De Malavae v. US Atty. Gen.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 27, 2011
• Docket: 10-13058
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT COURT OF APPEALS U.S. ________________________ ELEVENTH CIRCUIT MAY 27, 2011 No. 10-13058 JOHN LEY Non-Argument Calendar CLERK ________________________

Agency No. A087-387-836

DORINDA LEISES VILLAR DE MALAVE, KARLA MARIELA MALAVE LEISES, CARLOS ALEJANDRO MALAVE LEISES, JUAN CARLOS MALAVE ALVAREZ DE LUGO,

lllllllllllllllllllll Petitioners,

versus

U.S. ATTORNEY GENERAL,

lllllllllllllllllllll Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(May 27, 2011)

Before EDMONDSON, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM: Dorinda Leises Villar de Malave (“Leises”) and her two children, derivatively,

petition for review of the Board of Immigration Appeals’s (“BIA”) final order

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 or Degrading Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158,

1231(b)(3)(A); 8 C.F.R. § 208.16(c). Leises argues that: (1) her experiences in

Venezuela, taken cumulatively, constituted past persecution and occurred on account

of a protected ground, and (2) she has a well-founded fear of future persecution.

After thorough review, we grant the petition for review, vacate the agency’s decision,

and remand for further proceedings.

We review only the BIA’s decision as the final judgment, but where the BIA

agrees with the IJ about an issue, we review the decisions of both the IJ and the BIA

regarding that issue. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir.

2009). Here, the BIA agreed with the IJ’s finding that Leises failed to establish past

persecution or a well-founded fear of future persecution on account of a protected

ground. Specifically, the BIA agreed with the IJ that Leises’s experiences in

Venezuela did not rise to the level of persecution. Therefore, we review both the

BIA’s and the IJ’s findings with respect to these issues. See id.

2 We review the IJ’s and the BIA’s factual determinations under the highly

deferential substantial-evidence test and will affirm if the decision “is supported by

reasonable, substantial, and probative evidence on the record considered as a whole.”

Id. at 1350-51 (quotations omitted). Under the substantial-evidence test, we may

reverse a finding of fact “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 of the

administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004)

(en banc). We review the IJ’s and the BIA’s legal conclusions de novo.

Kazemzadeh, 577 F.3d at 1350.

An alien may receive asylum in the United States if she is a “refugee” within

the meaning of the Immigration and Nationality Act (“INA”). Sepulveda v. U.S.

Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005). The INA defines a refugee as a

person who cannot return to his home country due to “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). Thus, to be

eligible for asylum, an alien must establish, with credible evidence, either past

persecution or a well-founded fear of future persecution, both on account of a

protected ground. Sepulveda, 401 F.3d at 1230-31. “[A] showing of past persecution

3 creates a rebuttable presumption of a well-founded fear of future persecution.” De

Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1007 (11th Cir. 2008).

An alien need not establish past persecution to qualify for asylum based on a

“well-founded fear” of future persecution. Kazemzadeh, 577 F.3d at 1352. To

establish such independent well-founded fear, an alien needs to show “a reasonable

possibility” of suffering persecution upon return to her home country. Mehmeti v.

U.S. Att’y Gen., 572 F.3d 1196, 1200 (11th Cir. 2009).

To qualify for withholding of removal under the INA, an alien must establish

that, if returned to her country, the alien’s life or freedom would be threatened on

account of a protected ground, namely, race, religion, nationality, membership in a

particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). The standard

for establishing a claim for withholding of removal is substantially the same as for

asylum, except that an alien cannot qualify for such relief without a presumption or

a showing of a well-founded fear of future persecution, and, if the alien fails to

establish past persecution, she must demonstrate a “more likely than not” probability

of future persecution rather than the “reasonable possibility” required for asylum.

Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006); 8 C.F.R. § 208.16(b).

Consequently, an alien generally cannot qualify for withholding of removal if she is

4 unable to meet the lower standard of proof for asylum. Al Najjar v. Ashcroft, 257

F.3d 1262, 1292-93 (11th Cir. 2001).

We define persecution as an “extreme concept, requiring more than a few

isolated incidents of verbal harassment or intimidation.” Sepulveda, 401 F.3d at 1231

(quotations omitted). To illustrate, we have held that menacing phone calls and

threats to an alien, coupled with a bombing at the restaurant where she worked, did

not compel a finding of persecution. Id. We have also rejected a claim of persecution

where an alien, in addition to receiving threats, was detained at a police station for 36

hours and was kicked and beaten with a belt, suffering multiple scratches and bruises.

Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1171, 1175 (11th Cir. 2008); see also

Kazemzadeh, 577 F.3d at 1353 (concluding that no persecution existed where the

petitioner was arrested for participating in a student demonstration, interrogated and

beaten for five hours, detained for four days, and monitored by authorities after his

release).

