Andres Juan-Esteban vs US Attorney General , 407 F. App'x 413 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12356 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 6, 2011
________________________ JOHN LEY
CLERK
Agency No. A070-661-981
ANDRES JUAN-ESTEBAN,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 6, 2011)
Before BLACK, WILSON and FAY, Circuit Judges.
PER CURIAM:
Andres Juan-Esteban, a native and citizen of Guatemala proceeding pro se,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming
the Immigration Judge’s (“IJ”) final order of removal and denying his applications
for cancellation of removal, asylum, and withholding of removal under the
Immigration and Nationality Act (“INA”), and relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment
or Punishment (“CAT”), 8 U.S.C. §§ 1158, 1229b(b)(1), 1231, 8 C.F.R.
§ 208.16(c). Juan-Esteban argues that the BIA erred when it denied his
application for cancellation of removal because he demonstrated that his two U.S.
citizen children will suffer an exceptional and extremely unusual hardship if he is
removed to Guatemala. He also contends that the BIA erred in denying his
application for asylum. He states that he was persecuted by guerillas because he is
of Mayan ancestry and because he refused to join their group. He also asserts that
the indigenous peoples of Guatemala have been the subject of brutal torture and
attacks at the hands of the guerillas and the Guatemalan government. For the
reasons stated below, we deny the petition for review.
I.
In 2007, the Department of Homeland Security issued a notice to appear to
Juan-Esteban, charging that he was removable as an alien present in the United
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States without being inspected or paroled, who entered the United States at a time
and place not designated by the Attorney General. Juan-Esteban filed an
application for asylum, withholding of removal, and CAT relief, claiming
persecution on account of his political opinion. In his application, Juan-Esteban
stated that he fled Guatemala after he was threatened and beaten by guerillas for
refusing to give them aid. He explained that, in 1993, five armed men approached
him while he was working in the fields with his father. The men demanded food
and money, and also ordered Juan-Esteban to join their group. After Juan-Esteban
and his father refused to help the guerillas, the guerillas beat Juan-Esteban and
threatened to kill him and his father. The guerillas eventually left, but they stated
that they would return to get Juan-Esteban in ten days. Juan-Esteban explained
that, if he returned to Guatemala, he would be forced to join the guerillas or would
be killed for not supporting them. In addition to his asylum application,
Juan-Esteban also filed an application for cancellation of removal and adjustment
of status, in which he asserted that his removal would cause exceptional and
extremely unusual hardship to his two U.S. citizen children.
At an asylum hearing, Juan-Esteban testified that he was born in the village
of San Juan Ixcoy in Guatemala. He explained that he was of Mayan ancestry. He
had two children, nine-year-old Gerardo and eight-year-old Eleazar, both of whom
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were U.S. citizens. Juan-Esteban’s mother continued to live in San Juan Ixcoy.
When Juan-Esteban was living in Guatemala, he worked with his father in the
fields. His family used to own land in Guatemala, but lost it during the civil war.
Juan-Esteban testified that he left Guatemala because he had been
threatened by the guerillas. He explained that, after the civil war ended, the
guerillas turned into the Maras gangs, and continued to be active in the country.
In 1993, Juan-Esteban and his father were working in the fields when a group of
guerillas came up to them and asked for food. Juan-Esteban’s father refused to
give them food because he was a member of the civil patrol and knew that the
government did not want anyone to give aid to the guerillas. The guerillas then
beat Juan-Esteban. He and his father eventually managed to escape. Juan-Esteban
did not receive any medical attention after that incident, but his father treated his
injuries using home remedies. Later, the guerillas came to the family’s home and
shoved weapons in Juan-Esteban’s face. Notably, Juan-Esteban did not testify that
the guerillas had targeted him based on his Mayan ancestry. Juan-Esteban
acknowledged that his father and mother were not harmed by the guerillas after he
left Guatemala.
