Enrique Alberto Ginocchio v. U.S. Atty. Gen. , 143 F. App'x 263 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-10420 September 6, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency Nos. A95-220-668, A95-220-669
ENRIQUE ALBERTO GINOCCHIO,
MILAGROS DEL PILAR SEMINARIO, et. al,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 6, 2005)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Enrique Alberto Ginocchio, his wife, Milagros del Pilar Seminario, and his
children, Francesca Maria Ginocchio and Gonzalo Andres Ginocchio (Petitioners),
all natives and citizens of Peru, petition for review of the Board of Immigration
Appeals’ (BIA’s) decision affirming the Immigration Judge’s (IJ’s) removal order
and denial of asylum under the Immigration and Nationality Act (INA).1
Petitioners assert the BIA erred in denying their claim for asylum because they
presented evidence demonstrating they were targeted and persecuted by El
Movimiento Revolucionario Tupac Amaru (MRTA), a terrorist group in Peru, on
account of Ginocchio’s political opinion,2 which he claimed was opposed to the
MRTA. We deny the petition.
I. DISCUSSION
When the BIA issues a decision, we review only that decision, “except to the
extent that it expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d
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Petitioners abandoned their claims for withholding of removal under the INA and
protection under the United Nations Convention on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment by failing to raise any argument on these claims in their
petition for review. See Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005).
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Petitioners also argue they were persecuted on account of Ginocchio’s social status.
Social status is not one of the five statutorily protected grounds, however, and therefore cannot
form the basis for asylum. See 8 U.S.C. § 1101(a)(42)(A); see also Matter of Acosta, 19 I&N
Dec. 211, 233 (BIA 1985) (noting “membership in a particular social group,” refers to “an
individual who is a member of a group of persons all of whom share a common, immutable
characteristic . . . that the members of the group either cannot change, or should not be required
to change because it is fundamental to their individual identities or consciences”), overruled in
part on other grounds by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
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1262, 1284 (11th Cir. 2001). “Insofar as the Board adopts the IJ’s reasoning, we
will review the IJ’s decision as well.” Id. In this case, the BIA issued an opinion
and, although it agreed with the IJ’s conclusion, it did not expressly adopt the IJ’s
opinion or its reasoning. Accordingly, our review is limited to the BIA’s opinion.
See id.
“To the extent that the BIA’s decision was based on a legal determination,
this court’s review is de novo.” D-Muhumed v. U.S. Attorney Gen., 388 F.3d 814,
817 (11th Cir. 2004). The BIA’s factual determinations are reviewed under the
substantial evidence test, and we “must affirm the BIA’s decision if it is ‘supported
by reasonable, substantial, and probative evidence on the record considered as a
whole.’” Al Najjar, 257 F.3d at 1283–84 (citation omitted).
An alien who arrives in, or is present in, the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant
asylum if the alien meets the INA’s definition of a “refugee.” 8 U.S.C.
§ 1158(b)(1). A “refugee” is defined as:
any 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 . . . .
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8 U.S.C. § 1101(a)(42)(A). “The asylum applicant carries the burden of proving
statutory ‘refugee’ status.” D-Muhumed, 388 F.3d at 818.
To establish asylum eligibility, the petitioner must, with specific and
credible evidence, demonstrate (1) past persecution on account of a statutorily
listed factor, or (2) a “well-founded fear” the statutorily listed factor will cause
future persecution. 8 C.F.R. § 208.13(a), (b). If the petitioner demonstrates past
persecution, there is a rebuttable presumption he has a well-founded fear of future
persecution. See 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. See Al Najjar, 257 F.3d at
1289. The subjective component can be proved “by the applicant’s credible
testimony that he or she genuinely fears persecution,” while the objective
component “can be fulfilled either by establishing past persecution or that he or she
has a good reason to fear future persecution.” Id. (quotation omitted). Neither the
INA nor the regulations define “persecution.” We have stated, however,
“persecution is an extreme concept, requiring more than few isolated incidents of
verbal harassment or intimidation, and that mere harassment does not amount to
persecution.” Sepulveda, 401 F.3d at 1231 (quotations omitted).
The petitioner’s well-founded fear of persecution must be on account of, or
because of, one of the statutorily listed factors, such as his political opinion. See
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INS v. Elias-Zacarias, 112 S. Ct. 812, 816 (1992). The petitioner must establish
this causal connection by “presenting specific, detailed facts showing a good
reason to fear that he or she will be singled out for persecution” on account of the
statutory factor. Sepulveda, 401 F.3d at 1231 (quotation omitted). To establish a
claim of persecution on account of a political opinion, a petitioner must establish
the persecutors persecuted him or will seek to persecute him in the future because
of his actual or imputed political opinion. It is not enough to show he was or will
be persecuted or tortured due to refusal to cooperate with the persecutors. Sanchez
v. U.S. Attorney Gen., 392 F.3d 434, 438 (11th Cir. 2004).
Substantial evidence supports the BIA’s conclusion Ginocchio failed to
demonstrate either past persecution or a well-founded fear of future persecution on
account of his political opinion, and thus, Petitioners were not eligible for asylum.
The evidence in the record reveals the only alleged acts of past persecution were a
number of threatening telephone calls between June 1998 and May 2001, allegedly
from the MRTA, and an attempted home invasion in early 2001, which Ginocchio
believed was perpetrated by the MRTA. We are not compelled by this evidence to
reverse the BIA’s finding these actions did not rise to the level of past persecution,
as opposed to mere threats or harassment. See Sepulveda, 401 F.3d at 1231.
Substantial evidence also supports the BIA’s conclusion Ginocchio did not
have a well-founded fear of future persecution given Ginocchio (1) had been given
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police protection and had never been physically harmed by the MRTA; (2) had
returned to Peru on a number of occasions, even after the alleged threats had
begun; and (3) was no longer privy to the financial information the MRTA was
allegedly seeking from him.
Finally, even if Ginocchio had shown he suffered past persecution or had a
well-founded fear of future persecution, his claim for asylum would have failed
because he did not show a nexus between his alleged persecution and his political
opinion. Rather, Ginocchio’s claim was that the MRTA threatened him in order to
obtain financial information he had because of his occupation. A petitioner’s
occupation is not one of the statutorily protected grounds to qualify as a refugee.
See 8 U.S.C. § 1101(a)(42)(A). Moreover, Ginocchio claimed the MRTA would
persecute him because of his refusal to cooperate with their demands, which he
asserts he did because of his own political opinion which is opposed to the MRTA.
As we have explained before, however, Ginocchio’s refusal to cooperate with the
MRTA is insufficient to demonstrate the MRTA would persecute him in the future
because of his actual political opinion. See Sanchez, 392 F.3d at 438.
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II. CONCLUSION
Because substantial evidence supports the BIA’s conclusions, and because
nothing in the record compels us to reverse the BIA’s findings Petitioners were not
eligible for asylum relief, we deny their petition for review.
PETITION DENIED.
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