Jorge Barillas-Mendez v. Loretta E. Lynch , 790 F.3d 787 ( 2015 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 14-1444
    ___________________________
    Jorge Barillas-Mendez,
    lllllllllllllllllllllPetitioner,
    v.
    Loretta E. Lynch, Attorney General of United States*,
    lllllllllllllllllllllRespondent.
    ____________
    Petition for Review of an Order of the
    Board of Immigration Appeals
    ____________
    Submitted: October 9, 2014
    Filed: June 4, 2015
    ____________
    Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
    ____________
    COLLOTON, Circuit Judge.
    Jorge Roberto Barillas-Mendez petitions for review of an order of the Board
    of Immigration Appeals. The Board affirmed an immigration judge’s decision
    denying Barillas-Mendez’s applications for asylum and withholding of removal, and
    *
    Loretta E. Lynch is automatically substituted for Eric H. Holder pursuant to
    Federal Rule of Appellate Procedure 43(c)(2).
    ordering him removed from the United States. Barillas-Mendez argues that the Board
    erred in ruling that he had not established past persecution in Guatemala, because it
    failed to consider the cumulative impact of the physical and economic abuse he
    suffered and did not take into account his young age at the time of the abuse. We
    conclude that the Board considered the relevant factors, and that the record does not
    compel a finding contrary to the Board’s. We therefore deny the petition.
    I.
    The Attorney General has discretion to grant asylum to an alien who, due to
    past persecution “on account of race, religion, nationality, membership in a particular
    social group, or political opinion,” is unable or unwilling to return to his home
    country, and thus qualifies as a refugee. 8 U.S.C. § 1101(a)(42)(A); see 8 U.S.C.
    § 1158(b). Barillas-Mendez, a citizen of Guatemala, entered the United States in
    April 2006 without inspection and sought asylum and withholding of removal. He
    contends that in Guatemala, he suffered economic and physical abuse by an aunt, and
    a beating by a cousin, that amounted to persecution.
    Barillas-Mendez testified that from age thirteen to seventeen, he lived with his
    aunt Hilda in Escuintla, Guatemala, and that his parents were in the United States
    during this time. He said that Hilda beat him every second day with either a piece of
    wood or an electricity cable, leaving red marks and bruises. Hilda also kept money
    that his father sent her to provide for Barillas-Mendez. Barillas-Mendez explained
    that he was unable to tell his parents about the abuse, because Hilda monitored their
    phone conversations. He said that police never learned of the abuse, as neighbors
    never knew about it and would not have reported it anyway. Barillas-Mendez
    testified that his mother arranged for him to travel to the United States after she
    visited Escuintla and observed his living conditions.
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    Barillas-Mendez testified about one beating allegedly administered by his
    second cousin, a member of the MS-13 gang, and a group of the cousin’s friends.
    Barillas-Mendez said that his second cousin initiated the beating because Hilda told
    him negative things about Barillas-Mendez, and because the cousin believed that
    Barillas-Mendez was a member of a rival gang. As a result of the beating, Barillas-
    Mendez suffered bleeding from his mouth.
    On the same day that Barillas-Mendez entered the United States, the
    Department of Homeland Security issued him a Notice to Appear, charging that he
    was subject to removal. Barillas-Mendez admitted that he was removable, but filed
    an application for asylum and withholding of removal. He argued that he suffered
    persecution by his aunt and cousin in Guatemala, and that he has a well-founded fear
    that he would be persecuted if he were returned to Guatemala.
    The IJ denied Barillas-Mendez’s application and ordered his removal. While
    the IJ found Barillas-Mendez to be generally credible, he concluded first that Barillas-
    Mendez’s allegations of abuse suffered in Guatemala did not establish persecution or
    a well-founded fear of future persecution. Second, the IJ ruled alternatively that
    actions by private individuals such as the aunt and cousin would not amount to
    persecution, and that Barillas-Mendez failed to show that the government was
    unwilling or unable to control them. Third, the IJ reached another alternative
    conclusion that Barillas-Mendez failed to show that the alleged persecution was on
    account of the protected grounds alleged—political opinion or membership in a
    particular social group—as required for relief.
    The Board affirmed the IJ’s determination that Barillas-Mendez had not
    established past persecution in Guatemala because the physical abuse he suffered did
    not rise to the level of harm required to constitute persecution. The Board also agreed
    with the IJ that Barillas-Mendez had not established a well-founded fear of future
    persecution based on a protected ground, but the Board did not appear to address the
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    IJ’s conclusion that abuse by the aunt and cousin as private individuals did not
    constitute persecution. Because Barillas-Mendez was not eligible for asylum, the
    Board concluded that he could not meet the more rigorous standard required for
    withholding of removal. On review, we must uphold administrative findings of fact
    unless any reasonable adjudicator would be compelled to conclude to the contrary.
