Marta Rosibel Alas-Leyva v. U.S. Attorney General , 297 F. App'x 957 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-12989 OCT 29, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency Nos. A98-428-750
A98-428-751
MARTA ROSIBEL ALAS-LEYVA,
CESAR ENRIQUE ALAS-LEYVA,
ROBERTO CARLOS ALAS-LEYVA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 29, 2008)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Marta Rosibel Alas-Leyva, now pro se, and her two minor sons, Cesar Alas
Leyva and Roberto Carlos Alas Leyva,1 seek review of the Board of Immigration
Appeals’ (“BIA’s”) decision affirming the Immigration Judge’s (“IJ’s”) order
finding them removable and denying their application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). After careful
review, we deny the petition.
When considering a petition to review a BIA final order, we review legal
issues de novo. Hernandez v. U.S. Att’y Gen., 513 F.3d 1336, 1339 (11th Cir.
2008). The BIA’s factual findings are reviewed under the substantial evidence test.
Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001). Under this test,
we must affirm the BIA’s decision if it is “supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Id. at 1284
(quotations omitted). “To reverse a factual finding by the BIA, 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). We
review only the BIA decision, except to the extent the BIA expressly adopts the
IJ’s opinion or reasoning. Al Najjar, 257 F.3d at 1284. Here, the BIA did not
expressly adopt the IJ’s order, so we review the BIA’s order.
1
Because Alas-Leyva’s sons’ applications were derivatives of Alas-Leyva’s asylum
application, our discussion of Alas-Leyva’s claims on appeal is also applicable to her sons.
2
We first find no merit to Alas-Leyva’s argument that the BIA erred in
denying her application for asylum and withholding of removal. An alien may
obtain asylum if she is a “refugee,” 8 U.S.C. § 1158(b)(1)(A), which 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.
8 U.S.C. § 1101(a)(42)(A). An alien may establish eligibility for asylum if she
shows that she has suffered either “past persecution” or has a “well-founded fear”
of future persecution. 8 C.F.R.§ 208.13(b); Chen v. U.S. Att’y Gen., 513 F.3d
1255, 1257 (11th Cir. 2008). “To establish asylum 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.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d
1223, 1232 (11th Cir. 2007) (quotations and emphasis omitted). A well-founded
fear may be established by showing (1) past persecution that creates a presumption
of a “well-founded fear” of future persecution, (2) a reasonable probability of
personal persecution that cannot be avoided by relocating within the subject
country, or (3) a pattern or practice in the subject country of persecuting members
of a statutorily defined group of which she is a part. 8 C.F.R. § 208.13(b)(1), (2).
3
Although the INA does not expressly define “persecution” for purposes of
qualifying as a “refugee,” see 8 U.S.C. § 1101(a)(42), we have said that
“persecution is an extreme concept, requiring more than a few isolated incidents of
verbal harassment or intimidation, and that mere harassment does not amount to
persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2004)
(quotations and brackets omitted). Menacing telephone calls and threats do not
rise to the level of persecution. See id.
An alien is entitled to withholding of removal under the INA if she can show
that her life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion. Mendoza
v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003); see also 8 U.S.C.
§ 1231(b)(3). This standard is more stringent than the “well-founded fear”
standard for asylum; thus, if an applicant is unable to meet the “well-founded fear”
standard, she necessarily is unable to qualify for withholding of removal or
deportation. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1288 n.4 (11th Cir. 2005).
Alas-Leyva argues that she is entitled to asylum and withholding of removal
because her life was in danger in El Salvador. Specifically, she says that her father
made enemies by expressing his political opinion and affiliation in public, and that
an individual named Blue threatened her life in January 2004 and thereafter
continued to harass her by banging on the roof of her home. We disagree. The
4
BIA acknowledged that while Alas-Leyva was a credible witness, her testimony
was vague, and at times contradicted itself. For example, Alas-Leyva testified at
one point that she had moved to live with her grandparents in Apopa after Blue
began threatening her, but also testified that Blue first threatened her in 2004, and
that she spent the last ten years of her time in El Salvador living in San Martin.
Moreover, even taking all of Alas-Leyva’s testimony as true, the occurrences she
mentioned are not “extreme” enough to be considered persecution. Blue’s threats
against Alas-Leyva were verbal; at no time did he physically harm Alas-Leyva or
any member of her family; Alas-Leyva testified that Blue threatened her only ten
times over a six-month period; and the harassment consisted of people knocking on
her door and stomping on her roof. We have held that “a few isolated incidents of
verbal harassment or intimidation do not demonstrate past persecution.” Meija v.
U.S. Att’y Gen., 498 F.3d 1253, 1257 (11th Cir. 2007) (quotations omitted); see
also Sepulveda, 401 F.3d at 1231 (finding that an asylum applicant had not
suffered past persecution despite evidence that the restaurant at which she had
worked was bombed, and she had received death threats). Thus, the BIA’s
determination that Alas-Leyva did not suffer past persecution is supported by
substantial evidence.
Alas-Leyva also failed to establish a well-founded fear of future persecution.
As an initial matter, since she did not suffer past persecution, there is no
5
presumption that she will suffer future persecution. Furthermore, Alas-Leyva
established that Blue is the only individual she fears in El Salvador, and as noted
above, Blue’s past actions did not constitute persecution. Although Blue verbally
threatened Alas-Leyva over a period of six months, he never attempted to
physically harm her, and there is no evidence that he will do so upon her return to
El Salvador, more than four years later. In addition, since Alas-Leyva has failed to
establish either past persecution or a well-founded fear of future persecution, she
has necessarily failed to prove that she is entitled to withholding of removal relief.
See Forgue, 401 F.3d at 1288 n.4.
We likewise reject Alas-Leyva’s claim that the BIA erred in denying her
application for CAT relief. When seeking CAT relief, “[t]he burden of proof is on
the applicant . . . to establish that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2).
“The burden of proof for an applicant seeking withholding of removal under the
Convention, like that for an applicant seeking withholding of removal under the
statute, is higher than the burden imposed on an asylum applicant.” Al Najjar, 257
F.3d at 1303. Thus, a petitioner unable to meet the refugee standard for asylum
generally cannot meet the higher standard for CAT relief. See id. at 1303-04.
Alas-Leyva has proffered no evidence indicating that she has been tortured
in the past or will likely be tortured if she returns to El Salvador. She testified that
6
the only individual in El Salvador that she fears is Blue, but she presented no
evidence tending to show that Blue was a public official or acting “at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity,” as is required to establish entitlement to CAT
relief. 8 C.F.R. § 208.18(a)(1). Furthermore, because substantial evidence
supports the determination that the conduct she was subjected to did not entitle her
to asylum, Alas-Leyva also failed to meet the higher standard for CAT relief. See
Al Najjar, 257 F.3d at 1303-04. Accordingly, we deny her petition.
DENIED.
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