Norberto Rocubert-Campo v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 23, 2021
• Docket: 20-13339
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13339 Non-Argument Calendar ________________________

Agency No. A203-628-200

NORBERTO ROCUBERT-CAMPO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(July 23, 2021) USCA11 Case: 20-13339 Date Filed: 07/23/2021 Page: 2 of 13

Before JILL PRYOR, LUCK, and EDMONDSON, Circuit Judges.

PER CURIAM:

Norberto Rocubert-Campo (“Petitioner”), a native and citizen of Cuba,

petitions for review of the order by the Board of Immigration Appeals (“BIA”): a

decision affirming the decision of the Immigration Judge (“IJ”). The IJ’s decision

denied Petitioner’s applications for asylum, withholding of removal, and for relief

under the United Nations Convention Against Torture and Other Cruel, Inhuman,

or Degrading Treatment or Punishment (“CAT”). No reversible error has been

shown; we deny the petition.

I.

Petitioner entered the United States in 2019 and was charged as removable.

Petitioner filed an application for asylum, withholding of removal, and for

protection under CAT.

In his application for relief, Petitioner said he had been persecuted by the

Cuban government based on his political opinion. In 2014 in Cuba, Petitioner

began working at a government-run slaughterhouse. In September 2015, Petitioner

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complained to his boss that he was not being paid his full salary and was unable to

buy products being sold to other employees. Petitioner’s boss said Petitioner was

treated differently from other employees because Petitioner belonged to no

political or governmental organizations, participated in no political rallies, and

because Petitioner’s mother-in-law (who had moved to the United States in 2014)

was considered a traitor. Petitioner’s boss threatened to fire Petitioner if Petitioner

did not change his political opinion. Petitioner continued to work at the

slaughterhouse for another year and then quit his job in September 2016.

In October 2016, Petitioner and his wife1 applied for a business license. The

director of the national office of workers said Petitioner was ineligible for a

business license based on Petitioner’s problems with his last employer, his political

opinion, and his lack of membership in a government group. Petitioner accused

the director of being a “puppet” for Castro, and Petitioner’s wife made anti-Castro

comments. The director called the police.

As the police frisked Petitioner’s wife, Petitioner says the officer touched his

wife in an inappropriate way. When Petitioner objected, the officer threw

Petitioner to the floor and beat him, causing a cut on Petitioner’s forehead. The

1 Petitioner’s wife filed separately an application for relief. That petition is not before us in this appeal. 3 USCA11 Case: 20-13339 Date Filed: 07/23/2021 Page: 4 of 13

officers also hit Petitioner’s wife, resulting in a cut to her upper lip and a chipped

tooth.

After arriving at the police station, Petitioner asked for medical assistance

for himself and for his wife but was told that “people who are against the

revolution don’t deserve medical treatment.” Petitioner and his wife were detained

for 72 hours, during which they were interrogated several times, beaten, and fed

only bread and water. When Petitioner and his wife were released, officers warned

that next time would be worse if they did not change their political opinion or join

a government group. The officers also threatened to apply the “law of danger,”

referring to a law allowing a person to be detained for four to six years without a

lawyer.

Petitioner was charged with no crime. After his release, Petitioner suffered

no long-term injuries and sought no medical assistance for the cut on his forehead,

which he said healed by itself.

A month later -- in November 2016 -- Petitioner and his wife did obtain a

business license and opened a beauty parlor. After the license was issued, two

inspectors from the national office of workers began harassing Petitioner by

conducting frequent inspections and by extorting money from Petitioner and his

wife.

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In April 2017, Petitioner hosted a celebration for his wife’s birthday. The

police arrived at Petitioner’s house and accused Petitioner of organizing a public

protest against the government. The police beat Petitioner and his wife and took

them to the police station. The police sprayed Petitioner and his wife with cold

water and detained them overnight in a cold room. The next day, the police

threatened to apply the law of danger and to “disappear” Petitioner and his wife if

they did not change their political opinion. The police later fined Petitioner and his

wife for “public scandal.”

Petitioner testified that the police then began making unannounced

inspections of Petitioner’s house, performing more than ten inspections in 2018.

Officers told Petitioner that he was being subjected to frequent inspections because

of his political opinion and his failure to participate in a government organization.

Petitioner and his wife moved twice to avoid the inspections: first to Petitioner’s

mother’s house (3 kilometers away) and then to the wife’s grandmother’s house (5

kilometers away). The police, however, located them and continued the

inspections. Petitioner and his wife ultimately moved back to their own house.

In February 2019, Petitioner was invited to participate in -- and failed to

attend -- a local political meeting. Two days later, police came to Petitioner’s

home and took away his business license, products from the beauty salon, and

Petitioner’s personal belongings. The police also beat Petitioner and his wife. The

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police told Petitioner that, if he and his wife failed to join a political group, the

police would apply the law of danger and would “disappear” them.

