Delon Anthony Magua v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 28, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-15927
Non-Argument Calendar
________________________
Agency Nos. A098-534-620
A098-534-621
DELON ANTHONY MAGUA,
TARYN WENDY MAGUA, et al.,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 28, 2010)
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
PER CURIAM:

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Delon Anthony Magua, his wife, Taryn Wendy Magua, and their children,
Caleb Ryden Magua and Shania Magua, all natives and citizens of South Africa,
seek review of the Board of Immigration Appeals’ (BIA’s) order dismissing their
appeal of the Immigration Judge’s (IJ’s) order denying their applications for
asylum and withholding of removal under the Immigration and Nationality Act
(INA), and relief under the United Nations Convention Against Torture and Other
Cruel, Inhuman and Degrading Treatment or Punishment (CAT), pursuant to 81
U.S.C. §§ 1158, 1231(b)(3), and 8 C.F.R. § 208.16(c). Magua asserts the BIA2
erred in denying his applications for asylum and withholding of removal because
the incidents of violence he suffered are sufficient to establish past persecution on
account of his race. After review, we deny the petition.3 4
Magua fails to argue his CAT claim in his brief, and thus, the issue is abandoned. See1
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (stating “[w]hen an
appellant fails to offer argument on an issue, that issue is abandoned”).
Throughout the remainder of this opinion, Magua’s name will be used to refer to all of2
the petitioners collectively.
Magua further contends he has a well-founded fear of future persecution based on a3
pattern and practice of persecuting white South Africans. However, he failed to raise this
argument before the BIA and we lack jurisdiction to consider an unexhausted argument. See
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (holding we lack
jurisdiction to review claims that were not exhausted before the BIA).
To the extent the BIA’s decision was based on a legal determination, review is de novo.4
Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001). The BIA’s factual
determinations are reviewed under the substantial evidence test, and we “must affirm the BIA’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. 2002). “To
reverse the IJ’s fact findings, we must find that the record not only supports reversal, but
2

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The Attorney General or the Secretary of Homeland Security has discretion
to grant asylum if an alien meets the INA’s definition of a “refugee.” See 8 U.S.C.
§ 1158(b)(1)(A). A “refugee” is:
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.
8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving
statutory “refugee” status. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2002). In order to carry this burden, the applicant must, with specific and credible
evidence, establish (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); Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,
1257 (11th Cir. 2006). Moreover, “evidence that either is consistent with acts of
private violence . . . or that merely shows that a person has been the victim of
criminal activity, does not constitute evidence of persecution based on a statutorily
protected ground.” Ruiz, 440 F.3d at 1258. In order to prove eligibility for
withholding of removal, an alien must show it is “more likely than not she will be
persecuted or tortured upon being returned to her country.” Sepulveda v. U.S. Att’y
compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
3

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Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (quotations omitted). This standard is
more stringent than the “well-founded fear” standard for asylum. Mazariegos v.
U.S. Att’y Gen., 241 F.3d 1320, 1324 n.2 (11th Cir. 2001).
Substantial evidence supports the IJ’s and the BIA’s conclusions that5
Magua did not show a nexus between the harm he suffered and a protected ground.
First, two of the incidents of robbery Magua described happened when he was not
home, so he had no way of knowing who committed the crimes or their motive.
Second, during one of the auto parts store robberies, the perpetrators robbed the
black store customers as well as Magua, suggesting that Magua was targeted for
his money, not because of his race. Third, the fact racial slurs were used during the
store robberies does not establish the perpetrators were singling Magua out because
of his race, because, as noted above, in one instance the perpetrators also robbed
the black customers. Finally, the frequency of the events does not show they were
related, as Magua presented no evidence the perpetrators were the same people or
had any connection to him or to each other. Accordingly, because the evidence
does not show that Magua was singled out because of his race, and because Magua
presented no evidence except for the frequency of the events to show they were
When the BIA issues a decision, we review only that decision, except to the extent the5
BIA expressly adopts the IJ’s opinion. Al Najjar, 257 F.3d at 1284. Here, the BIA agreed with
the IJ’s opinion, but made additional findings, and, thus, we will review both decisions.
4

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related, he failed to meet his burden of establishing he was targeted because of his
race. Furthermore, the evidence supports the IJ’s and the BIA’s determination
Magua was the victim of unfortunate crime, but not a victim of persecution on
account of his race. Therefore, Magua failed to establish his eligibility for asylum
or withholding of removal.
PETITION DENIED.
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