On the other hand, persecution may well exist where an alien has suffered a

direct threat to her life, even absent physical harm. Specifically, we have found

persecution where the alien was shot at while driving. Sanchez Jimenez v. U.S. Att’y

Gen., 492 F.3d 1223, 1233-34 (11th Cir. 2007). In Sanchez Jimenez, the alien

received numerous intensifying death threats from the Revolutionary Armed Forces

5 of Colombia (“FARC”), and several FARC members attempted to kidnap his

daughter. Id. at 1228-29. The alien’s only physical altercation with the FARC

occurred when two armed men on motorcycles followed the alien on his way home

and fired on his car, leaving several bullet holes. Id. at 1229. The alien managed to

evade the attackers and suffered no harm. Id. In reversing the IJ’s finding of no

persecution, we stated: “We have no difficulty concluding that intentionally being

shot at in a moving car multiple times by two armed men on motorcycles qualifies as

‘extreme’ under any definition. Put simply, attempted murder is persecution.” Id. at

1233. We also observed that a lack of physical harm “does not undermine the basic

conclusion that being shot at while driving is sufficiently ‘extreme’ to constitute

persecution.” Id.

The BIA and the IJ need not “address specifically each claim the petitioner

made or each piece of evidence the petitioner presented, but they must consider the

issues raised and announce their decision in terms sufficient to enable a reviewing

court to perceive that they have heard and thought and not merely reacted.” Ayala v.

U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010) (quotations and alterations

omitted). Where the BIA or the IJ has failed to give “reasoned consideration or make

adequate findings,” we remand for further proceedings because we are “unable to

review the decision.” Id. (quotation omitted).

6 In this case, substantial evidence does not support the IJ’s and the BIA’s

conclusion that Leises’s experiences did not rise to the level of persecution. See

Sanchez Jimenez, 492 F.3d at 1233-34. In addition to other threatening incidents --

including threatening phone calls and a beating -- Leises experienced a direct attempt

on her life when two individuals on a motorcycle fired on her as she drove to work.

In fact, one of the bullets hit the driver’s door. Despite any factual differences

between this case and Sanchez Jimenez, there we focused largely on the fact that the

attackers fired bullets at the alien, putting his life in immediate danger, and this case

involves an almost identical scenario. Id. at 1233-34. Like in Sanchez Jimenez,

Leises experienced more than just verbal harassment or intimidation, and although

she did not suffer serious physical harm during any of the incidents, a lack of physical

harm does not prevent a finding of persecution in a case such as this one. See id. at

1234. Accordingly, Leises suffered past persecution when men on a motorcycle shot

at her, and “[t]he motorcyclists’ poor marksmanship does not undermine this

conclusion.” Id. at 1234.1

1 The most relevant case the BIA cited in support of its finding of a lack of persecution was Sepulveda, 401 F.3d at 1231, as described above. However, Sanchez Jimenez specifically distinguished Sepulveda on the ground that in Sepulveda, “the evidence did not compel the conclusion that the bomb was ‘directed at’” the alien, and “there appears to have been no evidence of the reason for the bombing,” while in Sanchez Jimenez, evidence compelled the conclusion that the shooting was directed at the alien. Sanchez Jimenez, 492 F.3d at 1234 n.10; see Sepulveda, 401 F.3d at 1231. Here, regardless of whether other incidents were directed at Leises or her family, no one contests that the car shooting was directed at Leises, especially given

7 Moreover, the IJ and the BIA did not adequately address whether Leises’s past

persecution occurred on account of a protected ground. As the record shows, the BIA

appeared to agree with the IJ that Leises failed to establish persecution “on account

of political opinion or imputed political opinion,” but the IJ made no finding as to

whether the 2008 threatening phone calls, the beating, and the car shooting occurred

on account of a protected ground; he only found, in relevant part, that Leises failed

to establish past persecution. See Ayala, 605 F.3d at 949 (“We cannot meaningfully

review the ruling of the Board when it relies entirely on a ruling that the immigration

judge did not make.”). Nor is it clear whether the IJ gave any consideration to

relevant parts of Leises’s testimony (found credible by the IJ) and her asylum

application, which indicate that incidents from 2007 occurred because of Leises’s and

her husband’s participation in political activities. See id. at 949-50 (concluding that

the BIA failed to provide a reasoned explanation for finding no nexus to a protected

ground where the BIA reasoned that “insufficient evidence” of such a nexus existed,

but where neither the BIA nor the IJ acknowledged relevant testimony or reconciled

that testimony with their findings).

that her car was the only one hit among the many surrounding cars, and the shooters wore the same red berets as individuals who physically beat her at a shopping mall. Accordingly, Sepulveda does not undermine Leises’s claims. See Sanchez Jimenez, 492 F.3d at 1234 n.10.

8 Furthermore, the BIA and the IJ made insufficient findings as to whether the

government has rebutted the presumption of a well-founded fear of future

persecution, or whether Leises has established an independent well-founded fear of

persecution. As the record shows, the BIA agreed with the IJ that Leises failed to

establish a well-founded fear of future persecution. In addressing Leises’s claims of

future persecution, the IJ stated: “There is not enough there to rise to the level of past

persecution, so she would not have a presumption of a well-founded fear of future

persecution. Without the presumption, the respondent would not be eligible for

asylum or withholding of removal or protection under [CAT].” However, the law is

clear that an alien may “establish a well-founded fear of persecution without proving

past persecution.” Kazemzadeh, 577 F.3d at 1352. In analyzing Leises’s claims, the

IJ either failed to address this independent fear of persecution, or he erroneously

applied the law by stating that future persecution may only be established through a

showing of past persecution. Because we cannot meaningfully review these issues,

we remand this case for further proceedings. See Ayala, 605 F.3d at 948.

PETITION GRANTED; VACATED and REMANDED.