Martha Beatriz Hernandez v. Us Attorney General

447 F. App'x 107
Court of Appeals for the Eleventh Circuit·Decided November 18, 2011·No. 11-11706·Unpublished

Opinion

PER CURIAM:

Martha Hernandez, a native and citizen of Colombia, appeals the Board of Immigration Appeals’s (“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of her application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), as well as relief under the United Nations Convention Against Torture (“CAT”), based on a finding that the treatment she received did not rise to the extreme level necessary to constitute persecution and that no nexus to a protected ground existed. On appeal, Hernandez argues that the BIA erred in denying her asylum and withholding of removal because she suffered harm that is equal or greater than treatment that federal courts previously have stated constitutes persecution. After careful review, we deny the petition. 1

We review the BIA’s decision as the final judgment, unless the BIA has expressly adopted the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir.2007). Here, because the BIA did not expressly adopt the IJ’s decision, we review the decision of only the BIA.

The BIA’s determinations on questions of law are reviewed de novo. Chen v. U.S. Att’y Gen., 513 F.3d 1255, 1257 (11th Cir.2008). Findings of fact must be supported by substantial evidence. Id. Findings of fact are followed unless a reasonable fact finder would be compelled to a conclusion contrary to that of the BIA. Id. Accordingly, “[t]o conclude the BIA’s decision should be reversed, we must find that the record not only supports the conclusion, but compels it.” Ruiz, 479 F.3d at 762 (internal quotations omitted).

The Attorney General or Secretary of Homeland Security has discretion to grant asylum if the alien meets the definition of “refugee,” as defined by 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. § 1158(b)(1)(A). A refugee is defined as:

any person who is outside any country of such person’s nationality, or, in the case of a person having no nationality, is *109 outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear or persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....

8 U.S.C. § 1101 (a)(42)(A). The asylum applicant carries the burden of proving statutory “refugee” status, and thereby establishing asylum eligibility. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). “To establish asylum based on past persecution, the applicant must prove (1) that she was persecuted, and (2) that the persecution was on account of a protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir.2006). “To establish eligibility for asylum based on a well-founded fear of future persecution, the applicant must prove (1) a subjectively genuine and objectively reasonable fear of persecution that is (2) on account of a protected ground.” Id. (internal citation and quotation marks omitted). A showing of past persecution creates a rebuttable presumption of a well-founded fear of future prosecution. Sepulveda, 401 F.3d at 1231.

“Persecution” is not defined in the INA, but we have described it as “an extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation.” Id. (quotations omitted). We have also noted that mere harassment does not amount to persecution. Id. In Sepulveda, we held that repeated threats to an individual and her family, coupled with the bombing of the restaurant at which the alien worked, did not compel a finding of past persecution. See id. at 1232. We have held that detention for 36 hours, accompanied by beating by the police, does not compel a finding of past persecution. See Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1171, 1174 (11th Cir.2008). We have also held that detention for 5 days, while being forced to watch reeducation videos, does not compel a finding of past persecution. See Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290-91 (11th Cir.2006).

To qualify for withholding of removal under the INA, an alien must show that if returned to her country, the alien’s life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3). To do so, the applicant must demonstrate that he more-likely-than-not would be persecuted upon return to the country in question. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1277 (11th Cir.2009). If a petitioner is unable to meet the lower standard of proof for asylum, she is generally precluded from qualifying for withholding of removal. Al Najjar, 257 F.3d at 1292-93.

Here, substantial evidence supports the BIA’s conclusion that Hernandez failed to establish asylum eligibility based on past persecution. In her removal hearing, Hernandez described one incident in which she was threatened, but after receiving police protection, no further incidents occurred. Isolated threats do not rise to the extreme level necessary to constitute persecution. See Sepulveda, 401 F.3d at 1231. Therefore, the single threat from the FARC does not compel a finding of past persecution, and Hernandez cannot establish asylum eligibility on the ground of past conduct. See Silva, 448 F.3d at 1236.

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Martha Beatriz Hernandez v. Us Attorney General, 447 F. App'x 107 (11th Cir. 2011).

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