Sergio Rolando Cordova Pineda v. U.S. Attorney General , 443 F. App'x 496 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10172 ELEVENTH CIRCUIT
Non-Argument Calendar OCTOBER 20, 2011
________________________ JOHN LEY
CLERK
Agency No. A098-730-879
SERGIO ROLANDO CORDOVA PINEDA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 20, 2011)
Before EDMONDSON, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Sergio Rolando Cordova-Pineda, through counsel, petitions for review of the
final order of the Board of Immigration Appeals (“BIA”), which affirmed the
immigration judge’s (“IJ”) denial of his application for asylum and withholding of
removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158,
1231(b)(3), and relief under the United Nations Convention Against Torture and
Other Cruel, Inhumane or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. §
208.16(c). On appeal, Cordova-Pineda argues that the BIA erred in assuming that his
testimony was credible, rather than making a “clean” credibility finding, and
affirming the IJ’s decision based on his failure to carry his burden of proof for
asylum, withholding of removal, and CAT relief. After thorough review, we deny the
petition.1
We review only the BIA’s decision when the BIA issues a separate decision,
“except to the extent that [the BIA] expressly adopts the IJ’s opinion.”
Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (quotations
1
As an initial matter, we reject the government’s argument that Cordova-Pineda’s
petition for review was untimely, and as such, we lack jurisdiction to review it. While we
generally have jurisdiction to review final orders of removal, the petition for review must be filed
within 30 days of the date of the final order of removal. 8 U.S.C. § 1252(a)(1), (b)(1). We do
not have jurisdiction to review a final order of removal if the petition for review is not filed
within this deadline, as “the statutory limit for filing a petition for review in an immigration
proceeding is mandatory and jurisdictional, [and] it is not subject to equitable tolling.” Dakane
v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (quotation omitted). However,
because the record shows that Cordova-Pineda filed his petition for review within the 30-day
limit, we have jurisdiction to review it.
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omitted). “Insofar as the Board adopts the IJ’s reasoning, we will review the IJ’s
decision as well.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). In this
case, the BIA wrote a separate decision with analysis and also adopted the IJ’s
reasoning. Therefore, we will review both decisions.
We review the BIA’s legal conclusions de novo, and the BIA’s and IJ’s factual
findings under the substantial evidence test. Forgue v. U.S. Att’y Gen., 401 F.3d
1282, 1286 (11th Cir. 2005) (discussing the standard of review for an IJ’s factual
determinations); Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en
banc) (explaining the standard of review for a BIA’s factual findings); Mohammed
v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001) (stating that we conduct a de novo
review of a legal challenge to the BIA’s decision). Under the substantial evidence
test, we should “affirm the IJ’s decision if it is supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Forgue, 401 F.3d at
1286 (quotation and alteration omitted). The substantial evidence test is “deferential”
and does not allow “re-weigh[ing] the evidence from scratch.” Mazariegos v. Office
of the U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001) (quotations omitted).
To reverse factual findings, we must “find that the record not only supports reversal,
but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
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“[T]he mere fact that the record may support a contrary conclusion is not enough to
justify a reversal of the administrative findings.” Adefemi, 386 F.3d at 1027.
Like factual findings, credibility determinations are reviewed under the
substantial evidence test. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230-31 (11th Cir.
2006). The BIA must make “clean determinations of credibility,” and state explicitly
that the applicant’s testimony was not credible. Yang v. U.S. Att’y Gen., 418 F.3d
1198, 1201 (11th Cir. 2005) (quotation omitted). When the BIA fails to make an
explicit adverse credibility determination, we accept the petitioner’s testimony as
credible. Lin v. U.S. Att’y Gen., 555 F.3d 1310, 1313 n.2 (11th Cir. 2009).
An alien who arrives in, or is present in, the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). The U.S. Attorney General or Secretary of DHS has
discretion to grant asylum if the alien meets the INA’s definition of a “refugee.” 8
U.S.C. § 1158(b)(1). A “refugee” is defined in the INA as:
any 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 . . . .
8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving
statutory “refugee” status. Najjar, 257 F.3d at 1284. To establish asylum eligibility
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the alien must, with specific credible evidence, establish (1) past persecution on
account of a statutorily protected factor, or (2) a “well-founded fear” that the
statutorily listed factor will cause such persecution. 8 C.F.R. § 208.13(b); Silva v.
U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006).
Past persecution is established when the applicant shows that (1) he was
persecuted, and (2) the persecution was on account of a protected ground. Silva, 448
F.3d at 1236. “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. Najjar, 257 F.3d at 1287 (quotations
and emphasis omitted). If the alien establishes past persecution, it is presumed that
his life or freedom would be threatened upon return, 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 or
withholding of removal if he can demonstrate a future threat in his country to his life
or freedom on the basis of a protected ground. Id. To establish a well-founded fear,
an applicant must demonstrate that his fear of future persecution is “subjectively
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genuine and objectively reasonable.” Najjar, 257 F.3d at 1289-90. “The subjective
component is generally satisfied by the applicant’s credible testimony that he or she
genuinely fears persecution.” Id. at 1289. “[T]he objective prong can be fulfilled
either by establishing past persecution or that he or she has a good reason to fear
future persecution.” Id. (quotation omitted). The alien must show a nexus between
a statutorily protected ground and the feared persecution, and he can do so by
presenting “specific, detailed facts showing a good reason to fear that he or she will
be singled out for persecution on account of” the statutorily listed factor. Forgue, 401
F.3d at 1286 (quotations and emphasis omitted).
