Luis Joaquin Barrios-Bermudez v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 08-13555 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
APRIL 7, 2009
________________________
THOMAS K. KAHN
CLERK
Agency No. A95-673-985
LUIS JOAQUIN BARRIOS-BERMUDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 7, 2009)
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Luis Joaquin Barrios-Bermudez, a native and citizen of Cuba, seeks review
of the Board of Immigration Appeals’ (the “BIA”) decision affirming an
Immigration Judge’s (“IJ”) order of removal under sections 212(a)(6)(C)(ii) and
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA) and denial of his
application for asylum and withholding of removal.1 After a thorough review of
the record, we affirm the denial of his petition for asylum and withholding of
removal.
BACKGROUND
Barrios-Bermudez arrived in the United States from Cuba by airplane, via
Brazil. He entered the United States on August 13, 2004, after traveling through
Brazil and Paraguay for some period of time. As he exited the plane, he
encountered two immigration officers who requested to see his documents.
Barrios-Bermudez then presented a U.S. passport belonging to another person,
Marcio Mejia-Rodamilans, and had no valid immigrant visa, reentry permit,
border crossing identification card, or other valid entry document.
On August 16, 2004, the Department of Homeland Security issued Barrios-
Bermudez a Notice to Appear, charging him with removability under INA
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Barrios-Bermudez initially sought relief under the U.N. Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), but failed to raise any
arguments regarding CAT relief in his brief on appeal. Accordingly, he has abandoned this
claim. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 n.6 (11th Cir. 2006).
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§§ 212(a)(6)(C)(ii) and 212(a)(7)(A)(i)(I). At a removal hearing before the IJ,
Barrios-Bermudez conceded removability under § 212(a)(7)(A)(i)(I), for being an
applicant for admission not in possession of a valid entry document, but denied
removability under § 212(a)(6)(C)(ii), as an alien who falsely represented himself
to be a U.S. citizen for a purpose or benefit under the INA or other federal law.
Barrios-Bermudez also submitted an application for asylum and withholding
of removal based on his political opinion, stating that he feared harm or
mistreatment if he returned to Cuba. He asserted that the government would
consider him a political dissident on account of his overstay in the United States
and his application of asylum. He stated his belief that the government would
imprison him upon his return, whereupon he would experience torture,
malnutrition, disease, and lack of medical care. He testified that he had never been
charged, arrested, detained, interrogated, convicted, sentenced, or imprisoned in
Cuba. He was a member of the Committees for the Defense of the Revolution (the
“CDR”) from 1993 to 2004, but held no leadership position, and served in the
military as a soldier from 1994 to 1996. Neither he nor his family continued to
participate in these groups. His wife and three children remained in Cuba.
The Department of State’s Profile of Asylum Claims and Country
Conditions in Cuba for 1997 that was submitted in support of the application
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stated that persons “subjected to other disproportionately harsh or discriminatory
treatment resulting from perceived or actual political . . . beliefs or activities” were
at risk of persecution in Cuba. “It [was] against the law to leave Cuba without
permission,” and that “illegal exit was considered a political offense until 1979,
when the law was changed to make it only a criminal offense.” Offenders can be
sentenced between 18 months and 3 years’ imprisonment. “However, . . . in recent
years, the [g]overnment ha[d] adopted a de facto depenalization of this crime”
with offenders “receiving punishments of fines or house arrest rather than
imprisonment.” Additionally, it was “against Cuban law for citizens to apply for
asylum,” and “[a]lthough the U.S. asylum process is confidential, it appear[ed]
possible that in some cases the Cuban authorities could determine if a returnee had
applied for asylum.” The Cuban government “might ascribe dissident political
motives to the application.” Finally, Cuba considers those who prolong their stay
beyond the authorized period to have abandoned their country and, if they return,
they “may face criminal charges and up to [three] years’ imprisonment, although . .
. in recent years, the [g]overnment ha[d] often imposed fines and/or house arrest
rather than a prison term.” The Department of State’s Country Report on Human
Rights Practices in Cuba for 2004 stated that conditions in prison were extreme
and that prisoners might be subjected to torture and other mistreatment, including
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malnutrition and insufficient medical care.
At a hearing on May 16, 2006, Barrios-Bermudez testified that he worked
illegally as an independent baker in Cuba, but the government did not take any
actions against him because he worked in isolation with his family. He had served
in Cuba’s military for two years as a soldier, and had never been arrested. He
stated that he left Cuba on June 21, 2004, and traveled through Brazil before
entering the United States on August 16, 2004. He left his wife and children in
Cuba because he feared imprisonment. He sought asylum in the United States
because he disagreed with the system in Cuba. He was a member of the CDR in
Cuba, as required by the government. He was scolded on many occasions because
of the way he spoke about the government.
