Eulalia Garcia-Garcia v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 19, 2021
• Docket: 20-14232
• Status: Unpublished

Opinion

USCA11 Case: 20-14232 Date Filed: 07/19/2021 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-14232 Non-Argument Calendar ________________________

Agency No. A208-866-644

EULALIA GARCIA-GARCIA, FELIX JOEL FRANCISCO-GARCIA,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent. ________________________

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

(July 19, 2021)

Before JORDAN, GRANT and MARCUS, Circuit Judges.

PER CURIAM:

Eulalia Garcia-Garcia (“Garcia”) and her minor child, Felix Francisco-

Garcia, seek review of the Board of Immigration Appeals’ (“BIA”) final order

affirming the Immigration Judge’s (“IJ”) denial of her applications for asylum, USCA11 Case: 20-14232 Date Filed: 07/19/2021 Page: 2 of 11

withholding of removal, and relief under the United Nations Convention Against

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”).

In her petition, Garcia argues that: (1) the BIA erred by denying her application for

asylum and withholding of removal under the Immigration and Nationality Act

(“INA”) because she suffered past persecution based on her Mayan race; (2) the BIA

also erred by denying her application because she established an individualized,

well-founded fear of future persecution, or a well-founded fear of future persecution

based on a pattern or practice of persecution of indigenous people in Guatemala; and

(3) the BIA failed to give reasoned consideration to her CAT claim and erred by

denying her CAT relief. After careful review, we deny the petition.

We review the BIA’s decision as the final judgment, except to the extent it

expressly adopts the IJ’s opinion or reasoning. Perez-Zenteno v. U.S. Att’y Gen.,

913 F.3d 1301, 1306 (11th Cir. 2019). When the BIA adopts the IJ’s reasoning, we

review both decisions. Id. We review the IJ’s opinion to the extent that the BIA has

agreed with the IJ and found that the IJ’s reasoning was supported by the record.

See Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). We do not

consider issues that were not reached by the BIA. See id. at 1369. Further, the BIA

generally will not consider issues raised for the first time on appeal. In re J---Y---

C---, 24 I. & N. Dec. 260, 261 n.1 (BIA 2007) (declining to consider the respondent’s

claim that she was eligible for asylum based on her mother’s death from a forced

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sterilization procedure because that claim was never raised before the IJ). When a

petitioner fails to offer an argument on an issue in her initial brief to us, that issue is

abandoned. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).

We review the agency’s conclusions of law de novo and its factual findings

under the highly deferential “substantial evidence test.” Adefemi v. Ashcroft, 386

F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We also review for substantial

evidence the BIA’s determination that a petitioner is not entitled to CAT relief. Alim

v. Gonzales, 446 F.3d 1239, 1257 (11th Cir. 2006). Under the substantial evidence

test, we must affirm factual findings if they are “supported by reasonable,

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

U.S. Att’y Gen., 914 F.3d 1292, 1297 (11th Cir. 2019) (quotation omitted). We view

the evidence in the light most favorable to the agency’s decision and draw all

reasonable inferences in favor of it. Perez-Zenteno, 913 F.3d at 1306. Even if the

record could support multiple conclusions, we “must affirm the agency’s decision

unless there is no reasonable basis for that decision.” Id. (quotation omitted).

First, we find no merit to Garcia’s argument that the agency erred by denying

her application for asylum and withholding of removal. An applicant for asylum

may be granted asylum if the Department of Homeland Security, or the Attorney

General, determines that she is a refugee. 8 U.S.C. § 1158(b)(1)(A). The definition

of “refugee” includes any person who is unable or unwilling to return to or avail

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herself of the protection her country of nationality because of persecution or a well-

founded fear of persecution on account of a protected ground, like race. Id.

§ 1101(a)(42)(A). The applicant carries the burden of proving statutory “refugee”

status. Id. § 1158(b)(1)(B)(i). To establish eligibility, a noncitizen must establish

past persecution, or a well-founded fear of future persecution based on a statutorily

listed factor. Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010).

Persecution is an “extreme concept” that requires more than mere harassment.

Sepulveda, 401 F.3d at 1231 (quotation omitted). Employment discrimination that

“stops short of depriving an individual of a means of earning a living does not

constitute persecution.” Barreto-Clara v. U.S. Att’y Gen., 275 F.3d 1334, 1340 (11th

Cir. 2001) (holding that a petitioner was not persecuted when she faced employment

discrimination, lost her job, and was forced to take menial work). In Zheng v. U.S.

