Jose Israel Diaz Hernandez v. U.S. Atty. Gen.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 17, 2010
• Docket: 09-14786
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 09-14786 ELEVENTH CIRCUIT MAY 17, 2010 Non-Argument Calendar JOHN LEY ________________________ CLERK

Agency No. A099-635-900

JOSE ISRAEL DIAZ HERNANDEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(May 17, 2010)

Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges. PER CURIAM:

Jose Israel Diaz Hernandez (“Petitioner”) seeks review of the final order of

the Board of Immigration Appeals (“BIA”), which affirmed the Immigration

Judge’s (“IJ”) denial of Petitioner’s request for asylum. We deny the petition.

Petitioner, a native and citizen of Guatemala, claims that he and members of

his family were beaten and threatened by gang members in that country. Although

his application for asylum and later asylum interview statements contradict at

times, he explained that gang members routinely took money from his uncle.

When the uncle refused to pay more money, the gang beat petitioner and other

family members. All of the alleged beatings occurred in 1997; and Petitioner came

to the United States in 1998, when he was nine years old.

In 2006, the Department of Homeland Security served Petitioner with a

Notice to Appear, charging him with being removable as an alien present in the

United States without admission or parole. Petitioner filed an application for

asylum, withholding of removal, and protection under the United Nations

Convention Against Torture based on membership in a social group. See 8 U.S.C.

§ 1158(a) (asylum); id. § 1231(b)(3) (withholding of removal); 8 C.F.R. § 208.16

(CAT).

2 In his asylum application and at his asylum hearing before the Immigration

Judge (IJ), Petitioner variously expressed that he feared for his life and safety if he

returned to Guatemala because of his uncle’s refusal to pay the gang members or

because of his own refusal to join a gang, because he had spent time in the United

States, and because his uncle had recently been found dead. After taking

testimony, the IJ denied all of Petitioner’s requests. The IJ did not make an

adverse credibility determination, but concluded that Petitioner’s generalized

testimony did not establish a nexus to protected grounds on which asylum could be

granted. The IJ also determined that Petitioner had not established past persecution

or a well-founded fear of future persecution based on a protected ground.

Petitioner had made no showing that he would be tortured by, or with the

acquiescence of, government officials; so, his application for CAT relief was also

denied. The IJ accordingly ordered removal.

Petitioner appealed his case to the BIA, which dismissed his appeal and his

motion to remand the case to the IJ. Although the BIA treated Petitioner as

credible, it concluded that his application did not state facts warranting asylum or

relief.

We review the BIA’s legal conclusions de novo and its factual findings for

substantial evidence. Kazemzadeh v. United States Attorney Gen., 577 F.3d 1341,

3 1350 (11th Cir. 2009). A review for substantial evidence is highly deferential, and

we view evidence in the light most favorable to the [BIA’s] decision and draw all

reasonable inferences” in its favor. Id. at 1351. When the BIA expressly adopts

the opinion of the IJ, we review the adopted portion of the that opinion. Id. We

review the BIA’s statutory interpretation de novo, but defer if it is reasonable. Al

Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).

Petitioner claims that the IJ and BIA erred in denying him asylum on the

basis of past persecution, which requires the “applicant [to] prove (1) that []he was

persecuted, and (2) that the persecution was on account of a protected ground.

Kazemzadeh, 577 F.3d at 1351 (alteration in original). “[P]ersecution is “an

extreme concept, requiring more than a few isolated incidents of verbal harassment

or intimidation, and ... mere harassment does not amount to persecution.” Diallo v.

United States Attorney Gen., 596 F.3d 1329, 1333 (11th Cir. 2010). “In

determining whether an alien has suffered past persecution, the IJ [and the BIA]

must consider the cumulative effects of the incidents.” Id.

Episodic beatings or isolated death threats do not amount to persecution.

See Djonda v. United States Attorney Gen., 514 F.3d 1168, 1174 (11th Cir. 2008)

(beatings); Silva v. United State Attorney Gen., 448 F.3d 1229, 1237 (11th Cir.

2006) (death threats). And evidence that a petitioner was the victim of criminal

4 activity (including extortion) “does not constitute evidence of persecution based on

a statutorily protected ground.” Ruiz v. United States Attorney Gen., 440 F.3d

1247, 1258 (11th Cir. 2006). The IJ and BIA concluded that Petitioner’s

experiences in Guatemala did not amount to persecution, a conclusion supported

by substantial evidence: his own testimony.

The BIA also concluded that Petitioner could not demonstrate a well-

founded fear of future persecution based on a protected ground. Petitioner failed to

establish that his fear of returning to Guatemala was linked to membership in a

social group (his family) given his explanation that the gangs might target him for

his own refusal to become a member or, alternatively, for his uncle’s refusal to

give money to the gang. Neither of these reasons constitute fear based on a

protected ground. See Ruiz v. United States Attorney Gen., 440 F.3d 1247, 1258

(11th Cir. 2006) (reprisals for refusal to join a group are not based on a protected

ground); Rivera v. United States Attorney Gen., 487 F.3d 815, 821–22 (11th Cir.

2007) (reprisals for refusal to pay extorted money or “war taxes” is not based on a

protected ground).

Petition Denied.