With respect to his claim for cancellation of removal, Juan-Esteban
explained that his son Gerardo was having difficulties in school and also had
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problems with his vision. He stated that his children would not have access to
adequate medical treatment or educational opportunities in Guatemala. In
addition, he testified that Mayans were “not liked” in Guatemala and were
constantly “humiliated” by the non-indigenous population.
The IJ rendered an oral decision denying Juan-Esteban’s applications for
relief. First, the IJ determined that Juan-Esteban was not entitled to cancellation
of removal because he failed to establish that his removal would cause an
exceptional and extremely unusual hardship to his U.S. citizen children. The IJ
also denied Juan-Esteban’s claim for asylum. Although the IJ found
Juan-Esteban’s testimony to be credible, the IJ concluded that Juan-Esteban had
failed to establish past persecution. The IJ observed that Juan-Esteban had been
attacked by the guerillas because he refused to join them, rather than on account of
a protected ground. The IJ also explained that Juan-Esteban’s fear of general
violence perpetrated by the Maras gangs did not establish that he had a
well-founded fear of future persecution. The IJ also denied Juan-Esteban’s claims
for withholding of removal and CAT relief.
Juan-Esteban appealed to the BIA, but the BIA dismissed his appeal. First,
the BIA determined that Juan-Esteban did not qualify for cancellation of removal
because he had failed to demonstrate that his removal would cause an exceptional
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and extremely unusual hardship to his children. With respect to Juan-Esteban’s
claim for asylum, the BIA explained that the incident where the guerillas tried to
recruit Juan-Esteban did not amount to past persecution because it was well-settled
that a guerilla organization’s interest in recruiting an individual does not relate to a
protected ground for asylum.
The BIA also explained that Juan-Esteban had failed to demonstrate that the
Guatemalan government would be unwilling or unable to protect him from the
guerillas or gangs. The BIA also noted that Juan-Esteban had not shown that it
would be unreasonable for him to avoid persecution through internal relocation
within Guatemala. The BIA observed that Juan-Esteban’s parents had continued
to live in the same village without experiencing any harm. The BIA recognized
that ethnic Mayans such as Juan-Esteban were subject to discrimination in
Guatemala, but it concluded that such discrimination did not rise to the level of
persecution. Accordingly, the BIA affirmed the denial of Juan-Esteban’s asylum
claim. Because Juan-Esteban had not established eligibility for asylum, the BIA
concluded that he also was unable to meet the higher standard for withholding of
removal. Finally, the BIA denied Juan-Esteban’s claim for CAT relief because he
had not shown that he more likely than not would be tortured by or with the
acquiescence of the Guatemalan government.
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II.
We review our own subject matter jurisdiction de novo. Martinez v. U.S.
Att’y Gen, 446 F.3d 1219, 1221 (11th Cir. 2006). Under 8 U.S.C. § 1229b(b)(1),
the Attorney General may cancel the removal of a nonpermanent resident who
meets certain requirements, including establishing that removal would cause
“exceptional and extremely unusual hardship to the alien’s spouse, parent, or
child, who is a citizen of the United States or an alien lawfully admitted for
permanent residence.” By statute, we lack jurisdiction to review “any judgment
regarding the granting of relief under section . . . 1229b . . . of this title.” INA
§ 242(a)(2)(B)(i); 8 U.S.C. § 1252(a)(2)(B)(i).
We have explained that § 1252(a)(2)(B)(i) precludes appellate review of the
BIA’s determination that an alien has failed to satisfy the “exceptional and
extremely unusual hardship” standard for cancellation of removal. Martinez, 446
F.3d at 1221-23; see also Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331,
1332-33 (11th Cir. 2003) (same). Nevertheless, we retain jurisdiction to consider
constitutional claims or questions of law related to cancellation of removal. 8
U.S.C. § 1252(a)(2)(D); Martinez, 446 F.3d at 1221-22.
