Aferdita Fejza v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10097
Non-Argument Calendar
________________________
Agency No. A079-102-057
AFERDITA FEJZA, et al.,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
___________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
____________________________
(September 4, 2012)
Before TJOFLAT, JORDAN and KRAVITCH, Circuit Judges.
PER CURIAM:
Aferdita Fejza and Sara Fejza, an Albanian mother and child, petition for
review of the Board of Immigration Appeals’ final order affirming the immigration
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judge’s denial of their applications for asylum and for withholding of removal under
the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42), 1158(b)(1),
1231(b)(3)(A).1 The BIA concluded that Ms. Fejza failed to meet her burden of proof
for asylum and withholding of removal because she failed to establish her
membership in a particular social group, and even if she did, she failed to establish
a nexus between any persecution she may have faced and any of the enumerated
grounds in the Act. See 8 U.S.C. § 1101(a)(42) (“well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or
political opinion”). Finding no reversible error, we deny the petition.2
I
On July 29, 2004, the government served Ms. Fejza with a notice to appear.
Ms. Fejza, through counsel, admitted the allegations in the NTA and conceded her
removability on April 20, 2005. After conceding her removability, Ms. Fejza filed an
application for asylum, withholding of removal, and CAT relief, which she amended
1
The Fejzas failed to make any argument before the BIA challenging the IJ’s denial of their
claim for withholding of removal under the United Nations Convention Against Torture, 8 C.F.R.
§ 1208.16, so we lack jurisdiction to consider any such challenge now. See Sundar v. INS, 328 F.3d
1320, 1323 (11th Cir. 2003) (“[W]e lack jurisdiction to consider claims that have not been raised
before the BIA.”). The Fejzas also abandoned any argument regarding their CAT claim by failing
to argue it in their brief. See Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1145 (11th Cir. 2010)
(“Generally, when an appellant fails to offer argument on an issue, that issue is deemed
abandoned.”).
2
Because Aferdita Fejza is the lead petitioner and her daughter Sara, is a derivative asylum
applicant in this case, we will refer to Aferdita as Ms. Fejza.
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on July 31, 2007. In her application, as amended, Ms. Fejza indicated that she was
seeking relief based on her religion, political opinion, and membership in a particular
social group.
Ms. Fejza alleges that when she was 15 years old her father arranged for her
to marry Vesnik Kada, a 30-year old man from a neighboring village. According to
Ms. Fejza, she was badly beaten by her father when she refused to marry Mr. Kada.
Later, when she was 17, Ms. Fejza fled to a neighboring village and married her
boyfriend, Fitim Fejza. After her marriage, Ms. Fejza began to receive death threats
from Mr. Kada and his family. Ms. Fejza also received threats from her own family
and was disowned by her parents. She was disowned because if her parents accepted
her marriage they would have entered into a blood feud with the Kada family. Ms.
Fejza also testified that in February of 1999 Mr. Kada attempted to kill her and her
husband by firing several shots at them while they were at a bus stop. Ms. Fejza
continued to receive threats from Mr. Kada and his family, and in March of 2001 she
fled with her daughter to the United States.3
Following a hearing, the IJ did not find Ms. Fejza credible, denied her
applications for relief, and ordered her removed to Albania. On May 1, 2008, the BIA
3
Ms. Fejza’s husband, Mr. Fejza, testified at Ms. Fejza’s hearing that he had applied for
asylum but that he was appealing to the BIA because his application had been denied.
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affirmed the IJ’s rulings. Ms. Fejza filed a motion to reopen with the BIA on April 29,
2009. The motion to reopen was granted on October 23, 2009, and the BIA remanded
Ms. Fejza’s case to the IJ. After holding another hearing the IJ once again found Ms.
Fejza to not be credible. The IJ also found that Ms. Fejza failed to show a nexus
between the purported harm and a protected ground.
