Carolina Josefina Soto-Macabi v. U.S. Atty. Gen. , 271 F. App'x 962 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
March 31, 2008
No. 07-11697
THOMAS K. KAHN
Non-Argument Calendar
CLERK
--------------------------------------------
Agency No. A98-610-773
CAROLINA JOSEFINA SOTO-MACABI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition of Review of a Decision of the
Board of Immigration Appeals
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(March 31, 2008)
Before EDMONDSON, Chief Judge, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Carolina Josefina Soto-Macabi, a native and citizen of Venezuela, petitions
for review of the affirmance by the Board of Immigration Appeals (“BIA”) of the
decision of the Immigration Judge (“IJ”). The decision denied asylum,
withholding of removal, and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”).1 No reversible error has been shown; we dismiss the petition in part and
deny it in part.
We review the BIA’s decision in this case because the BIA did not
expressly adopt the IJ’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001) (noting that we review the BIA’s decision; but “[i]nsofar as the
[BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well”). We
review de novo legal determinations of the BIA. Id. Factual determinations are
reviewed under the “highly deferential” substantial evidence test; and we must
“affirm the . . . decision if it is supported by reasonable, substantial, and probative
evidence on the record considered as whole.” Forgue v. U.S. Attorney Gen., 401
F.3d 1282, 1286 (11th Cir. 2005) (citation omitted). Therefore, a finding of fact
will be reversed only when the record compels, instead of merely supports, a
reversal. Alim v. Gonzales, 446 F.3d 1239, 1254 (11th Cir. 2006).
1
Soto-Macabi has waived her claim for CAT relief because she merely cites the relevant law in
her brief and fails to make an argument on how the BIA erred. See Bayro v. Reno, 142 F.3d 1377,
1379 (11th Cir. 1998) (concluding that when a party lists an issue for appellate review, but fails to
address it in their brief, they have abandoned it and waived their right to judicial review of that
claim).
2
About asylum, Soto-Macabi argues that she demonstrated changed
circumstances to excuse her untimely application. The IJ determined that
Soto-Macabi’s asylum application was untimely and changed or extraordinary
circumstances did not excuse the untimely filing.2 The BIA noted that
Soto-Macabi did not challenge the IJ’s timeliness ruling on appeal. The
government asserts that we lack jurisdiction to review the determination that Soto-
Macabi was ineligible for asylum.
We review our subject-matter jurisdiction de novo. Gonzalez-Oropeza v.
U.S. Attorney Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). Because Soto-Macabi
did not challenge the timeliness ruling before the BIA and, therefore, failed to
exhaust her administrative remedies, we lack jurisdiction to consider this claim.3
See Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003) (explaining “we lack
jurisdiction to consider claims that have not been raised before the BIA”). We
dismiss the petition for review of the asylum claim.
2
Soto-Macabi entered the United States in October 2000 and filed her asylum application in
September 2004.
3
The IJ’s timeliness ruling also divests us of jurisdiction to review the asylum claim. Chacon-
Botero v. U.S. Attorney Gen., 427 F.3d 954, 957 (11th Cir. 2005) (concluding that 8 U.S.C. §
1158(a)(3) divests us of jurisdiction to review a decision about whether an alien complied with the
one-year time limit or established circumstances that would excuse her untimely filing).
3
We now address Soto-Macabi’s withholding of removal claim. An alien
seeking withholding of removal must show that her life or freedom would more
likely than not be threatened upon return to her country because of a protected
ground, such as political opinion. See 8 U.S.C. § 1231(b)(3)(A). Therefore, an
alien bears the burden of demonstrating that she more-likely-than-not would be
persecuted or tortured upon her return to her country of nationality. Mendoza v.
U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). The alien may satisfy
this burden by showing past persecution on account of a protected ground.4 Id.
An alien who has not shown past persecution still may be entitled to withholding
of removal if she can demonstrate a future threat to her life or freedom on a
protected ground. Id.; see also 8 C.F.R. § 208.16(b)(2).
