Oscar Rafael Mejia-Lopez 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[DO NOT PUBLISH]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
No. 08-15506 ELEVENTH CIRCUIT
MAY 28, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency Nos. A094-283-234,
A097-737-824
OSCAR RAFAEL MEJIA-LOPEZ,
KENIA MARCELY MENDOZA-ORDONEZ,
OSCAR MARCELO MEJIA-MENDOZA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 28, 2009)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Petitioner Oscar Rafael Mejia-Lopez, a citizen of Honduras, petitions for
review of the final order of the Board of Immigration Appeals (“BIA”), which
adopted the decision of the immigration judge (“IJ”) ordering removal, denying
asylum and withholding of removal under the Immigration and Naturalization Act
(“INA”), 8 U.S.C. §§ 1158, 1231, and denying relief under the United Nations
Convention Against Torture (“CAT”), 8 C.F.R. § 208.16(c). Because Mejia-Lopez
failed to exhaust his administrative remedies, we lack jurisdiction to review Mejia-
Lopez’s challenge of the IJ’s denial of relief under CAT. In his petition for review,
Mejia-Lopez argues (1) he established both past and future persecution on account
of a statutorily protected ground, and (2) the IJ violated his due process rights by
not allowing him to continue his testimony in support of his application.
I.
On the merits of his asylum and withholding of removal claims, Mejia-
Lopez argues that he established past persecution on account of his membership in
a particular social group and/or his political opinion. The alleged past persecution
was based on his cooperation with the Honduran police, which led to threats and an
attempted abduction by a policeman. Mejia-Lopez also argues he has subjectively
and objectively shown his fear of future persecution, as it was the Government of
Honduras, specifically the police, that caused him to flee Honduras.
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We review the BIA’s decision as the final judgment, unless the BIA has
expressly adopted the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir.
2007). In that case, “we review the IJ’s decision as well.” Id. Here, the BIA
expressly adopted the IJ’s decision, so we review the IJ’s decision.
“We review the IJ’s factual determinations under the substantial evidence
test.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). We must
“affirm the [IJ’s] decision if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001) (internal quotations omitted). Under this test, “we
view the record evidence in the light most favorable to the agency’s decision and
draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386
F.3d 1022, 1027 (11th Cir. 2004) (en banc). Accordingly, “[t]o conclude that the
[IJ’s] decision should be reversed, we must find that the record not only supports
the conclusion, but compels it.” Ruiz v. Gonzales, 479 F.3d at 765 (citation
omitted).
Any alien who is physically present in the United States may apply for
asylum. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007); INA
§ 208(a)(1); 8 U.S.C. § 1158(a)(1). The Attorney General or Secretary of
Homeland Security may grant asylum if an alien meets the definition of “refugee,”
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as defined by 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A). The INA
defines “refugee” as:
[A]ny person who is outside any country of such person’s nationality
or, in the case of a person having no nationality, is outside any
country in which such person last habitually resided, and who is
unable or unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion.
8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving
statutory refugee status. See Al Najjar, 257 F.3d at 1287 (11th Cir. 2001). To
establish asylum eligibility, the alien must, “with specific and credible evidence,
establish (1) past persecution on account of a statutorily protected ground or (2) a
well-founded fear of future persecution on account of a protected ground.” Mejia,
498 F.3d at 1256. “To establish asylum [eligibility] based on past persecution, the
applicant must prove (1) that she was persecuted, and (2) that the persecution was
on account of a protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236
(11th Cir. 2006). “To establish eligibility for asylum based on a well-founded fear
of future persecution, the applicant must prove (1) a subjectively genuine and
objectively reasonable fear of persecution that is (2) on account of a protected
ground.” Id. (internal quotation marks and citation omitted). A showing of past
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persecution creates a rebuttable presumption of a well-founded fear of future
persecution. Sepulveda v. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005).
Neither the INA nor the regulations define persecution. We have described
persecution as an “extreme concept, requiring more than a few isolated incidents of
verbal harassment or intimidation.” Sepulveda, 401 F.3d at 1231 (quotations and
citation omitted). In Sepulveda, we held that menacing telephone calls and threats
to the alien, her family members, and colleagues did not rise to the level of past
persecution. Id.
To qualify for withholding of removal under the INA, an alien must show
that his or her 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), 8 U.S.C. § 1231(b)(3). The evidentiary burden for withholding of
removal is greater than that imposed for asylum, so, if an alien has not met the
well-founded fear standard for asylum, he generally cannot meet the standard for
withholding of removal. Al Najjar, 257 F.3d at 1292-93.
