Pierre Joseph Moscoso-Polick U.S. Atty. General , 284 F. App'x 715 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 02, 2008
No. 07-15237 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A97-629-976
PIERRE JOSEPH MOSCOSO POLICK,
a.k.a. Pierre Joseph Moscoso-Polick,
SANDRA BEATRIZ MOSCOSO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 2, 2008)
Before BARKETT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Petitioners Sandra Beatriz Moscoso (“Moscoso”) and Pierre Joseph
Moscoso-Polick (“Pierre”), through counsel, seek review of the Board of
Immigration’s (“BIA’s”) order denying their motion to remand and affirming the
Immigration Judge’s (“IJ’s”) denial of their 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”), 8 U.S.C. §§ 1158,
1231(b)(3), 8 C.F.R. § 208.16(c). The Petitioners argue on appeal that they are
entitled to asylum based upon the cumulative effects of all of the events that
occurred both before and after their one-year stay in the United States,1 and that the
IJ erred by considering only the events that the Petitioners experienced following
their return to Peru. For the reasons set forth more fully below, we deny the
petition for review.
I.
Moscoso and Pierre, natives and citizens of Peru, were admitted to the
United States on or about April 22, 2003, as a nonimmigrant visitors for pleasure.
On January 7, 2004, the Department of Homeland Security (“DHS”) issued them
separate Notices to Appear (“NTA”), charging that they were subject to removal
1
Pierre left for the United States in February 2001, and Moscoso later joined him in May
2001. The Petitioners returned to Peru in February 2002.
2
under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as nonimmigrants who
remained in the United States for a time longer than permitted. On April 21, 2004,
Moscoso 2 filed an application for asylum, withholding of removal, and CAT relief.
Moscoso indicated on the application that she sought relief based upon her political
opinion and membership in a particular social group.
At the removal hearing, Moscoso testified that she worked for the Program
of Support for the Repopulation and Development of Emergency Zones (“PAR”), a
government organization in charge of gathering census information from poor
people in “emergency zones.” Moscoso stated that, on separate occasions, she
received threatening calls, had rocks thrown at her, and had a machine gun pointed
at her head. As a result of those events, she and Pierre decided to leave Peru in
2001. Moscoso remained in Peru without incident for approximately two months
before she joined Pierre in the United States. The Petitioners stayed in the United
States for approximately one year. After their return to Peru, some unidentified
people on a large motorcycle taxi followed the Petitioners, insulting them and
hitting the Petitioners’ car with a large piece of iron. In November 2002, the
Petitioners fired their maid because they discovered that the maid was stealing
from them, and, shortly afterwards, the Petitioners noticed that the tire bolts of
2
Moscoso is the lead respondent; however, Pierre filed the original asylum application. At
the hearing on May 19, 2004, Petitioners admitted to the allegations in the NTA and conceded
removability.
3
their car had been loosened. The Petitioners later learned that the maid was
connected to a gang. Finally, Moscoso described an incident at a gas station where
“some guys,” whom Moscoso described were terrorists, beat, kicked, and insulted
the Petitioners. The Petitioners returned to the United States in April 2003.
The IJ denied the Petitioners’ application for asylum, withholding of
removal and CAT relief, and ordered Moscoso and Pierre removed to Peru.
Among other things, the IJ found that:
The respondent, Mrs. Moscoso, lived in Lima, Peru, before she
traveled to the United States in May 2001. While in Peru[,] the
respondent, Mrs. Moscoso, encountered no problems. It appeared that
the problem, if any, is localized in the very poor area where she
worked and not nationwide. The respondent, by law, is required to
relocate to a safe area and she appeared to have resided [] safely in
Lima, Peru, and therefore, the respondents can relocate elsewhere in
Peru without encountering the problems from these elements
previously identified by the Court.
The BIA dismissed the Petitioners’ appeal and denied their motion to
remand. The BIA determined that the Petitioners were not entitled to asylum
because they: (1) failed to establish that any of the experiences they described
constituted persecution on account of a protected ground; (2) failed to establish
that Moscoso was targeted due to imputed political opinion; (3) failed to show how
“PAR” satisfied the requirements for recognition as a particular social group; and
(4) failed to challenge the IJ’s finding that they could safely relocate within Peru.
The BIA also found that the Petitioners were not entitled to withholding of removal
4
and noted that the Petitioners had not challenged the IJ’s denial of CAT relief.
II.
When the BIA issues a decision, we review only that decision, 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). Insofar as the BIA adopts the IJ’s reasoning, we
review the IJ’s decision as well. Id. (citation omitted).
To the extent that the BIA’s decision was based on a legal determination, our
review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001). The BIA’s factual determinations are reviewed under the substantial
evidence test. Forgue v. U.S. Attorney Gen., 401 F.3d 1282, 1286 (11th Cir.
2005). Under the substantial evidence test, we cannot find or consider “facts not
raised in the administrative forum, nor can [it] reweigh the evidence from scratch.”
