Fidel Enrique Gomez Hernandez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 13, 2018
• Docket: 18-10068
• Status: Unpublished

Opinion

Case: 18-10068 Date Filed: 12/13/2018 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10068 Non-Argument Calendar ________________________

Agency No. A213-093-891

FIDEL ENRIQUE GOMEZ HERNANDEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(December 13, 2018)

Before TJOFLAT, NEWSOM and BLACK, Circuit Judges.

PER CURIAM: Case: 18-10068 Date Filed: 12/13/2018 Page: 2 of 8

Fidel Gomez Hernandez petitions for review of the Board of Immigration

Appeals’ (BIA) final order affirming the Immigration Judge’s (IJ) denial of his

application for asylum, withholding of removal, and relief under the Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(CAT). He brings several issues on appeal, which we address in turn. After

review, 1 we dismiss the petition in part, and deny in part.

I. DISCUSSION

A. Asylum and Withholding of Removal

The Department of Homeland Security (DHS) has discretion to grant asylum

if the alien establishes that he is a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A refugee

is a person “who is unable or unwilling to return to, and is unable or unwilling to

avail himself or herself of the protection of, [his or her country of nationality]

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.”

8 U.S.C. § 1101(a)(42)(A). Generally, an applicant for asylum must establish 1 We review only the decision of the BIA, except to the extent the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Factual findings are reviewed under the substantial evidence test. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005). We must affirm a fact-finding “if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (quotations omitted). Under this highly deferential standard of review, “we view the record evidence in the light most favorable to the agency’s decision and draw all reasonable inferences in favor of that decision.” Id. (quotations omitted). Thus, a decision can only be reversed if “the evidence compels a reasonable fact finder to find otherwise.” Sepulveda, 401 F.3d at 1230 (quotations omitted). We review due process challenges de novo. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010).

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either (1) past persecution on account of a protected ground, or (2) a well-founded

fear of future persecution on account of a protected ground. Sepulveda v. U.S.

Att’y Gen., 401 F.3d 1226, 1230–31 (11th Cir. 2005).

1. Past persecution

To establish eligibility for asylum based on past persecution, the applicant

must show (1) he was persecuted, and (2) the persecution was on account of a

protected ground. Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th

Cir. 2007). Persecution itself is an “extreme concept, requiring more than a few

isolated incidents of verbal harassment or intimidation.” Id. (quotations omitted).

Substantial evidence supports the denial of Gomez’s asylum claim because

the record does not compel the conclusion that Gomez demonstrated past

persecution on account of his political beliefs.2 The record does not compel a

finding Gomez was targeted in the shooting incident on August 9, 2016, because of

his political beliefs. See Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 891

(11th Cir. 2007) (stating where the evidence equally supports an inference of

persecution based on a protected ground, and an inference of persecution based on

an unprotected ground, the record does not “compel” this Court to hold otherwise).

2 On appeal, Gomez asserts the August 2016 incidents alone were sufficient to establish past persecution. He only references his allegations of economic persecution in the context of establishing he demonstrated an objective fear of future persecution. However, even including the claimed economic persecution, substantial evidence supports the BIA’s and IJ’s conclusion.

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Moreover, there is insufficient evidence to compel a finding Gomez’s

shooters were part of the Colectivos, where the only evidence Gomez offered to

this effect was his testimony that they were dressed similarly and rode

motorcycles. The Colectivos did not later claim responsibility for the attack or

openly admit their involvement and the shooters did not individually identify

themselves. See Sanchez Jimenez 492 F.3d at 1234 n.10 (holding the record

compelled a finding of past persecution when the applicant testified that, after the

shooting, members of the organization called him to claim responsibility for the

attack and reiterated their threats against him and his family). Thus, it is not clear

the shooting incident was motivated by Gomez’s political beliefs as opposed to

Venezuela’s general criminal unrest. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,

1258 (11th Cir. 2006) (explaining evidence consistent with acts of private violence

or that merely showing a person has been the victim of criminal activity does not

constitute evidence of persecution on account of a statutorily protected ground).

Furthermore, the record does not compel a finding the two August 2016

incidents were orchestrated by the same people such that they should have been

considered together as past persecution. The differences in the pattern of behavior

and words used in the written threat and the shooting do not compel a finding the

two were related, and closeness in time is not enough to link the events together.

See Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1239 (11th Cir. 2006) (determining the

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evidence did not compel a finding the applicant was targeted on account of her

political beliefs when she offered no evidence, apart from temporal proximity,

connecting a shooting to a threatening note concerning her political activity).

Finally, the record does not compel a finding Gomez demonstrated past

persecution based on the August 19 note alone, because the record does not compel

the determination that this threat, even though it contained a threat directed to

multiple people within it, rises to the level of past persecution. See Sepulveda, 401

F.3d at 1231 (concluding threats to the petitioner, her brother, and university group

did not rise to the level of past persecution).

