Case: 17-14564 Date Filed: 11/05/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14564 Non-Argument Calendar ________________________
Agency No. A087-923-836
ASHOK KUMAR GANDALAL PATEL,
Petitioner,
versus
U.S. ATTORNEY GENERAL, Respondent.
________________________
Petition for Review of an Order of the Board of Immigration Appeals ________________________
(November 5, 2018)
Before TJOFLAT, MARTIN and NEWSOM, Circuit Judges.
PER CURIAM: Case: 17-14564 Date Filed: 11/05/2018 Page: 2 of 6
Ashok Kumar Gandalal Patel seeks review of the Board of Immigration
Appeals’s (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of
his claims for asylum and withholding of removal. The IJ concluded that the
mistreatment Patel suffered in India did not rise to the level of persecution and was
not motivated by his political opinions. Patel now challenges this decision for lack
of substantial evidence. Because substantial evidence supports the BIA’s decision,
we deny Patel’s petition.1
I.
We review only the decision of the BIA, except to the extent that the BIA
expressly adopts or explicitly agrees with the IJ’s opinion. Ayala v. U.S. Att’y
Gen., 605 F.3d 941, 948 (11th Cir. 2010).
We review the agency’s factual determinations under the highly deferential
substantial-evidence test. Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir.
2004) (en banc). 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 1027 (quoting Najjar v. Ashcroft, 257 F.3d 1262,
1283–84 (11th Cir. 2001)). We view the evidence in the light most favorable to
the agency’s decision and draw all reasonable inferences in favor of that decision.
Id. Factual findings may be reversed “only when the record compels a reversal;
1 Because we write for the parties, we set out only what is necessary to explain our decision. 2 Case: 17-14564 Date Filed: 11/05/2018 Page: 3 of 6
the mere fact that the record may support a contrary conclusion is not enough to
justify a reversal of the administrative findings.” Id. (citation omitted).
II.
The Attorney General may grant asylum to an alien who meets the definition
of a “refugee” under the Immigration and Nationality Act (“INA”). 8 U.S.C.
§ 1158(b)(1)(A). A refugee is defined as:
any person who is outside any country of such person’s nationality . . . 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.
Id. § 1101(a)(42)(A). The applicant bears the burden of proving that he is a
refugee. Id. § 1158(b)(1)(B)(i). The applicant must demonstrate that he (1) was
persecuted in the past on account of a protected ground or (2) has a well-founded
fear that he will be persecuted in the future on account of a protected ground. Ruiz
v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (per curiam). “To
establish asylum based on past persecution, the applicant must prove (1) that he
was persecuted, and (2) that the persecution was on account of a protected
ground.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1351 (11th Cir. 2009)
(alteration omitted) (quoting Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th
Cir. 2006)).
3 Case: 17-14564 Date Filed: 11/05/2018 Page: 4 of 6
Persecution is an “extreme concept” that requires more than mere
harassment or “a few isolated incidents of verbal harassment or intimidation.”
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (per curiam)
(quoting Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000)). In determining
whether the petitioner has suffered persecution, we evaluate the cumulative harm
suffered by the petitioner. Shi v. U.S. Att’y Gen., 707 F.3d 1231, 1235 (11th Cir.
2013). “Not all exceptional treatment is persecution.” Gonzalez, 212 F.3d at 1355.
For example, in Ruiz v. U.S. Attorney General, we held that there was past
persecution where the petitioner received threatening phone calls, was beaten on
two separate occasions, and was kidnapped for eighteen days, during which he was
severely beaten. 479 F.3d at 763–64, 66. Likewise, in Mejia v. U.S. Attorney
General, we held that the petitioner suffered past persecution where he suffered
attempted attacks over 18 months, culminating in a roadside assault at gunpoint
that left him with a broken nose. 498 F.3d 1253, 1257–58 (11th Cir. 2007).
In addition to proving persecution, the petitioner must also show that the
statutorily protected ground 2 was “one central reason” for any past or future
persecution. See 8 U.S.C. § 1158(b)(1)(B). Purely personal retribution is not
persecution on account of political opinion. Sanchez v. U.S. Att’y Gen., 392 F.3d
434, 437–38 (11th Cir. 2004) (per curiam). Evidence that is consistent with acts of
2 These grounds are “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1158(b)(1)(B)(i). 4 Case: 17-14564 Date Filed: 11/05/2018 Page: 5 of 6
private violence or that merely shows that a person has been the victim of criminal
activity does not constitute evidence of persecution based on a statutorily protected
ground. Id.