Soto-Macabi sought relief based on her activities as a critic of President
Hugo Chavez. In 1998, she received death threats by Chavez supporters for
speaking out against Chavez’s presidential candidacy at her university. A friend
who accompanied her to these university meetings later was killed. After Chavez
became president, Soto-Macabi encouraged others to oppose a referendum which
4
If the alien establishes past persecution in her country based on a protected ground, it is
presumed that her life or freedom would be threatened upon return to that country unless the
government shows by a preponderance of the evidence that, among other things, (1) the country’s
conditions have changed such that the alien’s life or freedom no longer would be threatened; or (2)
it would be reasonable for the alien to relocate to another part of the country. Id.
4
would give him more power; and in December 1999, an anonymous death threat
was placed on her car. A few days later, she and a few others were preparing aid
packages for a disaster relief effort when several people on motorcycles tried to
thwart their efforts. Soto-Macabi confronted one of these people; an altercation
ensued in which her nose was broken; and she had to seek medical attention. In
January 2000, two Chavez supporters held Soto-Macabi at gunpoint in her car
outside her apartment and warned her to stop speaking out against Chavez or she
and her family would be harmed. Soto-Macabi left Venezuela shortly after this
incident and was gone for nine months. She returned in October 2000. But her
brother told her that “they” telephoned him and said they would kill her if she did
not leave the country. Soto-Macabi left again four days later.
Here, the BIA agreed with the IJ’s determination that the incidents alleged
by Soto-Macabi did not rise to the level of past persecution. The BIA also
concluded that Soto-Macabi had not demonstrated that it was more likely than not
that she would be persecuted because of her political opinion if she returned to
Venezuela. On appeal, Soto-Macabi only argues that she has demonstrated --
based on the record as a whole and specifically, the telephonic threat her brother
received -- a well-founded fear of future persecution and that she more likely than
not will be persecuted upon return to Venezuela. Because she has not
5
meaningfully challenged the BIA’s past persecution finding on appeal, she has
waived a challenge to it.5 See Bayro, 142 F.3d at 1379.
Our review, then, is limited to the BIA’s conclusion that Soto-Macabi did
not demonstrate a future threat of persecution if returned to Venezuela.6 See
Mendoza, 327 F.3d at 1287. Substantial evidence supports the BIA’s finding. We
are not compelled to conclude that it is more likely than not that Soto-Macabi will
suffer persecution if she returns to Venezuela. Soto-Macabi has been absent from
the country for over seven years, and the mistreatment she suffered there occurred
over eight years ago. While her brother received a threat against her when she last
was in the country in 2000, nothing in the record indicates that anyone has
5
In a single sentence, Soto-Macabi states that she “was persecuted in Venezuela as an outspoken
critic of” Chavez. But this conclusory statement does not illustrate how the BIA erred in its finding
or how the record demonstrates that she suffered past persecution. See Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (a party waives an issue on appeal by making
only passing references to it and failing to make a specific argument on how the court erred).
6
We doubt that, even if Soto-Macabi had not waived a challenge to the BIA’s finding that she
did not suffer past persecution, the record would compel a contrary conclusion. See Sepulveda v.
U.S. Attorney Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (explaining that persecution is an
“‘extreme concept,’ requiring ‘more than a few isolated incidents of verbal harassment or
intimidation’”). Soto-Macabi’s proffered evidence of persecution falls short of the repeated threats
and purposeful physical attacks found to compel a past-persecution finding in recent cases. See, e.g.,
Mejia v. U.S. Attorney Gen., 498 F.3d 1253 (11th Cir. 2007); Delgado v. U.S. Attorney Gen., 487
F.3d 855 (11th Cir. 2007). Bearing in mind the highly deferential standard of review and viewing
the evidence in the light most favorable to the findings of the BIA, the incidents alleged here -- even
taken cumulatively -- would seem insufficiently extreme to allow us to override the agency’s
decision. See Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004) (“even if the evidence
could support multiple conclusions, we must affirm the agency’s decision unless there is no
reasonable basis for that decision.”).
6
threatened her or her family since then. And she testified that her mother remains
in Venezuela. Though the 2004 State Department Country Report indicates that
the government intimidated, threatened and physically harmed at least a dozen
Chavez opponents during the year, this evidence does not compel the conclusion
that Soto-Macabi will be singled out for persecution based on her political opinion
upon her return. We deny the petition for review of withholding of removal.
PETITION DISMISSED IN PART, DENIED IN PART.
7