,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 13, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Raul Claudio Moran, proceeding pro se, petitions this Court, along with his
wife Analia Telma Taricco de Moran, and two daughters, for review of a final
order of the Board of Immigration Appeals (“BIA”) affirming the Immigration
Judge (“IJ”)’s denial of asylum and withholding of removal under the Immigration
and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231, and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). After careful review of
the record on appeal, we conclude that we lack jurisdiction to review Moran’s
asylum and CAT claims, and Moran and his family are not entitled to withholding
of removal. Accordingly, we dismiss Moran’s petition in part and deny it in part.
I.
We lack jurisdiction to review Moran’s asylum and CAT claims because
Moran failed to exhaust his administrative remedies with respect to both of these
claims. See 8 U.S.C. § 1252(d)(1). Moran entered the United States in June 2001
after fleeing from Argentina. His wife and daughters arrived several months later
in October 2001. Moran did not apply for asylum until January 2003. Moran
stated in his application that he and his family were subjected to robberies, death
threats and other acts of violence in retaliation for his work as an organizer and
active member of a 600-member trade union of taxi drivers. He argues that he has
established a well-founded fear of future persecution because he has been
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identified by union opposition and police as an activist, and threatened multiple
times. He states that others have been murdered after receiving similar threats.
In order to be eligible for asylum, one must apply for relief within one year
after the date of arrival in the United States, unless there are special circumstances.
See 8 U.S.C. § 1158(a)(2). The IJ found Moran’s asylum application untimely and
determined there were no extraordinary circumstances that would warrant an
exception to the one-year time bar. Alternatively, the IJ analyzed the merits of
Moran’s asylum claim and determined that he failed to demonstrate past
persecution or a well-founded fear of future persecution on account of a protected
category. Because Moran failed to meet his asylum burden, the IJ ruled that Moran
also failed to meet the requirements for withholding of removal and CAT relief.
Moran did not challenge the IJ’s determination regarding the timeliness of his
asylum application or the IJ’s conclusion that he was not entitled to CAT relief.
Because Moran did not address these claims before the BIA, he failed to exhaust
his administrative remedies with respect to these claims and we have no
jurisdiction to review them, even if the BIA addressed them sua sponte.1 See
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006)
1
Even if Moran had challenged the IJ’s finding regarding the timeliness of his asylum
application, we have no jurisdiction to review decisions regarding whether a petitioner met the
one-year filing deadline or proved extraordinary circumstances excusing untimely filing. See
Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
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(per curiam). Accordingly, we dismiss Moran’s petition for review to the extent he
seeks review of his asylum and CAT claims.
II.
Because Moran failed to exhaust his asylum and CAT claims, the only issue
properly before us is whether Moran is entitled to withholding of removal. “We
review only the [BIA]’s decision, except to the extent that it expressly adopts the
IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). In
Moran’s case, the BIA issued its own opinion without adopting any portion of the
IJ’s opinion.
The BIA affirmed the IJ’s conclusion that Moran did not meet his burden of
proof for withholding of removal under 8 U.S.C § 1231(b)(3). The BIA stated that
Moran had experienced “past abuse and has described fears of future harm due to
his involvement in a trade union for taxi drivers in the city of Rosario,” Argentina.
The BIA explained that Moran’s “membership in a trade union would not qualify
as membership in a particular social group under the Act inasmuch as it was within
his power to change jobs.” The BIA further found that Moran failed to
demonstrate that the opposition to the union targeted him “on account of his
political opinion, as opposed to his interference with their economic interests.”
The BIA also affirmed the IJ’s determination that Moran could have avoided
mistreatment by relocating within Argentina, a point which Moran has not
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contested.
“To the extent that the BIA’s decision was based upon a legal determination,
[our] review is de novo.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th
Cir. 2004). On the other hand, “administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). To qualify for withholding of removal under
the INA, one must show that if he returns to his country, his life or freedom would
be threatened on account of his race, religion, nationality, membership in a
particular social group, or political opinion. 8 U.S.C. § 1231(b)(3). The applicant
must demonstrate that it is more likely that not that he would be persecuted or
tortured upon return to his country. Mendoza, 327 F.3d at 1287. The applicant
must also demonstrate that the persecution he fears is, “at least in part, motivated
by a protected ground.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir.
2006). Moran asserts that the union opposition in Rosario persecuted him in the
past and will target him upon his return because of his membership in a particular
social group, his express political opinion, and his imputed political opinion based
on his leadership role in the taxi drivers’ trade union.
The BIA has defined “persecution on account of membership in a particular
social group” as “persecution that is directed toward an individual who is a
member of a group of persons all of whom share a common, immutable
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characteristic . . . that either is beyond the power of an individual to change or that
is so fundamental to his identity or conscience that it ought not be required to be
changed.” Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985), overruled
on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987); see
also Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1196-97 (11th Cir. 2006)
(finding this definition reasonable), cert. denied, __ U.S. __, 127 S. Ct. 977, 166 L.
Ed. 2d 709 (2007) (mem.). In this case, the BIA concluded that Moran is not part
of a particular social group due to his participation in the taxi drivers’ trade union
because this characteristic is not immutable as he could change jobs at any time.
Applying the appropriate deference to the BIA’s interpretation of the INA on this
issue, we hold that the conclusion that Moran’s membership in a trade union does
not constitute membership in a social group within the meaning of the INA is
reasonable––i.e., the BIA’s interpretation is neither arbitrary, capricious, nor
clearly contrary to law. See Castillo-Arias, 446 F.3d at 1196-99 (explaining that
the BIA’s interpretation of the INA that noncriminal informants who work against
the Cali cartel are not members of a particular social group deserves Chevron-
deference); see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842-44, 104 S. Ct. 2778, 2781-82, 81 L. Ed. 2d 694 (1984) (establishing
a two-step process for reviewing an agency’s interpretation of a statute it
administers).
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To qualify for withholding of removal on account of political opinion, the
applicant must establish that his persecutors targeted him or will target him in the
future because of his actual or imputed political opinion, not merely because of a
lack of cooperation with the persecutors. See Sanchez v. U.S. Att’y Gen., 392 F.3d
434, 437-38 (11th Cir. 2004) (per curiam). The BIA found that the taxi owners’
group targeted Moran because of his interference with their economic interests, not
because of his political opinion. This finding is conclusive because the record does
not compel a contrary result. See 8 U.S.C. § 1252(b)(4)(B).
Moran has not demonstrated that he has been or will be targeted “because
of” his membership in a particular social group or his political opinion. See 8
U.S.C. § 1231(b)(3). While no one disputes that members of the union opposition
attacked and intimidated him, Moran has not established that he was targeted on
the basis of a protected ground. He has not fulfilled his burden of showing that
upon his return to Argentina his life or freedom will more likely than not be
threatened because he is part of a protected group. Consequently, Moran and his
family are not entitled to withholding of removal.2
DISMISSED IN PART; DENIED IN PART.
2
Even if Moran were eligible for withholding of removal, his wife and daughters would
not qualify for withholding because the statute does not provide for derivative claims. Delgado
v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir. 2007) (per curiam).
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