Patel sets forth two grounds to establish past persecution: (1) the February
2009 beating in Gujarat; and (2) the threats Patel’s mother received from his
alleged attackers.
Although we disagree with the BIA’s conclusion that the beating and threats
were not motivated by Patel’s political opinion, his asylum claim ultimately fails
because the level of harassment Patel faced falls short of persecution. The beating
Patel suffered resulted only in swelling, bruising, and tenderness on his torso, for
which he was advised merely to rest. Even combined with the occasional threats
made to Patel’s mother, this mistreatment falls far short of the persecution
petitioners experienced in cases like Ruiz and Mejia. Indeed, it even falls short of
the mistreatment petitioners experienced in cases where we held there was no
persecution. See, e.g., Kazemzadeh, 577 F.3d at 1353 (concluding that no
persecution occurred where petitioner was arrested, interrogated, and beaten for
five hours, detained for four days, and subsequently monitored by Iranian
authorities); Zheng v. U.S.
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Case: 17-14564 Date Filed: 11/05/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14564 Non-Argument Calendar ________________________
Agency No. A087-923-836
ASHOK KUMAR GANDALAL PATEL,
Petitioner,
versus
U.S. ATTORNEY GENERAL, Respondent.
________________________
Petition for Review of an Order of the Board of Immigration Appeals ________________________
(November 5, 2018)
Before TJOFLAT, MARTIN and NEWSOM, Circuit Judges.
PER CURIAM: Case: 17-14564 Date Filed: 11/05/2018 Page: 2 of 6
Ashok Kumar Gandalal Patel seeks review of the Board of Immigration
Appeals’s (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of
his claims for asylum and withholding of removal. The IJ concluded that the
mistreatment Patel suffered in India did not rise to the level of persecution and was
not motivated by his political opinions. Patel now challenges this decision for lack
of substantial evidence. Because substantial evidence supports the BIA’s decision,
we deny Patel’s petition.1
I.
We review only the decision of the BIA, except to the extent that the BIA
expressly adopts or explicitly agrees with the IJ’s opinion. Ayala v. U.S. Att’y
Gen., 605 F.3d 941, 948 (11th Cir. 2010).
We review the agency’s factual determinations under the highly deferential
substantial-evidence test. Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir.
2004) (en banc). 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 1027 (quoting Najjar v. Ashcroft, 257 F.3d 1262,
1283–84 (11th Cir. 2001)). We view the evidence in the light most favorable to
the agency’s decision and draw all reasonable inferences in favor of that decision.
Id. Factual findings may be reversed “only when the record compels a reversal;
1 Because we write for the parties, we set out only what is necessary to explain our decision. 2 Case: 17-14564 Date Filed: 11/05/2018 Page: 3 of 6
the mere fact that the record may support a contrary conclusion is not enough to
justify a reversal of the administrative findings.” Id. (citation omitted).
II.
The Attorney General may grant asylum to an alien who meets the definition
of a “refugee” under the Immigration and Nationality Act (“INA”). 8 U.S.C.
§ 1158(b)(1)(A). A refugee is defined as:
any person who is outside any country of such person’s nationality . . . 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.
Id. § 1101(a)(42)(A). The applicant bears the burden of proving that he is a
refugee. Id. § 1158(b)(1)(B)(i). The applicant must demonstrate that he (1) was
persecuted in the past on account of a protected ground or (2) has a well-founded
fear that he will be persecuted in the future on account of a protected ground. Ruiz
v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (per curiam). “To
establish asylum based on past persecution, the applicant must prove (1) that he
was persecuted, and (2) that the persecution was on account of a protected
ground.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1351 (11th Cir. 2009)
(alteration omitted) (quoting Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th
Cir. 2006)).
3 Case: 17-14564 Date Filed: 11/05/2018 Page: 4 of 6
Persecution is an “extreme concept” that requires more than mere
harassment or “a few isolated incidents of verbal harassment or intimidation.”
