Maryori Marin v. U.S. Attorney General ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 6, 2007
No. 07-11123 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A97-637-408
MARYORI MARIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 6, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Maryori Marin, a citizen of Venezuela, through counsel, seeks review of the
Board of Immigration Appeals’s (“BIA”) decision summarily affirming the
Immigration Judge’s (“IJ”) order denying her 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”). We dismiss Marin’s
petition as to her withholding of removal and CAT claims because she failed to
exhaust her administrative remedies for those claims. We grant her petition as to
her asylum claim, however, and remand to the BIA.
I. BACKGROUND
In July 2003, the Department of Homeland Security (“DHS”) admitted
Marin to the United States in Miami as a non-immigrant B-2 visitor for a
temporary period not to exceed January 19, 2004. On September 15, 2003, Marin
applied to the DHS for asylum, withholding of removal, and protection under the
CAT. On March 16, 2004, the DHS filed a Notice to Appear with the Miami
Immigration Court, charging Marin with removability under 8 U.S.C. §
1227(a)(1)(B) because she remained in the United States for a longer time than
permitted. On June 30, 2004, Marin appeared before the IJ with counsel, conceded
removability and stated that she wished to seek asylum, withholding of removal,
and protection under the CAT.
At her removal hearing on July 11, 2005, Marin testified in support of her
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application. She testified that she worked as a chemical engineer for Venezuela
petroleum from September 2001 to January 2003 and that she was an active
member of the Petroleum Workers Union, UNAPETROL. Marin allegedly
attended all of UNAPETROL’s activities, including bi-monthly marches in
demonstration against President Hugo Chavez’s government, and served as a
leader for some UNAPETROL activities.
While Marin described several instances of alleged persecution in her
application, the most pertinent on appeal are the phone call and shooting of June 3,
2003. Marin claims that she received an anonymous call that morning from a man
who said he knew her class schedule, when she came and left her home, and where
her friends lived. The man purportedly threatened that Marin would “pay dearly”
if she continued to protest against President Chavez. That evening, as Marin drove
home from class, a car allegedly approached her vehicle and tried to force Marin to
lose control thereof. Marin asserts that as she began to speed up, the men in the
vehicle began to shoot at her car, destroying her windshield. As they drove away,
Marin said, they made a hand signal identifying themselves as Chavez supporters.
After the presentation of evidence, the IJ issued an oral decision denying
Marin’s application for asylum. Specifically, the IJ noted that Marin did not
provide evidence apart from her own testimony to support her claim that she was
involved with UNAPETROL beyond mere membership. Furthermore, the IJ
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indicated that to rule in Marin’s favor, it would have needed some corroboration of
her car-chase story, like a police report. According to the IJ, Marin’s argument
that she did not go to the police because the police supported Chavez did not
suffice. Thus, the IJ found that Marin did not show past persecution or a well-
founded fear of future persecution under the INA.
In her brief before the BIA, Marin challenged the IJ’s conclusion that she
had failed to show that she was specifically targeted on account of her political
beliefs as contrary to the weight of the evidence. The BIA, however, affirmed the
IJ’s decision without an opinion.
On appeal from the BIA, Marin argues that the IJ erred because her oral
testimony was sufficient to establish past persecution or a well-founded fear of
future persecution based on her anti-Chavez opinions. In response, the
Government argues that we (1) lack jurisdiction over Marin’s asylum claims
because she abandoned them, and (2) lack jurisdiction over her withholding of
removal and CAT claims because she did not exhaust them below and abandoned
them here. Furthermore, the government argues that even if we disagree on the
abandonment issue, the record does not compel reversal of the IJ’s decision. Marin
did not file a reply brief.
II. DISCUSSION
A. Jurisdiction
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We review jurisdictional matters de novo. Brooks v. Ashcroft, 283 F.3d
1268, 1272 (11th Cir. 2002). “The exhaustion requirement applicable to
immigration cases is found in 8 U.S.C. § 1252(d)(1), which provides that ‘[a] court
may review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right.’” Sundar v. I.N.S., 328
F.3d 1320, 1323 (11th Cir. 2003). Because we view that requirement as
jurisdictional, we lack “jurisdiction to consider claims that have not been raised
before the BIA.” Id. In her brief before the BIA, Marin does not mention her
claim under the CAT and only mentions withholding of removal in her concluding
sentence. Thus, we agree with the government that we do not have jurisdiction to
consider these claims.
We disagree, however, with the government’s argument that Marin
abandoned her asylum claim by inadequately raising it before us on appeal.
“When an appellant fails to offer argument on an issue, that issue is abandoned,”
and passing references to an issue are insufficient to prevent abandonment.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per
curiam). The government argues that “Marin has not made any statement in her
brief that might, even liberally, be construed as a coherent argument relating to the
dispositive bases on which the Immigration Judge denied Marin’s claim for
asylum.” (Red Brief at 26). Despite the absence of coherence and sophisticated
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legal argument in her brief, however, Marin does explicitly challenge the IJ’s
asylum determination. Because we read Marin’s brief liberally, therefore, we
conclude that she has sufficiently raised her asylum claim before us, and we
address that claim here. See Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th
Cir. 1994) (“briefs should be read liberally to ascertain the issues raised on
appeal”).
