Alvaro Roberto Duenas Burgos v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14271
Non-Argument Calendar
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Agency No. A205-729-708
ALVARO ROBERTO DUENAS BURGOS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 23, 2017)
Before JORDAN, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Alvaro Roberto Duenas Burgos, proceeding pro se, seeks review of the
Board of Immigration Appeals’ final order affirming an immigration judge’s denial
of his application for asylum and withholding of removal. He contends that he
suffered past persecution in El Salvador based on threats made against him and his
family members. Specifically, Mr. Duenas Burgos alleges that he received
anonymous phone calls at his aunt’s house, and that the caller demanded $1,000,
threatening to kill the family if the money was not paid. Mr. Duenas Burgos also
argues that he established a well-founded fear of future persecution. Upon review
of the record and consideration of the parties’ briefs, we deny the petition.
I
We review the BIA’s decision as the final judgment unless the BIA
expressly adopts the immigration judge’s decision, in which case we will review
the decisions of both the BIA and the immigration judge. See Kazemzadeh v. U.S.
Atty. Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). Factual determinations are
reviewed under the highly deferential substantial evidence test, which requires us
to “view the record evidence in the light most favorable to the agency’s decision
and draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004). “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. (internal quotation marks and citation omitted). To
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reverse factual findings, “we must find that the record not only supports reversal,
but compels it.” Mendoza v. U.S. Atty. Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
II
“An alien who arrives in or is present in the United States may apply for
asylum, which the Attorney General has discretion to grant if the alien meets the
[Immigration and Naturalization Act’s] definition of a ‘refugee.’” Sepulveda v.
U.S. Atty. Gen., 401 F.3d 1226, 1230 (11th Cir. 2005). Under the INA, a “refugee”
is a person outside his country of 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 group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A). To establish eligibility for asylum, the
applicant must establish either “(1) past persecution on account of . . . [one of
these] protected ground[s], or (2) a ‘well-founded fear’ that [his] . . . protected
ground will cause future persecution.” Sepulveda, 401 F.3d at 1230–31. Further,
the applicant must demonstrate that one of the statutorily protected grounds “was
or will be at least one central reason for persecuting” him. 8 U.S.C.
§ 1158(b)(1)(B)(i).
A
Substantial evidence supports the BIA’s conclusion that Mr. Duenas Burgos
did not suffer past persecution. Although the INA does not expressly define
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persecution, we have held that it is an “extreme concept,” requiring “more than a
few isolated incidents of verbal harassment or intimidation.” Sepulveda, 401 F.3d
at 1231. “[M]ere harassment does not amount to persecution.” Id.
Here, Mr. Duenas Burgos received verbal threats over the phone, but was
never harmed or even approached by anyone connected to the calls. Even
cumulatively, the phone calls did not establish the kind of treatment that rises to
persecution. See Shi v. U.S. Atty. Gen., 707 F.3d 1231, 1235 (11th Cir. 2013)
(“[W]e evaluate the harms a petitioner suffered cumulatively—that is, even if each
fact considered alone would not compel a finding of persecution, the facts taken as
a whole may do so.”) (emphasis in original).
Moreover, substantial evidence supports the BIA’s conclusion that
Mr. Duenas Burgos failed to show that one central reason the threats occurred was
his membership in a particular social group. Mr. Duenas Burgos alleges that he
received threats because his mother resides in the United States and sends money
back to El Salvador. To the extent Mr. Duenas Burgos alleges that he was
persecuted on account of a social group made up of members of a family in which
one member resides in the United States and sends remittances, he has presented
no evidence to support that allegation. For example, Mr. Duenas Burgos did not
know who the calls were from, and he admitted that the callers did not state their
motivation. Nor was there any evidence in the record to indicate that the
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anonymous callers even knew that Mr. Duenas Burgos was a member of this
particular social group. Further, the country condition evidence showed that there
was general civil unrest and crime in El Salvador, and that gang members often
targeted people at random for extortion.
B
Nor does the record compel a finding that Mr. Duenas Burgos established a
well-founded fear of future persecution based on a protected ground. To establish
such future persecution, “an applicant must demonstrate that his or her fear of
persecution is subjectively genuine and objectively reasonable.” Najjar v. Ashcroft,
257 F.3d 1262, 1289 (11th Cir. 2001). “The subjective component is generally
satisfied by the applicant’s credible testimony that he or she genuinely fears
persecution. . . . In most cases, the objective prong can be fulfilled either by
establishing past persecution or that he or she has a good reason to fear future
persecution.” Id. (internal quotation marks and citation omitted). “To warrant
reversal of the BIA’s finding that an alien has failed to demonstrate a sufficient
nexus between his political opinion and his alleged persecution, we must be
compelled to find that the alien will be persecuted ‘because of’ his [statutorily
protected ground].” Rodriguez Morales v. U.S. Atty. Gen., 488 F.3d 884, 890 (11th
Cir. 2007) (emphasis in original).
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Here, the threats Mr. Duenas Burgos received were to his entire family, yet
other family members have remained in El Salvador without harm, and the threats
have since ceased. Moreover, as discussed, Mr. Duenas Burgos has not established
that his membership in a social group will be at least one central reason for
persecution—much less that he will be persecuted because of such membership.
See § 1158(b)(1)(B)(i); Rodriguez Morales, 488 F.3d at 890. Finally, evidence of
El Salvador’s high crime rate does not compel a finding that Mr. Duenas Burgos
had a reasonable possibility of facing persecution on account of a protected
ground. See Ruiz v. U.S. Atty. Gen., 440 F.3d 1247, 1258 (11th Cir. 2006)
(“[E]vidence that either is consistent with acts of private violence . . . , or that
merely shows that a person has been the victim of criminal activity, does not
constitute evidence of persecution based on a statutorily protected ground.”).
III
Because substantial evidence supports the finding that Mr. Duenas Burgos
failed to show a well-founded fear of future persecution, it necessarily supports the
finding that he failed to meet the higher “more likely than not” standard for
withholding of removal. See Sepulveda, 401 F.3d at 1232–33 (“If an applicant is
unable to meet the well-founded fear standard for asylum, [he] is generally
precluded from qualifying for . . . withholding of deportation[,]” which requires an
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applicant to demonstrate that it is “more likely than not” he will be persecuted
upon return) (internal quotation marks and citation omitted).
IV
For the reasons stated above, we deny Mr. Duenas Burgos’ petition.
PETITION DENIED.
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