Mario David Agustin Mendoza v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15769 May 20, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency No. A097-197-434
MARIO DAVID AGUSTIN MENDOZA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 20, 2009)
Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Mario David Agustin Mendoza petitions for review of the Board of
Immigration Appeals’s (“BIA’s”) decision affirming the Immigration Judge’s
(“IJ’s”) order finding him removable and denying his application for asylum,
withholding of removal, and Convention Against Torture (“CAT”) relief. Agustin
argues that the denial of his applications for asylum and withholding of removal,
based on his failure to establish past persecution or a well-founding fear of future
persecution, are not supported by substantial evidence. After thorough review, we
deny the petition.
When considering a petition to review a BIA final order, we review legal
issues de novo. Hernandez v. U.S. Att’y Gen., 513 F.3d 1336, 1339 (11th Cir.
2008). The BIA’s factual findings are reviewed under the substantial evidence test.
Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001). Under this test,
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. at 1284. “To
reverse a factual finding by the BIA, [we] must find not only that the evidence
supports a contrary conclusion, but that it compels one.” Farquharson v. U.S.
Att’y Gen., 246 F.3d 1317, 1320 (11th Cir. 2001). We review only the BIA’s
decision, except to the extent that the BIA expressly adopts the IJ’s opinion or
reasoning. Al Najjar, 257 F.3d at 1284. Here, the BIA did not expressly adopt the
IJ’s order, so we review the BIA’s order.
An alien may establish eligibility for asylum under the Immigration and
Nationality Act (“INA”) if he shows that he has suffered either “past persecution”
or has a “well-founded fear” of future persecution. 8 C.F.R. § 208.13(b); Chen v.
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U.S. Att’y Gen., 513 F.3d 1255, 1257 (11th Cir. 2008). To establish asylum based
on past persecution, the applicant must prove (1) that he was persecuted, and (2)
that the persecution was “at least in part” motivated by race, religion, nationality,
membership in a particular social group, or political opinion. Sanchez Jimenez v.
U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th Cir. 2007). A well-founded fear may
be established by showing (1) past persecution that creates a presumption of a
“well-founded fear” of future persecution, (2) a reasonable possibility of being
singled out for persecution that cannot be avoided by relocating within the subject
country, or (3) a pattern or practice in the subject country of persecuting members
of a statutorily defined group of which he is a part. 8 C.F.R. § 208.13(b)(1), (2),
(3)(i).
An alien is entitled to withholding of removal under the INA if he can show
that his life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion. Mendoza
v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). This standard is more
stringent than the “well-founded fear” standard for asylum; thus, if an applicant is
unable to meet the “well-founded fear” standard, he necessarily is unable to qualify
for withholding of removal. Al Najjar, 257 F.3d at 1293.
The record here shows that the BIA did not expressly find Agustin’s
testimony to be incredible; instead, it found that the inconsistencies in his
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testimony and a lack of corroborating evidence undermined his testimony,
preventing him from meeting his burden of proof on his asylum and withholding
claims. Credible testimony of the applicant “may be sufficient to sustain the
applicant’s burden without corroboration.” 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis
added); D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818-19 (11th Cir. 2004).
“The weaker an applicant’s testimony, however, the greater the need for
corroborative evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.
2005).
In his brief, Agustin challenges the IJ’s adverse credibility determination and
asserts that his testimony established that he suffered past persecution, but he
wholly fails to address the BIA’s determinations regarding (1) the lack of
corroborating evidence, and (2) inconsistencies in his testimony. In fact, other than
citing the regulatory provisions and out-of-Circuit case law for the basic
proposition that uncorroborated but credible testimony may be sufficient to meet
an applicant’s burden of proof, he makes no further mention of the issue of
corroboration and does not explain why corroborating evidence was not needed in
his particular case. Thus, Agustin has abandoned any challenge to (1) the BIA’s
reliance on the inconsistencies in his testimony and (2) the BIA’s finding regarding
the need to provide corroborating evidence. See Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1228 n.2 (11th Cir. 2005) (holding that a petitioner abandons an issue if
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he fails to offer argument on it); Greenbriar, Ltd. v. City of Alabaster, 881 F.2d
1570, 1573 n.6 (11th Cir. 1989) (holding that passing references to an issue are
insufficient to raise a claim for appeal, and such issues are deemed abandoned).
Because the BIA’s decision affirming the IJ’s denial of relief was clearly based on
Agustin’s failure to produce corroborating evidence in support of his weak and
inconsistent testimony, and because Agustin has not addressed this issue on appeal,
the issue is abandoned, and we are compelled to deny Agustin’s petition for
review.
Nevertheless, even if Agustin did not abandon his challenge to the BIA’s
finding regarding the lack of corroborating evidence, he has failed to show that the
evidence compels a conclusion contrary to that reached by the BIA. See
Farquharson, 246 F.3d at 1320. We determined, in Yang, that the weaker an
applicant’s testimony, the greater the need for corroborating evidence. See Yang,
418 F.3d at 1201. Although the BIA did not find Agustin incredible, it found his
testimony to be weak, in light of the numerous inconsistencies it specifically
mentioned in its opinion. As mentioned above, Agustin fails to challenge on
appeal the BIA’s inconsistency finding. Moreover, because Agustin testified that
he had regular contact with his family in Guatemala, it appears that he could have
obtained certain corroborating information, such as the three letters Agustin’s
father received from the Guatemalan government. In light of these facts, the BIA
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did not err in determining that Agustin failed to meet his burden of proof with
regard to his application for asylum. Because Agustin failed to show that he was
entitled to asylum, he also necessarily failed to meet the higher burden of proof
required to establish eligibility for withholding of removal. See Al Najjar, 257
F.3d at 1293.
For all of these reasons, we deny Agustin’s petition for review.1
DENIED.
1
We also note that Agustin has failed to present on appeal any argument regarding his
application for CAT relief, and has thus abandoned any such argument. See Sepulveda, 401
F.3d at 1228 n.2.
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