He testified that his wife had a university degree in education, but she was
suspended from work after trying to leave Cuba illegally with their children
because she did not agree with the Cuban system. When his wife returned to Cuba,
she was detained for two days and released. He stated that his daughter had
suffered “complete persecution” in school, and his wife received unexpected
visitors at the house, threatening to take their children if she tried to leave the
country again.
Barrios-Bermudez argued that he demonstrated eligibility for asylum
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because he had a well-founded fear on account of his political opinion. He
asserted that there was a reasonable likelihood that the Cuban government would
persecute him for filing an asylum claim in the United States. Further, he
submitted that he demonstrated eligibility for withholding of removal because
there was a clear probability that he would be persecuted upon returning to Cuba
for an imputed political opinion.
The IJ determined that Barrios-Bermudez failed to meet his burden of proof
for asylum. First, it found that he did not make a claim of past persecution, as his
allegation that the government scolded him did not rise to the level of persecution.
His testimony also failed to demonstrate a well-founded fear of future persecution
because he failed to provide any details regarding his political expression in the
United States. Further, he failed to provide evidence that the government would
discover that he applied for asylum in the United States. Because he failed to
establish eligibility for asylum, the IJ also denied Barrios-Bermudez application
for withholding of removal.
Barrios-Bermudez appealed to the BIA, contesting his removability under
§ 212(a)(6)(C)(ii). He did not, however, contest his removability under
§ 212(a)(7)(A)(i)(I). He also appealed the IJ’s determination that he was not
eligible for asylum or withholding of removal. The BIA affirmed the IJ’s
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decision, adopting in part the IJ’s reasoning and in part issuing its own opinion.
The BIA upheld the finding that he was removable under INA § 212(a)(6)(C)(ii)
for the reasons stated in the IJ’s decision, noting that the IJ’s findings were not
clearly erroneous. Additionally, the BIA determined that Barrios-Bermudez failed
to establish eligibility for asylum for the reasons stated in the IJ’s decision. The
BIA noted that his wife was not subject to any harm rising to the level of
persecution, and Barrios-Bermudez did not show that he suffered any past
persecution or that he had a well-founded fear of future persecution. Because he
failed to meet the burden of proof for asylum, he also failed to show that he was
entitled to withholding of removal, and the BIA dismissed the appeal.
STANDARD OF REVIEW
This court reviews only the BIA’s decision, except to the extent that it
expressly adopts the IJ’s opinion. Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001). Where, as here, the BIA adopts and affirms the IJ’s decision but also
adds its own analysis, we reviews the IJ’s decision as supplemented by the BIA.
Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1312 (11th Cir. 2006).
Factual determinations made by the IJ and BIA are reviewed under a
“substantial evidence” standard and the “decision can be reversed only if the
evidence compels a reasonable fact-finder to find otherwise.” Chen v. U.S. Att’y
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Gen., 463 F.3d 1228, 1230-31 (11th Cir. 2006) (quotations omitted). “Under this
highly deferential test, we affirm the IJ’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Forgue
v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quotation and alteration
omitted). We review legal determinations de novo. Hernandez v. U.S. Att’y Gen.,
513 F.3d 1336, 1339 (11th Cir. 2008).
DISCUSSION
On appeal, Barrios-Bermudez continues to argue that the BIA and IJ
erroneously found that he was removable under INA § 212(a)(6)(C)(ii). Because
Barrios-Bermudez conceded removability under § 212(a)(7)(A)(i)(I), however, the
question of his removability under § 212(a)(6)(C)(ii) is moot. The doctrine of
mootness derives directly from the case-or-controversy limitation on the
jurisdiction of federal courts under Article III of the Constitution “because an
action that is moot cannot be characterized as an active case or controversy.” Al
Najjar v. Ashcroft, 273 F.3d at 1335 (quotations omitted). “A case is moot when
the issues presented are no longer live or the parties lack a legally cognizable
interest in the outcome.” Id. at 1335-36 (quotations and alteration omitted).
“[P]ut another way, a case is moot when it no longer presents a live controversy
with respect to which the court can give meaningful relief.” Id. at 1336
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(quotations omitted). Here, because Barrios-Bermudez has conceded that he is
removable under one provision of the INA, it is a moot question whether he is also
removable under a second provision.
Barrios-Bermudez argues that he was eligible for asylum because the
government scolded him “on many occasions” for expressing views against the
government, and his wife and children were threatened and harassed by the
government after they attempted to leave Cuba. Specifically, he asserts that the
government persecuted his family by physically detaining his wife for two days,
terminating his wife’s employment, and threatening to take their children away.