“[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 v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th
Cir. 2004) (quotations and alteration omitted). Moreover, menacing telephone calls
and threats to the alien and family members do not rise to the level of past persecution
that would compel reversal of an IJ’s decision. Id.Persecution on the basis of political opinion must be on account of the victim’s
opinion, not the persecutor’s opinion. Sanchez v. U.S. Att’y Gen., 392 F.3d 434,
437-38 (11th Cir. 2004) (withholding of removal context); accord INS v.
Elias-Zacarias, 502 U.S. 478, 482 (1992) (asylum context). “[A]n imputed political
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opinion, whether correctly or incorrectly attributed, may constitute a ground for a
well-founded fear of political persecution within the meaning of the INA.” Najjar,
257 F.3d at 1289 (quotations and alteration omitted). “An asylum applicant may
prevail on a theory of imputed political opinion if he shows that the persecutor falsely
attributed an opinion to him, and then persecuted him because of that mistaken belief
about his views.” Id. (quotations and alterations omitted).
To qualify for withholding of removal under the INA, an alien must show that,
if he returned to his country, his life or freedom would be threatened on account of
race, religion, nationality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1231(b)(3). “An alien bears the burden of demonstrating that he
more-likely-than-not would be persecuted or tortured upon his return to the country
in question.” Mendoza, 327 F.3d at 1287. Generally, when an alien fails to meet the
“well-founded fear” standard for establishing asylum eligibility, the alien cannot
establish the higher burden for withholding of removal. Najjar, 257 F.3d at 1292-93.
The burden of proof for an alien seeking withholding of removal under the
CAT, like the burden for an alien seeking withholding of removal under the INA, is
higher than the burden for showing entitlement to asylum. Id. at 1303. Thus, where
the alien is unable to meet the less stringent standard for asylum, his claim for CAT
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relief necessarily fails. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1292 (11th Cir.
2006).
In this case, substantial evidence supports the BIA’s and IJ’s denial of asylum.2
First, Cordova-Pineda did not establish that he suffered from past persecution in
Guatemala based on a statutorily protected factor because the two threatening phone
calls to his father’s home did not rise to the level of persecution. See Sepulveda, 401
F.3d at 1231.
Additionally, he did not establish that he had a well-founded fear of future
persecution based on a protected ground. See Najjar, 257 F.3d at 1289. Even if
Cordova-Pineda subjectively feared persecution, his fear is not objectively reasonable
based on the record evidence, and he did not show a nexus between a statutorily
protected ground and the feared persecution. See Forgue, 410 F.3d at 1286.
Cordova-Pineda testified that the only people whom he feared in Guatemala were two
government officials, Alfonso Portillo and Efrain Montt. However, as the BIA
2
We note that although the IJ found that Cordova-Pineda’s testimony was not credible,
the BIA decided not to review the IJ’s credibility determination and assumed that Cordova-
Pineda’s testimony was credible. Thus, we must accept Cordova-Pineda’s testimony as credible.
See Lin, 555 F.3d at 1313 n.2; Yang, 418 F.3d at 1201. Because we do so, Cordova-Pineda’s
argument that the BIA was required to make a further credibility determination is moot. Further,
Cordova-Pineda’s assertion that the IJ’s adverse credibility determination prevented him from
establishing the requisite nexus for asylum based on an imputed political opinion is without merit
because the BIA assumed that Cordova-Pineda’s testimony was credible, and he still did not
establish that he was entitled to asylum.
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properly noted and the 2008 Guatemala Country Report indicates, Portillo is no
longer in charge of the government and is facing corruption charges. These changed
circumstances undermine Cordova-Pineda’s fear of persecution. Further,
Cordova-Pineda did not establish that there was a likelihood of persecution based on
an imputed political opinion because Montt belonged to the same political party as
Cordova-Pineda’s father. See Elias-Zacarias, 502 U.S. at 482; Sanchez, 392 F.3d at
437-38.
Because Cordova-Pineda failed to establish past persecution or a well-founded
fear of persecution on account of political opinion or any other protected grounds to
support his asylum claim, there are no grounds for reversing the determination that
he is not entitled to withholding of removal or CAT relief. See Najjar, 257 F.3d at
1292-93, 1303; Zheng, 451 F.3d at 1292. Moreover, as the government properly
noted, Cordova-Pineda has abandoned his claims of withholding of removal and CAT
relief by failing to offer any argument contesting the basis of the BIA’s decision in
his initial brief. See Sepulveda, 401 F.3d at 1228 n.2 (“When an appellant fails to
offer argument on an issue, that issue is abandoned.”); Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (holding that a passing reference
to an issue in a brief is insufficient to properly raise that issue). Accordingly, we
deny the petition for review.
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PETITION DENIED.
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