Attorney General, we held that a petitioner’s termination from his job and his

inability to find another job in the city did not amount to past persecution. 451 F.3d

1287, 1291 (11th Cir. 2006). There, the petitioner did not testify how long he looked

for another job and there was no evidence that he sought a job for the three years he

lived at his parents’ home. Id. We held that the evidence was insufficient to compel

a finding that he was “deprived of all means of earning a living.” Id.

The applicant must prove that she suffered persecution on account of a

protected ground. Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1158 (11th Cir.

4 USCA11 Case: 20-14232 Date Filed: 07/19/2021 Page: 5 of 11

2019). This connection between the persecution and the statutorily protected ground

is known as the “nexus” requirement. Id. To satisfy the nexus requirement, an

asylum applicant must establish that the protected ground was “at least one central

reason” for her persecution. Id. (quotation omitted).

To establish a well-founded fear of future persecution, an applicant must show

a reasonable possibility that she will be singled out for persecution on account of a

protected ground and that her fear is both “subjectively genuine and objectively

reasonable.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1352 (11th Cir. 2009)

(quotation omitted). Credible testimony that the applicant “genuinely fears

persecution” can satisfy the subjective component. Sanchez Jimenez v. U.S. Att’y

Gen., 492 F.3d 1223, 1232 (11th Cir. 2007) (citation omitted). The objective

component can be fulfilled in most cases by either establishing past persecution or

by establishing that she has a good reason to fear future persecution. Id.

A petitioner is not required to prove an individualized fear of future

persecution when she has established her own inclusion in a group of similarly

situated persons specifically targeted in a pattern or practice of persecution in her

country of origin on account of a protected ground. 8 C.F.R. § 208.13(b)(2)(iii);

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

Under the withholding-of-removal statute, a noncitizen shall not be removed

to a country if her life or freedom would be threatened in that country on account of

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a protected ground, including membership in a particular social group. 8 U.S.C. §

1231(b)(3)(A). The withholding of removal statute has a higher evidentiary standard

than what is required for asylum. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th

Cir. 2006). Accordingly, if an applicant is unable to meet her burden of proof for

asylum, she is necessarily unable to meet the higher standard for withholding of

removal. Kazemzadeh, 577 F.3d at 1352.

Here, substantial evidence supports the agency’s finding that Garcia did not

suffer past persecution. Garcia’s claimed past persecution was that she was not

offered a job in a restaurant in Guatemala City, but the record supports the agency’s

finding that Garcia was not offered a job because she did not speak Spanish, not

because of her race. But even if Garcia was discriminated against because of her

race, we’ve held that employment discrimination like that does not equate to

persecution. See Barreto-Clara, 275 F.3d at 1340. Moreover, because Garcia was

able to maintain a job in the fields and own a home in Guatemala, we cannot say that

she was deprived of all means of making a living. See id.; Zheng, 451 F.3d at 1291.

On this record, Garcia failed to establish that she suffered past persecution.

Substantial evidence also supports the agency’s finding that Garcia failed to

establish a well-founded fear of future persecution. For starters, Garcia did not

present sufficient evidence to establish that she had a reasonable fear of being singled

out for persecution because of her race. Rather, she testified that she and her family

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were never harmed in Guatemala, that she only left because she could not get a

particular job, that things would be the same if she returned to Guatemala, and that

she would return to Guatemala if she could speak Spanish. As for Garcia’s testimony

that she believed she would not receive a higher paying job if she returned to

Guatemala, we’ve already explained that not receiving a higher paying job does not

amount to persecution. See Barreto-Clara, 275 F.3d at 1340; Zheng, 451 F.3d at

1291. Thus, substantial evidence supports the agency’s finding that Garcia did not

establish an individualized well-founded fear of persecution.

As for Garcia’s argument that she is in a particular social group -- indigenous

people who have suffered a pattern or practice of discrimination amounting to

persecution -- this issue was not reached by the BIA because Garcia failed to raise it

in front of the IJ despite having multiple opportunities to do so. See Seck, 663 F.3d

at 1369; J---Y---C---, 24 I. & N. at 261 n.1. Consequently, Garcia’s pattern or

practice claim is not properly before us. See Seck, 663 F.3d at 1369; Sepulveda, 401

F.3d at 1228 n.2. As for Garcia’s withholding-of-removal claim, she necessarily

failed to meet her burden because she failed to establish her eligibility for asylum,

which carries a lesser burden than withholding of removal. See Tan, 446 F.3d at

1375; Kazemzadeh, 577 F.3d at 1352.

We also are unpersuaded by Garcia’s argument that the agency erred in

handling her CAT claim. An applicant for CAT relief must show that it is more

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likely than not that she would be tortured if returned to the proposed country of

removal. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004).

