USCA11 Case: 21-10073 Date Filed: 11/16/2021 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-10073 Non-Argument Calendar ____________________
ELSY NOHEMY MARTINEZ-BOBADILLA, CHRISTOPHER ALEXANDER MONCADA-MARTINEZ, Petitioners, versus U.S. ATTORNEY GENERAL,
Respondent. ____________________
Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A208-545-450 ____________________ USCA11 Case: 21-10073 Date Filed: 11/16/2021 Page: 2 of 7
2 Opinion of the Court 21-10073
Before LUCK, LAGOA, and ANDERSON, Circuit Judges. PER CURIAM: Elsy Martinez-Bobadilla, on behalf of herself and her son (collectively, “Martinez Bobadilla”), both Honduran citizens, peti- tions this Court for review of an order by the Board of Immigration Appeals (“BIA”) adopting the decision of an immigration judge to deny her application for asylum and withholding of removal.1 The immigration judge denied relief after concluding, inter alia, that Martinez-Bobadilla had not shown past persecution based on a political opinion and, since there was no past persecution, there was no presumption that she had a well-founded fear of fu- ture persecution. The immigration judge noted that Martinez- Bobadilla remained in the same town in Honduras for two months after she stopped working for a targeted organization, during which time neither she nor her coworkers suffered any harm. The immigration judge also noted that the organization had since shut down, so Martinez-Bobadilla would not be working with it in the
1 Martinez-Bobadilla also sought relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Pun- ishment (“CAT”). Both the immigration judge and the BIA, however, denied the CAT claim. But Martinez-Bobadilla makes no argument challenging the CAT denial on appeal. Because she does not challenge the denial of the CAT claim on appeal, she has abandoned any issue as to the denial of CAT relief in her case. See Jeune v. U.S. Att’y Gen., 810 F.3d 792, 797 n.2 (11th Cir. 2016). USCA11 Case: 21-10073 Date Filed: 11/16/2021 Page: 3 of 7
21-10073 Opinion of the Court 3
future. Ultimately, the immigration judge concluded that Mar- tinez-Bobadilla did not demonstrate a well-founded fear of future persecution. Martinez-Bobadilla now argues that the immigration judge’s order reflects a lack of reasoned consideration. She further argues that the record did not support the immigration judge’s finding that she lacked a well-founded fear of future persecution. 2 The govern- ment, in turn, responds that we lack jurisdiction to consider her first argument because she did not raise it before the BIA. We address each of these points in turn. I. We review our own subject matter jurisdiction de novo. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). When appropriate, we will likewise review an argu- ment that the agency failed to give reasoned consideration to an issue de novo. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). We may review a final order of removal only if the peti- tioner has exhausted “all administrative remedies available to [her] as of right.” 8 U.S.C. § 1252(d)(1). When a petitioner has failed to assert an error before the BIA and then attempts to raise that error
2 Martinez-Bobadilla does not challenge the findings of the immigration judge and BIA that: (1) her proposed particular social group was not cognizable; and (2) she did not show past persecution. Accordingly, any issue as to those find- ings are abandoned. See Jeune, 810 F.3d at 799. USCA11 Case: 21-10073 Date Filed: 11/16/2021 Page: 4 of 7
4 Opinion of the Court 21-10073
here, she has failed to exhaust administrative remedies and we lack jurisdiction to consider the issue. Jeune, 810 F.3d at 800. This re- quirement applies not only to the remedy requested, but as well to each particular claim of error. See Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297–98 (11th Cir. 2015). Here, we conclude that because Martinez-Bobadilla failed to exhaust her claim that the immigration judge’s decision lacked rea- soned consideration, we are without jurisdiction to consider it. In her brief before the BIA, she made no reference to a lack of rea- soned consideration either in name or substance. She did not claim, as she does here, that the immigration judge’s opinion was “undecipherable” or that the basis of its decision was not determi- nable. Rather, she argued only that she had met her burden to es- tablish eligibility for asylum because she was persecuted on ac- count of her political opinion and membership in a particular social group. This is not sufficient under § 1252(d)(1). See Jeune, 810 F.3d at 799–801. Accordingly, we dismiss the petition as to this issue. II. We review only the final decision of the BIA, but when the BIA expressly adopts the immigration judge’s decision on an issue, we will review the immigration judge’s decision on that issue as well. See id. We review the BIA’s legal determinations de novo, but review its findings of fact for substantial evidence. Murugan v. U.S. Att’y Gen., 10 F.4th 1185, 1192 (11th Cir. 2021). Under the substantial evidence standard, “we view the record evidence in the light most favorable to the agency’s decision and draw all USCA11 Case: 21-10073 Date Filed: 11/16/2021 Page: 5 of 7
21-10073 Opinion of the Court 5
