Jean Robert Reid v. U.S. Attorney General , 257 F. App'x 146 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 15, 2007
No. 07-11492 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A79-479-665 & A79-479-666
JEAN ROBERT REID,
MARIE RENEE REID KENOL,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 15, 2007)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Jean Robert Reid, a native and citizen of Haiti, seeks review of the final
order of the Board of Immigration Appeals affirming the decision of the
Immigration Judge to deny Reid’s application for asylum and withholding of
removal under the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231; 8
C.F.R. § 208.16(c).1 Reid’s application is on behalf of himself and his wife, Marie
Renee Reid Kenol. Reid argues that the BIA erred by: (1) determining that he had
not suffered persecution on account of a statutorily protected ground; and (2)
concluding that he is not member of a particular social group because wealthy
property owning Haitians do not constitute a cognizable social group.
We review only the decision of the BIA, except to the extent that the BIA
expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). Here, the BIA issued its own opinion and did not expressly adopt
the IJ’s decision. We therefore review the BIA’s decision. To the extent that the
BIA’s decision was based upon a legal determination, our review is de novo. See
Mohammed v. Ashcroft, 261 F.3d 1244, 1247–48 (11th Cir. 2001). We review the
BIA’s factual determinations under the substantial evidence test, and we must
affirm the BIA’s decision “if it is supported by reasonable, substantial and
probative evidence on the record considered as a whole.” Antipova v. United
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Because Reid does not raise any issues regarding his claim for relief under the
Convention Against Torture in his opening brief, he has abandoned any challenge to the denial
of this relief on appeal. See Sepulveda v. United States Att’y Gen., 401 F.3d 1226, 1228 n.2
(11th Cir. 2005) (“When an appellant fails to offer argument on an issue, that issue is
abandoned.”).
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States Att’y Gen., 392 F.3d 1259, 1261 (11th Cir. 2004) (quotation omitted); Al
Najjar, 257 F.3d at 1283–84 (citation omitted). “To reverse the [BIA]’s fact
findings, we must find that the record not only supports reversal, but compels it.”
Mendoza v. United States Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003)
(considering withholding of removal claim).
An alien who arrives in or is present in the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant
asylum if the alien meets the INA’s definition of “refugee.” Id. § 1158(b)(1). A
“refugee” is:
[A]ny 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.
Id. § 1101(a)(42)(A). The burden of proof is on the alien to establish that she is a
refugee by offering “credible, direct, and specific evidence in the record.” Forgue
v. United States Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005).
To establish asylum eligibility, the alien must demonstrate: (1) past
persecution on account of “race, religion, nationality, membership in a particular
social group, or political opinion”; or (2) a “well-founded fear” that one of these
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statutorily listed factors will cause such future persecution. 8 C.F.R. § 208.13(a),
(b); Al Najjar, 257 F.3d at 1287. “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. Al Najjar, 257
F.3d at 1287 (quotations omitted).
“The statutes governing asylum and withholding of removal protect not only
against persecution by government forces, but also against persecution by
non-governmental groups that the government cannot control.” Ruiz v. United
States Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006). “An imputed political
opinion, whether correctly or incorrectly attributed, may constitute a ground for a
‘well founded fear’ of political persecution within the meaning of the INA.” Al
Najjar, 257 F.3d at 1289 (citations omitted). An asylum applicant need not show
merely that he has a political opinion, but must show that he was persecuted
because of the imputed opinion. INS v. Elias-Zacarias, 502 U.S. 478, 483, 112
S.Ct. 812, 816, 117 L.Ed.2d 38 (1992).
[I]t is not enough for an asylum applicant to prove that he refused to
cooperate with guerrillas because of his political opinion. “Even if [the
evidence compels the conclusion that the petitioner refused to cooperate
with the guerrillas because of his political opinion, the petitioner] still has to
establish that the record also compels the conclusion that he has a
‘well-founded fear’ that the guerrillas will persecute him because of that
political opinion, rather than because of his refusal to [cooperate] with
them.”
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Rivera v. United States Att’y Gen., 487 F.3d 815, 822 (11th Cir. 2007) (quotations
omitted, alteration in original).
