Jesus Rodriguez-Alfaro v. U.S. Attorney General

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10085
Non-Argument Calendar
____________________
JESUS RODRIGUEZ-ALFARO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A201-901-750
____________________
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2 Opinion of the Court 21-10085
____________________
No. 21-12500
Non-Argument Calendar
____________________
JESUS RODRIGUEZ-ALFARO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A201-901-750
____________________
Before JORDAN, NEWSOM, and BRASHER, Circuit Judges.
PER CURIAM:
Jesus Rodriguez-Alfaro, a native and citizen of Cuba, peti-
tions for review of the Board of Immigration Appeals’s denial of his
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21-10085 Opinion of the Court 3
applications for asylum, withholding of removal, and relief under
the Convention Against Torture. He also challenges the Board’s
decision not to reconsider or reopen the case. Rodriguez-Alfaro
makes three arguments. First, that the Board clearly erred in find-
ing that his prior abuse by the Cuban police did not rise to the level
of past persecution. Second, that it applied an incorrect legal stand-
ard in evaluating his claimed fear of future persecution. And third,
that the Board failed to give reasoned consideration to several of
his arguments. After careful review, we deny Rodriguez-Alfaro’s
petition as to the first two issues and grant it in part as to the third.
On that issue, we hold that the Board failed to give reasoned con-
sideration to Rodriguez-Alfaro’s argument that there was a pattern
or practice of persecuting political dissidents in Cuba. Thus, we va-
cate the Board’s decision and remand for further proceedings.
I. BACKGROUND
Rodriguez-Alfaro entered the United States in April 2019.
The Department of Homeland Security issued a notice to appear
two months later, asserting removability under the Immigration
and Nationality Act, 8 U.S.C. § 1182(7)(A)(i)(I). During his credible
fear interview, Rodriguez-Alfaro stated that the Cuban police cited
him for not participating in a government holiday celebrating the
“Committee for Defense of the Revolution,” detained him and la-
beled him a “counterrevolutionary” for his political beliefs, and
beat him, resulting in various injuries. Although he admitted to
never being hospitalized, Rodriguez-Alfaro explained that the beat-
ing broke one of his teeth, for which he had seen a dentist. He also
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claimed that others, including relatives, had been beaten by the po-
lice and “disappeared” when they tried to file a complaint. Rodri-
guez-Alfaro feared that the same thing would happen to him if he
complained and that, having been identified as a counterrevolu-
tionary, he would be detained upon his return to Cuba.
Rodriguez-Alfaro applied pro se for asylum, withholding of
removal, and relief under the Convention Against Torture, stating
that the basis for his application was political opinion. He reiterated
both his claim that relatives had been beaten and imprisoned by the
Cuban police and his fear that the same would happen to him if he
returned. He also attached a personal statement explaining that he
was arrested for no reason, beaten, and cited by the police in March
2017. This interaction led to his decision not to celebrate govern-
ment holidays, which in turn led to a second detention and beating
in September 2018. After recovering from the September encoun-
ter and receiving another citation, Rodriguez-Alfaro decided to
leave Cuba. Alongside this statement, Rodriguez-Alfaro attached
his Cuban passport, an otherwise clean criminal record, and sup-
porting documentation from his father, who was living in the
United States as a lawful permanent resident.
During a November 2019 hearing, an immigration judge ex-
plained that Rodriguez-Alfaro would need to provide the court
with all “reasonably available” corroborating evidence in support
of his application at a later scheduled merits hearing. At the merits
hearing, Rodriguez-Alfaro testified that he used his Cuban passport
to leave the country without obstruction by the government. He
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21-10085 Opinion of the Court 5
also testified to essentially the same facts about his interactions
with the Cuban police and confirmed that he was never hospital-
ized. Lastly, Rodriguez-Alfaro testified that he remembered the im-
migration judge’s earlier instruction that he would need to provide
corroborating evidence. When asked to explain the lack of any
such evidence, he claimed that he was still securing letters of sup-
port and wanted to protect his remaining family in Cuba.