2. Future persecution

To establish eligibility for asylum based on a well-founded fear of future

persecution, the applicant must prove (1) he had a “subjectively genuine and

objectively reasonable fear of persecution” and (2) such fear of persecution was on

account of a protected ground. Sanchez Jimenez, 492 F.3d at 1232. If the

applicant cannot demonstrate past persecution, he bears the burden of showing it

would be unreasonable for him to relocate, unless the persecution was by the

government or is government-sponsored. 8 C.F.R. § 208.13(b)(3)(i).

The record also does not compel the conclusion Gomez demonstrated a well-

founded fear of future persecution on account of his political beliefs. As an initial

matter, Gomez’s argument the BIA failed to find he had a well-founded fear of

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future persecution is misplaced. The BIA specifically noted that, because Gomez

did not show past persecution, Gomez also failed to demonstrate a well-founded

fear of future persecution. The BIA also agreed with the IJ’s conclusion that

Gomez failed to demonstrate he could not safely relocate within Venezuela or that

government authorities were unable or unwilling to control potential persecutors,

both elements of establishing a fear of future persecution.

To the extent Gomez exhausted the claim the Interpol warrant justifies a fear

of future persecution, he still has not demonstrated an objective fear he would be

singled out for persecution if he were to return to Venezuela. See Sanchez

Jimenez, 492 F.3d at 1232. The warrant does not indicate a threat of harm, has no

obvious connection to his political beliefs or activity, and does not demonstrate

anything more than an allegation of general criminal activity regarding a financial

transaction. Furthermore, Gomez has not shown that he could not reasonably

relocate anywhere within Venezuela, specifically when he showed he was able to

travel in and out of the country during 2012 to 2015 and lived in Venezuela for at

least seven years between 2009 and 2016 without incident. Thus, the record does

not compel a finding that Gomez has a well-founded fear of future persecution on

account of a protected ground. Accordingly, substantial evidence supports the IJ’s

and BIA’s denial of Gomez’s asylum and withholding of removal claims. 3

3 If an applicant fails to establish eligibility for asylum, “he necessarily cannot meet the 6 Case: 18-10068 Date Filed: 12/13/2018 Page: 7 of 8

B. CAT Relief

Gomez did not exhaust his administrative remedies with respect to his CAT

claim because he did not set forth any meaningful arguments regarding his

eligibility for CAT relief in his pleadings to the BIA. We lack jurisdiction to

entertain arguments not raised before the BIA. Amaya-Artunduaga v. U.S. Att’y

Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). Thus, we dismiss Gomez’s appeal of

his CAT claim. 8 U.S.C. § 1252(d)(1).

C. Due Process

Due process requires an alien be given both notice and the opportunity to be

heard in removal proceedings. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143

(11th Cir. 2010). To show his due process rights were violated, a petitioner must

show that he was deprived of liberty without due process of law and the purported

errors caused him substantial prejudice. Id. To show substantial prejudice, the

alien must show, “in the absence of the alleged violations, the outcome of the

proceeding would have been different.” Id.

Gomez’s due process rights were not violated because he was afforded a full

and fair hearing and he cannot show that any of the purported errors caused him

substantial prejudice. First, the IJ’s questioning during the hearing was not so

more stringent burden for withholding of removal.” Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1249 n.3 (11th Cir. 2006). Accordingly, as substantial evidence supports the IJ’s and BIA’s denial of Gomez’s asylum claims, substantial evidence also supports the IJ’s and BIA’s denial of withholding of removal. 7 Case: 18-10068 Date Filed: 12/13/2018 Page: 8 of 8

egregious that it prevented significant parts of his testimony from being developed.

Gomez was able to testify about the facts he alleged in his application and attached

documents, and he gave no indication during the hearing that he needed or wanted

to testify more. The IJ has authority to question the asylum applicant directly, and

the questions were not inappropriate. See Stevens v. Osuna, 877 F.3d 1293, 1302

(11th Cir. 2017) (stating an IJ has explicit statutory authority to question the

asylum applicant and any witnesses). Second, the purported error of ignoring the

Interpol warrant did not cause Gomez substantial prejudice because there is no

indication the IJ ignored the evidence or that, even if he had explicitly discussed it,

there would have been a different conclusion. Gomez’s counsel engaged in a

direct colloquy with the IJ, during which he could have discussed the Interpol

warrant, but did not. Thus, the IJ did not deprive Gomez of his due process rights.

II. CONCLUSION

Substantial evidence supports the IJ’s and BIA’s denial of Gomez’s asylum

and withholding of removal claims because he could not demonstrate past

persecution or a well-founded fear of future persecution. We lack jurisdiction to

review the denial of Gomez’s CAT claim. Finally, Gomez’s due process rights

were not violated during the merits hearing. Accordingly, we dismiss in part and

deny in part Gomez’s petition for review.

PETITION DISMISSED IN PART AND DENIED IN PART.