reasonable inferences in favor of that decision.” Adefemi v. Ash- croft, 386 F.3d 1022, 1027 (11th Cir. 2004). We may reverse the BIA’s factual determinations only “when the record compels a re- versal.” Id. To establish eligibility for asylum, a petitioner must show either past persecution, or a well-founded fear of future persecu- tion, on account of a protected ground. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006). Persecution is an “‘extreme concept’ requiring ‘more than a few isolated incidents of verbal harassment or intimidation[;] . . . mere harassment is not persecu- tion.’” Ruiz v. Gonzales, 479 F.3d 762, 766 (11th Cir. 2007) (quoting Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)). Whether a petitioner has established a well-founded fear of future persecution is a factual determination that this Court re- views under the substantial evidence test. See Sepulveda, 401 F.3d at 1231. To show future persecution in the absence of past perse- cution, a petitioner must show that her well-founded fear of future persecution is “both subjectively genuine and objectively reasona- ble.” Ruiz, 440 F.3d at 1257. “The subjective component is gener- ally satisfied by the applicant’s credible testimony that he or she genuinely fears persecution.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1007 (11th Cir. 2008) (quoting Sanchez Jimenez v. U.S. Att’y Gen.,
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USCA11 Case: 21-10073 Date Filed: 11/16/2021 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-10073 Non-Argument Calendar ____________________
ELSY NOHEMY MARTINEZ-BOBADILLA, CHRISTOPHER ALEXANDER MONCADA-MARTINEZ, Petitioners, versus U.S. ATTORNEY GENERAL,
Respondent. ____________________
Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A208-545-450 ____________________ USCA11 Case: 21-10073 Date Filed: 11/16/2021 Page: 2 of 7
2 Opinion of the Court 21-10073
Before LUCK, LAGOA, and ANDERSON, Circuit Judges. PER CURIAM: Elsy Martinez-Bobadilla, on behalf of herself and her son (collectively, “Martinez Bobadilla”), both Honduran citizens, peti- tions this Court for review of an order by the Board of Immigration Appeals (“BIA”) adopting the decision of an immigration judge to deny her application for asylum and withholding of removal.1 The immigration judge denied relief after concluding, inter alia, that Martinez-Bobadilla had not shown past persecution based on a political opinion and, since there was no past persecution, there was no presumption that she had a well-founded fear of fu- ture persecution. The immigration judge noted that Martinez- Bobadilla remained in the same town in Honduras for two months after she stopped working for a targeted organization, during which time neither she nor her coworkers suffered any harm. The immigration judge also noted that the organization had since shut down, so Martinez-Bobadilla would not be working with it in the
1 Martinez-Bobadilla also sought relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Pun- ishment (“CAT”). Both the immigration judge and the BIA, however, denied the CAT claim. But Martinez-Bobadilla makes no argument challenging the CAT denial on appeal. Because she does not challenge the denial of the CAT claim on appeal, she has abandoned any issue as to the denial of CAT relief in her case. See Jeune v. U.S. Att’y Gen., 810 F.3d 792, 797 n.2 (11th Cir. 2016). USCA11 Case: 21-10073 Date Filed: 11/16/2021 Page: 3 of 7
21-10073 Opinion of the Court 3
future. Ultimately, the immigration judge concluded that Mar- tinez-Bobadilla did not demonstrate a well-founded fear of future persecution. Martinez-Bobadilla now argues that the immigration judge’s order reflects a lack of reasoned consideration. She further argues that the record did not support the immigration judge’s finding that she lacked a well-founded fear of future persecution. 2 The govern- ment, in turn, responds that we lack jurisdiction to consider her first argument because she did not raise it before the BIA. We address each of these points in turn. I. We review our own subject matter jurisdiction de novo. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). When appropriate, we will likewise review an argu- ment that the agency failed to give reasoned consideration to an issue de novo. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). We may review a final order of removal only if the peti- tioner has exhausted “all administrative remedies available to [her] as of right.” 8 U.S.C. § 1252(d)(1). When a petitioner has failed to assert an error before the BIA and then attempts to raise that error
2 Martinez-Bobadilla does not challenge the findings of the immigration judge and BIA that: (1) her proposed particular social group was not cognizable; and (2) she did not show past persecution. Accordingly, any issue as to those find- ings are abandoned. See Jeune, 810 F.3d at 799. USCA11 Case: 21-10073 Date Filed: 11/16/2021 Page: 4 of 7
4 Opinion of the Court 21-10073
