Larry Jose Sierra-Matey v. U.S. Attorney General , 341 F. App'x 603 ( 2009 )


Menu:
  •                                                                [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    Aug. 13, 2009
    No. 09-10278                    THOMAS K. KAHN
    Non-Argument Calendar                   CLERK
    ________________________
    Agency No. A098-118-183
    LARRY JOSE SIERRA-MATEY,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    _________________________
    (August 13, 2009)
    Before DUBINA, Chief Judge, PRYOR and FAY, Circuit Judges.
    PER CURIAM:
    Petitioner Larry Jose Sierra-Matey seeks review of the decision of the Board
    of Immigration Appeals summarily affirming the Immigration Judge’s order
    finding him removable and denying his application for asylum or withholding of
    removal. Sierra-Matey argues on appeal that his credible testimony regarding the
    severe persecution his family suffered at the hands of the Sandinistas in the past
    was sufficient to meet the standard for asylum, and that he was, alternatively,
    entitled to withholding of removal because he sufficiently demonstrated that future
    persecution is likely to occur if he is returned to Nicaragua.
    “When . . . the BIA summarily affirms the IJ’s decision without an opinion,
    such as here, the IJ’s decision becomes the final removal order subject to review.”
    Ruiz v. U.S. Att’y Gen., 
    440 F.3d 1247
    , 1254 (11th Cir. 2006). To the extent that
    the decision was based on a legal determination, review is de novo. Mohammed v.
    Ashcroft, 
    261 F.3d 1244
    , 1247 (11th Cir. 2001). The IJ’s factual findings are
    reviewed under the substantial evidence test. Al Najjar v. Ashcroft, 
    257 F.3d 1262
    ,
    1283 (11th Cir. 2001). Under the substantial evidence test, we must affirm the IJ’s
    decision if it is “supported by reasonable, substantial, and probative evidence on
    the record considered as a whole.” 
    Id. at 1284
    (internal quotation marks omitted).
    “To reverse a factual finding by the [IJ], this Court must find not only that the
    evidence supports a contrary conclusion, but that it compels one.” Farquharson v.
    U.S. Att’y Gen., 
    246 F.3d 1317
    , 1320 (11th Cir. 2001). The fact that evidence in
    the record may also support a conclusion contrary to the administrative findings is
    2
    not enough to justify a reversal. Adefemi v. Ashcroft, 
    386 F.3d 1022
    , 1027 (11th
    Cir. 2004).
    An alien may qualify for asylum by presenting credible evidence showing
    “(1) past persecution on account of her political opinion or any other protected
    ground, or (2) a ‘well-founded fear’ that her political opinion or any other
    protected ground will cause future persecution.” Sepulveda v. U.S. Att’y Gen., 
    401 F.3d 1226
    , 1230-31 (11th Cir. 2005) (citing 8 C.F.R. § 208.13(a), (b)). Protected
    grounds are race, religion, nationality, membership in a particular social group, or
    political opinion. Sanchez v. U.S. Att’y Gen., 
    392 F.3d 434
    , 437 (11th Cir. 2004).
    A persecution claim based on political opinion focuses on the victim/petitioner’s
    political beliefs, not those of the persecutor. 
    Id. at 437-38.
    If the petitioner demonstrates past persecution, there is a rebuttable
    presumption that he has a well-founded fear of future persecution. 8 C.F.R
    § 208.13(b)(1). If he cannot show past persecution, then the petitioner must
    demonstrate a well-founded fear of future persecution that is both subjectively
    genuine and objectively reasonable. Al 
    Najjar, 257 F.3d at 1289
    . If substantial
    evidence supports the IJ’s finding that an alien suffered particular harms for
    reasons other than a protected ground, the petition for review will be denied. See
    e.g., Scheerer v. U.S. Att’y Gen., 
    445 F.3d 1311
    , 1316 (11th Cir. 2006).
    An alien seeking withholding of removal under the INA similarly must show
    3
    that his “life or freedom would be threatened in that country because of the alien's
    race, religion, nationality, membership in a particular social group, or political
    opinion.” See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). 
    Ruiz, 440 F.3d at 1257
    . “The burden of proof for withholding of removal, however, is more likely
    than not, and, thus, is more stringent than the standard for asylum relief.” 
    Id. (internal quotation
    marks omitted).
    The record here demonstrates that there was substantial evidence to support
    the IJ’s denial of asylum and withholding of removal. Sierra-Matey admitted that
    he left Nicaragua due to poverty, and could cite no past persecution directed
    toward him. At best, he demonstrated that twenty years ago his family suffered at
    the hands of the Sandinistas, but the IJ found no evidence that the current, elected
    Sandinista government was engaged in retaliation or repression toward those that
    opposed it decades ago. In fact, Sierra-Matey expressed no particular fear of the
    new government, and his large extended family continues to live there without
    incident. See e.g., 
    Ruiz, 440 F.3d at 1259
    (“Ruiz’s claim was contradicted by his
    testimony that his son and his parents have remained unharmed in the region of
    Colombia where Ruiz allegedly was threatened.”). The IJ’s asylum ruling is well-
    supported by the evidence, and, even assuming that Sierra-Matey sufficiently
    raised an administrative claim of error, the evidence likewise supports denial of
    withholding of removal. See Forgue v. U.S. Att’y Gen., 
    401 F.3d 1282
    , 1288 n. 4
    4
    (11th Cir. 2005) (where petitioner fails to meet the requirements for asylum, he
    necessarily fails to establish eligibility for withholding of removal).
    For the aforementioned reasons, we deny the petition for review.
    PETITION DENIED.
    5