Reyna Nicolas Andres v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 24, 2021
• Docket: 20-12864
• Status: Unpublished

Opinion

USCA11 Case: 20-12864 Date Filed: 09/24/2021 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12864 Non-Argument Calendar ________________________

Agency No. A208-599-279

REYNA NICOLAS ANDRES, S. N., G. N.,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent. ________________________

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

(September 24, 2021)

Before JILL PRYOR, LUCK and MARCUS, Circuit Judges.

PER CURIAM:

Reyna Nicolas Andres, proceeding pro se as the lead petitioner, and her two

children seek review of the order of the Board of Immigration Appeals (“BIA”) USCA11 Case: 20-12864 Date Filed: 09/24/2021 Page: 2 of 12

affirming the Immigration Judge’s (“IJ”) denial of her application for asylum under

the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158(a), withholding of

removal under 8 U.S.C. § 1231(b)(3), and relief under the United Nations

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishment (“CAT”), 8 C.F.R. § 1208.16(c). In her petition, Andres argues that: (1)

the agency erred in determining that she failed to establish either past persecution or

a well-founded fear of future persecution; and (2) the IJ violated her Due Process

rights to a fair hearing by not allowing her expert witness to testify. After careful

review, we deny the petition in part and dismiss it in part.

We review the BIA’s decision as the final judgment, except to the extent it

expressly adopts the IJ’s opinion or reasoning. Perez-Zenteno v. U.S. Att’y Gen.,

913 F.3d 1301, 1306 (11th Cir. 2019). When the BIA adopts the IJ’s reasoning, we

review both decisions. Id.

We review our own subject matter jurisdiction de novo. Avila v. U.S. Att’y

Gen., 560 F.3d 1281, 1283 (11th Cir. 2009). While we retain jurisdiction over final

orders of removal, we “may review a final order of removal only if . . . the alien has

exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. §

1252(d)(1). The exhaustion requirement is jurisdictional and precludes our review

of a claimant’s argument that was not presented to the BIA. Amaya-Artunduaga v.

U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).

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We review factual findings under the substantial evidence test. Rodriguez v.

U.S. Att’y Gen., 735 F.3d 1302, 1308 (11th Cir. 2013). Under this test, we must

affirm factual findings if they are “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Lopez v. U.S. Att’y Gen.,

914 F.3d 1292, 1297 (11th Cir. 2019) (quotation omitted). We view the evidence in

the light most favorable to the agency’s decision and draw all reasonable inferences

in favor of it. Perez-Zenteno, 913 F.3d at 1306. “An argument that the agency

applied the wrong legal standard in making a determination constitutes a legal

question” that we review de novo. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th

Cir. 2016). We also review constitutional challenges de novo, including alleged due

process violations. Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 548 (11th Cir. 2011).

Arguments not raised in a petitioner’s initial brief are deemed abandoned.

Ruga v. U.S. Att’y Gen., 757 F.3d 1193, 1196 (11th Cir. 2014); Najjar v. Ashcroft,

257 F.3d 1262, 1282 n.12 (11th Cir. 2001), overruled on other grounds by Patel v.

U.S. Att’y Gen., 971 F.3d 1258 (11th Cir. 2020) (en banc). “A party must

specifically and clearly identify a claim in its brief, for instance by devoting a

discrete section of its argument to that claim; otherwise, it will be deemed abandoned

and its merits will not be addressed.” Zhou Hua Zhu v. U.S. Att’y Gen., 703 F.3d

1303, 1316 n.3 (11th Cir. 2013) (quotation omitted, alterations adopted).

