Sergio Eduardo Rodrigues v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 26, 2019
• Docket: 18-11101
• Status: Unpublished

Opinion

Case: 18-11101 Date Filed: 02/26/2019 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11101 Non-Argument Calendar ________________________

Agency No. A200-045-217

SERGIO EDUARDO RODRIGUES,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(February 26, 2019)

Before MARCUS, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM: Case: 18-11101 Date Filed: 02/26/2019 Page: 2 of 10

Sergio Eduardo Rodrigues seeks review of the Board of Immigration

Appeals (“BIA”) order dismissing his appeal from the denial of his application for

withholding of removal and relief under the United Nations Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(“CAT”). Upon review of the record and the parties’ briefs, we dismiss the

petition in part and deny it in part.

I.

Rodrigues, a native and citizen of Brazil, entered the United States on

December 30, 2004 on a nonimmigrant tourist visa, which expired in August 2005.

Rodrigues overstayed his visa and in 2011, he was served with a notice to appear

charging that he was removable under 8 U.S.C. § 1227(a)(l)(B) for remaining

longer than permitted. Rodrigues conceded removability as charged and applied

for withholding of removal and CAT relief.

According to Rodrigues’s application and testimony before the immigration

judge (“IJ”), Rodrigues was born and lived in Sao Paulo, Brazil. He and his

brother owned a clothing company there. The company did very well for many

years, but eventually began to fail. Rodrigues borrowed extensively from banks

and then from loan sharks in an effort to keep the family business afloat. Two of

the loan sharks, Alfredo Santos and Salvador, whose last name Rodrigues could

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not recall, became hostile and threatened Rodrigues when he was unable to repay

the money that he borrowed from them.

Rodrigues described three incidents that formed the basis for his application

for withholding of removal: First, in 2003, Santos came to Rodrigues’s house

while armed and threatened to kill him if he did not repay the money he owed.

Rodrigues testified that he did not call the police after this incident because Santos

lived near his mother and Rodrigues feared for his family. Second, in 2004,

Salvador sent two men to Rodrigues’s store to confiscate merchandise in partial

payment of Rodrigues’s debt. The men threatened to kill him and his family if

Rodrigues told anyone about the incident. Third, and last, several years after

Rodrigues had moved to the United States, Santos told Rodrigues’s mother and

brother that if Rodrigues returned to Brazil he “would be in great trouble.” Santos

still lives near Rodrigues’s mother and knows many of Rodrigues’s family

members; Rodrigues believed that Santos would soon find out if he returned to Sao

Paulo. Rodrigues testified that he did not want to relocate to a different part of

Brazil because the situation there is unstable and it would be difficult for him to

start over in another city.

No one was physically harmed during any of the incidents Rodrigues

described. Rodrigues’s mother, brother, former wife, and two sons have continued

to live in Sao Paulo without further incident.

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The IJ found that Rodrigues was credible, but that even taken as true, the

incidents he described did not warrant withholding of removal because they did not

amount to past persecution, did not support an objectively reasonable fear of future

persecution if he returned to Brazil, and did not show that it was more likely than

not that he would be tortured if he returned to Brazil. The IJ therefore denied

Rodrigues’s application for withholding of removal and CAT relief.

Rodrigues appealed to the BIA, claiming that the IJ erred in finding that

(1) the harm he had suffered was not based on a protected ground under the INA;

(2) his testimony was not credible; and (3) he was not a member of any “particular

social group” within the meaning of the INA. 1 The BIA agreed with the IJ’s

findings of fact and determination that Rodrigues’s experiences did not amount to

past persecution. The BIA further determined that Rodrigues had not shown that

he was a member of a “particular social group” within the meaning of the statutory

provision providing for withholding of removal. The BIA dismissed Rodrigues’s

appeal, and this timely petition for review followed.

1 The IJ in fact made none of the objected-to findings; he pretermitted the question of whether Rodrigues belonged to a “particular social group” (one of the five protected grounds listed in INA § 241(b)(3)(A) and 8 U.S.C. § 1231(b)(3)(A)) and found that Rodrigues was credible. Nevertheless, because Rodrigues argued those issues before both the IJ and the BIA, we consider them here to the extent he has raised them in this Court. 4 Case: 18-11101 Date Filed: 02/26/2019 Page: 5 of 10

II.

A.

We begin by addressing the threshold question of our jurisdiction. Arbaugh

v. Y&H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 1244 (2006) (“[C]ourts,

including this Court, have an independent obligation to determine whether subject-

matter jurisdiction exists.”). On petition for review of a final order of removal, our

jurisdiction is limited to those claims for which “the alien has exhausted all

administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1);

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

exhaust the available administrative remedies, an alien must present his claims to

the BIA; thus, “we cannot consider issues that could have been, but were not

properly raised in immigration proceedings and appealed to the BIA.” Bing Quan

Lin v. U.S. Att’y Gen., 881 F.3d 860, 867 (11th Cir. 2018). Due process claims that

fall within the power of the BIA to remedy are subject to the exhaustion

requirement. Id. at 868.

Rodrigues raises the following unexhausted claims: whether the IJ properly

considered his application for CAT relief; whether his fear of torture on return to

Brazil warranted CAT relief; whether he was denied a fair hearing in violation of

his due process rights because the IJ was biased against him; and whether the IJ

failed to give proper weight to evidence corroborating his objectively reasonable

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fear of future persecution. We lack jurisdiction to consider those issues because

Rodrigues did not present them to the BIA, and so we dismiss Rodrigues’s petition

insofar as it raises those claims.

B.

