Ibersen Rafael Yaya Araujo v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 19, 2009
No. 08-16959 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A095-890-991
A095-890-992
IBERSEN RAFAEL YAYA ARAUJO,
HAYDEE LUCILA PORRAS POMA,
JHONATAN JESUS YAYA PORRAS,
ERIKA YESENIA YAYA PORRAS,
Petitioners,
versus
U. S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 19, 2009)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Ibersen Rafael Yaya-Araujo (“Yaya-Araujo”), his wife Haydee Lucilia
Porras-Poma, and their two children, Jhonatan Jesus Yaya-Porras, and Erika
Yesenia Yaya-Porras (collectively, the “petitioners”), all natives and citizens of
Peru, through counsel, petition for review of the decision of the Board of
Immigration Appeals (“BIA”), affirming the immigration judge’s (“IJ”) order
denying their application for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231; 8 C.F.R.
§ 208.16(c).1
On appeal, the petitioners argue that the IJ and BIA erred in finding that
Yaya-Araujo was barred from asylum relief because he actually was a persecutor.
The petitioners also argue that the IJ and BIA erred in finding that they did not
experience past persecution or have a well-founded fear of returning to Peru, as
threats alone can establish well-founded fear.
“We review only the [BIA’s] decision, except to the extent that it expressly
adopts the IJ’s opinion. Insofar as the Board adopts the IJ’s reasoning, we will
review the IJ’s decision as well.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001) (citations omitted). In the instant case, the BIA issued its own opinion
1
Because the petitioners do not raise any issues regarding their claim for protection
under the Convention Against Torture (“CAT”) in their opening brief, they have abandoned any
challenge to the denial of CAT relief on appeal. See Sepulveda v. U. S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005) (“When an appellant fails to offer argument on an issue, that
issue is abandoned.”).
2
with analysis and also adopted some of the IJ’s reasoning. Therefore, we review
the decisions of both the IJ and the BIA.
We review the IJ’s factual determinations under the substantial evidence
test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (internal
quotations and citations omitted). We must “affirm the [IJ’s] decision if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Al Najjar, 257 F.3d at 1284 (internal quotations omitted).
We do not consider issues not raised in a party’s appellate brief. Sepulveda, 401
F.3d at 1228 n.2.
An alien may obtain asylum if he is a refugee. INA § 208(b)(1)(A), U.S.C.
§ 1158(b)(1)(A). A refugee is a person who is unable or unwilling to return to his
home 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. INA § 101(a)(42)(A), 8 U.S.C. § 1101(A)(42)(A). “To establish asylum
[eligibility] based on past persecution, the applicant must prove (1) that she was
persecuted, and (2) that the persecution was on account of a protected ground.”
Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). “To establish
eligibility for asylum based on a well-founded fear of future persecution, the
applicant must prove (1) a subjectively genuine and objectively reasonable fear of
persecution that is (2) on account of a protected ground.” Id. (internal and
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quotation marks omitted). A showing of past persecution creates a rebuttable
presumption of a well-founded fear of future persecution. Sepulveda , 401 F.3d
at 1231.
To establish a well-founded fear of future persecution, an alien must
establish a fear that is both “subjectively genuine and objectively reasonable.” Al
Najjar, 257 F.3d at 1289. An alien must establish a nexus between his political
opinion and the feared persecution. Sepulveda, 401 F.3d at 1231 (addressing
asylum) (quotation omitted). “If an applicant is unable to meet the well-founded
fear standard for asylum, [he] is generally precluded from qualifying for either
asylum or withholding of deportation.” Sepulveda, 401 F.3d at 1232-33 (quotation
and alteration omitted).
To qualify for withholding of removal under the INA, an alien must show
that if returned to his country, the alien’s life or freedom would be threatened on
account of race, religion, nationality, membership in a particular social group, or
political opinion. INA § 241(b)(3); 8 U.S.C. § 1231(b)(3). If a petitioner is unable
to meet the standard of proof for asylum, he is generally precluded from qualifying
for withholding of removal. Al Najjar, 257 F.3d at 1292-93.
The IJ found that Yaya-Araujo’s fighting of the terrorist groups Shining Path
and Tupac Amaru, as a part of his job, was not the same as having a political
opinion for which he would be harmed. The BIA further concluded that
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Yaya-Araujo had failed to establish past persecution, or a well-founded fear or
likelihood of future persecution, on account of a protected ground. However, in
their appellate brief, the petitioners argue only that the IJ and BIA erred in finding
that: (1) Yaya-Araujo was a persecutor; and (2) Yaya-Araujo did not have a
well-founded fear of persecution if he returned to Peru based on past persecution.
As such, the petitioners have abandoned the issue of whether they were persecuted
because of their political opinion. Because the petitioners have abandoned this
issue, they are not entitled to relief.2 Accordingly, we deny the petition.
PETITION DENIED.3
2
Alternatively, even if the issue were not abandoned, substantial evidence supports
the finding of the IJ and BIA that Yaya-Araujo failed to establish past persecution or a well-
founded fear of future persecution. Thus, the decision of the BIA and IJ with respect to asylum
and withholding of removal are not erroneous.
3
Petitioners’ request for oral argument is denied.
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