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First, we are unpersuaded by Andres’s arguments that the agency erred in

denying her application for asylum. The Secretary of Homeland Security or the

Attorney General may grant asylum to a “refugee,” as defined in the statute. 8

U.S.C. § 1158(b)(1)(A). To meet the burden of establishing eligibility for asylum,

an applicant must, with specific and credible evidence, establish (1) past persecution

on account of a statutorily protected ground, or (2) a “well-founded fear” that she

will be persecuted on account of a protected ground. 8 C.F.R. § 208.13(a), (b). A

showing of past persecution creates a rebuttable presumption of a well-founded fear

of future persecution. Id. § 280.13(b)(1). The applicant must show a nexus between

the alleged persecution and a protected status, i.e., “that race, religion, nationality,

membership in a particular social group, or political opinion was or will be at least

one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i). “The

testimony of the applicant may be sufficient to sustain the applicant’s burden without

corroboration, but only if the applicant satisfies the trier of fact that the applicant’s

testimony is credible, is persuasive, and refers to specific facts sufficient to

demonstrate that the applicant is a refugee.” Id. § 1158(b)(1)(B)(ii).

Although “persecution” is not defined in the INA, we’ve said that it is “an

extreme concept” that “requires more than a few isolated incidents of verbal

harassment or intimidation, unaccompanied by any physical punishment, infliction

of harm, or significant deprivation of liberty.” Shi v. U.S. Att’y Gen., 707 F.3d

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1231, 1235 (11th Cir. 2013) (quotation omitted). Whether the facts compel the

conclusion that there is persecution is determined by considering the totality of the

facts and circumstances, and by considering any mistreatment cumulatively to see if

it rises to the level of persecution. Id. at 1235-36. Serious physical injury is not

required to prove past persecution where the petitioner demonstrates repeated threats

combined with other forms of serious mistreatment. De Santamaria v. U.S. Att’y

Gen., 525 F.3d 999, 1009-10 (11th Cir. 2008). Further, threats against another are

evidence that the petitioner suffered persecution where the act concomitantly

threatens the petitioner. Id. at 1009 n.7.

In Sepulveda v. U.S. Attorney General, a bomb was detonated at the

applicant’s workplace shortly after her shift ended, but we declined to find past

persecution because the evidence did not compel the conclusion that the bomb was

directed at Sepulveda herself. 401 F.3d 1226, 1231 (11th Cir. 2005). In Sanchez

Jimenez v. U.S. Attorney General, by contrast, we held that the attempted murder in

that case constituted past persecution. 492 F.3d 1223, 1233-34 (11th Cir. 2007).

There, the petitioner had been repeatedly threatened with his death and that of his

family, and his persecutors, on motorcycles, intentionally shot at his moving car

multiple times. Id. at 1233. The persecutors also had attempted to kidnap his

daughter and she was not even safe when her father sent her halfway across the

country. Id. In reversing the IJ’s decision, we noted that the IJ omitted the details

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of the shooting from his analysis and, instead, focused on the fact that the petitioner

was not physically harmed. Id. We observed that whether he “fortuitously escaped

from the shooters unharmed does not undermine the basic conclusion that being shot

at while driving is sufficiently ‘extreme’ to constitute persecution” and we stressed

that the persecutors followed him and intentionally shot at him. Id. So there, unlike

in Sepulveda, the record compelled the conclusion that the motorcyclists’ shooting

was specifically directed at the petitioner.

To establish a well-founded fear of future persecution, Andres must show that

there is a reasonable possibility that she will suffer persecution that cannot be

avoided by relocating within the subject country if she is returned to her native

country. 8 C.F.R. § 208.13(b)(2); Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200

(11th Cir. 2009). She must establish that her fear is both subjectively genuine and

objectively reasonable. Mehmeti, 572 F.3d at 1200.

To establish a nexus, Andres must “present specific, detailed facts showing a

good reason to fear that [s]he . . . will be singled out for persecution on account of”

the statutorily listed factor. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th

Cir. 2005) (quotation and emphasis omitted). The asylum applicant, however, does

not need to show that she will be singled out for persecution if she establishes a

“pattern or practice” in her country of “persecution of a group of persons similarly

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situated” and a reasonable fear of persecution on account of a protected ground based

on her inclusion in that group. 8 C.F.R. § 208.13(b)(2)(iii).