In this case, we lack jurisdiction to review the BIA’s finding that Juan-
Esteban failed to establish that his removal would cause exceptional and extremely
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unusual hardship to his U.S. citizen children. See Martinez, 446 F.3d at 1221-23.
Although Juan-Esteban asserts in a conclusory fashion that his petition raises legal
and constitutional arguments, his brief does not discuss any specific legal or
constitutional issues related to his request for cancellation of removal.
Accordingly, we dismiss the petition for review with respect to Juan-Esteban’s
claim for cancellation of removal.
III.
In a case where the BIA issues its own opinion, we review only the BIA’s
decision, unless the BIA also adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). To the extent that the BIA adopts the IJ’s
reasoning, we review the IJ’s decision as well. Id. Here, the BIA issued its own
opinion but applied the same reasoning as the IJ. Therefore, we are reviewing
both decisions.
We review the IJ’s and the BIA’s factual findings to determine whether they
are supported by substantial evidence. Adefemi v. Ashcroft, 386 F.3d 1022,
1026-27 (11th Cir. 2004) (en banc). “Under the substantial evidence test, we view
the record evidence in the light most favorable to the agency’s decision and draw
all reasonable inferences in favor of that decision.” Id. at 1027. We may reverse
the IJ’s or the BIA’s factual findings only when the record compels a reversal. Id.8
An applicant for asylum must demonstrate that he is a refugee. INA
§ 208(b)(1), 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a). An applicant qualifies
as a refugee if he suffered past persecution, or has a well-founded fear of future
persecution, in his country of origin. 8 C.F.R. § 208.13(b); Kazemzadeh v. U.S.
Att’y Gen., 577 F.3d 1341, 1351-52 (11th Cir. 2009). To establish past
persecution, the applicant must show that he was persecuted in the past by the
government or by persons or organizations that the government is unable or
unwilling to control. Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985),
overruled in part on other grounds by Matter of Mogharrabi, 19 I & N Dec. 439,
441 (BIA 1987). The applicant also must demonstrate that the persecution was on
account of his race, religion, nationality, membership in a particular social group,
or political opinion. 8 C.F.R. § 208.13(b)(1); Kazemzadeh, 577 F.3d at 1351. The
Supreme Court has explained that harassment based on an applicant’s refusal to
join a guerilla group does not necessarily constitute persecution on account of
political opinion. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 816,
117 L.Ed.2d 38 (1992); see also Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438
(11th Cir. 2004) (evidence that petitioner was persecuted for refusing to cooperate
with a guerilla group did not establish that she was persecuted due to her political
opinion).
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In the absence of past persecution, an applicant may establish a
well-founded fear of persecution by showing that there is a reasonable possibility
that he will be persecuted if he is returned to his country of origin. 8 C.F.R.
208.13(b)(2); Kazemzadeh, 577 F.3d at 1352. “The applicant’s fear of persecution
must be “‘subjectively genuine and objectively reasonable.’” Kazemzadeh, 577
F.3d at 1352 (quoting Al Najjar, 257 F.3d at 1289). An applicant does not have a
well-founded fear of persecution if he can avoid the persecution by relocating to
another part of his country. 8 C.F.R. 208.13(b)(2)(ii); Kazemzadeh, 577 F.3d at
1352. In cases where the persecution is not sponsored by the government, the
applicant has the burden of showing that internal relocation is not a reasonable
option. 8 C.F.R. § 208.13(b)(3)(i); Kazemzadeh, 577 F.3d at 1352. Evidence that
an alien’s family continues to reside unharmed in the country of removal supports
a conclusion that a threat may be avoided by relocation. See Ruiz v. U.S. Att’y
Gen., 440 F.3d 1247, 1259 (11th Cir. 2006) (evidence that petitioner’s son and
parents continued to live unharmed in Colombia contradicted his claim that he
could not avoid persecution through internal relocation).
To qualify for withholding of removal, an applicant must establish that his
life or freedom would be threatened in her country of origin on account of a
statutorily protected ground. See INA § 241(b)(3)(A); 8 U.S.C. § 1231(b)(3)(A).
