Carlos Escalona-Escalona v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14061
____________________
CARLOS ESCALONA-ESCALONA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A213-448-837
____________________
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2 Opinion of the Court 20-14061
Before J ILL PRYOR , GRANT, and MARCUS, Circuit Judges.
PER CURIAM:
Carlos Escalona-Escalona, a native and citizen of Cuba, en-
tered the United States without having been admitted or paroled
and without a valid entry document. Officers for the United States
Border Patrol (“Border Patrol”) encountered Escalona-Escalona
near the United States-Mexico border, stopped him, searched him,
and discovered his Cuban passport and Cuban identification card.
The officers arrested Escalona-Escalona and took him to a pro-
cessing center in Texas, where he admitted to being in the country
without authorization. The Department of Homeland Security
(“DHS”) eventually transferred Escalona-Escalona to a detention
facility in Georgia, where he was ordered to appear for removal
proceedings.
Once removal proceedings began, Escalona-Escalona filed
two motions. In his first motion, he moved to change venue to a
detention facility in Florida, claiming that proceeding in Georgia
would make it difficult for him to communicate with his lawyer
and to call witnesses to testify. In his second motion, Escalona-Es-
calona moved to suppress the evidence DHS relied upon to estab-
lish that he was in the country without authorization—his Cuban
passport, Cuban identification card, and admission made under ar-
rest. Escalona-Escalona argued that Border Patrol officers violated
his Fourth Amendment rights in stopping and searching him and
that the exclusionary rule barred DHS’s use of that evidence. Esca-
lona-Escalona also applied for asylum, withholding of removal, and
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20-14061 Opinion of the Court 3
relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”).
The Immigration Judge (“IJ”) denied all the relief Escalona-
Escalona sought: his motion to change venue, his motion to sup-
press, and his application for asylum, withholding of removal, and
CAT relief. Escalona-Escalona appealed to the Board of Immigra-
tion Appeals (“BIA”). The BIA affirmed the IJ’s decisions.
Now, Escalona-Escalona petitions this Court to review the
BIA’s final order. First, he argues that the BIA erred in affirming the
IJ’s denial of his motion to change venue. Second, he maintains that
the BIA erred in affirming the IJ’s denial of his motion to suppress.
Third, he contends that the BIA erred in affirming the IJ’s denial of
his asylum, withholding-of-removal, and CAT claims. After thor-
ough review and with the benefit of oral argument, we find no
grounds for relief on any of the issues Escalona-Escalona raises. We
therefore deny his petition.
I. BACKGROUND
We begin with the factual background, starting with the ear-
liest episode of Escalona-Escalona’s mistreatment at the hands of
the Cuban government and ending with his encounter with Border
Patrol in Texas. We then describe the procedural background—the
relief Escalona-Escalona sought during his removal proceedings
and the resolution of those issues in the immigration courts.
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4 Opinion of the Court 20-14061
A. Factual Background1
Now 46 years of age, Escalona-Escalona began experiencing
problems with the Cuban government when he was a college stu-
dent. While in college, he was a member of a rock band that played
songs with “social lyrics against the government.” AR at 216.2
“[M]any times,” Cuban police would arrive at the concert venue,
“push[] everyone,” “ask[] everyone to leave,” take the band’s in-
struments, and “throw[] th[em] [on] the floor.”
Id. Escalona-Esca-
lona was also asked to join the “Young Communist Union”—a stu-
dent group affiliated with the Communist Party in Cuba—on mul-
tiple occasions, but he refused to do so.
Id. at 210–11. He believes
he lost out on “special benefits” because of his refusal to affiliate
with the Communist Party while a student.
Id. at 211.
After graduation from college, Escalona-Escalona found a
job at a government-controlled bank in Cuba. He eventually rose
to the position of “department manager.”
Id. at 224. While he
worked at the bank, he refused to attend marches and parades as-
sociated with the Communist Party. After refusing to attend mul-
tiple marches and parades, he was transferred to another bank and
demoted from his managerial position to the lowest position:
1 For our factual background, we rely on Escalona-Escalona’s testimony in his
removal proceedings, testimony the IJ found credible.
2 “AR” refers to the administrative record.
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20-14061 Opinion of the Court 5
cashier. He believes he was demoted because he refused to attend
the Communist Party’s marches and parades.
