Julio Jimenez-Molina v. Eric Holder, Jr. ( 2010 )

Case: 09-60459 Document: 00511223736 Page: 1 Date Filed: 09/02/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 2, 2010
No. 09-60459
Lyle W. Cayce
Clerk
JULIO JIMENEZ-MOLINA,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 054 127
Before GARZA and BENAVIDES, Circuit Judges, and LYNN,* District Judge.
PER CURIAM:**
Julio Jimenez-Molina, a native and citizen of Venezuela, petitions this
court to review an order of the Board of Immigration Appeals (BIA) denying his
application for withholding of removal and protection under the Convention
Against Torture (CAT). He argues that he is eligible for withholding of removal
and CAT relief based upon his political opinion and membership in a particular
social group, i.e., Venezuelans who have fallen victim because they oppose the
*
District Judge of the Northern District of Texas, sitting by designation.
**
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 09-60459
socialist reforms of President Hugo Chavez. He asserts that he experienced past
persecution because he signed a referendum opposing Chavez and worked as a
cameraman for a television station that government supporters destroyed
because of its perceived anti-government views. He argues that his past
opposition to the government – both explicit and imputed – renders him
vulnerable to future persecution and torture if he returns to Venezuela.
This court reviews the BIA’s legal conclusions de novo and its findings of
fact, including its determination that an alien is not eligible for withholding of
removal, for substantial evidence. See Efe v. Ashcroft, 293 F.3d 899, 903 (5th
Cir. 2002). Under the substantial evidence standard, this court will affirm the
BIA’s determination unless the evidence compels a contrary conclusion. See
Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).
The Government argues that Jimenez-Molina has abandoned his claim of
past persecution by failing to raise it in his initial brief. We agree that the claim
was inadequately briefed. Nonetheless, even assuming arguendo that the claim
was properly raised, the record does not compel a conclusion contrary to the
BIA’s finding that Jimenez-Molina did not demonstrate past persecution on
account of his political opinion or membership in a particular social group. See
Carbajal-Gonzalez, 78 F.3d at 197; 8 C.F.R. § 1208.16(b)(1). He has not shown
that the alleged threats and limited physical abuse, which occurred during times
of civil unrest, rise to the level of persecution. See Eduard v. Ashcroft, 379 F.3d
182, 188 (5th Cir. 2004); Abdel-Masieh v. U.S. INS, 73 F.3d 579, 584 (5th Cir.
1996).
The record also does not compel a conclusion contrary to the BIA’s finding
that Jimenez-Molina did not show that it was more likely than not that he would
be persecuted on account of his political opinion or membership in a particular
social group if he returns to Venezuela. See Carbajal-Gonzalez, 78 F.3d at 197;
8 C.F.R. § 1208.16(b)(2). He specifically has not shown that the Venezuelan
government or any government-affiliated group has any persistent or continuing
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interest in him, i.e., there is no indication that he would likely be singled out
individually for persecution if he returned. See Zhao v. Gonzales, 404 F.3d 295,
307 (5th Cir. 2005). He has not established that his role as cameraman was a
position of high visibility or is a position usually targeted for persecution; there
is no indication that whatever notoriety he may have had has outlasted his
lengthy absence such that he would be targeted for persecution upon his return.
Moreover, while the record suggests that there may be negative consequences
for opponents of the government, particularly those who signed anti-Chavez
referendums, the deprivations experienced by those individuals (e.g., denial of
passports, contracts, government identifications, public employment, and other
government benefits) do not rise to the level of persecution. See Tesfamichael v.
Gonzales, 469 F.3d 109, 114 (5th Cir. 2006); Shehu v. Gonzales, 443 F.3d 435,
441 & n.7 (5th Cir. 2006). Jimenez-Molina has not shown that the consequences
for his political opposition would be more severe. He thus has not established
that the BIA erred in denying his request for withholding of removal. See
Carbajal-Gonzalez, 78 F.3d at 197.