Id. We must affirm the BIA’s decision if it is “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Id. We
will reverse the agency’s factual determinations only where the record compels
reversal. Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
The record is reviewed in the light most favorable to the BIA’s decision, and all
reasonable inferences are drawn in favor of that decision. Forgue, 401 F.3d at
1286.
The Attorney General may grant asylum if an alien is a refugee within the
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meaning of the INA. Mejia v. U.S. Attorney Gen., 498 F.3d 1253, 1256 (11th Cir.
2007). The INA defines “refugee” as:
[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.
8 U.S.C. § 1101(a)(42)(A). The alien bears the burden to demonstrate “(1) past
persecution on account of a statutorily protected ground or (2) a well-founded fear
of future persecution on account of a protected ground.” Mejia, 498 F.3d at 1256.
A showing of past persecution creates a rebuttable presumption of a
well-founded fear of future persecution. Sepulveda v. U.S. Attorney Gen., 401
F.3d 1226, 1231 (11th Cir. 2005). That presumption may be rebutted if the
government demonstrates by a preponderance of the evidence either that:
(1) “[t]here has been a fundamental change of circumstances such that the
applicant no longer has a well-founded fear of persecution in the applicant’s
country,” or (2) “[t]he applicant could avoid future persecution by relocating to
another part of the applicant’s country of last habitual residence, and under all the
circumstances, it would be reasonable to expect the applicant to do so.” 8 C.F.R.
§§ 208.13(b)(1)(i)(A)-(B), 208.13(b)(1)(ii).
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“If the applicant fails to demonstrate past persecution, an applicant may still
establish asylum based upon proof of a well-founded fear of future persecution.”
De Santamaria v. U.S. Attorney Gen., No. 06-16221, manuscript op. at 13 (11th
Cir. Apr. 22, 2008) (citing 8 C.F.R. § 208.13(b)(2). A well-founded fear of future
persecution can be established by “specific, detailed facts showing a good reason
to fear that he will be singled out for persecution” on account of a protected
ground. Ruiz v. U.S. Attorney Gen., 440 F.3d 1247, 1258 (11th Cir. 2006). As an
alternative to demonstrating that he would be “singled out for persecution,” an
alien may show a pattern or practice in the subject country of persecuting members
of a statutorily defined group of which the alien is a part. 8 C.F.R.
§ 208.13(b)(2)(iii). The alien must show that his fear of persecution is subjectively
genuine and objectively reasonable. Ruiz, 440 F.3d at 1257. However:
An applicant does not have a well-founded fear of persecution if the
applicant could avoid persecution by relocating to another part of the
applicant’s country of nationality or, if stateless, another part of the
applicant’s country of last habitual residence, if under all the
circumstances it would be reasonable to expect the applicant to do so.
8 C.F.R. § 208.13(b)(2)(ii).
Initially, the Petitioners fail to raise any arguments in their briefs
concerning: (1) the denial of withholding of removal; (2) the denial of CAT relief;
or (3) the BIA’s denial of their motion to remand. Therefore, the Petitioners have
abandoned those issues. See Sepulveda, 401 F.3d at 1228 n.2.
7
The Petitioners have failed to challenge the finding that they could safely
relocate in both their appeal to the BIA and in their initial brief here on appeal and,
instead, raise the issue for the first time in their reply brief. Thus, the issue of
whether Petitioners could safely relocate within Peru is unexhausted and
abandoned. See Al-Najjar, 257 F.3d at 1283 n.12 (noting that, when an issue, not
raised before the BIA, is raised for the first time after the initial briefs on appeal,
the unexhausted issue is deemed abandoned); see also 8 U.S.C. § 1252(d)(1);
Amaya-Artunduaga v. U.S. Attorney Gen., 463 F.3d 1247, 1250-51 (11th Cir.
2006) (holding that we lacked jurisdiction to review an unexhausted issue even
though the BIA sua sponte considered it).
The record does not compel reversal of the BIA’s order affirming the IJ’s
denial of the Petitioners’ application for asylum. Even assuming arguendo that the
IJ erred by failing to consider the events that occurred before the Petitioners
traveled to the United States in 2001, and that the Petitioners suffered past
persecution based upon the cumulative effect of all the events to which they
claimed occurred, the Petitioners did not have a well-founded fear of future
persecution in light of the finding that they could avoid future persecution by
relocating to another part of Peru. See 8 C.F.R. §§ 208.13(b)(1)(i)(B); see also 8
U.S.C. § 208.13(b)(2)(ii). As such, the Petitioners were not entitled to asylum
because they were not “refugees” within the meaning of the INA. See 8 U.S.C.
8
§ 1101(a)(42)(A); see also Mejia, 498 F.3d at 1256. Accordingly, as the
unchallenged finding is dispositive of the Petitioners’ claims, we need not address
the Petitioners’ other issues.
In light of the foregoing, the petition for review is
DENIED.
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