Randold Adalberto Espina v. U.S. Attorney General ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 28, 2008
No. 08-10779 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A98-398-200
A98-398-201
RANDOLD ADALBERTO ESPINA,
SANDRA CECILIA MANGANIELLO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 28, 2008)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Petitioners Randold Adalberto Espina and his wife, Sandra Cecilia
Manganiello, natives and citizens of Venezuela, through counsel, seek review of
the Board of Immigration Appeals’s (BIA’s) decision to dismiss their appeal of the
Immigration Judge’s (IJ’s) order denying 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), INA §§ 208, 241, 8
U.S.C. §§ 1158, 1231; 8 C.F.R. § 208.16(c).
Espina 1 filed his application for asylum and withholding of removal, listing
Manganiello as a derivative claimant, two-and-a-half years after entering the
United States. On appeal, Espina does not address whether this court lacks
jurisdiction to consider his asylum claim, though his notice of appeal to the BIA
asserted that his failure to file his asylum application within one year should be
excused because of the changing conditions in Venezuela. In response, the
government argues that we lack jurisdiction over Espina’s asylum claim.
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). Here, because the BIA agreed with the IJ’s
1
We refer to petitioners collectively as “Espina” because almost all events regarding this
case happened to him.
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findings regarding Espina’s asylum claim but also made additional observations,
we will review both the IJ’s and the BIA’s decision on the asylum issue. However,
because the BIA did not expressly agree with the IJ regarding Espina’s
withholding of removal and CAT claims, we will only review the BIA’s decision
in those matters.
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). 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.’” Al
Najjar, 257 F.3d at 1284 (citation omitted). The substantial evidence test is
“deferential” and does not allow “re-weigh[ing] the evidence from scratch.”
Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001) (citation
omitted). “To reverse the IJ’s fact findings, [this Court] 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). The fact that evidence in the record may also support
a conclusion contrary to the administrative findings is not enough to justify a
reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
We review our subject-matter jurisdiction de novo. Brooks v. Ashcroft, 283
F.3d 1268, 1272 (11th Cir. 2002). An alien can apply for asylum if he or she
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“demonstrates by clear and convincing evidence that the application has been filed
within 1 year after the date of the alien’s arrival in the United States.” INA §
208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B). However, “[a]n application for asylum of
an alien may be considered . . ., if the alien demonstrates to the satisfaction of the
Attorney General either the existence of changed circumstances which materially
affect the applicant’s eligibility for asylum or extraordinary circumstances relating
to the delay in filing an application within the period specified.” INA §
208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). Notwithstanding the BIA’s authority to
consider an untimely asylum application in circumstances where the applicant
meets one of the exceptions to the one-year deadline, “no court shall have
jurisdiction to review any determination of the Attorney General under [section
1158(a)(2)].” Mendoza, 327 F.3d at 1287 (quoting INA § 208(a)(3), 8 U.S.C. §
1158(a)(3)) (alteration in original). Under § 1158(a)(3), we do not have
jurisdiction to review the BIA’s determinations that an asylum applicant filed an
untimely application and failed to establish changed or extraordinary
circumstances to excuse his untimely filing. See Mendoza, 327 F.3d at 1287
(citing Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1217-18 (11th Cir. 2002)).
Moreover, jurisdictional provisions in the REAL ID Act of 2005, Pub. L. No. 109-
13, 119 Stat. 231, 310 (2005), do not affect this Court’s prior precedents, such as
Mendoza. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005).
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Because the record demonstrates that the IJ and the BIA determined that
Espina’s asylum application was untimely and that no exception to the one-year
filing requirement applied, we lack jurisdiction to consider whether the IJ and the
BIA erred in this regard, and we dismiss the petition for review as to Espina’s
asylum claim.
Espina makes few arguments as to his eligibility for withholding of removal
or CAT relief, except to request that we grant him both. He argues that the IJ made
substantial legal errors by determining that he did not establish statutory eligibility
for asylum and withholding of removal, and the IJ abused its discretion by denying
his claim for asylum because he met his burden of establishing, by clear and
convincing evidence, that he suffered past and future persecution based on his
imputed political opinion. Espina accuses the IJ of failing to take into account the
serious threats he suffered at the hands of President Hugo Chavez’s supporters
because his actions indicated that he opposed the Fifth Republic Movement, and he
asserts that he had no other obvious motive to flee his country than the persecution
he suffered there, namely, threats, intimidation, and coercion on account of his
imputed political opinions.
In a withholding of removal claim, an alien shall not be removed to a
country if his life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion. INA §
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241(b)(3), 8 U.S.C. § 1231(b)(3). The alien must show that it is “more likely than
not [he] will be persecuted or tortured upon being returned to [his] country.”
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (citation
omitted). This standard is more stringent than the “well-founded fear” standard for
asylum. Id. at 1232-33.
While the INA does not define persecution, we recognize that “‘persecution’
is an ‘extreme concept,’ requiring ‘more than a few isolated incidents of verbal
harassment or intimidation,’ and that ‘[m]ere harassment does not amount to
persecution.’” Id. at 1231 (citation omitted). In Sepulveda, we held that menacing
telephone calls and threats to the alien, her family members, and colleagues did not
rise to the level of past persecution. Id.To be entitled to relief under the CAT, an applicant must establish that it is
“more likely than not that he or she would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 1208.16(c)(2). “Torture” is defined as
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person
for such purposes as obtaining from him or her or a third
person information or a confession, punishing him or her
for an act he or she or a third person has committed or is
suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason
based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other
person acting in an official capacity.
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8 C.F.R. § 1208.18(a)(1). The burden of proof for an applicant seeking relief under
CAT, like that for an applicant seeking withholding of removal under the INA, is
higher than the burden imposed on an asylum applicant. Al Najjar, 257 F.3d at
1303.
However, “[w]hen an appellant fails to offer argument on an issue, that issue
is abandoned.” Sepulveda, 401 F.3d at 1228 n.2 (citing Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (stating that passing
references to issues are insufficient to raise a claim for appeal)).
After reviewing the record, we conclude that substantial evidence supports
the IJ’s and the BIA’s factual findings that Espina’s claims did not constitute past
persecution on account of any protected ground because (1) threatening phone calls
do not constitute persecution, and (2) there is no evidence on the record indicating
that the robberies Espina suffered were anything more than random attacks, or that
Espina’s arrest was unlawful or based on false accusations. Thus, since the burden
of proof for establishing eligibility for withholding of removal is higher than that
for establishing eligibility for asylum, substantial evidence also supports the IJ’s
and the BIA’s finding that Espina does not meet the higher burden of proof for
establishing eligibility for withholding of removal.
Moreover, Espina abandoned his claim for CAT relief by failing to argue the
issue in his brief. Accordingly, the petition for review as to Espina’s asylum claim
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is dismissed, and the petition for review as to his claims for withholding of
removal and CAT relief is denied.
PETITION DISMISSED IN PART, DENIED IN PART.
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