Jimenez-Molina also asserts that the BIA wrongly held that he was not
eligible for protection under CAT. He asserts that he established that it is more
likely than not that he would be tortured if he returned to Venezuela. However,
Jimenez-Molina did not include in his brief before the BIA any argument or
analysis relevant to his CAT claim. The Government contends that this court
may not review a claim for protection that has not properly been exhausted.
Judicial review of a final removal order is available only if the applicant has
exhausted all administrative remedies as of right. 8 U.S.C. § 1252(d)(1). Failure
to exhaust administrative remedies creates a jurisdictional bar to this court’s
consideration of an issue. Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001).
Despite his failure to brief the claim, the BIA specifically addressed
whether Jimenez-Molina had shown that he was eligible for CAT protection; the
BIA found that he “has not established on this record that the Venezuela
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government would torture him or acquiesce in his torture by others, as required
for relief under [CAT].” (citing 8 C.F.R. §§ 1208.16(c)(3), 1208.18(a)). This court
recently addressed whether an issue is considered exhausted if the BIA reaches
the merits of the claim despite a petitioner’s failure to properly present it.
Lopez-Duhon v. Holder, 609 F.3d 642, 644–45 (5th Cir. 2010). In Lopez-Dubon,
we agreed with the Tenth Circuit’s reasoning that “the purpose of the statutory
exhaustion requirement is to allow the BIA ‘the opportunity to apply its
specialized knowledge and experience to the matter’ and to ‘resolve a controversy
or correct its own errors before judicial intervention.’” Id. at 644 (quoting
Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007)). Joining a majority
of the circuits, we held that “[i]f the BIA deems an issue sufficiently presented
to consider it on the merits, such action by the BIA exhausts the issue as far as
the agency is concerned and that is all that [8 U.S.C.] § 1252(d)(1) requires to
confer our jurisdiction.” Id. (quoting Sidabutar, 503 F.3d at 1119). As
previously set forth, in the instant case, the BIA addressed the merits of the
CAT claim, which is sufficient to confer this court with jurisdiction to reach the
claim.1
With respect to the merits of the claim, Jimenez-Molina has not shown
that he is entitled to CAT relief. CAT provides that “[n]o State Party shall expel,
return . . . or extradite a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected to torture.”
Efe, 293 F.3d at 907. Instead of requiring proof of persecution, CAT requires the
higher showing of torture. Id. Torture is the intentional infliction of severe
1
The Government attempts to distinguish the holding in Lopez-Dubon on the basis
that Lopez-Dubon raised the issue before the BIA in a motion to reconsider. 609 F.3d at 644.
Although Jimenez-Molina did not raise the instant issue in a motion to reconsider, we see no
indication that the holding of exhaustion rested on the motion to reconsider. The Government
also attempts to distinguish Lopez-Dubon on the basis that the BIA did not have an “in depth
discussion of the issue in this case.” We reject the contention that the brevity of the analysis
renders the claim unexhausted. This court made clear that if the BIA considers the claim on
the merits, the claim is exhausted. Lopez-Dubon, 609 F.3d at 644.
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mental or physical pain by a governmental official for the purpose of obtaining
information, intimidation, punishment, or discrimination. See § 208.18(a)(1).
Torture is “an extreme form of cruel and inhuman treatment.” § 208.18(a)(2).
The petitioner has the burden of proving that he will likely be tortured if he is
removed. 8 C.F.R. § 208.16(c)(2).
The record does not reflect that it is more likely than not that Jimenez-
Molina would be tortured if he returned to Venezuela. To the contrary, as set
forth above, the record shows that Jimenez-Molina does not even face a specific
risk of harm in Venezuela; Jimenez-Molina has failed to show that he would be
subject to persecution, and he therefore would not be able to satisfy the higher
burden of establishing the likelihood of torture. See Efe, 293 F.3d at 907.
The petition for review is DENIED.
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