Raul Eduardo Cabrera v. U.S. Attorney General

154 F. App'x 889
CourtCourt of Appeals for the Eleventh Circuit
DecidedNovember 23, 2005
Docket05-11022; BIA Agency A95-898-600 & A95-896-094
StatusUnpublished

This text of 154 F. App'x 889 (Raul Eduardo Cabrera v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Raul Eduardo Cabrera v. U.S. Attorney General, 154 F. App'x 889 (11th Cir. 2005).

Opinion

PER CURIAM:

Raul Eduardo Cabrera, a native and citizen of Colombia, through counsel, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming without opinion the Immigration Judge’s (“IJ”) removal order and denial of his claims for asylum under the Immigration and Nationality Act (“INA”) and for protection under the United Nations Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). 1

I. Asylum relief

Cabrera argues that the IJ erred in denying his claim for asylum because he presented substantial evidence demonstrating a well-founded fear of persecution from the Revolutionary Armed Forces of Colombia (“FARC”) on account of his membership in a particular social group and his political opinion.

*891 As an initial matter, we are “obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir.2004) (quotation omitted). We can review a final order of removal only if “the alien has exhausted all administrative remedies available to the alien as of right....” INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). Accordingly, we have held that we lack jurisdiction to consider claims that were not raised before the BIA. Fernandez-Bernal v. United States Att’y Gen., 257 F.3d 1304, 1317 n. 13 (11th Cir.2001); Galindo-Del Valle v. Attorney Gen., 213 F.3d 594, 599 (11th Cir.2000).

In this case, Cabrera did not present to the IJ or the BIA his claim for asylum on account of his membership in a particular social group. Therefore, Cabrera has failed to exhaust his administrative remedies with regard to this claim, and we lack jurisdiction to consider it.

When the BIA summarily affirmed the IJ’s decision without an opinion, the IJ’s decision became the final removal order subject to review. Mendoza v. United States Att’y Gen., 327 F.3d 1283, 1284 n. 1 (11th Cir.2003). “To the extent that the [IJ]’s decision was based on a legal determination, this court’s review is de novo.” D-Muhumed v. United States Att’y Gen., 388 F.3d 814, 817 (11th Cir.2004). The IJ’s factual determinations are reviewed under the substantial evidence test, and we “must affirm the [IJ]’s decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir.2001) (quotation omitted). “[W]e cannot engage in fact-finding on appeal, nor may we weigh evidence that was not previously considered below.” Id. at 1278. Therefore, a finding of fact will be reversed “only when the record compels a reversal; the mere fact that the record may support a contrary conclusion is not enough to justify a reversal....” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.2004), cert. denied, — U.S. -, 125 S.Ct. 2245, 161 L.Ed.2d 1063 (2005); see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary----”).

An alien who arrives in, or is present in, the United States may apply for asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of Homeland Security or the Attorney General has discretion to grant asylum if the alien meets the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is defined as

any person who is outside any country of such person’s nationality ... 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 of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion ____

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). “The asylum applicant carries the burden of proving statutory ‘refugee’ status.” D-Muhumed, 388 F.3d at 818.

To establish asylum eligibility, the petitioner must, with specific and credible evidence, demonstrate (1) past persecution on account of a statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor will cause future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. If the petitioner demonstrates past persecution, there is a rebut-table presumption that he has a well-founded fear of future persecution. 8 C.F.R § 208.13(b)(1). If he cannot show *892 past persecution, then the petitioner must demonstrate a well-founded fear of future persecution that is both subjectively genuine and objectively reasonable. Al Najjar, 257 F.3d at 1289. The subjective component can be proved “by the applicant’s credible testimony that he or she genuinely fears persecution,” while the objective component “can be fulfilled either by establishing past persecution or that he or she has a good reason to fear future persecution.” Id. (quotation omitted).

Neither the INA nor the regulations define “persecution.” We have stated, however, that “persecution is an extreme concept, requiring more than few isolated incidents of verbal harassment or intimidation, and ... mere harassment does not amount to persecution.” Sepulveda, 401 F.3d at 1231 (quotations omitted).

The petitioner’s well-founded fear of persecution must be on account of, or because of, one of the statutorily listed factors, such as his political opinion. INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 816, 117 L.Ed.2d 38 (1992). The petitioner must establish this causal connection by “presenting specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution” on account the statutory factor. Sepulveda, 401 F.3d at 1231 (quotation omitted)(emphasis in original).

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