Ms. Fejza appealed to the BIA. The BIA dismissed Ms. Fejza’s appeal on
December 9, 2011. The BIA determined that, even if it assumed that Ms. Fejza was
credible, she had failed to demonstrate that she suffered past persecution or held a
well-founded fear of future persecution based on a protected ground. Specifically, the
BIA determined that Ms. Fejza’s proposed social group of “women in Albania who
refuse their families’ arranged marriages” did not constitute a “particular social
group.” Ms. Fejza now appeals.
II
Because the BIA issued its own opinion and did not expressly adopt the IJ’s
opinion or reasoning, we review only the BIA opinion. See Seck v. U.S. Att’y Gen.,
663 F.3d 1356, 1364 (11th Cir. 2011) (“We review only the BIA’s decision except
to the extent the BIA expressly adopts the IJ’s opinion or reasoning.”).4 We review
4
To the extent that Ms. Fejza argues that the IJ erred, we consider these arguments only if
the BIA adopted the ruling in question.
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the BIA’s determination that an alien is not eligible for asylum or withholding of
removal under the highly deferential “substantial evidence” test. See Arboleda v. U.S.
Att’y Gen., 434 F.3d 1220, 1222 (11th Cir. 2006). “‘Under the substantial evidence
test, we view the record evidence in the light most favorable to the agency’s decision
and draw all reasonable inferences in favor of that decision.’” Ali v. U.S. Att’y Gen.,
643 F.3d 1324, 1329 (11th Cir. 2011) (quoting Adefemi v. Ashcroft, 386 F.3d 1022,
1027 (11th Cir. 2004) (en banc)). We must affirm the BIA if its decision is
“supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007)
(internal quotations omitted). In order for us to reverse the BIA, we must determine
that the record evidence not only supports a reversal, but compels it. See
Lyashchynska v. U.S. Att’y Gen., 676 F.3d 962, 967 (11th Cir. 2012).
III
In order to be eligible for asylum, an alien must meet the INA’s definition of
a refugee. See 8 U.S.C. § 1158(b)(1)(A). A refugee is defined as “any person who is
outside any country of such person’s nationality . . . who is unable or unwilling to
return to . . . 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 burden is on the alien to prove her
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refugee status and that she is eligible for asylum. See Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1230 (11th Cir. 2005). “In order to qualify for asylum, the applicant
must establish: (1) past persecution on account of a statutorily protected ground or
(2) well-founded fear of future persecution on account of a protected ground.” Li
Shan Chen v. U.S. Att’y Gen., 672 F.3d 961, 964 (11th Cir. 2011) (internal quotations
omitted).
An alien is entitled to withholding of removal if she establishes that her “life
or freedom would be threatened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). The burden is on the alien to show that it is more likely than not that
she would be persecuted or tortured upon her return to her home country. See Seck,
663 F.3d at 1364.
Ms. Fejza contends that the BIA erred in finding that the proposed social group
of “women in Albania who refuse their families’ arranged marriages” did not
constitute a particular social group. We disagree.5
We have previously held that the BIA’s legal definition of “particular social
group” is entitled to Chevron deference. See Castillo-Arias v. U.S. Att’y Gen., 446
5
To the extent that Ms. Fejza argues in her brief that members of her proposed social group
share the religious status of being Muslim, we lack subject-matter jurisdiction to consider this
argument because she failed to raise it before the BIA. See Sundar, 328 F.3d at 1323.
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F.3d 1190, 1196 (11th Cir. 2006). The BIA has interpreted the phrase “particular
social group” to mean “a group of persons all of whom share a common, immutable
characteristic.” Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), overruled on
other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439, 477 (BIA 1987). The
BIA has specified that this shared characteristic “might be an innate one such as sex,
color, or kinship ties, or in some circumstances it might be a shared past experience
such as former military leadership or land ownership.” Id. But the BIA acknowledged
that this common characteristic “must be one that the members of the group either
cannot change, or should not be required to change because it is fundamental to their
individual identities or consciences.” Id.
