[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JUNE 16, 2010 No. 09-15749 JOHN LEY Non-Argument Calendar CLERK ________________________
Agency Nos. A088-147-273 A088-147-274
HILARIO MATEO MARTIN, PASCUAL MATEO JUAN,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals _________________________
(June 16, 2010)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Hilario Mateo Martin, a citizen of Guatemala, proceeding pro se, seeks review of the Board of Immigration Appeals’s (“BIA”) order affirming the
Immigration Judge’s (“IJ”) order of removal and denying Martin’s application for
asylum and withholding of removal under the Immigration and Nationality Act
(“INA”), and relief under the Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158,
1231; 8 C.F.R. § 208.16(c).1 Martin argues that the BIA erred in concluding that
he failed to show past persecution or a clear probability of future persecution.
After careful review, we dismiss the petition in part and deny the petition in part.
I. Background
On January 20, 2006, Martin filed an application for asylum, withholding of
removal, and CAT relief, based on his Mayan ethnicity. Immigration and Customs
Enforcement (“ICE”) subsequently issued a Notice to Appear (“NTA”) against
Martin, which alleged that he entered the United States without inspection at
Nogales, Arizona in July 1998, and was removable for being present in the United
States without being admitted or paroled, pursuant to 8 U.S.C. § 1182(a)(6)(A)(i).
In removal proceedings, Martin conceded removability and testified that he
came to the United States after his father had been killed by members of the
guerilla forces. He testified that he believed the guerillas killed his father because
the guerillas did not want the local inhabitants of the area in the places where the
1 Martin is the lead applicant in this case, which also includes his son, Pascual Mateo Juan. 2 guerillas were hiding. After his father’s death, Martin’s mother and three siblings
moved to a different town in Guatemala. Martin testified that his mother still
resides in that town, but that his siblings have moved away. Finally, Martin
testified that the his mother informs him that the guerillas are still causing
problems in the area, and that he is afraid that if he returns to Gautemala he will be
harmed by the guerillas.
The IJ ordered Martin removed and denied his application, finding that (1)
Martin had not submitted his application within one year of entering the country
and therefore was ineligible for asylum, (2) that Martin, although a credible
witness, had failed to show that it is more likely than not that he would be
persecuted on account of his Mayan ethnicity and therefore was ineligible for
withholding of removal, and (3) that Martin had failed to show that it is more
likely than not that he would be tortured if returned to Guatemala and therefore did
not qualify for relief under CAT. The BIA affirmed the IJ’s decision denying
withholding of removal and relief under CAT and dismissing the asylum
application as untimely. Martin thereafter filed a petition for review challenging
the denial of asylum and withholding.2
2 Although Martin mentions in his brief that he qualifies for asylum, he did not challenge the IJ’s finding that his asylum application was untimely before the BIA. His asylum claim is therefore unexhausted and we lack jurisdiction to review it. Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001). Similarly, Martin did not present any argument in his brief regarding his eligibility for relief under CAT and, therefore, he has abandoned that claim. 3 II. Statutory Framework for Withholding of Removal
Under the INA, a noncitizen shall not be removed to his country of origin if
his life or freedom would be threatened in that country on account of race, religion,
nationality, membership in a particular social group, or political opinion. 8 U.S.C.
§ 1231(b)(3). To qualify for withholding of removal, the applicant “bears the
burden of demonstrating that it is more likely than not [that] []he will be
persecuted or tortured upon being returned to her country.” Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (quotation omitted).
An applicant may satisfy his burden of proof for withholding of removal in
two ways. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir.2006). First, an
applicant may establish past persecution based on a protected ground. Id. If he
establishes past persecution, it is presumed that his life or freedom would be
threatened in the future, but the presumption can be rebutted by a showing of a
fundamental change in circumstances or the applicant’s ability to avoid a future
threat via relocation to another part of the country of removal. 8 C.F.R. §
208.16(b)(1)(i). In “determining whether an alien has suffered past persecution,
the IJ must consider the cumulative effect of the allegedly persecutory incidents.”
De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008 (11th Cir.2008). Second, an
applicant may establish that it is more likely than not that (1) he would be
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). 4 persecuted in the future on account of one of the five enumerated grounds; and (2)
he could not avoid this future threat to his life or freedom by relocating, if under all
the circumstances it would be reasonable to expect relocation. 8 C.F.R. §
208.16(b)(2). The fear of future persecution must be “subjectively genuine and
objectively reasonable.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir.
2001).
III. Standard of Review
Where, as here, the BIA issues a decision and does not adopt the IJ’s
decision, we review only the BIA’s decision. Rodriguez Morales v. U.S. Att’y
Gen., 488 F.3d 884, 890 (11th Cir. 2007). We review the BIA’s legal conclusions
de novo and factual findings under the substantial evidence test. Mejia v. U.S.
Att’y Gen. 498 F.3d 1253, 1256 (11th Cir. 2007) (quotation marks and citation
omitted). Under this highly deferential standard, we affirm factual determinations
“unless [a] reasonable adjudicator would be compelled to conclude to the
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JUNE 16, 2010 No. 09-15749 JOHN LEY Non-Argument Calendar CLERK ________________________
Agency Nos. A088-147-273 A088-147-274
HILARIO MATEO MARTIN, PASCUAL MATEO JUAN,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals _________________________
(June 16, 2010)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Hilario Mateo Martin, a citizen of Guatemala, proceeding pro se, seeks review of the Board of Immigration Appeals’s (“BIA”) order affirming the
Immigration Judge’s (“IJ”) order of removal and denying Martin’s application for
asylum and withholding of removal under the Immigration and Nationality Act
(“INA”), and relief under the Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158,
1231; 8 C.F.R. § 208.16(c).1 Martin argues that the BIA erred in concluding that
he failed to show past persecution or a clear probability of future persecution.