He states that he fears that he will be subject to the same treatment and persecution
if he returns to Cuba, “particularly after having requested asylum in the U.S.
Any alien who is physically present in the United States may apply for
asylum. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007). The
Attorney General may grant asylum if an alien is a “refugee.” Id. The INA
defines “refugee” as:
[A]ny person who is outside any country of such person’s nationality
or, in the case of a person having no nationality, is outside any
country in which such person last habitually resided, and who is
unable or unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of, 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
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political opinion.
8 U.S.C. § 1101(a)(42)(A). The alien bears the burden to demonstrate “(1) past
persecution on account of a statutorily protected ground or (2) a well-founded fear
of future persecution on account of a protected ground.” Mejia, 498 F.3d at 1256.
A well-founded fear of persecution requires “a reasonable possibility of
suffering such persecution if he or she were to return to that country.” Id.
(emphasis omitted). Proof of past persecution creates a presumption of a well-
founded fear of future persecution. Id. at 1257. An alien must show that his fear
of future persecution is “subjectively genuine and objectively reasonable.” Ruiz v.
U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006). A well-founded fear of
persecution can be established by “specific, detailed facts showing a good reason
to fear that he will be singled out for persecution” on account of a protected
ground. Id. at 1258. As an alternative to demonstrating that he would be “singled
out for persecution,” an alien may show a pattern or practice in the subject country
of persecuting members of a statutorily defined group of which the alien is a part.
8 C.F.R. § 208.13(b)(2)(iii).
This court has described persecution as an “extreme concept, requiring more
than a few isolated incidents of verbal harassment or intimidation.” Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (quotations omitted).
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Severe physical injury is not required to establish past persecution. Sanchez
Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1233 (11th Cir. 2007). Menacing
threats, however, without more, do not rise to the level of past persecution. See
Sepulveda, 401 F.3d at 1231.
After a thorough review of the record, we discern no error. The record does
not compel the conclusion that Barrios-Bermudez was subjected to past
persecution; he was never harmed, arrested, detained, or even threatened in Cuba.
Barrios-Bermudez testified that the government scolded him on more than one
occasion for expressing views against the government. As stated above, however,
verbal harassment alone does not rise to the level of persecution. Id. His wife’s
experiences also do not rise to the level of persecution. Being detained for two
days and having her employment suspended do not constitute detention. See
Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290-91 (11th Cir. 2006) (holding that a
brief detention and termination from employment do not rise to the level of
persecution). Barrios-Bermudez failed to establish that he had experienced past
persecution.
An alien who has not shown past persecution may still be entitled to asylum
if he can demonstrate a well-founded fear of future persecution on account of a
statutorily listed factor. See Sepulveda, 401 F.3d at 1231; 8 C.F.R. § 208.13(b)(2).
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To prevail, the applicant’s fear of persecution must be both “subjectively genuine
and objectively reasonable.” See Al Najjar, 257 F.3d at 1289. Because we agree
with the BIA and the IJ that Barrios-Bermudez’s fear that he will be persecuted for
applying for asylum is not objectively reasonable, we hold that he failed to
establish eligibility for asylum on account of a well-founded fear of future
persecution. The record does not compel the conclusion that Barrios-Bermudez
will be persecuted for this reason. His wife was punished for attempting to flee
the country with their children, but the punishment she received did not rise to the
level of persecution. Additionally, other than the State Department’s note that it
was possible that in some cases the Cuban government could determine if a
returning citizen had applied for asylum, Barrios-Bermudez produced no
compelling evidence showing that the Cuban government would learn of his
asylum application or persecute him for having made the application.
Finally, Barrios-Bermudez fears he will be persecuted for violating Cuban
law by overstaying his permission to leave the country; however, “[p]rosecution
for violating Cuba’s travel laws is not persecution within the meaning of the Act.”
Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1340 (11th Cir. 2001). Also, the
State Department’s report notes that there has been an increasing “depenalization”
of this crime, and offenders tend to receive punishments of fines or house arrest
12
rather than imprisonment.”
As Barrios-Bermudez did not establish past persecution or a well-founded
fear of future persecution, he did not satisfy his burden of proof to demonstrate
eligibility for asylum. Having failed to establish a claim for asylum, he has
necessarily failed to meet the more stringent standard required to for withholding
of removal. See Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 891 (11th
Cir. 2007).
CONCLUSION
For the foregoing reasons, we DENY Barrios-Bermudez’s petition for
review.
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