The immigration judge issued an oral decision denying Ro-
driguez-Alfaro’s applications. He concluded that the claimed abuse
did not rise to the level of past persecution and highlighted Rodri-
guez-Alfaro’s failure to provide the court with corroborating evi-
dence despite instructions to do so. Having dealt with past perse-
cution, the immigration judge next concluded that Rodriguez-Al-
faro had not shown a well-founded fear of future persecution ei-
ther. The decision explained that, based on the lack of pending
criminal proceedings and the fact that Rodriguez-Alfaro left the
country using his own passport, he had not shown a “good reason”
to believe that he would be singled out for persecution to render
his fear objectively reasonable. Nor, the decision continued, had he
shown a pattern or practice of persecution targeting a similarly sit-
uated group. Here, the immigration judge relied on the State De-
partment’s 2018 Human Rights Report for Cuba, explaining that
despite “severe political repression,” such repression was “mainly
aimed at opposition politicians, journalists, activists, prominent
anti-government celebrities, and academics.” Because Rodriguez-
Alfaro did not claim membership in any of these groups, his pattern
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or practice claim failed. The same day the decision was issued, Ro-
driguez-Alfaro sought to submit additional documents to the im-
migration court, but the court rejected his submission because sev-
eral had not been translated into English.
Rodriguez-Alfaro appealed to the Board, arguing that the
immigration judge’s conclusions on past and future persecution ap-
plied the wrong legal standard and were clearly erroneous. The
Board affirmed on past persecution, relying in part on Rodriguez-
Alfaro’s failure to provide reasonably available corroborating evi-
dence of his physical injuries after being instructed to do so. It also
affirmed on future persecution, explaining that although Rodri-
guez-Alfaro’s testimony established his fear as subjectively genu-
ine, he failed to show a “good reason to fear that he [would] be
singled out for persecution” that would render that fear objectively
reasonable. Similarly, the Board agreed with the immigration
judge that Rodriguez-Alfaro’s pattern or practice claim failed, ex-
plaining that he had never claimed to be a member of any of the
specific groups the immigration judge found to be targeted by the
Cuban government.
Rodriguez-Alfaro moved for the Board to reconsider its de-
cision and simultaneously petitioned this Court for review. When
the Board denied his motion, Rodriguez-Alfaro petitioned for re-
view of that decision too, resulting in the consolidated petition be-
fore us today.
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II. STANDARDS OF REVIEW
We review the decision of the Board, as well as the decision
of the immigration judge to the degree that the former adopts the
latter’s opinion. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48 (11th
Cir. 2010). We review legal determinations de novo and findings of
fact under the “highly deferential” substantial evidence standard.
Id. at 948. Under that standard, “[w]e must affirm the [administra-
tive] decision . . . if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Silva v.
U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). Thus, we will
only overturn a finding of fact “when the record compels a reversal;
the mere fact that the record may support a contrary conclusion is
not enough . . . .” Adefemi v. Ashcroft, 386 F.3d 1022, 1028 (11th
Cir. 2004) (en banc).
III. DISCUSSION
A. Rodriguez-Alfaro has Abandoned Several Issues
As an initial matter, Rodriguez-Alfaro has abandoned any
challenge to the Board’s decisions based on several issues. An ap-
pellant abandons an issue when he fails to discuss it or makes only
a passing reference to it in his opening brief. Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). Because Rodriguez-
Alfaro’s brief does not argue whether the corroborating evidence
he offered was sufficient to establish past persecution or whether
he could have reasonably obtained such evidence, he has
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abandoned both issues. Similarly, by making only passing refer-
ences to the denial of his applications for withholding of removal
and relief under the Convention Against Torture, he has aban-
doned challenges to both. And lastly, by not addressing the Board’s
denial of his motion to reconsider, Rodriguez-Alfaro has aban-
doned any challenge to it.
B. Substantial Evidence Supported The Board’s Conclusion
on Past Persecution
Rodriguez-Alfaro also challenges the Board’s decision on
past persecution. He argues that the Board failed to give reasoned
consideration to his arguments on corroboration, and alterna-
tively, that the Board and immigration judge clearly erred in ana-
lyzing his claimed abuse. We disagree on both counts.
