[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 15, 2007
No. 06-15185 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A95-227-442
PAUL ANDRE ANTHONY WITBOOI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 15, 2007)
Before ANDERSON, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Paul Andre Anthony Witbooi, a native and citizen of South Africa, petitions
this Court for review of the Board of Immigration Appeals’s (“BIA”) order,
dismissing his appeal and affirming the Immigration Judge’s (“IJ”) denial of
asylum, withholding of removal, and relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment (“CAT”). Witbooi claims that he is entitled to relief from removal
because he has been persecuted in the past and will be persecuted in the future
based on his race if returned to South Africa. The BIA found that Witbooi had
suffered past persecution, thus raising the rebuttable presumption of future
persecution, but then found that the presumption was rebutted by the fact that
Witbooi could reasonably relocate within South Africa. Witbooi argues that the
BIA erroneously found that he could relocate within South Africa and, therefore,
the presumption of future persecution had not been rebutted, meaning that he is
entitled to asylum. Witbooi further asserts that the BIA improperly shifted the
burden to him to show that the presumption had not been rebutted.
I. Asylum, Withholding of Removal, and CAT Relief
When the BIA issues a decision, we review only that decision, except to the
extent the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft,
257 F.3d
1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we
review the IJ’s decision as well.”
Id. Here, the BIA issued its own decision,
without any adoption. Therefore, we will review only the BIA’s decision.
2
To the extent the BIA’s decision was based on a legal determination, our
review is de novo. D-Muhumed v. U.S. Att’y Gen.,
388 F.3d 814, 817 (11th Cir.
2004). Factual determinations, however, are reviewed under the substantial
evidence test, and we “must affirm the . . . 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 (quotation omitted). Therefore, a finding of fact will
be reversed “only when the record compels a reversal; the mere fact that the record
may support a contrary conclusion is not enough to justify a reversal . . . .”
Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004); see also
8 U.S.C.
§ 1252(b)(4)(B).
An alien who arrives in, or is present in, the United States may apply for
asylum. See INA § 208(a)(1),
8 U.S.C. § 1158(a)(1). The Secretary of Homeland
Security or the Attorney General has discretion to grant asylum if the alien meets
the INA’s definition of a “refugee.” See INA § 208(b)(1),
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 . . . .
3
INA § 101(a)(42)(A),
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” that the statutorily listed factor will cause
future persecution.
8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. 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 race. See INS v. Elias-Zacarias,
502 U.S. 478, 483,
112 S.Ct. 812, 816,
117 L.Ed.2d 38 (1992).
If the petitioner demonstrates past persecution, there is a rebuttable
presumption that he has a well-founded fear of future persecution. See 8 C.F.R
§ 208.13(b)(1). If the presumption of future persecution arises, it may be rebutted
in one of two ways. Antipova v. U.S. Att’y Gen.,
392 F.3d 1259, 1264 (11th Cir.
2004). The burden is on the government to show, by a preponderance of the
evidence, either that (1) the circumstances in the home country have fundamentally
changed to the extent that the petitioner need no longer fear persecution; or (2) the
petitioner could avoid future persecution by relocating within the home country,
and that it would be reasonable for the petitioner to do so. Id.; 8 C.F.R
§ 208.13(b)(1)(i) and (ii). A petitioner’s claim that he cannot safely relocate in his
home country to avoid future persecution is undermined by evidence that his
4
family remained without incident in the same region where the petitioner had
allegedly been threatened. See Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1259 (11th
Cir. 2006).
Neither the INA nor the regulations define “persecution.” We have stated,
however, that “persecution is an extreme concept, requiring more than few isolated
incidents of verbal harassment or intimidation, and . . . mere harassment does not
amount to persecution.” Sepulveda, 401 F.3d at 1231 (quotation omitted).
According to
8 C.F.R. § 1208.13(b)(1)(iii), an IJ may grant an applicant
humanitarian asylum on a discretionary basis if the applicant has demonstrated
either (1) “compelling reasons for being unwilling or unable to return to the
country arising out of the severity of the past persecution”; or (2) “a reasonable
possibility that he or she may suffer other serious harm upon removal to that
country.”
8 C.F.R. § 1208.13(b)(1)(iii)(A), (B). The BIA has interpreted this form
of relief to require an applicant to show “severe harm” and “long-lasting effects.”
See In re N-M-A, 22 I & N Dec. 312, 326 (BIA 1998). “The burden of proof is on
the applicant for asylum to establish that he or she is a refugee,” and “the testimony
of the applicant, if credible, may be sufficient to sustain the burden of proof
without corroboration.”
