Lavathas Muththiah v. U.S. Attorney General , 521 F. App'x 768 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13145
Non-Argument Calendar
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Agency No. A200-615-725
LAVATHAS MUTHTHIAH,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 4, 2013)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Lavathas Muththiah, an ethnic Tamil and native and citizen of Sri Lanka,
appeals the Board of Immigration Appeals’s (BIA) order affirming the
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Immigration Judge’s (IJ) denial of his application for asylum and withholding of
removal under the Immigration and Nationality Act (INA). 1 On petition for
review, Muththiah raises three challenges: (1) the BIA erred in concluding that
any past persecution suffered or future persecution feared was not on account of
Muththiah’s Tamil ethnicity; (2) the BIA improperly engaged in factfinding and
erroneously concluded that Muththiah did not demonstrate a well-founded fear of
future persecution based on his efforts to secure asylum in the United States; and
(3) both the IJ and BIA erred by failing to engage in a “mixed motive analysis” of
Muththiah’s claims.
I.
Muththiah argues that the record evidence compels a conclusion that his past
persecution and fear of future persecution turn on his Tamil ethnicity, and that the
BIA erred in denying his claims for asylum and withholding of removal by holding
otherwise.
We only review the BIA’s decision, except to the extent that it expressly
adopts the IJ’s opinion. Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890
(11th Cir. 2007). While legal determinations of the BIA are reviewed de novo,
Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (2001), administrative fact findings
1
Muththiah also sought relief under the United Nations Convention Against Torture (CAT),
which the IJ and BIA denied. However, he has abandoned any challenge to the BIA’s denial of
CAT relief because he did not raise the issue in his brief to this Court. “When an appellant fails
to offer argument on an issue, that issue is abandoned.” Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005).
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are reviewed under the highly deferential substantial evidence test. Rivera v. U.S.
Att’y Gen., 487 F.3d 815, 820 (11th Cir. 2007). The BIA’s decision will be
affirmed “if it is supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Id. (quotation marks omitted). “Under the
substantial-evidence test, 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.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004). Thus,
“[t]o conclude the BIA’s decision should be reversed, we must find that the record
not only supports the conclusion, but compels it.” Ruiz v. Gonzales, 479 F.3d 762,
765 (11th Cir. 2007) (quotation marks omitted).
An applicant for asylum must meet the INA’s definition of a “refugee.”
INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A) (2006). The definition of “refugee”
includes:
[A]ny person who is outside any country of such person’s nationality .
. . and who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that country
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[.]
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (2006). “To establish asylum
eligibility, the petitioner 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 future persecution.” Ruiz v. U.S. Att’y
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Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (quotation marks omitted). A showing
of past persecution creates a rebuttable presumption of a well-founded fear of
future persecution. Sepulveda, 401 F.3d at 1231; 8 C.F.R. § 208.13(b)(1) (2013).
“[P]ersecution is an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation, and . . . mere harassment does not
amount to persecution.” Sepulveda, 401 F.3d at 1231 (quotations marks and
brackets omitted). In the absence of a presumption of a well-founded fear created
by a showing of past persecution, the applicant must show that there is a
“reasonable possibility” of suffering persecution if he returns to his home country.
8 C.F.R. § 208.13(b)(2)(i)(B). The fear of persecution must be “subjectively
genuine and objectively reasonable.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1289
(11th Cir. 2001). The alien must also “establish a causal connection” or nexus
between a statutorily protected ground and the feared persecution. Sepulveda, 401
F.3d at 1231. He can do so by “presenting specific, detailed facts showing a good
reason to fear” he will be “singled out for persecution” on such ground. Id.(quotation marks omitted). Alternatively, the alien can show this nexus by
establishing that there is a “pattern or practice” of persecution on that ground. See
8 C.F.R. § 208.13(b)(2)(iii)(A). The persecution of a particular group must be
“systemic or pervasive” to amount to a “pattern or practice.” In re A-M-, 23 I & N
Dec. 737, 741 (BIA 2005).
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An application for asylum made in removal proceedings is also considered
to be a request for withholding of removal. See 8 C.F.R. § 1208.3(b) (2013).
When an applicant fails to establish a claim of asylum on the merits, he necessarily
fails to establish his eligibility for withholding of removal. Forgue v. U.S. Att’y
Gen., 401 F.3d 1282, 1288 n.4 (11th Cir. 2005).
Muththiah claims that the record evidence compels reversal because it
showed that his father was murdered by, Muththiah’s life was threatened by, and
Muththiah’s family was extorted by paramilitary groups—possibly associated with
the Sri Lankan government. Muththiah argues that State Department reports
confirm that these paramilitary groups disproportionately target Tamils. Muththiah
also claims that the evidence showed that his family still in Sri Lanka continues to
receive threatening phone calls demanding money. Finally, Muththiah claims the
evidence showed that he had a well-founded fear of reprisal from the smuggler
who helped him leave because Muththiah informed the FBI about the smuggler.
We are not persuaded by Muththiah’s argument. Substantial evidence
supports the BIA’s conclusion that Muththiah’s asylum and withholding of
removal claims failed because he did not establish either past persecution or a well-
founded fear of future persecution on account of a statutorily protected factor.
