Toribio Bailon Perez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 29, 2018
• Docket: 18-10937
• Status: Unpublished

Opinion

Case: 18-10937 Date Filed: 11/29/2018 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10937 Non-Argument Calendar ________________________

Agency No. A206-236-744

TORIBIO BAILON PEREZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(November 29, 2018)

Before MARCUS, BRANCH and JULIE CARNES, Circuit Judges.

PER CURIAM:

Toribio Bailon Perez seeks review of the Board of Immigration Appeals’

(“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of his Case: 18-10937 Date Filed: 11/29/2018 Page: 2 of 6

application for withholding of removal. Bailon Perez argues that he suffered past

persecution and that he will more likely than not be subjected to persecution upon

return to Guatemala because of pervasive discrimination against Mayan indigenous

peoples within Guatemala. Specifically, he points to a mining company’s

attempts, with military support, to steal his family’s land, as well as potential

economic deprivation. After thorough review, we deny his petition.

We review the BIA’s decision as the final judgment, unless the BIA

expressly adopted the IJ’s decision. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d

1341, 1350 (11th Cir. 2009). Where the BIA agrees with the IJ’s reasoning, we

review the decisions of both the BIA and the IJ to the extent of the agreement. Id.

In a petition for review of a BIA decision, we review conclusions of law de

novo. Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). We review

factual determinations, including whether an alien is statutorily eligible for

withholding of removal, under the substantial evidence test. Id. Pursuant to this

test, 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. We must

affirm the BIA's decision if it is supported by reasonable, substantial, and probative

evidence on the record considered as a whole and may reverse the BIA’s findings

of fact only when the record compels reversal. Id. The mere fact that the record

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may support a contrary conclusion is not enough to justify a reversal of the

administrative findings. Id.

To qualify for withholding of removal under the Immigration and

Nationality Act (“INA”), an applicant must establish that his “life or freedom

would be threatened in [his] country because of [his] race, religion, nationality,

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

1231(b)(3)(A). The applicant must show that it is more likely than not that he will

be persecuted on account of a protected ground if returned to his home country.

Seck, 663 F.3d at 1364-65. An applicant may satisfy his burden of proof either:

(1) by establishing that he suffered past persecution based on a protected ground or

(2) by establishing that it is more likely than not that he would face a future threat

to his life or freedom upon removal due to a protected ground. Id. at 1365.

Although the INA does not expressly define the term “persecution,” we’ve

said that it is an extreme concept that does not include every sort of treatment that

society regards as offensive, and requires more than isolated incidents of verbal

harassment, minor physical abuse, and brief detentions. Shi v. U.S. Att’y Gen.,

707 F.3d 1231, 1235 (11th Cir. 2013); Kazemzadeh, 577 F.3d at 1353. So, in

Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226 (11th Cir. 2005), for example, we

concluded that the circumstances were not sufficiently extreme to establish past

persecution, where the petitioner had received repeated death threats, her family

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received threats, and a bomb exploded at her workplace. Id. at 1229, 1231. We’ve

also held that harms to another person constitute persecution to the petitioner only

if they are done to threaten or harm the petitioner. De Santamaria v. U.S. Att’y

Gen., 525 F.3d 999, 1009 n.7 (11th Cir. 2008). Notably, however, we evaluate the

“harms a petitioner suffered cumulatively -- that is, even if each fact considered

alone would not compel a finding of persecution, the facts taken as a whole may do

so.” Shi, 707 F.3d at 1235 (emphasis in original).

Fines or economic sanctions may constitute persecution if they cause a

“severe economic disadvantage” to the petitioner, considering his net worth, his

sources of income, and the condition of the local economy. Mu Ying Wu v. U.S.

Att’y Gen., 745 F.3d 1140, 1156 (11th Cir. 2014). To satisfy this standard, the

persecution must reduce the petitioner’s standard of living to an impoverished

existence. Id.

In addition to showing past persecution or a clear probability of future

persecution, an applicant for withholding of removal must show that the

persecution was or would be “at least in part[] motivated by a protected ground.”

Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821 (11th Cir. 2007) (quotation omitted).

The applicant must demonstrate that one of these enumerated grounds “was or will

be at least one central reason for persecuting” him. 8 U.S.C. § 1158(b)(1)(B)(i);

Rivera, 487 F.3d at 821 (analyzing nexus for asylum and withholding of removal

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under the same standard). The petitioner must provide “evidence from which it is

reasonable to believe that the harm was motivated by a protected ground.” Rivera,

487 F.3d at 821 (quotation omitted). Being a victim of extortion or criminal

activity is not persecution on account of a protected ground. See id. at 820, 823.

Here, substantial evidence supports the IJ and BIA’s finding that Bailon

Perez failed to demonstrate past persecution. For starters, Bailon Perez does not

say that he was ever physically harmed, and he points to nothing in the record that

would compel the conclusion that members of his family suffered serious injuries

from their run-ins with the military or mining company. See Kazemzadeh, 577

F.3d at 1353. Even more importantly, Bailon Perez has not indicated that his

family was harmed in order to threaten or harm him personally. See De

Santamaria, 525 F.3d at 1009 n.7; Sepulveda, 401 F.3d at 1229, 1231. Nor can we

say that any economic persecution took place; instead, the record reflects that his

family was able to stay in their home. See Wu, 745 F.3d at 1156.

Substantial evidence also supports the finding that Bailon Perez will not

more likely than not be persecuted if he is returned to Guatemala. See Seck, 663

F.3d at 1364-65. Again, he has not shown that his family suffered severe harm.

Rather, the record reveals that his family and his neighbors have continued to live

in their homes for more than a decade, and that Bailon Perez could relocate to

other parts of Guatemala. See Wu, 745 F.3d at 1156.

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Moreover, even if Bailon Perez had been able to show persecution, the

record comes nowhere near compelling a finding that the military and the mining

company were motivated, even in part, by a protected ground -- such as Bailon

Perez’s Mayan ethnicity, his family, or his political opinion. Rivera, 487 F.3d at

821; 8 U.S.C. § 1158(b)(1)(B)(i). To the contrary, the evidence suggests that they

were motivated by a desire to obtain precious metals from Bailon Perez’s family’s

land. And as we’ve said, being a victim of extortion or criminal activity is not

persecution on account of a protected ground. See Rivera, 487 F.3d at 820, 823.

Accordingly, we deny Bailon Perez’s petition.

PETITION DENIED.