    8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 
    502 U.S. 478
    , 481 (1992); Kimumwe
    v. Gonzalez, 
    431 F.3d 319
    , 321 (8th Cir. 2005).
    II.
    Barillas-Mendez argues that he suffered persecution at the hands of his aunt
    and cousin, and that no reasonable factfinder could have found otherwise.
    Persecution is generally defined as “the infliction or threat of death, torture, or injury
    to one’s person or freedom.” Regalado-Garcia v. INS, 
    305 F.3d 784
    , 787 (8th Cir.
    2002). It is “an extreme concept that excludes low-level intimidation and
    harassment.” Alavez-Hernandez v. Holder, 
    714 F.3d 1063
    , 1067 (8th Cir. 2013)
    (internal quotation mark omitted). As such, neither isolated violence nor minor
    beatings require a finding of persecution. Garcia-Colindres v. Holder, 
    700 F.3d 1153
    , 1157 (8th Cir. 2012). Persecution also may include “the deliberate imposition
    of severe economic disadvantage or the deprivation of liberty, food . . . or other
    essentials of life.” Ngengwe v. Mukasey, 
    543 F.3d 1029
    , 1036 (8th Cir. 2008)
    (internal quotation mark omitted). Whether harm amounts to persecution depends on
    the “cumulative significance” of all instances of abuse. See 
    id. at 1036-37.
    We conclude that the Board was not compelled to find that the physical abuse
    inflicted by Hilda, the petitioner’s cousin, and the cousin’s friends amounted to
    persecution, either in isolation or cumulatively. There is no evidence that Barillas-
    Mendez suffered lasting physical injury, and “[t]he mere presence of some physical
    harm does not require a finding of past persecution.” Al Tawm v. Ashcroft, 
    363 F.3d 740
    , 743 (8th Cir. 2004); see Ngure v. Ashcroft, 
    367 F.3d 975
    , 990 (8th Cir. 2004).
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    The red marks and bruises inflicted by the aunt, and the bloody mouth caused by the
    cousin, do not compel a finding of persecution. See 
    Alavez-Hernandez, 714 F.3d at 1067
    (upholding Board’s determination that physical attacks that had not “threatened
    the victims’ lives” and resulted in “bruises and scratches” did not amount to
    persecution); Malonga v. Holder, 
    621 F.3d 757
    , 765 (8th Cir. 2010) (“Although the
    beatings and injuries . . . suffered are not insignificant, the presence of physical harm
    does not require a finding of past persecution.”); Al 
    Tawm, 363 F.3d at 743
    .
    Barillas-Mendez complains that the Board did not consider the cumulative
    impact of the abuse inflicted by his aunt and his cousin. While the Board did not
    expressly speak of cumulative effect, the Board “has no duty to write an exegesis on
    every contention,” 
    Malonga, 621 F.3d at 764
    (internal quotation mark omitted), and
    it is apparent that the Board thought combining the “single altercation” involving the
    cousin with the beatings inflicted by the aunt did not amount to persecution. The
    Board’s concluding statement that Barillas-Mendez had “not identified any further
    harm that would constitute past persecution” implies that the Board had considered
    the totality of the events already discussed.
    Barillas-Mendez also asserts that the Board failed to consider his age at the
    time that he suffered the abuse in Guatemala, but the record does not support this
    contention. The Board recounted Barillas-Mendez’s allegation that he was
    “physically mistreated as a child,” so it is apparent that the Board was aware of the
    context. Under the circumstances here, that Barillas-Mendez was a minor during the
    events in question does not compel a different conclusion about whether he suffered
    past persecution.
    Barillas-Mendez contends that economic harm inflicted on him by Hilda also
    should be part of the persecution analysis, but he failed to present this argument to
    the Board. In his administrative appeal, Barillas-Mendez mentioned twice in passing
    that Hilda took money his parents sent to provide for him, but never argued that
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    Hilda’s actions constituted economic deprivation that amounted to persecution by
    itself or in combination with physical abuse. We therefore conclude that Barillas-
    Mendez failed to exhaust this issue before the Board, and it is not properly before us.
    See Agha v. Holder, 
    743 F.3d 609
    , 616 (8th Cir. 2014).
    Apart from his argument that the Board was compelled to find past persecution,
    Barillas-Mendez does not challenge the Board’s determination that he failed to show
    a well-founded fear of future persecution based on a protected ground. Having
    concluded that the Board permissibly found no past persecution, we uphold the
    Board’s conclusion that Barillas-Mendez failed to qualify for asylum or withholding
    of removal.
    *      *       *
    The petition for review is denied.
    ______________________________
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