Even assuming that the past harm Muththiah and his family endured amounted to
“persecution,” nothing in the record linked that harm to the family’s Tamil
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ethnicity. Muththiah could not identify the perpetrators and, by his own testimony,
their threats turned on demands for money rather than his family’s ethnicity. It is
true that the country reports and news articles entered into evidence showed that
Tamils have been, and continue to be, subject to human rights abuses. However,
those same reports also indicated that other ethnicities were targeted by
paramilitary groups, and that some of the paramilitary groups were themselves
Tamil.
Because the record does not compel a conclusion that Muththiah was
persecuted on account of his ethnicity, he does not benefit from presumption of a
well-founded fear of future persecution. In any event, the evidence does not
demonstrate that Muththiah will be targeted for persecution based on his ethnicity
if he returns to Sri Lanka. Muththiah’s claimed threat of persecution from the
smuggler who he identified to authorities would not be based on a ground
protected under the INA. Finally, because Muththiah failed to prove he is entitled
to asylum relief, he necessarily failed to demonstrate his eligibility for withholding
of removal. See Forgue, 401 F.3d at 1288 n.4.
II.
Next, Muththiah contends that the BIA improperly engaged in factfinding
and erroneously concluded that he did not demonstrate a well-founded fear of
future persecution based on his attempt to secure asylum in the United States.
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Department of Justice regulations provide that, “[e]xcept for taking
administrative notice of commonly known facts such as current events or the
contents of official documents, the [BIA] will not engage in factfinding in the
course of deciding appeals.” 8 C.F.R. § 1003.1(d)(3)(iv) (2013). In the context of
a well-founded fear determination, this means that the BIA may not find facts or
review de novo those facts found by the IJ. See Zhou Hua Zhu v. U.S. Att’y Gen.,
703 F.3d 1303, 1311–14 (11th Cir. 2013). Additional regulations provide that
asylum applications and associated records shall not be disclosed without the
written consent of the applicant. 8 C.F.R. § 1208.6 (2013).
Muththiah argues first that the BIA made an improper finding of fact by
noting that, pursuant to 8 C.F.R. § 1208.6, the asylum process in this country is
confidential and thereby rejecting Muththiah’s claim to fear of future persecution
because of his current request for asylum. Second, Muththiah argues that the
record compels a conclusion that he would be subject to future persecution based
on his asylum application, particularly in light of his testimony that a bribe was
required to secure safe release after his prior failed asylum attempt.
Muththiah’s arguments in this regard fail as well. First, the BIA’s reference
to the confidentiality of asylum proceedings did not amount to a factfinding, but
instead merely recited the law. See 8 C.F.R. § 1208.6. Second, substantial
evidence undergirded the BIA’s determination that Muththiah did not demonstrate
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a well-founded fear of reprisal for seeking asylum. Specifically, Muththiah’s
family remained unharmed in Sri Lanka, and he was able to return safely to the
country following a failed asylum attempt. Because Muththiah failed to satisfy his
burden with respect to asylum relief on this ground, he likewise failed to establish
eligibility for withholding of removal. See Forgue, 401 F.3d at 1288 n.4.
III.
Finally, Muththiah argues that both the IJ and BIA erred by failing to engage
in a “mixed motive” analysis of his claims.
Pursuant to 8 U.S.C. § 1252(d)(1), a final order of removal is reviewable
only if “the alien has exhausted all administrative remedies available to the alien as
of right.” 8 U.S.C. § 1252(d)(1) (2006). The exhaustion requirement is
jurisdictional and precludes review of a claim that was not presented to the BIA.
See Fernandez-Bernal v. Att’y Gen. of U.S., 257 F.3d 1304, 1317 n.13 (11th Cir.
2001). We “must inquire into subject matter jurisdiction sua sponte whenever it
may be lacking.” See Hernandez v. U.S. Att'y Gen., 513 F.3d 1336, 1339 (11th
Cir. 2008). Thus, we address whether Muththiah exhausted his administrative
remedies with regard to his “mixed motive” claim before the BIA, even though
neither party raises the issue in their brief.
Muththiah’s notice of appeal to the BIA challenged the IJ’s findings and
conclusions regarding past persecution and his fear of future persecution, but it
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made no mention of the IJ’s alleged failure to perform a “mixed motive” analysis
of his claims. We therefore lack jurisdiction to entertain the “mixed motive”
challenge.2 Fernandez-Bernal, 257 F.3d at 1317 n.13.
For these reasons, we deny Muththiah’s petition in part and dismiss the
petition in part.
PETITION DENIED IN PART, DISMISSED IN PART.
2
Muththiah’s counsel unsuccessfully moved to extend the briefing schedule and filed a statement
in lieu of a brief rather than briefing the appeal to the BIA. The statement explained that
“[c]ounsel previously filed an extensive closing argument in this matter as well as providing
information in the Notice of Appeal as to errors in the Judge’s decision.” Because this statement
in lieu of a brief did not add any argument about whether the IJ improperly failed to perform a
mixed-motive analysis, we rely solely on the notice of appeal to the BIA in determining whether
Muththiah’s mixed-motive analysis claim is properly before us.
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