Roberto A. Barberena v. U.S. Atty. General , 136 F. App'x 344 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 04-15939
Non-Argument Calendar FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 23, 2005
Agency Docket No. A95-241-237 THOMAS K. KAHN
CLERK
ROBERTO ANTONIO BARBERENA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Petition for Review from a Final Order
of the Board of Immigration Appeals
_________________________
(June 23, 2005)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Roberto A. Barberena, proceeding pro se, petitions for review of the Board
of Immigration Appeals’ (“BIA’s”) order affirming the Immigration Judge’s
(“IJ’s”) determination denying Barberena asylum and withholding of removal.1
Because Barberena’s removal proceedings commenced after April 1, 1997, the
permanent rules of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) (“IIRIRA”),
apply. Barberena argues that the IJ erred in finding that Barberena failed to
demonstrate a well-founded fear of persecution due to his political opinions
because Barberena provided substantial evidence of instances of persecution by
the Sandinistas.
A. Asylum
The IJ’s factual determinations are reviewed under the substantial evidence
test, and we “must affirm the [IJ]’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Al
Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (quotation omitted).
We review the IJ’s decision in this case, not the BIA’s, because the BIA affirmed
the IJ’s decision without an opinion, thereby making the IJ’s decision the final
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Barberena failed to preserve his United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) claim on appeal. Mentioning
his CAT claim in Barberena’s statement of the issues did not sufficiently preserve his claim for
appeal. Rather, Barberena needed to specifically argue for relief under the CAT, and he did not.
See Draper v. Sullivan, 899 F.2d 1127, 1130 n.3 (11th Cir. 1990).
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agency determination. See Mendoza v. U.S. Atty. Gen., 327 F.3d 1283, 1284 n.1
(11th Cir. 2003).
An alien who arrives in, or is present in, the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has
discretion to grant asylum if the alien meets the INA’s definition of a “refugee.”
See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is defined as
any person who is outside any country of such person’s
nationality or, in the case of a person having no nationality, is
outside any country in which such person last habitually
resided, 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) (emphasis added). The asylum
applicant carries the burden of proving statutory “refugee” status. See Al Najjar,
257 F.3d at 1284.
To establish asylum eligibility, the petitioner must establish, with specific
and credible evidence: (1) past persecution on account of a statutorily listed factor,
such as political opinion or (2) a “well-founded fear” that the statutorily listed
factor will cause such future persecution. 8 C.F.R. § 208.13(a),(b). If the
petitioner demonstrates past persecution, he or she is presumed to have a well-
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founded fear of future persecution unless the government can rebut this
presumption by showing a fundamental change in circumstances in the country or
the ability to avoid future persecution by relocating within the country. 8 C.F.R.
§ 208.13(b)(1). If the petitioner cannot show past persecution, then he or she must
demonstrate a well-founded fear of future persecution that is both subjectively
genuine and objectively reasonable. See Al Najjar, 257 F.3d at 1289. The
subjective component can be proved “by the applicant’s credible testimony that he
or she genuinely fears persecution,” while the objective component “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 INA does not expressly define “persecution” for purposes of qualifying
as a “refugee.” However, we have stated that “persecution is an extreme concept,
requiring more than a few isolated incidents of verbal harassment or intimidation.”
Sepulveda v. U.S. Atty. Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (quotations
omitted).
To establish the necessary causal connection between the political opinion
and the feared persecution, the alien must present specific, “detailed facts showing
a good reason to fear that he or she will be singled out for persecution on account
of such an opinion.” Sepulveda, 401 F.3d at 1231 (quotation omitted) (emphasis
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in original). Furthermore, a refugee must first pursue an “internal resettlement
alternative” in their own country, or establish that this is not possible, before
seeking asylum in the United States. Mazariegos v. U.S. Atty. Gen., 241 F.3d
1320, 1326-27 (11th Cir. 2001).
In this case, substantial evidence supports the IJ’s finding that Barberena
did not suffer past persecution or have a well-founded fear of persecution on
account of his political activities. Barberena presented only two incidents in
which the Sandinistas allegedly threatened him: (1) his being detained for
questioning for six hours without being physically harmed and (2) his receiving
threatening phone calls, and both of these incidents occurred at least ten years
after Barberena was involved with a group opposing the Sandinistas, and no
evidence was presented directly linking the incidents to the Sandinistas.
Moreover, Barberena stated that his main fear was that the Sandinistas would win
the election in 2001 and be able to harm him if he returned to Nicaragua.
However, the Sandinistas lost the election and the current government is working
with the Sandinistas to try to maintain a more peaceful co-existence.
B. Withholding of Removal
The IJ’s factual determination that an alien is not entitled to withholding of
removal must be upheld if it is supported by substantial evidence. See Al Najjar,
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257 F.3d at 1283-84. An alien is entitled to withholding of removal under the INA
if he or she can 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. Mendoza, 327 F.3d at 1287; see also INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3). As a general rule, however, if “an applicant is unable to meet the
‘well-founded fear’ standard for asylum, he is generally precluded from qualifying
for either asylum or withholding of deportation.” Al Najjar, 257 F.3d at 1292-93
(quotation omitted).
Because Barberena failed to establish past persecution or a well-founded
fear of persecution sufficient to support his asylum claim, as discussed above, he
cannot establish that he is eligible for withholding of removal under the INA.
Upon review of the record, and having considered the briefs of the parties,
we discern no reversible error. Based on the foregoing, we deny the petition.
PETITION DENIED.
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