We have held that noncriminal informants do not constitute a particular
social group. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1198 (11th Cir.
2006) (holding noncriminal informants working against the Cali drug cartel did not
constitute a particular social group eligible for asylum and withholding; group of
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informants were both not visible enough, and, at the same time, were potentially
too numerous or inchoate).
‘Particular social group’ should not be a ‘catch all’ for all persons
alleging persecution who do not fit elsewhere. In restricting the
grounds for asylum and withholding of deportation based on
persecution to five enumerated grounds, Congress could not have
intended that all individuals seeking this relief would qualify in some
form by defining their own ‘particular social group.’
Id.
“The statutes governing asylum and withholding of removal protect not only
against persecution by government forces, but also against persecution by non-
governmental groups that the government cannot control.” Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1257 (11th Cir. 2006). “Thus, evidence that either is consistent
with acts of private violence . . ., or that merely shows that a person has been the
victim of criminal activity does not constitute evidence of persecution based on a
statutorily protected ground.” Id. at 1258. See Sanchez v. U.S. Att’y Gen., 392
F.3d 434, 438 (11th Cir. 2004) (holding evidence was consistent with finding that
Columbian FARC guerilla group’s harassing of petitioner for failure to cooperate
did not qualify petitioner for withholding of removal under the INA). We have also
held that targeting the wealthy for extortionate purposes was not persecution based
on political opinion. Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821-22 (11th Cir.
2007) (holding aliens whose persecutors had murdered members of the family for
refusal to pay a “war tax” were not persecuted on account of political opinion).
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We conclude from the record that the IJ did not err as a matter of law, and
substantial evidence supports the IJ’s finding, adopted by the BIA, that Mejia-
Lopez failed to demonstrate a nexus between the threats and kidnapping attempt
and a protected ground. The IJ considered the evidence Mejia-Lopez submitted in
support of his case. The record does not compel the conclusion that the criminal
extortion attempts against him were motivated by anything other than money, and
because an applicant who does not qualify for asylum ordinarily will be unable to
qualify for withholding of removal, see Al Najjar, 257 F.3d at 1292-93, we must
deny the petition to the extent it generally challenges the denial of relief.
II.
Mejia-Lopez also argues his due process rights were violated because he was
not allowed a reasonable opportunity to present evidence on his behalf.
Specifically, Mejia-Lopez argues that after a recess the IJ did not allow him to
continue and expand his testimony and did not allow his wife to testify. Mejia-
Lopez argues this deprivation caused him substantial prejudice because he was not
able to complete the presentation of his testimony in support of his application.
Review of constitutional challenges is de novo. Lonyem v. U.S. Att’y Gen.,
352 F.3d 1338, 1341 (11th Cir. 2003). Aliens present in the United States are
entitled to due process under the Fifth Amendment of the Constitution. Fernandez-
Bernal v. Att’y Gen. of U.S., 257 F.3d 1304, 1311 (11th Cir. 2001). “In order to
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establish a due process violation, an alien must show that he or she was deprived of
liberty without due process of law, and that the asserted error caused him
substantial prejudice.” Garcia v. Att’y Gen. of U.S., 329 F.3d 1217, 1222 (11th Cir.
2003) (internal citations omitted). Under certain conditions, the deprivation of “the
ability to present evidence on one’s behalf in a removal proceeding would, under
certain circumstances, constitute a due process violation.” Frech v. U.S. Att’y Gen.,
491 F.3d 1277, 1282 (11th Cir. 2007).
Mejia-Lopez has not shown he was prejudiced by the IJ’s decision not to
continue his testimony or allow his wife’s testimony after the recess. The record is
clear that the IJ considered Mejia-Lopez and his wife’s application for asylum as
well as all the documents filed in support of the case. After Mejia-Lopez’s counsel
could not establish or explain the required nexus between the threats and
kidnapping attempt and a protected ground, the IJ likely felt the additional
testimony would be an accumulation and a reiteration of their applications for
asylum. Mejia-Lopez did not proffer or present any new facts or evidence to the
BIA or here on appeal that might have changed or even influenced the IJ’s
decision. Thus, Mejia-Lopez has not shown the asserted error caused him
substantial prejudice, Garcia, 329 F.3d at 1222, and that his due process rights
were violated.
For the above-stated reasons, we deny Mejia-Lopez’s petition for review.
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PETITION DENIED.
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