Rajib Hossain v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 23, 2022
• Docket: 20-14863
• Status: Unpublished

Opinion

USCA11 Case: 20-14863 Date Filed: 03/23/2022 Page: 1 of 9

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 20-14863 Non-Argument Calendar ____________________

RAJIB HOSSAIN, Petitioner, versus U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A215-975-179 ____________________ USCA11 Case: 20-14863 Date Filed: 03/23/2022 Page: 2 of 9

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Before JILL PRYOR, BRANCH, and EDMONDSON, Circuit Judges. PER CURIAM: Rajib Hossain, a native and citizen of Bangladesh, petitions for review of the order by the Board of Immigration Appeals (“BIA”), affirming the decision of the Immigration Judge (“IJ”). The IJ’s decision denied Hossain’s application for asylum. No re- versible error has been shown; we dismiss the petition in part and deny the petition in part. 1 Hossain entered the United States in 2018 and was charged as removable. Hossain later filed an application for asylum. In sup- port of his application, Hossain said he had been persecuted by members of the Awami League (Bangladesh’s ruling party) based upon his political opinion. In 2015, Hossain joined the Liberal Democratic Party (“LDP”) of Bangladesh and was later promoted to serve as a “publicity editor” for the LDP. On ten or twelve oc- casions, Hossain (then living in Chittagong) was harassed verbally

1 In his appeal to the BIA, Hossain raised no challenge to the IJ’s denial of withholding of removal or the IJ’s denial of relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treat- ment or Punishment. Those issues are thus not properly before us on appeal. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006) (“We lack jurisdiction to consider a claim raised in a petition for review unless the petitioner has exhausted his administrative remedies with respect thereto.”). We dismiss the petition to the extent Hossain seeks to appeal the denial of these forms of relief. USCA11 Case: 20-14863 Date Filed: 03/23/2022 Page: 3 of 9

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by local members of the Awami League who threatened to kill Hossain unless he agreed to leave the LDP. Hossain was also attacked physically on two occasions. The first attack happened in May 2017, as Hossain left an LDP event with two other LDP members. Members of the Awami League struck Hossain with sticks and told Hossain to leave the LDP or else they would “finish” him. The attackers fled when Hossain’s screams attracted the attention of nearby witnesses. Hossain suf- fered injuries to his knees and back and received treatment at a lo- cal pharmacy. Hossain’s two companions suffered no injuries. Hossain never reported the incident to the police. Hossain was attacked a second time in October 2017, after Hossain delivered a speech critical of the Awami League at an LDP event. Hossain says his attackers hit him with sticks and carried (but did not use) a knife and a gun. The attackers threatened to kill Hossain because of his speech and told him to leave the LDP. The attack stopped when a group of boys chased the attackers with tree branches. Hossain suffered a cut above his eye and was treated in a hospital for one week. Hossain reported the attack to the police, but the officers refused to help for fear of losing their jobs. Shortly thereafter, Hossain fled to live with his sister in Dhaka, the capital of Bangladesh. Hossain lived in Dhaka for about seven months. During that time, Hossain was never attacked phys- ically but received five or six threatening phone calls from mem- bers of the Awami League. USCA11 Case: 20-14863 Date Filed: 03/23/2022 Page: 4 of 9

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Hossain fled Bangladesh in May 2018 and entered the United States. Hossain’s father has also received many threats from the Awami League. Nevertheless, Hossain’s parents, siblings, wife, and child continue to live unharmed in Bangladesh. The IJ denied Hossain’s application for relief in April 2020. 2 In pertinent part, the IJ determined that the mistreatment Hossain experienced was not sufficiently severe to rise to the level of perse- cution. The IJ also determined that Hossain had failed to demon- strate a well-founded fear of future persecution because Hossain failed to establish, among other things, that he could not avoid harm by relocating within Bangladesh. The BIA affirmed the IJ’s decision. We review only the BIA’s decision, 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 re- view the IJ’s decision to the extent of that agreement. See id. The BIA’s determination that an applicant is statutorily inel- igible for asylum is a factual determination that we review under the “highly deferential” substantial evidence test. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001). Under this test, we “must affirm the BIA’s decision if it is ‘supported by reasonable,

2 The IJ first denied Hossain’s application for relief in June 2019; after an ap- peal, the BIA remanded the case. On the present appeal, we review only the IJ’s April 2020 denial order. USCA11 Case: 20-14863 Date Filed: 03/23/2022 Page: 5 of 9

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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). In reviewing the agency’s decision, we may not “find, or consider, facts not raised in the administrative forum” or “reweigh the evidence from scratch.” Id. at 1029. Instead, 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. at 1027. To reverse a fact determination, we must conclude “that the record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). A non-citizen may obtain asylum if he is a “refugee,” that is, a person unable or unwilling to return to his country of nationality “because of persecution or a well-founded fear of persecution on account of” a protected ground, including political opinion. 8 U.S.C. §§ 1101(a)(42)(A), 1158(a)(1), (b)(1). The asylum applicant bears the burden of proving statutory “refugee” status with specific and credible evidence. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). Substantial evidence supports the BIA’s and the IJ’s determi- nation that Hossain failed to demonstrate harm constituting past persecution. We consider cumulatively the mistreatment suffered by a petitioner to determine whether it rises to the level of perse- cution. See Martinez v. U.S. Att’y Gen., 992 F.3d 1283, 1291 (11th Cir. 2021). We have said that “persecution is an extreme concept, requiring more than a few isolated incidents of verbal harassment USCA11 Case: 20-14863 Date Filed: 03/23/2022 Page: 6 of 9