Rodrigues also contends that the immigration courts erred in denying his

application for withholding of removal because he showed that, if he returned to

Brazil, his creditors more likely than not would find him and kill him because of

his membership in a “particular social group” protected under the INA. We

disagree.

On a petition for review of a final order of removal, we review only the

BIA’s decision, except to the extent that the BIA specifically adopted the IJ’s

opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).

“A factual determination by the BIA that an alien is statutorily ineligible for

asylum or withholding is reviewed under the substantial evidence test.” Id. at 1283

(citation and punctuation omitted); see Seck v. U.S. Att’y Gen., 663 F.3d 1356,

1364 (11th Cir. 2011). Under this “highly deferential” test, we are required 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.” Adefemi v. Ashcroft, 386

F.3d 1022, 1026–27 (11th Cir. 2004) (en banc). The agency’s “findings of fact are

conclusive unless the record demonstrates that ‘any reasonable adjudicator would

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be compelled to conclude to the contrary.’” Mendoza v. U.S. Att’y Gen., 327 F.3d

1283, 1287 (11th Cir. 2003) (quoting 8 U.S.C. § 1252(b)(4)(B)).

Under 8 U.S.C. § 1231, an alien shall not be removed to a country where his

“life or freedom would be threatened” because of his “race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1231(b)(3)(A). An alien seeking withholding of removal under this provision

must show either that he was persecuted in the past because of a protected ground,

or that it is more likely than not that he will be persecuted for such reasons if

removed. Tan v. US. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006); Sanchez v.

U.S. Att’y Gen., 392 F.3d 434, 437 (11th Cir. 2004).

Rodrigues failed to make the required showing. As an initial matter, the

three instances Rodrigues described, which involved only verbal threats and the

confiscation of goods from Rodrigues’s store, do not amount to past persecution.

“[P]ersecution is an extreme concept, requiring more than a few isolated incidents

of verbal harassment or intimidation.” Sanchez Jimenez v. U.S. Att’y Gen., 492

F.3d 1223, 1232 (11th Cir. 2007) (citation and punctuation omitted). And

evidence that is “consistent with acts of private violence” or “that merely shows

that a person has been the victim of criminal activity” is not evidence of

persecution based on a protected ground. Rodriguez v. U.S. Att’y Gen., 735 F.3d

1302, 1310 (11th Cir. 2013).

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Nor has Rodrigues shown that he will more likely than not be persecuted if

he returns to Brazil. The fact that Salvador threatened to harm Rodrigues in 2004

if he reported Salvador’s confiscation of goods from his store does not make it

more likely than not that Salvador would harm Rodrigues if he returned to Brazil

now. Likewise, Santos’s verbal threats to Rodrigues and his family were never

acted upon—before or after Rodrigues left Brazil—and do not establish a

probability that Santos would follow through on his threats if Rodrigues returned

to Brazil. The fact that Rodrigues suffered no physical harm during the year he

remained in Sao Paulo after Santos threatened him, and that several of Rodrigues’s

family members have continued to live there for more than a decade without

suffering any physical harm, undermines Rodrigues’s belief that his creditors

would do violence to him or his family if he returned to the area. Furthermore,

although Rodrigues testified that it would be financially difficult for him to start

over elsewhere in Brazil, he did not show that he could not avoid any threat from

his creditors by doing so. See Sanchez, 392 F.3d at 437 (alien cannot show that

future persecution in the country of removal is more likely than not if the threat

could be avoided by relocating to a different area of the country).

Moreover, to succeed on an application for asylum or withholding of

removal, an alien must show that the past or future mistreatment that he alleges

was or would be “at least in part, motivated by a protected ground.” Rivera v. U.S.

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Att’y Gen., 487 F.3d 815, 821 (11th Cir. 2007) (citation and punctuation omitted).

Rodrigues alleges that his life is at risk because of his membership in a “particular

social group”; namely, loan-shark victims whom “the authorities will or do not

protect.” This group does not qualify as a “particular social group” as that term is

used in § 1231.

“‘A particular social group’ refers to persons who share a common,

immutable characteristic ‘that the members of the group either cannot change, or

should not be required to change because it is fundamental to their individual

identities or consciences.’” Rodriguez, 735 F.3d at 1310 (quoting Castillo-Arias v.

U.S. Att’y Gen., 446 F.3d 1190, 1193, 1196 (11th Cir. 2006)). To qualify under the

statute, a group “must also be ‘defined with particularity’ and ‘socially distinct

within the society in question.’” Gonzalez v. U.S. Atty. Gen., 820 F.3d 399, 404

(11th Cir. 2016) (quoting Matter of M–E–V–G–, 26 I. & N. Dec. 227, 237 (BIA

2014)).

Here, Rodrigues has not shown that his proposed social group has any

members other than himself, or that the purported group members have anything

more in common than the risk that they may be harmed by their creditors and that

the police may not help them. The BIA correctly noted that this definition is

circular, and as we have held before, “[t]he risk of persecution alone does not

create a particular social group within the meaning of the INA.” Castillo-Arias,

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446 F.3d at 1198. Rodrigues has not shown that his “life or freedom would be

threatened” in Brazil because of his “race, religion, nationality, membership in a

particular social group, or political opinion”; accordingly, we deny his petition for

review to the extent that he challenges the denial of his application for withholding

of removal. 8 U.S.C. § 1231(b)(3)(A).

III.

Based on the record before us, the BIA’s denial of withholding of removal is

supported by substantial evidence. We therefore affirm the BIA’s decision, deny

the petition in part, and dismiss it in part.

PETITION DENIED IN PART AND DISMISSED IN PART.