Soon after his demotion, Escalona-Escalona began dating an
American citizen. Representatives of the bank, who worked at the
behest of the Cuban government, told him that he was “not al-
lowed to have any kind of relationship with foreigners,” including
Americans who were considered “the number one enemy . . . of
the government.”
Id. at 226. The bank representatives also noted
that, by virtue of his work at the bank, he had “access to classified
information.”
Id. The bank representatives expressed concerned
that he was working as a spy on behalf of the United States.
But Escalona-Escalona did not end his romantic relation-
ship. To the contrary, he tried to marry the American citizen he
was dating, first in Cuba, and then in Mexico. The Cuban govern-
ment would not recognize the marriage, however. When Esca-
lona-Escalona traveled to Mexico to marry his fiancée there, he was
denied entry into the country. He did not succeed in marrying, and
he returned to Cuba after being denied entry into Mexico.
When he arrived back in Cuba, Cuban police came to his
house, asking why he went to Mexico and inquiring about his rela-
tionship with the American citizen. He reacted to the police visit
by “protest[ing] in front of everyone.”
Id. at 243. He told the Cuban
police that he “didn’t want to belong to the Communist Party” and
that “the Communist Party [was] trying to . . . control” his “rela-
tionships, . . . work, [and] freedom.”
Id. From there, the police
“dragged [him] out of the house” and took him to a police station.
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6 Opinion of the Court 20-14061
Id. The Cuban police detained him for approximately “five hours”
and hit him “about seven times” in the stomach with a baton.
Id.
at 546. He almost lost consciousness from the beating. He had
“pain in [his] stomach for more than a week” and “had a hard time
breathing.”
Id. But, after “us[ing] two days to recover,” he went
“back to . . . work like nothing had happened.”
Id. at 247.
The Cuban police soon returned to Escalona-Escalona’s
house and informed him that he would be forced to resign from
the bank. Sure enough, when he went to work one day, he was
presented with two letters: a resignation letter he had to sign, and
a letter prohibiting him from working in any other Cuban financial
institution in the future. He “protest[ed]” again, calling one of the
bank officials a “puppet of the government.”
Id. at 248. The Cuban
police were called to the bank, and Escalona-Escalona was arrested
in front of his co-workers.
The Cuban police took him to a police station and placed
him in a room with a “really low temperature.”
Id. at 249. He was
detained “for 30 hours.”
Id. at 546. The police hit him with their
fists and batons “13 to 15” times.
Id. at 547. The police then
“pour[ed] water on [him], and since it was really cold, [he] almost
lost consciousness.”
Id. at 249. They told him that “if they saw
[him] again doing the same kind of actions, they were going to dis-
appear [him].”
Id. at 249. As a result of the detention and beating,
he suffered a dislocated shoulder and contracted pneumonia. He
was able to recover from his injuries at home.
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20-14061 Opinion of the Court 7
About a month later, Escalona-Escalona left Cuba. He trav-
eled to Mexico and crossed into the United States via its southern
border. Border Patrol officers encountered him near Hidalgo,
Texas. He described his encounter with the Border Patrol in a
sworn statement:
They pulled up right in front of me and sh[ined] their
lights on me. I put my hands up to show I was not
dangerous because they had guns. I did not feel like I
could leave. I don’t think anything was said to me ex-
cept “don’t run.” I was handcuffed and searched.
They took the documents I had in my back pocket.
Id. at 461. In Escalona-Escalona’s back pocket, the Border Patrol
officers found his Cuban passport and identification card. He was
then arrested and taken to a processing center in Texas.
At the processing center, he admitted to entering the United
States without authorization. But he claimed in a sworn statement
that he was fleeing persecution by the Cuban government. DHS
then transferred him to North Carolina for a credible-fear inter-
view. After the interview, DHS found that Escalona-Escalona had
a credible fear of persecution in Cuba. He was then ordered to ap-
pear in Georgia for removal proceedings and transferred to a de-
tention facility there.
