Gabor Acs v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11831
Non-Argument Calendar
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Agency No. A201-241-787
GABOR ACS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 6, 2015)
Before MARCUS, WILSON and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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Gabor Acs petitions for review of the final order of the Board of
Immigration Appeals (BIA) dismissing Acs’s appeal of the Immigration Judge’s
(IJ) denial of his application for asylum, withholding of removal, and relief under
the United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (CAT) and the Immigration and Nationality
Act (INA) § 241(b)(3), 8 U.S.C. § 1231(b)(3). He argues that the BIA and IJ failed
to consider his credible testimony when determining that his asylum application
was time-barred. He also argues that the BIA’s and IJ’s determinations that he was
not eligible for withholding of removal or CAT relief are not supported by
substantial evidence.
I.
We review our subject matter jurisdiction de novo. Delgado v. U.S. Att’y
Gen., 487 F.3d 855, 860 (11th Cir. 2007) (per curiam). Because the BIA explicitly
agreed with all of the IJ’s findings in this case, we review the decisions of the BIA
and the IJ. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010).
Generally, we lack jurisdiction to review the Attorney General’s
determinations with regard to the timeliness of an asylum application or an
exception to the one-year time bar for filing an asylum application. INA
§ 208(a)(3), 8 U.S.C. § 1158(a)(3); Chacon-Botero v. U.S. Att’y Gen., 427 F.3d
954, 957 (11th Cir. 2005) (per curiam). We have jurisdiction to review any
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constitutional claims or questions of law raised in a petition for review.
INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). However, we have concluded that
the timeliness of an application is not a constitutional claim or question of law.
Chacon-Botero, 427 F.3d at 957. Furthermore, “[an a]rgument that the IJ or BIA
abused its discretion by improperly weighing evidence is a garden-variety abuse of
discretion argument that is insufficient to state a legal or constitutional claim.”
Fynn v. U.S. Att’y Gen., 752 F.3d 1250, 1252 (11th Cir. 2014) (per curiam)
(internal quotation marks omitted). Accordingly, because Acs’s only argument
with respect to the IJ’s and BIA’s determinations that his application’s
untimeliness was not excused is that they erroneously failed to consider his
testimony, we lack jurisdiction to review that conclusion.
II.
We review the BIA’s and IJ’s factual findings under the substantial evidence
test, and we affirm the BIA’s and IJ’s decision if the decision is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole. Delgado, 487 F.3d at 860. We review the evidence in the light most
favorable to the government, and we draw all reasonable inferences in favor of the
agency’s decision. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006)
(per curiam). We only reverse a factual determination if the record compels
reversal. Id. When reviewing the record, the BIA and IJ may rely heavily on State
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Department reports, including Country Reports. Reyes-Sanchez v. U.S. Att’y Gen.,
369 F.3d 1239, 1243 (11th Cir. 2004).
An individual subject to removal is entitled to withholding of removal when
his life or freedom would be threatened in the country of removal because of his
“race, religion, nationality, membership in a particular social group, or political
opinion.” INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). Homosexuals constitute
a “particular social group.” Ayala, 605 F.3d at 949. To qualify for withholding of
removal, an individual subject to removal must show a clear probability of
persecution, meaning that he more likely than not would be persecuted upon
returning to the country because of a protected characteristic. D-Muhumed v. U.S.
Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004).
Persecution requires more than isolated incidents of verbal harassment or
intimidation. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1353 (11th Cir.
2009). We have previously concluded that the record did not compel a conclusion
that a petitioner suffered past persecution when he testified that he was verbally
threatened; detained for 36 hours; beaten with a belt and kicked by police officers,
resulting in scratches and bruises; and forced to drink some dirty liquid and eat
something “very, very, very bad.” Djonda v. U.S. Att’y Gen., 514 F.3d 1168,
1171–74 (11th Cir. 2008) (internal quotation marks omitted). We have also
concluded that a determination of past persecution was not compelled by the
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record when the petitioner testified that he was arrested at a demonstration,
interrogated and beaten for five hours, and detained for four days, but presented no
evidence of physical harm. Kazemzadeh, 577 F.3d at 1353.
Persecutory actions may constitute economic persecution if they cause a
“severe economic disadvantage” to the individual subject to removal, considering
his net worth, his sources of income, and the condition of the local economy. Wu
v. U.S. Att’y Gen., 745 F.3d 1140, 1156 (11th Cir. 2014) (internal quotation marks
omitted). To satisfy this standard, the persecution must reduce the standard of
living of the individual subject to removal to an “impoverished existence.” Id.
(internal quotation marks omitted).
An individual subject to removal is eligible for CAT relief if he establishes
that it is more likely than not that he will be tortured if removed to the proposed
country of removal. 8 C.F.R. § 208.16(c)(2). To constitute torture, the individual
subject to removal must be subjected to severe physical or mental pain or
suffering. Id. § 208.18(a)(1). The torture must be committed by the government
or with the acquiescence of the government. Lapaix v. U.S. Att’y Gen., 605 F.3d
1138, 1145 (11th Cir. 2010) (per curiam).
Substantial evidence supports the BIA’s and IJ’s determination that Acs was
not entitled to withholding of removal. Acs’s testimony does not compel a finding
of past persecution because he testified that the cut he suffered during an attack at a
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gay pride parade did not require medical attention, and apart from that single
attack, he only testified to isolated incidents of verbal harassment. See Djonda,
514 F.3d at 1171–74. The record also lacks physical evidence corroborating Acs’s
physical injury. Kazemzadeh, 577 F.3d at 1353. Further, substantial evidence
supports the determination that Acs did not establish a clear probability of future
persecution, as the Country Report for Hungary reported that Hungary prohibits
employment discrimination and hate crimes based on sexual orientation. Finally,
the record does not compel a determination that Acs faces a clear probability of
economic persecution because Acs’s testimony did not demonstrate that he would
be reduced to an “impoverished existence” in Hungary. See Wu, 745 F.3d at 1156–
57. Therefore, we deny Acs’s petition with regard to his claim for withholding of
removal.
Finally, substantial evidence supports the BIA’s and IJ’s determination that
Acs was not entitled to CAT relief. Acs provided no evidence showing that he
would face torture upon his return. Moreover, the Country Report for Hungary
provides substantial evidence that any harassment against Acs would not be
committed by the Hungarian government or with the acquiescence of the
Hungarian government. Lapaix, 605 F.3d at 1145. Therefore, we deny Acs’s
petition with regard to his claim for CAT relief.
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Upon review of the entire record on appeal and after consideration of the
parties’ appellate briefs, we dismiss the petition as to the denial of Acs’s
application for asylum and deny the petition as to his application for withholding
of removal and relief under CAT.
PETITION DISMISSED IN PART, DENIED IN PART.
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