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The applicant must demonstrate that he would more likely than not be persecuted
upon being returned to his country of origin. Sepulveda v. U.S. Att’y Gen, 401
F.3d 1226, 1232 (11th Cir. 2005). An applicant who is unable to satisfy the
standard for asylum will generally be unable to meet the more stringent standard
for withholding of removal. Id. at 1232-33. To qualify for CAT relief, an
applicant must demonstrate that it is more likely than not that he would be tortured
if he is removed to the designated country of removal. 8 C.F.R. § 208.16(c)(2).
In this case, substantial evidence supports the BIA’s finding that
Juan-Esteban failed to demonstrate past persecution on account of a protected
ground. Juan-Esteban testified that he was threatened and beaten by guerillas after
he refused to join their group. However, harassment motivated by a refusal to
cooperate with a guerilla group, without more, does not constitute persecution
based on a protected ground. See Elias-Zacarias, 502 U.S. at 482, 112 S.Ct. at
816; Sanchez, 392 F.3d at 438. Although Juan-Esteban testified that his father
was a member of the civil patrol, he did not state that the guerillas were aware of
that fact or that they targeted him and his father because of their connection to the
government. Thus, Juan-Esteban did not establish that the guerillas persecuted
him because of his or his father’s political opinion. In addition, Juan-Esteban did
not present any evidence that the guerillas targeted him because of his Mayan
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ancestry. This is consistent with his application, which only alleged persecution
based on his political opinion. Because Juan-Esteban did not connect the incident
where he was beaten by guerillas to one of the protected grounds for asylum, he
failed to show past persecution.
Juan-Esteban also did not establish a well-founded fear of future
persecution. At the asylum hearing, Juan-Esteban briefly testified that ethnic
Mayans are “not liked” and are constantly “humiliated” by the non-indigenous
population in Guatemala. Assuming that this testimony was sufficient to raise a
claim of future persecution based on Juan-Esteban’s Mayan ancestry, the 2008
Country Report demonstrates only that Mayans are subjected to generalized
discrimination. The record does not compel the conclusion that the BIA erred
when it found that such discrimination was not so extreme as to constitute
persecution.
To the extent that Juan-Esteban fears future persecution at the hands of the
guerillas, he did not meet his burden of showing that he would be unable to avoid
such persecution through internal relocation within Guatemala. See 8 C.F.R.
§§ 208.13(b)(2)(ii), (b)(3)(i); Kazemzadeh, 577 F.3d at 1352. Juan-Esteban
admitted that his mother and father were not harmed by the guerillas after he left
Guatemala, which suggests that Juan-Esteban would be able to live safely in
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Guatemala as well. See Ruiz, 440 F.3d at 1259. Accordingly, substantial evidence
supports the BIA’s finding that Juan-Esteban was unable to establish a well-
founded fear of future persecution.
Juan-Esteban does not mention his claim for withholding of removal in his
appellate brief. Therefore, he has abandoned any challenge to the BIA’s denial of
that claim. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (noting that
issues not raised in a party’s appellate brief are deemed abandoned, even where
the party is proceeding pro se). In any event, because Juan-Esteban failed to meet
his burden of proof with respect to asylum, his claim for withholding of removal
necessarily fails. See Sepulveda, 401 F.3d at 1232-33. Finally, the BIA properly
denied Juan-Esteban’s claim for CAT relief because he did not present any
evidence that it is more likely than not that he would be tortured by, or with the
acquiescence of, the Guatemalan government. See 8 C.F.R. § 208.16(c)(2).
Accordingly, after review of the record and the parties’ briefs, we dismiss
the petition for review with respect to Juan-Esteban’s claim for cancellation of
removal, and deny it with respect to his claims for asylum, withholding of
removal, and CAT relief.
PETITION DISMISSED IN PART, DENIED IN PART.
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