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or intimidation, and that mere harassment does not amount to per- secution.” See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (quotations and alteration omitted) (concluding that repeated threats to petitioner and to her family and the bomb- ing of petitioner’s place-of-work amounted to no persecution). Mi- nor physical abuse combined with threats and brief detentions are also insufficient to establish persecution. See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1353 (11th Cir. 2009); Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1172, 1174 (11th Cir. 2008). Here, Hossain experienced cumulatively repeated verbal threats and two brief physical attacks, one of which resulted in in- juries treated at a local pharmacy and one of which resulted in a cut above Hossain’s eye requiring stitches and hospitalization. This mistreatment (while terrible) is insufficient to compel a finding of past persecution. See Martinez, 992 F.3d at 1291-93 (concluding that the record compelled no finding of past persecution when the petitioner, among other things, was beaten by officers, resulting in petitioner’s brief loss of consciousness and a cut to petitioner’s fore- head requiring stitches, and was twice arrested, detained, interro- gated, and threatened with torture, imprisonment, and being made to disappear); Kazemzadeh, 577 F.3d at 1353 (concluding the rec- ord compelled no finding of persecution when petitioner was har- assed routinely by government authorities, arrested, interrogated and beaten for five hours, and detained for four days); Djonda, 514 F.3d at 1172, 1174 (concluding that threats and a minor beating that resulted in a two-day hospital stay did not constitute persecution). USCA11 Case: 20-14863 Date Filed: 03/23/2022 Page: 7 of 9

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To show a well-founded fear of future persecution, an appli- cant must establish that his fear both is “subjectively genuine and objectively reasonable.” See Al Najjar, 257 F.3d at 1289. “[T]he objective prong can be fulfilled either by establishing past persecu- tion or that he or she has a good reason to fear future persecution.” Id. (quotation omitted). No well-founded fear of persecution exists “if the applicant could avoid persecution by relocating to another part of the applicant’s country of nationality . . . if under all the circumstances it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 1208.13(b)(2)(ii). Because Hossain has shown no past persecution, he is enti- tled to no rebuttable presumption of a well-founded fear of future persecution. See Martinez, 992 F.3d at 1293; Al Najjar, 257 F.3d at 1289. Hossain also conceded that the people who harassed and at- tacked him were not government actors. Thus, to show a well- founded fear of future persecution, Hossain bears the burden of demonstrating that he could not relocate reasonably within Bang- ladesh. See 8 C.F.R. § 1208.16(b)(2)(ii), (3)(i); Farah v. U.S. Att’y Gen., 12 F.4th 1312, 1330 (11th Cir. 2021) (“When the applicant does not establish past persecution, he ‘bear[s] the burden of estab- lishing that it would not be reasonable for him . . . to relocate, un- less the persecutor is a government or is government-sponsored.’” (citing 8 C.F.R. § 1208.16(b)(3)(i)). When -- as in this case -- the alleged persecutor is neither a government nor government-spon- sored, “we presume that internal relocation would be reasonable, USCA11 Case: 20-14863 Date Filed: 03/23/2022 Page: 8 of 9

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unless the applicant establishes otherwise by a preponderance of the evidence.” See id. (citing 8 C.F.R. § 1208.16(b)(3)(iii)). Substantial evidence supports the BIA’s and the IJ’s determi- nation that Hossain failed to show a well-founded fear of future persecution. Hossain failed to satisfy his burden of showing that he could not avoid harm by relocating within Bangladesh. Hossain did in fact relocate to Dhaka and lived there unharmed for seven months before traveling to the United States. In addition, the country conditions reports on Bangladesh evidence no countrywide persecution against LDP members. Con- trary to Hossain’s assertion on appeal, the IJ discussed expressly the country condition documents submitted by Hossain, including the U.S. State Department’s 2018 Human Rights Report for Bangla- desh. As the IJ noted, the evidence about the country conditions in Bangladesh included reports of violence and intimidation against members of the Awami League’s chief opposition party: the Bang- ladesh National Party (BNP). The 2018 Country Report, however, included no reports of politically-motivated violence against mem- bers of the LDP. A 2016 document published by the Immigration and Refu- gee Board of Canada described the LDP as a political party that played a “small and insignificant” role on Bangladesh’s national level and that had only a few thousand active members. The 2016 report noted that the LDP had “a stronghold” in Chittagong and “higher visibility” in three areas, including in both Dhaka and Chit- tagong. The 2016 report stated that the LDP’s leader had USCA11 Case: 20-14863 Date Filed: 03/23/2022 Page: 9 of 9

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complained about government harassment, repression, and re- venge, but that no corroborating information about arrests or vio- lence against LDP members could be found “within the time con- straints” of the report. This record -- viewed in the light most favorable to the agency’s decision --- does not compel a finding that Hossain has a well-founded fear of future persecution. That Hossain’s family continues to live unharmed in Bangladesh (despite also receiving threats from the Awami League) also supports a finding that Hoss- ain’s fear of future persecution is not well-founded. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006) (noting that a petitioner’s asserted fear of future persecution “was contradicted by his testimony that his son and his parents have remained un- harmed in the region of Colombia where [petitioner] allegedly was threatened”). Substantial evidence supports the IJ’s and the BIA’s decisions that Hossain is statutorily ineligible for asylum, and we are not compelled to reverse those decisions. PETITION DISMISSED IN PART AND DENIED IN PART.