To qualify for withholding of removal under the INA, Andres must

demonstrate that, if removed to her country, her “life or freedom would be threatened

in that country because of [her] race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. § 1231(b)(3). She must show it to be

“more likely than not” that she will be persecuted or tortured upon returning to her

country. Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1331 (11th Cir. 2011) (quotation

omitted). Generally, if a petitioner cannot meet the standard of proof for asylum,

she will not qualify for withholding of removal. Id.

While the agency must consider all of the submitted evidence, “it is well

established that the [agency] need not address specifically each claim the petitioner

made or each piece of evidence the petitioner presented.” Indrawati v. U.S. Att’y

Gen., 779 F.3d 1284, 1302 (11th Cir. 2015) (quotation omitted). “Accordingly, a

decision that omits the discussion of certain pieces of evidence can nonetheless

display reasoned consideration.” Id.

Here, substantial evidence supports the agency’s conclusion that Andres

failed to establish past persecution. The crux of Andres’s claims concerns the facts

that she was a member of Cocode, a community development council; that she was

working to preserve the rights of the indigenous Maya; and that in about a two-day

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span in January 2015, (1) she was among a crowd of 300 protestors when the

mayor’s son fired into the crowd either aimlessly, or at the very least, without

intentionally targeting her, and (2) after hiding from the gunfire, she was chased by

men wielding weapons and escaped without harm. Notably, however, unlike the

situation in Sanchez Jimenez, the shooter did not intentionally target Andres nor

follow her when she escaped, nor did he repeatedly fire upon her. See 492 F.3d at

1233-34. As for her claim that she was chased by machete-wielding men, substantial

evidence supports the IJ’s conclusion that this event did not amount to persecution

because Andres suffered no actual harm from this event, and she did not allege any

further events. See De Santamaria, 525 F.3d at 1009-10. While she claimed that

she and her family received threats in general, nothing in the record explains the

nature or substance of these threats, nor who made them. Thus, Andres’s claims rest

on two events that did not render her detained or physically injured, and amounted

to isolated incidents of intimidation. See Shi, 707 F.3d at 1235. This record, when

viewed in a totality of the circumstances, does not compel the conclusion that

Andres’s past mistreatment constituted persecution.

Moreover, we cannot say that the agency erred in assessing the facts of her

case. While Andres challenges the IJ’s statement that she suffered only one serious

event -- being chased by machete-wielding men in January 2015 -- the IJ described

the events of January 2015 consistently with Andres’s testimony and did not fail to

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acknowledge the shooting that occurred before she was chased, nor the trauma these

experiences caused her. The IJ also expressly acknowledged Andres’s and her

brother’s testimony about threats they received. To the extent Andres argues that

the IJ failed to address the mountainous terrain of her hamlet, Andres did not, in fact,

make this argument to the IJ, and regardless, the IJ was not required to discuss every

piece of evidence. See Indrawati, 779 F.3d at 1302; Ruga, 757 F.3d at 1196. And to

the extent Andres claims the IJ erroneously failed to consider the January 2015

events to include death threats, it is irrelevant since, as we’ve explained, the record

does not compel a conclusion that these threats rose to the level of persecution.

We also find no support for Andres’s arguments that the agency misapplied

the law by requiring a showing of permanent psychological harm to establish past

persecution. Specifically, the IJ found that Andres was emotionally traumatized by

the January 2015 shooting, but that there was no evidence that her “emotional trauma

rose to the level of permanent psychological harm or that it affected her ability to

continue to conduct her affairs.” The IJ made this determination based on the

testimony Andres gave about her life after the events of January 2015, and, notably,

Andres offered no testimony about the threats she received, nor who was looking for

her. As we see it, when the IJ observed that Andres could continue to conduct her

affairs after January 2015, he was not requiring permanent psychological harm to

establish persecution, but instead was assessing whether Andres suffered from

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something extreme and more than an isolated incident unaccompanied by the

deprivation of liberty, and found that she had not. See Shi, 707 F.3d at 1235.