B, Asylum
Because the BIA summarily affirmed the IJ’s decision, we review the IJ’s
decision directly. Sanchez-Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th
Cir. 2007). We review the IJ’s factual determinations under the substantial
evidence test. Id. at 1230. Accordingly, we will “affirm the [IJ’s] decision if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Id. Furthermore, we may only reverse the IJ’s fact
findings if we find that the record compels, not merely supports, reversal. Id.
1. Credibility
An alien bears the burden of proving eligibility for asylum. Id. at 1231. The
applicant’s credible testimony “may be sufficient to sustain the applicant’s burden
without corroboration.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818-19
(11th Cir. 2004) (citing 8 C.F.R. §§ 208.13(a), 208.16(b)). If an IJ wishes to make
an adverse credibility finding, he must do so explicitly, Yang v. U.S. Att’y Gen.,
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418 F.3d 1198, 1201 (11th Cir. 2005), and if the IJ fails to do so, “the applicant or
witness shall have a rebuttable presumption of credibility on appeal.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). Accordingly, because the IJ did not make an explicit
determination that Marin’s testimony was not credible, Marin’s testimony has a
rebuttable presumption of credibility on appeal.
2. Marin’s Claim
In seeking asylum, Marin’s burden was to “establish (1) past persecution on
account of her political opinion or any other protected ground, or (2) a ‘well-
founded fear’ that her political opinion or any other protected ground will cause
future persecution.” Sepulveda, 401 F.3d at 1230-31 (citing 8 C.F.R. § 208.13(a),
(b)). “A showing of past persecution creates a presumption of a ‘well-founded
fear,’ subject to rebuttal by the [government].” Id. at 1231; see also Antipova v.
U.S. Att’y Gen., 392 F.3d 1259, 1265-66 (11th Cir. 2004) (vacating and remanding
to the BIA for a finding regarding past persecution and the applicability of a
presumption of a future threat to applicant). We conclude that Marin sufficiently
demonstrated past persecution on account of her political opinion to raise a
presumption of well-founded fear.
Persecution is “an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation.” Sepulveda, 401 F.3d at 1231. We
recently determined that “intentionally being shot at in a moving car multiple
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times” constitutes persecution. Sanchez-Jimenez, 492 F.3d at 1233. Thus, Marin’s
presumptively credible, unrebutted allegations concerning the attack she
experienced while driving home from class on June 3, 2003 compels the
conclusion that she suffered persecution.
The next question is whether the record compels the conclusion that the
persecution Marin suffered was on account of her political opinion. The IJ found
that Marin’s UNAPETROL involvement, which allegedly included leadership
activities, community presentations, signature collecting, meetings and marches,
did not adequately demonstrate political opinion. We need not reach the question
of whether Marin held the requisite political opinion, however, because we have
recognized that an alien’s imputed political opinion can satisfy the requirement that
persecution be based on a protected ground. Najjar v. Ashcroft, 257 F.3d 1262,
1289 (11th Cir. 2001) (“An asylum applicant may prevail on a theory of imputed
political opinion if he shows that the [p]ersecutor falsely attribute[d] an opinion to
[him], and then persecute[d][him] because of that mistaken belief about [his]
views.”) (internal quotation marks omitted) (alterations in original). Accordingly,
despite the IJ’s finding that Marin did not sufficiently demonstrate political
opinion, Marin could still have satisfied the requirement if her testimony
established that the persecutors were motivated by what they perceived to be
Marin’s political opinion.
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Marin’s testimony concerning the threatening call and the attackers’ hand
gesture indicating allegiance to Chavez compels the conclusion that the persecution
she suffered was on account of political opinion. Marin received the threatening
phone call on the morning of the attack, and was told that she would “pay dearly”
unless she stopped protesting against Chavez. The caller specifically told her that
he knew her class schedule and the attack occurred as Marin was on her way home
from class later that day. The attackers made hand gestures indicating their
allegiance to Chavez as they drove away. The caller and attackers, therefore,
clearly acted because of the political opinion they imputed to Marin. Accordingly,
we conclude that the evidence Marin offered compels the finding that she suffered
persecution on account of her political opinion.
At this point, the IJ should have shifted the burden to the government to
rebut the presumption that Marin had a well-founded fear of future persecution.
CONCLUSION
We dismiss Marin’s petition as to the withholding of removal and CAT
claims. We vacate the IJ’s decision as to asylum, however, and remand to the BIA
to give the government the opportunity to rebut the presumption that Marin had a
well-founded fear of future persecution.
PETITION GRANTED IN PART, DISMISSED IN PART, AND
REMANDED.
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