Raymundo 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[DO NOT PUBLISH]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
No. 10-10749 SEPT 27, 2010
Non-Argument Calendar JOHN LEY
CLERK
________________________
Agency No. A098-727-783
FEDERICO BAUTISTA RAYMUNDO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 27, 2010)
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
PER CURIAM:
Federico Bautista Raymundo, a native and citizen of Guatemala proceeding
pro se, petitions for review of the Board of Immigration Appeals’ (BIA) decision
affirming the Immigration Judge’s (IJ) order denying his application for asylum
and withholding of removal under the Immigration and Nationality Act (INA).
8 U.S.C. §§ 1158, 1231.1 On appeal, Raymundo argues the BIA erred in denying
his application for withholding of removal because he established that, as a
Mayan, he will be discriminated against and persecuted if he returns to Guatemala.
After review, we dismiss in part and deny in part Raymundo’s petition.2
In a withholding of removal claim, an alien shall not be removed to a
country if his life or freedom would be threatened on account of his “race,
religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A). Absent past persecution, the alien must show it is
1
The IJ denied Raymundo’s application as untimely filed. 8 U.S.C. § 1158(a)(2)(B).
Raymundo failed to argue to the BIA that his untimely filing was excusable due to “extraordinary
circumstances” under 8 U.S.C. § 1158(a)(2)(D). Because Raymundo failed to exhaust his
administrative remedies, we lack jurisdiction to review the denial of his application for asylum.
See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
2
Where, as here, the BIA issues its own decision without expressly adopting the IJ’s
findings, we review only the BIA’s decision. Arboleda v. U.S. Att’y Gen., 434 F.3d 1220, 1222
(11th Cir. 2006). We review the BIA’s factual determinations under the substantial evidence test
and will affirm if the decision is supported by “reasonable, substantial, and probative evidence on
the record considered as a whole.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004).
Under the substantial evidence test, we will reverse a finding of fact by the BIA “only when the
record compels a reversal; the mere fact that the record may support a contrary conclusion is not
enough to justify a reversal of the administrative findings.” Id.2
“more likely than not” he will be “persecuted or tortured upon being returned to
[his] country.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir.
2005); 8 C.F.R. § 208.16(b). The alien may make this showing by demonstrating
there is a “pattern or practice of persecution of a group of persons similarly
situated to the applicant” on account of a statutorily protected ground, and the
alien’s inclusion in that group will make it more-likely-than-not that his “life or
freedom would be threatened upon return to that country.” See 8 C.F.R.
§ 208.16(b)(2).
While the INA does not define persecution, we have held persecution is an
“extreme” concept, mere harassment is not persecution, and persecution requires
“more than a few isolated incidents of verbal harassment or intimidation.”
Sepulveda, 401 F.3d at 1231. We have previously concluded an alien failed to
show a future threat to his life or freedom when his family members remained
unharmed in his country of origin. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,
1259 (11th Cir. 2006). Furthermore, evidence of general conditions of violence
and criminal activity, without more, is insufficient to compel a contrary conclusion
from that reached by the BIA. See Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1238
(11th Cir. 2006).
3
Substantial evidence supports the BIA’s finding that Raymundo failed to
demonstrate eligibility for withholding of removal. First, his general complaints
of being discriminated against do not rise to the level of past persecution. Silva,
448 F.3d at 1238. Second, his asserted fear that, as a Mayan, his life or freedom
would be threatened upon his return to Guatemala is undermined by the fact that
his family members, who are also Mayan, remain in Guatemala unharmed. Ruiz,
440 F.3d at 1259. Moreover, Raymundo personally returned to Guatemala for
several months in 2000 without incident. Finally, Raymundo’s fear that he may be
the victim of general crime is insufficient to compel reversal of the administrative
findings. Sepulveda, 401 F.3d at 1231.
PETITION DISMISSED IN PART, DENIED IN PART.
4