Nor do the facts compel the conclusion that Andres established a well-founded

fear of future persecution. Significantly, Andres argues in her initial brief that she

could easily disappear in her small town -- undercutting any argument that she

possesses an objectively reasonable fear of persecution upon her return to

Guatemala. See Mehmeti, 572 F.3d at 1200. The record also reflects that Andres

continued to live in the same small town for about ten months and was not targeted

again. Further, the mayor who instigated the shooting is no longer the mayor of her

town, and Andres expressly testified that she did not know whether the new mayor

was hostile towards Cocode. In any event, the record reveals that her brother was

president of a local Cocode council without receiving any physical harm -- and only

one threat on an unknown date -- which undermines her arguments that being a

Cocode member would result in her persecution. Thus, the record does not compel

the conclusion that Andres has an objectively reasonable fear of persecution.

Because Andres has failed to establish the persecution prong of her asylum

claim, we need not reach her arguments concerning nexus or her proposed particular

social group. Moreover, because she cannot meet the lower standard for asylum,

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she cannot meet the higher standard for withholding of removal. See Carrizo, 652

F.3d 1331. Accordingly, we deny this portion of her petition. 1

We similarly are unconvinced by Andres’s claim that the IJ violated her Due

Process rights to a fair hearing by not allowing her expert witness to testify. To

prevail on a due process challenge, Andres “must show that [s]he was deprived of

notice or an opportunity to be heard, and that [s]he was substantially prejudiced by

the deprivation.” Pierre v. U.S. Att’y Gen., 879 F.3d 1241, 1253 (11th Cir. 2018)

(quotation omitted). She can demonstrate substantial prejudice by showing that the

outcome would have been different absent the alleged violation. Id.

Andres’s Fifth Amendment arguments are without merit. She argues that her

expert witness could have supported her well-founded fear of future persecution

claim by explaining the factual disputes about land rights in the area and whether

Andres had substantive rights to the land; whether the Guatemalan government has

failed to protect its indigenous groups; and the current political atmosphere of her

town. However, as for whether there was a factual dispute as to land ownership, the

IJ found Andres’s testimony, which included her family’s land ownership, to be

credible, so the expert witness’s testimony was unnecessary. As for information

1 In addition, we dismiss the portion of her petition that mentions CAT relief, because she did not brief the core issues concerning CAT relief to the agency, which precludes our review of her CAT claim as a jurisdictional matter. See Amaya-Artunduaga, 463 F.3d at 1250; Indrawati, 779 F.3d at 1297. We also decline to consider Andres’s argument -- raised for the first time in her reply brief -- that the IJ failed to consider the Maya people’s history of persecution in Guatemala or the cumulative harm of the January 2015 events. See Najjar, 257 F.3d at 1282 n.12. 11 USCA11 Case: 20-12864 Date Filed: 09/24/2021 Page: 12 of 12

about the political atmosphere in her town and whether Guatemala protects the Maya

people, this information again was already in the record, and the IJ expressly found,

based on the background evidence, that the Maya suffered from regular

discrimination and that Andres’s political opinion could provide a basis for relief if

she were otherwise eligible. On this record, we do not see how the expert’s

testimony would have changed the outcome, nor, thus, how Andres suffered any

prejudice. See id. This is especially true since, for purposes of her well-founded

fear of future persecution claim, Andres admitted that she could easily disappear in

her small town, that she lived there for ten months without harm, and that her brother

continues to live there unharmed. Moreover, Andres does not allege that she was

deprived of notice. See id.; Ruga, 757 F.3d at 1196. Accordingly, we deny the

petition as to this issue.

DISMISSED IN PART, DENIED IN PART.