Sone Mateo Adof vs US Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14625 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 27, 2011
________________________ JOHN LEY
CLERK
Agency No. A087-335-689
SONE MATEO ADOF,
llllllllllllllllllllllllllllllllllllllllPetitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 27, 2011)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Sone Mateo Adof, a native and citizen of the Dominican Republic,
proceeding pro se, seeks review of the Board of Immigration Appeals (“BIA”)
order dismissing his appeal of the decision of the Immigration Judge (“IJ”) finding
him (1) removable, pursuant to section 237(a)(1)(B) of the Immigration and
Nationality Act (“INA”). 8 U.S.C. § 1227(a)(1)(B), and (2) ineligible for asylum,
withholding of removal under INA §§ 208, 241, 8 U.S.C. §§ 1158, 1231, and relief
under the United Nations Convention Against Torture (“CAT”), 8 C.F.R. §
208.16(c). In his application for asylum, Adof said that he was a Dominican of
Haitian descent, that Dominicans of Haitian descent who live in the Dominican
Republic are subject to “all kinds of mistreatment[ ] and abuses.” He cited several
examples of such, including his experiences while studying law in the Dominican
Republic. He was doing well until he told his classmates that his parents were
Haitians. This allegedly caused him to receive failing grades from two teachers,
and the theft of his automobile a month or so before he was to deliver his law
school thesis.
Before this court, he argues that he suffered past persecution in (1) the theft
of his automobile, (2) the denial of his request for a copy of his birth certificate, (3)
the receipt of threatening telephone calls, and (4) discrimination at the hands of his
law school professors. Regarding future persecution, Adof argues that he will be
killed if returned to the Dominican Republic.
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As an initial matter, we must point out that we lack jurisdiction to consider
several issues raised by Adof in his brief. Adof did not exhaust before the BIA his
argument that the IJ erred by not addressing the political opinion aspect of his
asylum claim. Thus, that argument is not properly before us. Amaya-Artunduaga
v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (providing that we lack
subject matter jurisdiction to consider a claim raised in a petition for review unless
the petitioner has exhausted his administrative remedies with respect thereto). Nor
did he exhaust before the BIA his argument that he might qualify for Temporary
Protected Status.
Where, as here, the BIA has issued a decision, we review that decision,
except to the extent that the BIA expressly adopts the IJ’s decision. Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). In this case, the BIA did not
expressly adopt the IJ’s decision in dismissing Adof’s appeal; hence, our review is
of the BIA’s decision alone.
To qualify for asylum, an applicant must prove that he is a “refugee” within
the meaning of the INA. De Santamaria v. U.S. Att’y. Gen., 525 F.3d 999, 1006
(11th Cir. 2008); INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). An alien must
show, with specific and credible evidence, past persecution or a well-founded fear
of future persecution on account of race, religion, nationality, membership in a
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particular social group, or political opinion. Forgue v. U.S. Att’y Gen., 401 F.3d
1282, 1286-87 (11th Cir. 2005); INA § 101(a)(42), 8 U.S.C. § 1101(a)(42).
To qualify for withholding of removal, an alien must show that if returned to
his country, his 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)(A), 8 U.S.C. § 1231(b)(3)(A). The burden of proof for withholding of
removal is “more likely than not,” and, thus, is more stringent than the standard for
asylum relief. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).
Likewise, to qualify for CAT relief, an applicant again must meet standards
more stringent than those for asylum eligibility. Rodriguez Morales v. U.S. Att’y
Gen., 488 F.3d 884, 891 (11th Cir. 2007). To qualify for CAT relief, an alien must
“demonstrate a likelihood that he will be tortured at the acquiescence of the
government, meaning that the government was aware of the torture, yet breached
its responsibility to intervene.” Id. (quotation omitted).
Persecution is not defined in the INA, but it is “an extreme concept,”
requiring more than mere harassment. De Santamaria, 525 F.3d at 1008. In
assessing persecution, we consider all the evidence of mistreatment as a whole, and
are “required to consider the cumulative impact of the mistreatment the petitioner[ ]
suffered.” Mejia v. U.S. Att’y. Gen., 498 F.3d 1253, 1258 (11th Cir. 2007).
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Evidence showing that someone is merely a victim of criminal activity does not
constitute evidence of persecution based on a statutorily protected ground. Ruiz,
440 F.3d at 1258. Mere threats also do not constitute persecution. See Silva v.
U.S. Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006) (holding that a “condolence
note” and threatening phone calls, without more, were mere harassment, rather than
persecution). Furthermore, discrimination ordinarily does not constitute
persecution. See Barreto–Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1340 (11th Cir.
2001) (holding that employment discrimination that stops short of depriving an
individual of a means of earning a living, such as losing a desired job and being
forced to take menial work instead, does not constitute persecution).
A showing of past persecution creates a rebuttable presumption of a
well-founded fear of future persecution. Ruiz, 440 F.3d at 1257. Even if the
applicant fails to demonstrate past persecution, he may still qualify for asylum
based upon proof of a well-founded fear of future persecution, which may be
demonstrated by a subjectively genuine and objectively reasonable fear of
persecution on account of a protected ground. Id. An applicant can establish a
well-founded fear of future persecution by “specific, detailed facts showing a good
reason to fear that he will be singled out for persecution” on account of a protected
ground. Id. at 1258.
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Substantial evidence supports the BIA’s conclusion that Adof did not suffer
past persecution. Even assuming a nexus between a protected ground and the theft
of his vehicle, and a nexus between a protected ground and the denial of his birth
certificate, the theft and denial of the birth certificate, along with the threatening
phone calls and the discrimination of Adof’s law school professors, taken
cumulatively, do not rise to the level of persecution. See e.g., Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (holding that an asylum applicant
had not suffered past persecution despite evidence that the restaurant at which she
had worked was bombed, and she had received death threats); see also
Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1353 (11th Cir. 2009) (concluding
that no persecution existed where the petitioner was arrested for participating in a
student demonstration, interrogated and beaten for five hours, detained for four
days, and monitored by authorities after his release); see also Barreto–Claro, 275
F.3d at 1340 (holding that employment discrimination that stops short of depriving
an individual of a means of earning a living, such as losing a desired job and being
forced to take menial work instead, does not constitute persecution).
Substantial evidence also supports the BIA’s conclusion that Adof does not
have a well-founded fear of future persecution. Even assuming that Adof’s fear is
subjectively genuine, Adof’s account does not compel the conclusion that he has an
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objectively reasonable fear of future persecution.
Thus, because he failed to establish past persecution or a well-founded fear
of future persecution, Adof failed to qualify for asylum. Forgue, 401 F.3d at 1286-
87. As he failed to establish his eligibility for asylum, he, by extension, failed to
satisfy the more stringent burdens of establishing his eligibility for withholding of
removal and CAT relief. See id. at 1288 n.4 (noting that a failure to establish
eligibility for asylum on the merits necessarily entails ineligibility for withholding
of removal and CAT relief).
PETITION DENIED.
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