Since its decision in Acosta, the BIA has emphasized that a proposed social
group’s “social visibility – i.e., the extent to which members of a society perceive
those with the characteristic in question as members of a social group – is of
particular importance[.]” Matter of E-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2008). The
BIA has also analyzed whether a proposed social group is defined with sufficient
particularity – i.e., whether it is too amorphous or indeterminate. See In re A-M-E &
J-G-U-, 24 I. & N. Dec. 69, 74 (BIA 2007).
Here, the BIA determined that Ms. Fejza’s proposed social group – “women
in Albania who refuse their families’ arranged marriages” – did not meet the requisite
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standards of social visibility and particularity. The BIA concluded that Ms. Fejza’s
proposed social group did not meet the social visibility standard because the record
did not indicate that the members of this group are a distinct and recognizable group
in Albanian society. The BIA also concluded that the proposed social group did not
meet the particularity standard because it “is not defined by an economic, cultural, or
ethnic grouping, locality, or other characteristics that define the group in other than
in an amorphous fashion.”
Ms. Fejza argues that the BIA erred in not considering her gender and religion
as one of the enumerated categories for asylum and withholding of removal. We are
not persuaded. With regard to gender, the BIA clearly acknowledged Ms. Fejza’s
argument that gender was the key immutable characteristic of her proposed social
group, but the BIA correctly decided that the claim is not based solely on gender, and
that Ms. Fejza has not argued and the record does not show that being a woman alone
was sufficient to subject her to persecution. See Niang v. Gonzales, 422 F.3d 1187,
1199-1200 (10th Cir. 2005) (concluding that “the focus with respect to such claims
should be not on whether either gender constitutes a social group (which both
certainly do) but on whether the members of that group are sufficiently likely to be
persecuted that one could say that they are persecuted ‘on account of’ their
membership”). The BIA also addressed Ms. Fejza’s religion argument, but concluded
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that there was no evidence that Ms. Fejza’s refusal to enter into an arranged marriage
was based upon her religion, or that her persecutors were motivated, at least in part,
by her religion.
Ms. Fejza has failed to make any persuasive argument indicating that her
proposed social group is either socially visible within Albanian society or is defined
with particularity. And we find no evidence in the record that compels reversal of the
BIA’s determination that the proposed social group does not meet the requisite
standards of social visibility and particularity. See, e.g., Faye v. Holder, 580 F.3d 37,
42 (1st Cir. 2009) (affirming the BIA’s decision that “women who had a child out of
wedlock/are considered adulterers because they gave birth to a child allegedly not
their husband’s/have been abused by their husbands” did not constitute a particular
social group because it was not socially visible or sufficiently particular); Ramos-
Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009) (holding that proposed social
group of “young Honduran men who have been recruited by gangs but refuse to join”
did not constitute a particular social group); Castillo-Arias, 446 F.3d at 1198
(affirming the BIA’s conclusion that “noncriminal informants working against the
Cali drug cartel” were both not visible enough and too numerous or inchoate);
Rreshpja v. Gonzales, 420 F.3d 551, 555 (6th Cir. 2005) (holding that the group
consisting of “young (or those who appear to be young), attractive Albanian women
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who are forced into prostitution,” did not constitute a social group under the INA).
Accordingly, we affirm the BIA’s determination because we do not find it to be
unreasonable. See Castillo-Arias, 446 F.3d at 1196 (holding that we must follow the
BIA’s interpretation that a proposed social group does not qualify as a “particular
social group,” unless the interpretation is unreasonable).6
IV
Finding no reversible error in the BIA’s order affirming the IJ’s denial of the
Fejzas’ applications for asylum and withholding of removal, we deny the petition.
PETITION DENIED.
6
Because we find no error in the BIA’s determination that Ms. Fejza’s proposed social group
does not constitute a “particular social group,” we need not discuss the BIA’s alternative holding that
Ms. Fejza’s persecution was motivated by criminal intent and based on a personal vendetta and not
on account of a protected ground.
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