8 C.F.R. § 1208.13(a).
To qualify for withholding of removal under the INA, an alien must show
that it is more likely than not that if returned to his country, his life or freedom
5
would be threatened on account of, inter alia, his race. INA § 241(b)(3);
8 U.S.C.
§ 1231(b)(3). “An alien bears the burden of demonstrating that he more-likely-
than-not would be persecuted or tortured upon his return to the country in
question.” Mendoza v. U.S. Att’y Gen.,
327 F.3d 1283, 1287 (11th Cir. 2003). If
an alien is unable to meet the well-founded fear standard for asylum, “he is
generally precluded from qualifying for either asylum or withholding of
[removal].” Al Najjar, 257 F.3d at 1292-93. Similarly, the burden on the alien
seeking CAT relief is higher than the burden imposed on the asylum seeker,
meaning the alien would be unable to receive CAT relief as well. Id. at 1303.
Here, the BIA found that Witbooi had suffered past persecution and,
therefore, the rebuttable presumption of future persecution arose. To rebut this
presumption, the government had the burden of showing that country conditions in
South Africa had changed or that Witbooi could reasonably relocate within South
Africa. Substantial evidence supports the BIA’s finding that the presumption of
future persecution was rebutted because relocation within South Africa was
possible. First, Witbooi remained in South Africa for six years after he was
persecuted without changing locations and without suffering any additional acts of
persecution. Second, on one occasion, Witbooi was able to avoid further
persecution by leaving an area when he felt threatened. Third, Witbooi’s family
remained in the same region where Witbooi was persecuted and did not experience
6
persecution. Therefore, substantial evidence supports the BIA’s finding that
Witbooi could relocate within South Africa and that the presumption of future
persecution had been rebutted.1
Substantial evidence supports also the BIA’s determination that Witbooi
could not show a well-founded fear of future persecution because he did not show
an objectively reasonable fear of future persecution. Witbooi stayed in South
Africa for several years after he was persecuted without further incident, and his
family has remained in South Africa and has not experienced any problems since
Witbooi left the country. Therefore, substantial evidence supports the BIA’s
finding that Witbooi did not show a well-founded fear of future persecution.
Finally, Witbooi’s claim is not so severe that he was entitled to humanitarian
asylum based on past persecution alone. Witbooi was not significantly injured
after his one incident of past persecution. Thus, this level of abuse is insufficient
to support a grant of humanitarian asylum and, therefore, substantial evidence
supports the BIA’s denial of asylum. In addition, because Witbooi failed to meet
the burden for asylum, he also failed to meet the burdens for withholding of
removal and CAT relief.
II. Burden Shifting
1
Given that the possibility for relocation is sufficient to rebut the presumption of future
persecution, and the BIA’s finding that relocation was possible was supported by sufficient
evidence, we will not address the issue of changed country conditions.
7
To rebut the presumption of future persecution, the government must show
by a preponderance of the evidence either that relocation within the country of
removal is possible or that conditions in the country of removal have changed so
that the petitioner no longer needs to fear persecution. See Antipova,
392 F.3d at
1264;
8 C.F.R. § 208.13(b)(1)(i) and (ii). When discerning whether the
government has met its burden, we may look at the entire record to determine
whether enough evidence exists to the rebut the presumption. See Ruiz v.
Gonzales,
479 F.3d 762, 767 (11th Cir. 2007) (looking at the entire record when
determining whether evidence existed to rebut the presumption of future
persecution).
Here, the record shows that the burden was not improperly shifted to
Witbooi to prove that relocation was not an option or that country conditions had
not changed. First, an ample amount of evidence existed in the record to show that
relocation was possible. Second, the BIA did not state expressly that Witbooi had
the burden to show that relocation was impossible or that country conditions had
not changed. Third, the BIA specifically stated that it had looked at the evidence
in the record to determine whether the presumption had been rebutted. Notably,
the BIA did not state that it had considered whether Witbooi had presented
evidence to support the presumption of future persecution. Therefore, the record
supports the conclusion that the BIA did not improperly shift the burden of proof
8
to Witbooi when determining whether the presumption of future persecution had
been rebutted.
After review of the record and the parties’ briefs, we discern no error and
determine that substantial evidence supports the BIA’s decision dismissing
Witbooi’s appeal and affirming the IJ’s denial of asylum, withholding of removal,
and CAT relief. Accordingly, we deny the petition for review.
PETITION DENIED.
9
