Adan Lopez Rodriguez v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 23, 2012
No. 11-10996
JOHN LEY
Non-Argument Calendar
CLERK
________________________
Docket No. A088-295-245
ADAN LOPEZ RODRIGUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 23, 2012)
Before EDMONDSON, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Adan Lopez Rodriguez, a native and citizen of Guatemala proceeding pro
se, petitions for review of the order of the Board of Immigration Appeals (“BIA”)
affirming the decision of the Immigration Judge (“IJ”). The IJ’s decision denied
withholding of removal.* No reversible error has been shown; we dismiss the
petition in part and deny it in part.
We review the BIA’s decision in this case because the BIA did not
expressly adopt the IJ’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001) (noting that we review the BIA’s decision; but “[i]nsofar as the
[BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well”). We
review de novo legal determinations of the BIA. Id. And we review fact
determinations under the “highly deferential substantial evidence test” whereby
we “must affirm the BIA’s decision if it is ‘supported by reasonable, substantial,
and probative evidence on the record considered as a whole.’” Adefemi v.
Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We “view the
record evidence in the light most favorable to the [BIA’s] decision and draw all
*
Rodriguez raises no challenge to the portions of the IJ’s and the BIA’s decisions denying relief
under the Convention Against Torture; so that issue is abandoned. See Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). And to the extent that Rodriguez challenges the
denial of asylum, we lack jurisdiction because the IJ and the BIA concluded that the asylum
application was time-barred. See Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir.
2005) (explaining that we lack jurisdiction, under 8 U.S.C. § 1158(a)(3), to review an IJ’s
untimeliness ruling). So, we dismiss the petition for review on asylum.
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reasonable inferences in favor of that decision”; and we may reverse the BIA’s
fact determination “only when the record compels a reversal.” Id. at 1027.
To establish eligibility for withholding of removal, an alien must show “that
his life or freedom would be threatened on account of” a protected ground,
including race or membership in a particular social group. Delgado v. U.S. Att’y
Gen., 487 F.3d 855, 860-61 (11th Cir. 2007). The alien must demonstrate that one
of the protected grounds “was or will be at least one central reason for persecuting
the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i).
An alien seeking withholding of removal “bears the burden of
demonstrating that he more-likely-than-not would be persecuted or tortured upon
his return to the country in question.” Delgado, 487 F.3d at 861. The alien may
satisfy this burden by establishing either (1) past persecution on account of a
protected ground, or (2) a future threat to his life or freedom on a protected ground
if returned. Id.Rodriguez -- who is of Mayan descent -- sought relief based on his race and
his membership in a particular social group. He alleged that, when he was 11
years old, guerillas attempted to recruit him. When he refused, the guerillas beat
him on his head and his stomach and threatened to harm his family. Although the
guerillas never mentioned Rodriguez’s Mayan heritage during the incident,
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Rodriguez believed that they beat him because he was Mayan. Rodriguez did not
require medical attention as a result of the beating nor did he report the incident to
the police. Although he did not encounter the guerrillas again, Rodriguez left
Guatemala for the United States about a month later.
The BIA denied relief, concluding that Rodriguez had failed to demonstrate
either past persecution on account of a protected ground or a clear probability of
future persecution on account of a protected ground. After review, we conclude
that substantial evidence supports the BIA’s conclusion; and we are not compelled
to reverse the BIA’s decision.
First, we agree that Rodriguez failed to demonstrate past persecution on
account of a protected ground. Nothing evidences that the guerrillas targeted
Rodriguez on account of his Mayan ethnicity. Instead, Rodriguez indicates that he
was beaten in retaliation for refusing to join the guerilla organization; and such
retaliation does not constitute persecution on account of a protected ground. See
INS v. Elias-Zacarias, 112 S.Ct. 812, 816 (1992). Moreover, the mistreatment that
Rodriguez described -- an isolated beating that did not require medical attention --
does not rise to the level of persecution. See Djonda v. U.S. Att’y Gen., 514 F.3d
1168, 1174 (11th Cir. 2008) (concluding that a minor beating does not constitute
persecution); Sepulveda, 401 F.3d at 1231 (stating that “‘persecution’ is an
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‘extreme concept,’ requiring ‘more than a few isolated incidents of verbal
harassment or intimidation,’ and that ‘[m]ere harassment does not amount to
persecution.’”).
Rodriguez also failed to demonstrate that he more likely than not will be
persecuted if he returns to Guatemala. First, Rodriguez testified that his mother
and his four adult brothers still live unharmed in the region of Guatemala where he
was beaten. Such evidence is “persuasive authority that an alien did not establish
a well-founded fear” of persecution and, thus, that he did not satisfy the more
stringent “more-likely-than-not” standard required for withholding of removal.
See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006) (addressing the
less stringent standard for asylum relief). In addition, although the Country
Reports on Guatemala state that Mayans are often discriminated against, nothing
indicates that the discrimination rises to the level of persecution. And to the
extent that Rodriguez fears general violence or retaliation from former guerillas,
that fear alone does not constitute evidence of persecution based on a protected
ground. See id. at 1258 (stating that “evidence that either is consistent with acts of
private violence or the petitioner’s failure to cooperate with guerillas, 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”).
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Because Rodriguez has not shown that he suffered persecution on account
of a protected ground or that he more likely than not will be persecuted if he
returns to Guatemala, he is ineligible for withholding of removal; and we affirm
the BIA’s decision.
PETITION DISMISSED IN PART, DENIED IN PART.
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