First, we address reasoned consideration. The Board’s deci-
sion highlighted that the immigration judge, despite declining to
make an adverse credibility finding, “determine[d] the applicant
should provide evidence that corroborates otherwise credible tes-
timony.” In doing so, the Board cited the provision of the Immigra-
tion and Nationality Act establishing the corroboration require-
ment. See 8 U.S.C. § 1158(b)(1)(B)(ii). It also explained that Rodri-
guez-Alfaro had submitted no evidence corroborating his injuries
or subsequent medical treatment. Although the Board’s analysis
was succinct and did not address Rodriguez-Alfaro’s arguments on
corroboration point-by-point, we have never required a point-by-
point rebuttal. Instead, the Board need merely have “considered
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the issues raised and announced [a] decision[] in terms sufficient to
enable review.” Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1302
(11th Cir. 2015). In doing so, it “need not address specifically each
claim the petitioner made or each piece of evidence the petitioner
presented.” Id. (quotation marks omitted). The Board cited the rel-
evant law and made clear that it agreed with the immigration
judge’s opinion on corroboration. Thus, it did not fail to give rea-
soned consideration to Rodriguez-Alfaro’s argument on that issue.
Next, we address the merits of the Board’s conclusion that
Rodriguez-Alfaro had not established past persecution. Because the
Board agreed with the immigration judge’s reasoning, we review
both decisions. Ayala, 605 F.3d at 947–48. We have explained that
persecution is an “extreme concept” that requires more than “a few
isolated incidents of verbal harassment or intimidation,” or even
“[m]inor physical abuse and brief detentions.” Kazemzadeh v. U.S.
Att’y Gen., 577 F.3d 1341, 1353 (11th Cir. 2009). Despite that high
standard, serious physical injury is not required where the peti-
tioner “demonstrates repeated threats combined with other forms
of severe mistreatment.” De Santamaria v. U.S. Att’y Gen., 525
F.3d 999, 1009 (11th Cir. 2008). “In determining whether an alien
has suffered past persecution, the [immigration judge and Board]
must consider the cumulative effects of the incidents.” Delgado v.
U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007).
Applying our precedents to the record before us, we con-
clude that the harms that Rodriguez-Alfaro suffered do not compel
a finding of past persecution. Instead, the claimed harms were less
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severe than those that we have held compelled such a finding. Un-
like the petitioner in Meija v. United States Attorney General, Ro-
driguez-Alfaro never received death threats, and although he was
beaten, he was never attacked with a weapon or suffered any bro-
ken bones. 498 F.3d 1253, 1257–58 (11th Cir. 2007). And unlike the
petitioner in Delgado, Rodriguez-Alfaro did not endure a mock-ex-
ecution with firearms, beatings to the point of unconsciousness, or
repeated and targeted vandalization. 487 F.3d at 859–61. Instead,
he recovered from his September 2018 encounter with the Cuban
police in a few days and with only a trip to the dentist. We think
that the better comparator is Djonda v. United States Attorney
General, where we held that substantial evidence supported the
Board’s conclusion that a petitioner who was beaten and threat-
ened with arrest had not shown past persecution. 514 F.3d 1168,
1174 (11th Cir. 2008). In fact, Rodriguez-Alfaro’s harms are even
less severe than those of the petitioner in Djonda, who underwent
a two-day hospital stay and was ordered to rest for two weeks. Id.
at 1171. Rodriguez-Alfaro, on the other hand, recovered from his
encounter with police in a few days and without hospitalization.
Thus, in the light of the entire record, substantial evidence sup-
ported the Board’s conclusion that Rodriguez-Alfaro’s abuse did
not rise to the level of past persecution.
C. The Board Applied the Correct Legal Standard When Ana-
lyzing Future Persecution
Second, Rodriguez-Alfaro argues that the Board applied the
wrong legal standard when evaluating the objective
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reasonableness of his fear of future persecution. Rather than asking
whether he had a “good reason” for such a fear, he contends, the
Board and immigration judge should have simply asked whether
his fear was “a reasonable possibility.” We disagree.
Rodriguez-Alfaro relies on Kazemzadeh for the proposition
that the Board should have applied a “reasonable possibility” stand-
ard when determining whether his fear of future persecution was
objectively reasonable. 577 F.3d at 1352. But that standard refers to
the overall inquiry into an applicant’s well-founded fear of future
persecution, not the more specific inquiry into objective reasona-
bleness. See id. The latter, not the former, was the ground on
which the immigration judge and Board decided Rodriguez-Al-
faro’s claim. See id. Moreover, we have consistently used the “good
reason” framing, both before and after Kazemzadeh, to character-
ize the Board’s analysis of whether an asylum applicant’s fear of
future persecution was objectively reasonable. See Ruiz v. U.S.
Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006); Martinez v. U.S.
Att’y Gen., 992 F.3d 1283, 1293 (11th Cir. 2021). We cannot say that
the Board applied the wrong legal standard by describing its inquiry
in terms that we ourselves have long relied on.
D. The Board Failed to Give Reasoned Consideration to Ro-
driguez-Alfaro’s Pattern or Practice Argument
Lastly, Rodriguez-Alfaro argues that the Board failed to give
reasoned consideration to his arguments on future persecution.
We agree in part.
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Reviewing the immigration judge’s decision, the Board af-
firmed that Rodriguez-Alfaro had not shown a well-founded fear of
persecution that was objectively reasonable. First, it agreed with
the immigration judge that he had not shown a good reason to fear
that he would be singled out for persecution. In doing so, it noted
that there was no evidence in the record of pending criminal
charges or an outstanding arrest warrant, that Rodriguez-Alfaro
had no prior penalties in his criminal records, and that he managed
to leave the country using his own passport without obstruction by
the government. Again, the standard for reasoned consideration is
only that the Board have “considered the issues raised and an-
nounced [a] decision[] in terms sufficient to enable review.” In-
drawati, 779 F.3d at 1302. Although Rodriguez-Alfaro argues that
these factual observations were not the most probative given his
testimony about extralegal government action and threats, the
Board explained that those threats appeared to be mere “acts of in-
timidation.” And although the Board did not specifically mention
Rodriguez-Alfaro’s citation, it considered the lack of any charging
document more substantive than a citation in its analysis of the rec-
ord. Finally, the Board’s invocation of Rodriguez-Alfaro’s flight us-
ing his own passport responded to his argument that the regime,
having identified him as a counterrevolutionary, would persecute
him wherever he went in Cuba. Such engagement with a peti-
tioner’s arguments is more than enough to give reasoned consider-
ation.
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Having considered his future persecution argument, the
Board next addressed Rodriguez-Alfaro’s claim that there was a
pattern or practice of persecuting political dissidents in Cuba. It
agreed with the immigration judge’s finding, based on the State
Department’s 2018 Human Rights Report, that the Cuban govern-
ment mainly targeted several groups of people: “opposition politi-
cians, journalists, activists, prominent anti-government celebrities,
and academics.” Explaining that Rodriguez-Alfaro had never
claimed membership in any of these groups, the Board reasoned
that he had not shown a pattern or practice of persecution of “a
group of persons similarly situated [to himself].” 8 C.F.R. §
208.13(b)(2)(iii). But as the petition rightly points out, the Board’s
analysis ignored an important argument and corresponding piece
of evidence: that the Cuban government allegedly perceived Ro-
driguez-Alfaro as a political dissident, a distinct group that the Hu-
man Rights Report repeatedly describes as facing hostile govern-
ment action.
Because the immigration judge considered only the 2018
State Department Human Rights Report, and the Board followed
suit, we too limit ourselves to that report. In the report, political
dissidents are repeatedly referred to by name as a group targeted
by the government for discrimination, detention, assault, and tor-
ture. To defend the Board’s analysis, the government cites a recent
unpublished decision, Aguilera Fernandez v. United States Attor-
ney General, 857 F. App’x 487 (11th Cir. 2021). But that decision
binds neither us nor the Board. Instead, we think that Martinez is
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the more relevant of our precedents. 992 F.3d 1283. There, we held
that the Board failed to give reasoned consideration to a pattern or
practice argument based on the petitioner’s status as a journalist.
Journalists are one group specifically mentioned in the 2018 Hu-
man Rights Report. Political dissidents are another. By analyzing
Rodriguez-Alfaro’s pattern or practice claim using an incomplete
list of targeted groups that excluded political dissidents, the Board
failed to give reasoned consideration to his argument.
We reiterate that we do not decide the merits of Rodriguez-
Alfaro’s pattern or practice claim. That question is for the Board on
remand. But the claim cannot simply be brushed aside by reference
only to persecuted groups that Rodriguez-Alfaro has never claimed
membership in, at the expense of ones he has. Instead, the Board
must address his argument head on.
IV. CONCLUSION
For the foregoing reasons, Rodriguez-Alfaro’s petition is
GRANTED in part and DENIED in part. To the degree that the
petition is GRANTED, the Board’s decision is VACATED and RE-
MANDED for further proceedings.