here, she has failed to exhaust administrative remedies and we lack jurisdiction to consider the issue. Jeune, 810 F.3d at 800. This re- quirement applies not only to the remedy requested, but as well to each particular claim of error. See Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297–98 (11th Cir. 2015). Here, we conclude that because Martinez-Bobadilla failed to exhaust her claim that the immigration judge’s decision lacked rea- soned consideration, we are without jurisdiction to consider it. In her brief before the BIA, she made no reference to a lack of rea- soned consideration either in name or substance. She did not claim, as she does here, that the immigration judge’s opinion was “undecipherable” or that the basis of its decision was not determi- nable. Rather, she argued only that she had met her burden to es- tablish eligibility for asylum because she was persecuted on ac- count of her political opinion and membership in a particular social group. This is not sufficient under § 1252(d)(1). See Jeune, 810 F.3d at 799–801. Accordingly, we dismiss the petition as to this issue. II. We review only the final decision of the BIA, but when the BIA expressly adopts the immigration judge’s decision on an issue, we will review the immigration judge’s decision on that issue as well. See id. We review the BIA’s legal determinations de novo, but review its findings of fact for substantial evidence. Murugan v. U.S. Att’y Gen., 10 F.4th 1185, 1192 (11th Cir. 2021). Under the substantial evidence standard, “we view the record evidence in the light most favorable to the agency’s decision and draw all USCA11 Case: 21-10073 Date Filed: 11/16/2021 Page: 5 of 7
21-10073 Opinion of the Court 5
reasonable inferences in favor of that decision.” Adefemi v. Ash- croft, 386 F.3d 1022, 1027 (11th Cir. 2004). We may reverse the BIA’s factual determinations only “when the record compels a re- versal.” Id. To establish eligibility for asylum, a petitioner must show either past persecution, or a well-founded fear of future persecu- tion, on account of a protected ground. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006). Persecution is an “‘extreme concept’ requiring ‘more than a few isolated incidents of verbal harassment or intimidation[;] . . . mere harassment is not persecu- tion.’” Ruiz v. Gonzales, 479 F.3d 762, 766 (11th Cir. 2007) (quoting Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)). Whether a petitioner has established a well-founded fear of future persecution is a factual determination that this Court re- views under the substantial evidence test. See Sepulveda, 401 F.3d at 1231. To show future persecution in the absence of past perse- cution, a petitioner must show that her well-founded fear of future persecution is “both subjectively genuine and objectively reasona- ble.” Ruiz, 440 F.3d at 1257. “The subjective component is gener- ally satisfied by the applicant’s credible testimony that he or she genuinely fears persecution.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1007 (11th Cir. 2008) (quoting Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th Cir. 2007)). To meet the objective prong, however, the applicant must present “specific, de- tailed facts showing a good reason to fear that [s]he will be singled out for persecution on account of [a protected ground].” See Ruiz, USCA11 Case: 21-10073 Date Filed: 11/16/2021 Page: 6 of 7
6 Opinion of the Court 21-10073
440 F.3d at 1258 (quoting Al Najjar v. Ashcroft, 257 F.3d 1262, 1287 (11th Cir. 2001)). In a withholding of removal claim, an alien shall not be re- moved to a country if his life or freedom would be threatened on account of a protected ground. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). The alien must show that it is “‘more likely than not’ she will be persecuted . . . upon being returned to her country.” Sepulveda, 401 F.3d at 1232 (quoting Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002)). If an applicant is unable to meet the lower burden for asylum relief, she is generally precluded from establishing eligibility for withholding of removal. See Murugan, 10 F.4th at 1196. Here, the record supported the immigration judge’s finding that Martinez-Bobadilla’s fear of future persecution was not well- founded. As the immigration judge noted, she was able to live in the same town in Honduras for two months without incident after she stopped working with the targeted organization. And while she introduced evidence that gang violence was a pervasive prob- lem in Honduras, that evidence did not indicate that she or people similarly situated to her were likely to be singled out for retaliatory violence. Moreover, the fact that some of the individuals she worked with at the organization were not subject to persecution— including individuals who were higher up in the organization than she—undermined the objective foundation of her fear of persecu- tion. USCA11 Case: 21-10073 Date Filed: 11/16/2021 Page: 7 of 7
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Martinez-Bobadilla’s own testimony, even if sufficient to es- tablish a subjective fear of future persecution, only indirectly re- lated to an objective fear. It, and the reports attached to her appli- cation, showed that she was aware of discrete incidents of violence, that the gang members threatened her once, and that they had a reputation for violence. Nevertheless, it did not show that what she suffered in the past rose to the level of persecution, nor was it so overwhelming that it compelled a conclusion that she would be singled out and subjected to acts amounting to persecution based on her political opinion in the future—particularly when she and her coworkers had gone unharmed for two months and their or- ganization had shut down. See Adefemi, 386 F.3d at 1027. Accord- ingly, we deny the petition in this respect. PETITION DISMISSED IN PART AND DENIED IN PART.