Ruben Calmo Gomez v. U.S. Attorney General , 362 F. App'x 55 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 20, 2010
No. 09-12848 JOHN LEY
Non-Argument Calendar ACTING CLERK
________________________
Agency No. A088-613-890
RUBEN CALMO GOMEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 20, 2010)
Before BIRCH, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Ruben Calmo Gomez, a native and citizen of Guatemala, petitions pro se for
review of the denial of her application for asylum and withholding of removal
under the Immigration and Nationality Act and the United Nations Convention
Against Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 208.16(c). The
Board of Immigration Appeals and the immigration judge denied Calmo’s
application for asylum as untimely and found that Calmo failed to establish he was
eligible for withholding of removal or relief under the Convention. We deny the
petition.
Calmo challenges only one of the three decisions of the Board. Calmo
challenges the denial of withholding of removal. Calmo does not challenge the
denial of relief under the Convention. Calmo also does not contest the finding that
his application for asylum was untimely, which we lack jurisdiction to review.
Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
The record does not compel a finding that Calmo suffered past persecution
on account of a protected ground. Calmo alleged that other members of his family
suffered persecution, and Calmo failed to establish that their alleged persecution
occurred on account of a protected ground. Calmo testified that guerillas
kidnapped his brother, Luis, because Calmo’s father was a member of the civil
patrol, but Calmo later testified that no one had claimed responsibility for the
2
kidnapping and he had assumed guerillas had been responsible because the
incident occurred “during the guerrillas’ time.” Calmo testified that his parents
had been beaten and his family had received four notes threatening the
disappearance of the “next one,” but the incidents occurred after Calmo’s father
left the civil patrol and Calmo could not identify the individuals that had been
involved. See Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1238 (11th Cir. 2006).
Calmo also testified about threatening phone calls that he had received, but the
calls were made anonymously and do not rise to the level of persecution. See
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005).
The record also does not compel a finding that Calmo has a well-founded
fear of persecution on a protected ground upon return to Guatemala. Despite the
incidents involving his brother and parents, neither Calmo nor his younger siblings
were harmed. Calmo’s father has retired from civil service, and Calmo has not
been threatened for any personal activity adverse to the guerrillas. Calmo testified
that his family has remained in their hometown without incident. See Ruiz v. U.S.
Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006).
Calmo now argues that the persecution was attributable to his Mayan
ancestry, but he failed to present that argument to either the immigration judge or
the Board. “[T]he rules are clear: before proceeding to federal court, an alien must
exhaust his or her administrative remedies.” Amaya-Artunduaga v. U.S. Att’y
3
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (quoting Sundar v. INS, 328 F.3d
1320, 1323 (11th Cir. 2003)). The Board did not err when it dismissed Calmo’s
petition.
We DENY Calmo’s petition for review.
4