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (per curiam)
(quoting Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000)). In determining
whether the petitioner has suffered persecution, we evaluate the cumulative harm
suffered by the petitioner. Shi v. U.S. Att’y Gen., 707 F.3d 1231, 1235 (11th Cir.
2013). “Not all exceptional treatment is persecution.” Gonzalez, 212 F.3d at 1355.
For example, in Ruiz v. U.S. Attorney General, we held that there was past
persecution where the petitioner received threatening phone calls, was beaten on
two separate occasions, and was kidnapped for eighteen days, during which he was
severely beaten. 479 F.3d at 763–64, 66. Likewise, in Mejia v. U.S. Attorney
General, we held that the petitioner suffered past persecution where he suffered
attempted attacks over 18 months, culminating in a roadside assault at gunpoint
that left him with a broken nose. 498 F.3d 1253, 1257–58 (11th Cir. 2007).
In addition to proving persecution, the petitioner must also show that the
statutorily protected ground 2 was “one central reason” for any past or future
persecution. See 8 U.S.C. § 1158(b)(1)(B). Purely personal retribution is not
persecution on account of political opinion. Sanchez v. U.S. Att’y Gen., 392 F.3d
434, 437–38 (11th Cir. 2004) (per curiam). Evidence that is consistent with acts of
2 These grounds are “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1158(b)(1)(B)(i). 4 Case: 17-14564 Date Filed: 11/05/2018 Page: 5 of 6
private violence or that merely shows that a person has been the victim of criminal
activity does not constitute evidence of persecution based on a statutorily protected
ground. Id.
Patel sets forth two grounds to establish past persecution: (1) the February
2009 beating in Gujarat; and (2) the threats Patel’s mother received from his
alleged attackers.
Although we disagree with the BIA’s conclusion that the beating and threats
were not motivated by Patel’s political opinion, his asylum claim ultimately fails
because the level of harassment Patel faced falls short of persecution. The beating
Patel suffered resulted only in swelling, bruising, and tenderness on his torso, for
which he was advised merely to rest. Even combined with the occasional threats
made to Patel’s mother, this mistreatment falls far short of the persecution
petitioners experienced in cases like Ruiz and Mejia. Indeed, it even falls short of
the mistreatment petitioners experienced in cases where we held there was no
persecution. See, e.g., Kazemzadeh, 577 F.3d at 1353 (concluding that no
persecution occurred where petitioner was arrested, interrogated, and beaten for
five hours, detained for four days, and subsequently monitored by Iranian
authorities); Zheng v. U.S. Att’y Gen., 451 F.3d 1287 (11th Cir. 2006) (per curiam)
(concluding that no persecution occurred where petitioner was fired from his job,
dragged by his arms to a detention center, detained for five days, forced to watch
5 Case: 17-14564 Date Filed: 11/05/2018 Page: 6 of 6
reeducation videos, and forced to sign a pledge not to practice his religion). Thus,
we conclude that substantial evidence supports the BIA’s determination that Patel
did not suffer past persecution.
Even though Patel failed to show past persecution, he could still have
qualified for asylum if he had proved a well-founded fear of future persecution.
See Ruiz, 440 F.3d at 1257. However, because he did not raise this argument in his
brief on appeal, Patel has abandoned any challenge to the BIA’s contrary finding.
See Sepulveda, 401 F.3d at 1228 n.2 (“When an appellant fails to offer argument
on an issue, that issue is abandoned.”). And because he has failed to demonstrate
persecution for his asylum claim, Patel’s claim for withholding of removal under 8
C.F.R. § 208.16(b) necessarily fails. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814,
819 (11th Cir. 2004) (noting that the standard for withholding of removal is “more
stringent than the ‘well-founded fear’ standard for asylum”). 3
III.
For the foregoing reasons, we hold that the BIA’s decision denying asylum
and withholding of removal is supported by substantial evidence.
PETITION DENIED.
3 Patel also initially requested withholding of removal under the Convention Against Torture. However, because Patel did not argue this issue in his brief to the BIA, we would have no jurisdiction to consider this claim even if he had raised it before this Court. See Amaya- Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam); 8 U.S.C. § 1252(d)(1). 6