During the beating, Petitioner’s wife was struck on the hip where she had

had a prior surgery and was unable to walk. Petitioner took her to the hospital

even though he said he risked another beating for seeking medical assistance. At

the hospital, the doctor took an x-ray and prescribed anti-inflammatory medicine

and rest; the doctor refused to issue a certificate for the injury. Petitioner’s wife

stayed in bed for 25 days.

In April 2019, Petitioner traveled to the United States using his passport. He

has remained here.

Petitioner testified that after he left Cuba, the police have visited his

mother’s house asking about him. When the police learned that Petitioner was in

the United States, they said they would arrest Petitioner and “disappear” him if he

returned to Cuba.

The IJ denied Petitioner’s application for relief. The IJ determined that the

mistreatment Petitioner experienced failed to rise to the level of persecution. The

IJ also concluded that Petitioner failed to establish an objectively reasonable fear

of future persecution. Petitioner was thus ineligible for asylum or for withholding

of removal. About Petitioner’s CAT claim, the IJ determined that Petitioner had

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failed to show that it was more likely than not that he would be tortured if returned

to Cuba.

The BIA affirmed the IJ’s decision.

II.

We review only the decision of the BIA, except to the extent that the BIA

adopts expressly the IJ’s decision. See Gonzalez v. U.S. Att’y Gen., 820 F.3d 399,

403 (11th Cir. 2016). Because the BIA agreed expressly with parts of the IJ’s

reasoning in this case, we review the IJ’s decision to the extent of that agreement.

See id.

The standard of review is extremely important in this kind of case. We

review administrative fact determinations under the “highly deferential substantial

evidence test” whereby we “must affirm the BIA’s decision if it is ‘supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.’” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc).

We have to “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. at 1027.

To reverse a fact determination, we must conclude “that the record not only

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supports reversal, but compels it.” See Mendoza v. U.S. Att’y Gen., 327 F.3d

1283, 1287 (11th Cir. 2003).

On appeal, Petitioner first contends that the BIA applied incorrectly a clear-

error standard in reviewing the IJ’s decision. Whether the BIA applied the correct

standard of review is a question of law that we review de novo. See Jeune v. U.S.

Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). In reviewing the decision of the

IJ, the BIA reviews de novo questions of law and reviews findings of fact for clear

error. See 8 C.F.R. § 1003.1(d)(3)(i)-(ii).

Here, the BIA recited properly the applicable standards of review. Contrary

to Petitioner’s assertions on appeal, the BIA then applied the appropriate standards

in reviewing the IJ’s factual findings and the IJ’s legal determinations about

Petitioner’s eligibility for asylum, withholding of removal, and for CAT relief.

Petitioner next argues that the IJ and the BIA failed to give reasoned

consideration to Petitioner’s application for relief and failed to make adequate

factual findings. Petitioner contends that the IJ and the BIA failed to consider

properly this evidence: (1) that Petitioner was cited for “public scandal” following

his 2017 detention; (2) that Petitioner was mistreated, detained, beaten and

searched on multiple occasions between 2015 and 2019; (3) that Petitioner asked

for medical assistance for himself and for his wife during his 2016 detention;

(4) Petitioner’s testimony that all doctors in Cuba are government employees; (5)

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that -- after Petitioner left Cuba -- the Cuban police questioned Petitioner’s mother

about Petitioner’s whereabouts; and (6) statements in the U.S. Department of

State’s 2018 Human Rights Report for Cuba (“2018 Country Report”) that the

Cuban government uses arbitrary arrests and short-term detentions to repress

political activity. 2

We review de novo whether the BIA and the IJ gave reasoned consideration

to an issue. See Jeune, 810 F.3d at 799. “A reasoned-consideration examination

does not look to whether the agency’s decision is supported by substantial

evidence.” Id. at 803. Instead, “[w]hen assessing whether a decision displays

reasoned consideration, we look only to ensure that the IJ and the BIA considered

the issues raised and announced their decisions in terms sufficient to enable

review.” Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1302 (11th Cir. 2015).

“[W]e look to see that the agency ‘heard and thought and not merely reacted.’” Id.

The agency fails to “give reasoned consideration to a claim when it misstates the

contents of the record, fails to adequately explain its rejection of logical

conclusions, or provides justifications for its decision which are unreasonable and

which do not respond to arguments in the record.” Jeune, 810 F.3d at 803.

2 In his appeal to the BIA, Petitioner argued broadly that the IJ failed to consider adequately his claims. Petitioner, however, never identified these specific examples of evidence as having been considered inadequately by the IJ or as contradicting the IJ’s factual findings. 9 USCA11 Case: 20-13339 Date Filed: 07/23/2021 Page: 10 of 13

We have stressed that, although the IJ and the BIA must consider all

evidence submitted by a petitioner, the IJ and the BIA -- in rendering a decision --

“need not address specifically each claim the petitioner made or each piece of

evidence the petitioner presented.” See Indrawati, 779 F.3d at 1302. To consider

and to discuss are not the same thing. The IJ and the BIA must however discuss

“highly relevant” evidence, meaning evidence that would compel a different

outcome if discussed. See Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1334 (11th Cir.