After careful review, we dismiss the petition in part and deny the petition in part.
I. Background
On January 20, 2006, Martin filed an application for asylum, withholding of
removal, and CAT relief, based on his Mayan ethnicity. Immigration and Customs
Enforcement (“ICE”) subsequently issued a Notice to Appear (“NTA”) against
Martin, which alleged that he entered the United States without inspection at
Nogales, Arizona in July 1998, and was removable for being present in the United
States without being admitted or paroled, pursuant to 8 U.S.C. § 1182(a)(6)(A)(i).
In removal proceedings, Martin conceded removability and testified that he
came to the United States after his father had been killed by members of the
guerilla forces. He testified that he believed the guerillas killed his father because
the guerillas did not want the local inhabitants of the area in the places where the
1 Martin is the lead applicant in this case, which also includes his son, Pascual Mateo Juan. 2 guerillas were hiding. After his father’s death, Martin’s mother and three siblings
moved to a different town in Guatemala. Martin testified that his mother still
resides in that town, but that his siblings have moved away. Finally, Martin
testified that the his mother informs him that the guerillas are still causing
problems in the area, and that he is afraid that if he returns to Gautemala he will be
harmed by the guerillas.
The IJ ordered Martin removed and denied his application, finding that (1)
Martin had not submitted his application within one year of entering the country
and therefore was ineligible for asylum, (2) that Martin, although a credible
witness, had failed to show that it is more likely than not that he would be
persecuted on account of his Mayan ethnicity and therefore was ineligible for
withholding of removal, and (3) that Martin had failed to show that it is more
likely than not that he would be tortured if returned to Guatemala and therefore did
not qualify for relief under CAT. The BIA affirmed the IJ’s decision denying
withholding of removal and relief under CAT and dismissing the asylum
application as untimely. Martin thereafter filed a petition for review challenging
the denial of asylum and withholding.2
2 Although Martin mentions in his brief that he qualifies for asylum, he did not challenge the IJ’s finding that his asylum application was untimely before the BIA. His asylum claim is therefore unexhausted and we lack jurisdiction to review it. Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001). Similarly, Martin did not present any argument in his brief regarding his eligibility for relief under CAT and, therefore, he has abandoned that claim. 3 II. Statutory Framework for Withholding of Removal
Under the INA, a noncitizen shall not be removed to his country of origin if
his life or freedom would be threatened in that country on account of race, religion,
nationality, membership in a particular social group, or political opinion. 8 U.S.C.
§ 1231(b)(3). To qualify for withholding of removal, the applicant “bears the
burden of demonstrating that it is more likely than not [that] []he will be
persecuted or tortured upon being returned to her country.” Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (quotation omitted).
An applicant may satisfy his burden of proof for withholding of removal in
two ways. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir.2006). First, an
applicant may establish past persecution based on a protected ground. Id. If he
establishes past persecution, it is presumed that his life or freedom would be
threatened in the future, but the presumption can be rebutted by a showing of a
fundamental change in circumstances or the applicant’s ability to avoid a future
threat via relocation to another part of the country of removal. 8 C.F.R. §
208.16(b)(1)(i). In “determining whether an alien has suffered past persecution,
the IJ must consider the cumulative effect of the allegedly persecutory incidents.”
De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008 (11th Cir.2008). Second, an
applicant may establish that it is more likely than not that (1) he would be
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). 4 persecuted in the future on account of one of the five enumerated grounds; and (2)
he could not avoid this future threat to his life or freedom by relocating, if under all
the circumstances it would be reasonable to expect relocation. 8 C.F.R. §
208.16(b)(2). The fear of future persecution must be “subjectively genuine and
objectively reasonable.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir.
2001).
III. Standard of Review
Where, as here, the BIA issues a decision and does not adopt the IJ’s
decision, we review only the BIA’s decision. Rodriguez Morales v. U.S. Att’y
Gen., 488 F.3d 884, 890 (11th Cir. 2007). We review the BIA’s legal conclusions
de novo and factual findings under the substantial evidence test. Mejia v. U.S.
Att’y Gen. 498 F.3d 1253, 1256 (11th Cir. 2007) (quotation marks and citation
omitted). Under this highly deferential standard, we affirm factual determinations
“unless [a] reasonable adjudicator would be compelled to conclude to the
contrary.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en
banc).
IV. Discussion
Martin challenges the BIA’s denial of his application for asylum and
withholding of removal. Initially, his petition for review is dismissed as to his
asylum claim because he failed to exhaust this claim before the BIA. Fernandez- 5 Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001). Therefore,
we only address Martin’s withholding of removal claim. Martin argues generally
that he was persecuted based on his Mayan ethnicity. He maintains that guerillas
killed his father because they viewed the Mayans as enemies, and that he suffered
multiple harms because of his Mayan ethnicity. He also argues that because
guerillas are still harming Mayans in Guatemala, he fears for his life if he is
returned there.
Based on a review of the record and the parties’ briefs, we conclude that
Martin has not established that it is more likely than not that he will be persecuted
on account of his Mayan ethnicity if he returns to Guatemala. Martin points to the
death of his father as evidence of past persecution, but there is nothing in the
record to suggest that the guerillas killed Martin’s father because he was Mayan.
Martin was never harmed or threatened personally while he lived in Guatemala and
has not been threatened on account of his Mayan ethnicity since he left Guatemala.
Although he claims he suffered “multiple harms” by the guerillas and the
Guatemalan Army, he did not present evidence, in the form of testimony or
otherwise, of the alleged harms. Therefore, Martin has not satisfied his burden of
proof for withholding of removal and the BIA properly denied his application.
PETITION DISMISSED IN PART AND DENIED IN PART.