To constitute torture, an act must be specifically intended to inflict severe physical

or mental pain or suffering. 8 C.F.R. § 1208.18(a)(5). Additionally, she must show

that the torture would be by or with the consent or acquiescence of a public official

or person acting in an official capacity. Id. § 1208.18(a)(1); Lingeswaran v. U.S.

Att’y Gen., 969 F.3d 1278, 1293 (11th Cir. 2020). Acquiescence requires that a

government be aware of the activity constituting torture and thereafter breach its

responsibility to intervene. 8 C.F.R. § 1208.18(a)(7); Lingeswaran, 969 F.3d at

1293. A government does not acquiesce to torture in circumstances where it actively

attempts, albeit not entirely successfully, to combat the alleged torture. Reyes-

Sanchez, 369 F.3d at 1242-43. The burden of proof for an alien seeking withholding

of removal under CAT, like the burden for an alien seeking withholding of removal

under the INA, is higher than the burden for showing entitlement to asylum.

Lingeswaran, 969 F.3d at 1293; see also 8 C.F.R. § 1208.16(c)(2).

In assessing a CAT claim, the IJ or BIA may consider episodes of past torture,

widespread human rights abuses within the proposed country of removal, and other

relevant country conditions evidence. 8 C.F.R. § 1208.16(c)(3). The BIA need not

specifically address each claim and each piece of evidence presented, so long as it

gives reasoned consideration to the application and makes adequate findings. Perez-

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Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1232 (11th Cir. 2013); see also Malu v.

U.S. Att’y Gen., 764 F.3d 1282, 1293 (11th Cir. 2014) (holding that the IJ and BIA

gave reasoned consideration to her CAT claim after exhaustively considering her

application for withholding of removal on the same facts).

The record before us reflects that the BIA gave reasoned consideration to

Garcia’s CAT claim. After reviewing her application, the BIA agreed with the IJ’s

finding concerning CAT relief -- that Garcia had not shown that she would more

likely than not be tortured in Guatemala with the acquiescence of the government --

after it had fully considered her asylum claim under a lower burden. See

Lingeswaran, 969 F.3d at 1293; Malu, 764 F.3d at 1293. In reaching this conclusion,

the BIA noted that Garcia had argued that the country conditions evidence showed

high levels of poverty and discrimination against indigenous people in Guatemala.

The BIA also considered Garcia’s testimonial evidence that she was unable to obtain

a higher paying job because she did not speak Spanish and her testimony that she

had a job and a home in Guatemala. By considering Garcia’s testimony and the

country conditions evidence before denying her CAT claim, the BIA gave reasoned

consideration to it. See Lingeswaran, 969 F.3d at 1293; Malu, 764 F.3d at 1293.

Moreover, the record does not compel a finding that Garcia would more likely

than not be subjected to torture if she is removed to Guatemala or that the

government would acquiesce to her torture. Based on our review of the record,

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substantial evidence supports the BIA’s conclusion that Garcia would not be

individually targeted if she were returned to Guatemala. See Lingeswaran, 969 F.3d

at 1293. Garcia testified that she and her family had not been harmed in Guatemala,

that things would be the same if she returned to Guatemala, and that she would return

to Guatemala if she could speak Spanish. And while the record suggests that

indigenous women are subjected to discrimination, lower levels of education, and

higher levels of poverty, CAT requires something more than this kind of

discrimination to constitute torture. 8 C.F.R. § 208.18(a)(5).

In addition, the articles and reports Garcia filed reveal that the Guatemalan

government was trying to help the indigenous population and that it had created

positions and implemented laws to prevent employment discrimination against

indigenous populations and to promote the lifestyles, traditions, and social

organizations of indigenous people. Thus, substantial evidence supports the

agency’s finding that the Guatemalan government would not acquiesce to the torture

of Garcia as an indigenous Mayan, because attempts were being made to protect the

indigenous people, even if they were unsuccessful or slow moving. See Reyes-

Sanchez, 369 F.3d at 1242– 43.

Finally, to the extent Garcia argues that, generally, indigenous Mayans are

more likely than not to be subjected to a pattern or practice of torture, CAT relief

requires the applicant to prove that she would more likely than not be tortured if

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returned to Guatemala. See id. at 1242. And as we’ve explained, substantial

evidence supports the finding that the government would not, more likely than not,

acquiesce to the torture of indigenous people. Accordingly, substantial evidence

supports the BIA’s denial of Garcia’s CAT claim, and we deny her petition for

review.

PETITION DENIED.