Denis Centeno-Hernandez v. U.S. Atty. General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-11291 FEBRUARY 6, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
Agency Nos. A70-846-943, A76-930-115
DENIS CENTENO-HERNANDEZ,
LILLIAM TREMINIO,
a.k.a. Lilliam Centeno,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 6, 2009)
Before CARNES, MARCUS, and FAY, Circuit Judges.
PER CURIAM:
Petitioners Denis Centeno-Hernandez and Lilliam Treminio 1 challenge the
Board of Immigration Appeals’ order affirming the Immigration Judge’s order
denying their application for asylum and CAT relief.2 They also challenge the
BIA’s denial of their motion to remand the proceedings to the IJ, which was
construed as a motion to reopen. Centeno-Hernandez contends that the record
compels the conclusion that he suffered past persecution and has a well-founded
fear of future persecution or torture based on his presumed anti-Sandinista political
opinions. He also contends that Sandinista leader Daniel Ortega’s reelection as
President of Nicaragua following his asylum hearing justifies reopening the
removal proceedings.
I.
“We review only the [BIA’s] decision, except to the extent that it expressly
adopts the IJ’s opinion.” See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s
decision as well.” Id. Because the BIA based its conclusions on the reasons
identified in the IJ’s decision, we will review both decisions.
1
Because Centeno-Hernandez listed Treminio as a derivative applicant, the basis for her
asylum claim is the same as his. See INA § 208(b)(3), 8 U.S.C. § 1158(b)(3). Accordingly, we will
refer only to Centeno-Hernandez. Centeno-Hernandez also requested derivative relief for his
children, but they are not listed in the petition for review, and their claims are not before us.
2
Centeno-Hernandez also originally requested withholding of removal, but he has waived
that claim by failing to argue it on appeal. See Sepulveda v. United States Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005).
2
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208, 8 U.S.C. § 1158(a)(1). The asylum applicant carries the
burden of proving statutory refugee status. See Al Najjar, 257 F.3d at 1284. To
establish asylum eligibility, the alien must, with specific and credible evidence,
establish: (1) past persecution on account of a statutorily listed factor, or (2) a
well-founded fear that the statutorily listed factor will cause such future
persecution. 8 C.F.R. § 208.13(a), (b). “Demonstrating such a connection requires
the alien to present specific, detailed facts showing a good reason to fear that he or
she will be singled out for persecution on account of” a statutory factor. Al Najjar,
257 F.3d at 1287 (internal quotation marks and citation omitted).
We review factual determinations under the “substantial evidence” test. Id.
at 1283. That test is “highly deferential” and does not allow “reweigh[ing] the
evidence from scratch.” Silva v. United States Att’y Gen., 448 F.3d 1229, 1236
(11th Cir. 2006) (quotations omitted). Instead, we must affirm if the IJ’s and
BIA’s factual determinations are “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Al Najjar, 257 F.3d at
1284 (quotation marks omitted). “To reverse the IJ’s [and BIA’s] fact findings, we
must find that the record not only supports reversal, but compels it.” Mendoza v.
United States Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
3
Here substantial evidence supports the IJ’s and BIA’s finding that Centeno-
Hernandez has not suffered past persecution. “[P]ersecution is an extreme concept,
requiring more than a few isolated incidents of verbal harassment or intimidation.”
Sepulveda v. United States Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)
(internal quotation marks omitted). Centeno-Hernandez’s claim is based on his
detention for seven to fifteen days in his military unit after making a statement in
opposition of then-General Humberto Ortega. During his detention, he was not
physically tortured or beaten. He argues, however, that he was psychologically
tortured with sleep depravation because he was interrogated frequently and was
allowed to sleep for only a few hours at time during his detention. Although we
have rejected “a rigid requirement of physical injury,” De Santamaria v. United
States Att’y Gen., 525 F.3d 999, 1008 (11th Cir. 2008), we refused to reverse the
BIA where a petitioner was detained for several days, subjected to psychological
coercion, and forced to stand out in the sun for two hours. See Zheng v. United
States Att’y Gen., 451 F.3d 1287, 1291 (11th Cir. 2006). The evidence regarding
Centeno-Hernandez’s detention and interrogation, is insufficient to compel the
conclusion that he was persecuted. See id; see also Djonda v. United States Att’y
Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (concluding that the record did not
compel the conclusion that the petitioner had suffered past persecution when he
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was detained for thirty-six hours, suffered a “minor beating,” and was later
threatened with future harm).