2019).

Here, the decisions of the IJ and the BIA reflect reasoned consideration of

the issues presented by Petitioner and announce the agency’s decision in terms

sufficient to enable judicial review.

First, the IJ and the BIA considered expressly Petitioner’s evidence and

testimony about the mistreatment he experienced in Cuba, including “harassment,

discrimination, searches, threats, physical attacks, a 72 hour detention in 2016, and

an overnight detention in 2017.” That the IJ and the BIA concluded that the harm

Petitioner suffered did not rise to the level of persecution does not show that the

agency failed to consider adequately Petitioner’s evidence. Not all tribulations

(even with some violence) amount to “persecution” for these kinds of cases.

We have said that “persecution is an extreme concept, . . . mere harassment

does not amount to persecution.” See Sepulveda v. U.S. Att’y Gen., 401 F.3d

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1226, 1231 (11th Cir. 2005) (quotations omitted) (concluding that repeated threats

to petitioner and to her family and the bombing of petitioner’s place-of-work

amounted to no persecution). “Minor physical abuse and brief detentions” are also

insufficient to establish persecution. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d

1341, 1353 (11th Cir. 2009) (concluding the record compelled no finding of

persecution when petitioner was harassed routinely by government authorities,

arrested, interrogated and beaten for five hours, and detained for four days). We

concluded recently -- in a case involving facts similar to this appeal -- that the

record compelled no finding of past persecution when the petitioner (a journalist

and critic of the Cuban government) suffered these harms: (1) was beaten by

officers, resulting in petitioner’s brief loss of consciousness and a cut to

petitioner’s forehead requiring stitches; (2) was arrested, detained overnight,

interrogated for hours, and threatened with torture, imprisonment, and being made

to disappear; (3) was fired from three jobs after government officials threatened the

business owners; (4) was arrested, detained for three days, interrogated, and told to

leave town due to his prior political problems; and (5) was detained while trying to

leave Cuba and had his laptop and cell phone seized by government officials. See

Martinez v. U.S. Att’y Gen., 992 F.3d 1283, 1291-93 (11th Cir. 2021).

The IJ and the BIA also considered expressly the 2018 Country Report,

recognizing that the Cuban government engages in political repression. The IJ and

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the BIA noted, however, that Cuba’s acts of repression are directed chiefly at

certain groups, that Petitioner failed to show he was a member of one of these

specified groups, and that Petitioner failed to show that similar-situated persons

(“private citizens who have expressed some form of opposition to the Cuban

government”) had experienced mistreatment rising to the level of persecution.

None of the evidence highlighted by Petitioner in this appeal is fully

inconsistent with the agency’s factual findings or would compel a different

outcome. Although Petitioner was fined for public scandal following his 2017

detention, the record supports the BIA’s and IJ’s finding that Petitioner was

charged with no crimes: Petitioner testified and presented a certificate showing he

had no criminal record in Cuba and no outstanding warrants against him.

The record also supports the finding that Petitioner sought no medical

treatment for his injuries. Although Petitioner asked for medical assistance while

at the police station in 2016, Petitioner testified that he sought no medical

treatment following his release, that his forehead cut healed by itself, and that he

sought no medical treatment following his 2017 detention. The record also shows

that Petitioner was able to obtain medical treatment for his wife’s hip injury in

2017 and suffered no retaliation for doing so.

Petitioner points to his testimony that the Cuban police have asked his

mother about his whereabouts and have threatened to arrest Petitioner and to

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“disappear” him upon his return. This evidence shows a continuation of the kind

of harassment and threats that the IJ and the BIA concluded amounted, in the legal

sense, to less than persecution. That the IJ and the BIA did not discuss expressly

these police visits does not persuade us that the IJ and the BIA failed to consider

that evidence. Nor does this evidence compel the conclusion that Petitioner would

be singled out for persecution if returned to Cuba. See Martinez, 992 F.3d at 1292

(concluding that substantial evidence supported a finding that officers’ threats that

petitioner would be imprisoned, tortured, and made to disappear -- while harassing

and menacing -- constituted no persecution); Djonda v. U.S. Att’y Gen., 514 F.3d

1168, 1175 (11th Cir. 2008) (evidence that petitioner would be detained upon

returning to his home country was insufficient to compel the conclusion that his

treatment in the future would rise to the level of persecution).

In rendering their decisions, neither the IJ nor the BIA misstated the contents

of the record or provided unreasonable justifications for the decision: justifications

that were non-responsive to arguments in the record. We cannot conclude that the

BIA’s decision lacked reasoned consideration of Petitioner’s claims that preclude

judicial review or that the record actually compels reversal.

PETITION DENIED.