A request for withholding of removal requires that an alien show that his life
or freedom would more likely than not be threatened in his country of origin on
account of race, religion, nationality, membership in a particular social group, or
political opinion. INA § 243(b)(3), 8 U.S.C. § 1253(b)(3); Sepulveda v. United
States Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). Where a claimant fails to
establish eligibility for asylum, which carries a lower burden of proof than for
withholding of removal, he likewise fails to establish eligibility for this other form
of relief. See Al Najjar, 257 F.3d at 1293.
Reid first argues that the BIA erred in determining that he was not
persecuted on account of a statutorily protected ground. Specifically Reid
contends that he was persecuted by the supporters of a political party, Lavalas, in
part because of the imputed political opinion that he was not a Lavalas supporter.
We disagree.
Reid has not presented any evidence that compels a conclusion that his
persecution was based on an imputed political opinion. Reid presented evidence of
four incidents. First, Reid testified that in November 2000, five men who he
identified as Lavalas supporters stopped his car on a public road, threw him on the
ground, and robbed him of his valuables. The BIA determined that this was a
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crime of opportunity, and that the evidence did not indicate that he was targeted for
any other reason than his valuables. Because Reid was robbed of all of his
possessions on a public road, and there is no evidence that the men said or did
anything to indicate that they had any motive beyond monetary gain, there is
nothing to compel the conclusion that Reid was persecuted based on a protected
ground.
The next incident presented by Reid was that one morning at his job, one of
his employees who he knew to be a Lavalas supporter threatened him with
retaliation after he reprimanded the employee for arriving late. The BIA found that
the threat appeared to be based on a personal grudge rather than any protected
ground, and that the fact that the employee might have had Lavalas connections did
not make the threat one based on a protected ground. The record indicates that the
employee threatened Reid immediately after he confronted the employee about his
late arrival, and therefore there is nothing to compel the conclusion that Reid was
persecuted based on a protected ground.
The next incident Reid complained about was that between November 2000
and April 2001, he was threatened by Lavalas supporters at the port where he
worked after he refused to get them jobs to allow them to steal from the port for the
benefit of the Lavalas group. The BIA concluded that these threats were based on
personal grudges related to Reid’s job and hiring practices, not on any statutorily
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protected ground. The Supreme Court has said that persecution based on the
refusal to support a political group does not constitute persecution based on an
actual or imputed political opinion. See Elias-Zacarias, 502 U.S. at 483, 112 S. Ct.
at 816 (discussing that persecution due to a refusal to join forces with the guerillas
is not persecution on account of a political opinion). And the record indicates that
the Lavalas supporters were threatening Reid because he refused to support their
organization. Therefore, there is no evidence to compel the conclusion that Reid
was persecuted based on a protected ground.
Reid’s final evidence of persecution was that he was threatened by Lavalas
supporters after he refused to falsify the inventory of a lumber shipment, which
would have provided a profit for them. The BIA determined that this was based on
Reid’s refusal to engage in criminal activities that would support the Lavalas
group, not based on any political opinion he may have held. There is nothing in
the record to indicate that the threats were based on anything other than Reid’s
refusal to support the Lavalas group. As discussed above, persecution based on a
failure to support a political group is not persecution on account of a political
opinion. See id. Therefore, there is no evidence that compels a conclusion that
Reid was persecuted based on a protected ground.
Reid’s next contention of error is that the BIA found that as a wealthy
Haitian landowner employed by a large business, he could not be part of a
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cognizable social group. However, we need not address this argument because
even if he were a member of a particular social group, there is no evidence that he
was persecuted “on account of” his membership in that group. See 8 U.S.C. §
110a(a)(42)(A). The only evidence Reid presented that he was persecuted based
on his social group, which he asserts to be wealthy property owning Haitians, was
the robbery. However, as discussed above, the BIA determined that the robbery
was a crime of opportunity motivated solely by the robbers’ desire to steal Reid’s
valuables. The evidence demonstrates that the men stopped Reid on a public road,
took all of his valuables on him and in his car, and then left. There is no indication
that the men were aware that Reid was a wealthy landowner, and the background
information on Haiti indicates that violence and crime are high across all socio-
economic levels. Therefore, Reid has not presented any evidence that compels the
conclusion that he was persecuted based on membership in a protected social
group.
Because Reid did not establish eligibility for asylum, which carries a lower
burden of proof than the withholding of removal, his withholding of removal claim
necessarily fails. See Al Najjar, 257 F.3d at 1293.
AFFIRMED.
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