Additionally, the record does not compel the conclusion that Centeno-
Hernandez’s fear of future persecution was objectively reasonable. His fear stems
from his one-time statement of opposition against then-General Humberto Ortega
and his desertion from the army. The statement at issue was made thirteen years
before the 2006 removal proceedings, and General Ortega no longer commands the
Nicaraguan military. Further, Centeno-Hernandez’s children continue to live in
Nicagrua unharmed. Those factors undermine an objective fear of future
persecution. See Sepulveda, 401 F.3d at 1232 (holding that threats of future
violence based on prior political activity are insufficient to compel a finding of
future persecution where the evidence does not indicate that the petitioner’s
notoriety would outlast her four-year absence). Centeno-Hernandez has also failed
to present any evidence that military deserters have been “disproportionately
punished” in Nicaragua. See Mohammed v. United States Att’y Gen., 547 F.3d
1340, 1346 (11th Cir. 2008). Although Centeno-Hernandez fears detention if he
returns to Nicaragua, detention is not the same thing as persecution. See Djonda,
514 F.3d at 1171. Accordingly, substantial evidence supports the IJ and BIA’s
denial of asylum to Centeno-Hernandez.
5
Because Centeno-Hernandez has failed to demonstrate a well-founded fear
of persecution to support his asylum claim, he cannot establish entitlement to relief
under CAT. See Al Najjar, 257 F.3d at 1303.
II.
That leaves us with the motion to remand. The substance of a motion to
remand will determine how we review it on appeal. Id. at 1301. We will treat a
motion to remand as part of the petitioner’s appeal and not as a motion to reopen or
reconsider if it “simply articulates the remedy requested by an appeal.” Id.
“Conversely, if a motion to remand seeks to introduce evidence that has not
previously been presented, it is generally treated as a motion to reopen.” Id. Here
we treat Centeno-Hernandez’s motion to remand as a motion to reopen because he
seeks additional proceedings to present new evidence regarding his eligibility for
asylum and other relief.
“Motions to reopen are disfavored, especially in a removal proceeding,
where, as a general matter, every delay works to the advantage of the deportable
alien who wishes merely to remain in the United States.” INS v. Doherty, 502 U.S.
314, 323, 112 S. Ct. 719, 724–25 (1992) (internal quotation marks and citation
omitted). The movant “bears a heavy burden, and must present evidence of such a
nature that the BIA is satisfied that if proceedings before the IJ were reopened,
with all attendant delays, the new evidence offered would likely change the result
6
in the case.” Ali v. United States Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006)
(alterations, internal quotation marks, and citations omitted).
We review “the BIA’s denial of a motion to reopen for an abuse of
discretion.” Abdi v. United States Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.
2005). The BIA abuses its discretion when its decision is arbitrary or capricious.
Id.Centeno-Hernandez’s motion was based on the recent re-election of Daniel
Ortega, a Sandinista, as President of Nicaragua. Centeno-Hernandez argues that
his “return to the country would be a red flag that would reignite the search” for
him. Centeno-Hernandez has not, however, submitted any evidence to support that
argument. Additionally, although Centeno-Hernandez argues that he spoke out
directly against President Daniel Ortega, that is incorrect. His earlier statement of
opposition was against then-General Humberto Ortega, not President Daniel
Ortega. We therefore conclude that the BIA did not abuse its discretion in
denying Centeno-Hernandez’s motion.
PETITION DENIED.
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