B. Procedural Background
After being ordered to appear before the IJ in Georgia, Esca-
lona-Escalona moved for relief. First, he filed a motion to change
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8 Opinion of the Court 20-14061
the venue for his proceedings from Georgia to Florida, arguing that
proceeding in Georgia would make it difficult for him to call wit-
nesses and communicate with his lawyer. Second, he filed a motion
to suppress the evidence DHS was relying upon to establish that he
was in the United States unlawfully—his Cuban passport, Cuban
identification card, and subsequent admission under arrest—argu-
ing that the Border Patrol officers violated his Fourth Amendment
rights and that the exclusionary rule barred use of that evidence.
Third, he applied for asylum, withholding of removal, and CAT
relief. He claimed that he suffered persecution in the past at the
hands of Cuban authorities because of his anti-communist political
beliefs and that, if he returned to Cuba, he would likely face perse-
cution and torture in the future.
The IJ denied all relief. In denying, from the bench, the mo-
tion to change venue, the IJ said only that “if a respondent is here,
then I’ll handle his case. If he’s not here, then I probably will not
handle his case.”
Id. at 142. As for the motion to suppress, the IJ
concluded that Escalona-Escalona failed to allege an “egregious”
Fourth Amendment violation, barring application of the exclusion-
ary rule.
Id. at 63 (internal quotation marks omitted). As for the
asylum, withholding-of-removal, and CAT claims, the IJ found that
“[n]one of the harms or threats [Escalona-Escalona] sustained cu-
mulatively r[o]se to the level of persecution.”
Id. at 70. In addition,
the IJ found that he failed to show a well-founded fear of future
persecution, noting, among other things, that Escalona-Escalona
was released from police custody without charges; his family
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20-14061 Opinion of the Court 9
remained unharmed in Cuba; and the Cuban government permit-
ted him to travel outside of Cuba using his Cuban passport, belying
the notion that the government wished to cause him further harm.
The IJ denied his application for asylum, withholding of removal,
and relief under the CAT.
Escalona-Escalona appealed to the BIA, which affirmed the
IJ on all issues. The BIA affirmed the IJ’s denial of the motion to
change venue, observing that, even though the IJ did not enumer-
ate reasons for denying the motion, Escalona-Escalona failed to
show how he was prejudiced by the decision. As for the motion to
suppress, the BIA agreed with the IJ that Escalona-Escalona failed
to establish an egregious Fourth Amendment violation, so the ex-
clusionary rule was inapplicable. And with respect to the applica-
tion for asylum, withholding of removal, and CAT relief, the BIA
agreed with the IJ that Escalona-Escalona failed to show past per-
secution, a well-founded fear of future persecution, or any other
circumstances that could entitle him to relief.
Escalona-Escalona now petitions this Court for review of
the BIA’s final order.
II. LEGAL STANDARDS
We review only the BIA’s decision, except to the extent the
BIA’s decision expressly adopts or agrees with the IJ’s opinion.
Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48 (11th Cir. 2010).
“We review factual findings under the substantial evidence
test and legal conclusions
de novo.”
Jathursan v. U.S. Att’y Gen.,
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10 Opinion of the Court 20-14061
17 F.4th 1365, 1372 (11th Cir. 2021). “Under the substantial evi-
dence test, we will not disturb an immigration judge’s factual find-
ings so long as they are supported by reasonable, substantial, and
probative evidence on the record considered as a whole.”
Id. (in-
ternal quotation marks omitted). “[T]he mere fact that the record
may support a contrary conclusion is not enough to justify a rever-
sal.”
Martinez v. U.S. Att’y Gen., 992 F.3d 1283, 1290 (11th Cir.
2021) (internal quotation marks omitted). Instead, we ask whether
the record “compels” another conclusion.
Id. (internal quotation
marks omitted).
“We review constitutional challenges, including alleged due
process violations,
de novo.”
Lapaix v. U.S. Att’y Gen., 605 F.3d
1138, 1143 (11th Cir. 2010).
III. DISCUSSION
We divide our discussion into three parts. First, we consider
whether the BIA erred in affirming the IJ’s denial of Escalona-Esca-
lona’s motion to change venue. Second, we consider whether the
BIA erred in affirming the IJ’s denial of Escalona-Escalona’s motion
to suppress. And third, we consider whether the BIA erred in af-
firming the IJ’s denial of Escalona-Escalona’s application for asy-
lum, withholding of removal, and CAT relief.
A. Motion to Change Venue
Escalona-Escalona argues that the BIA erred in affirming the
IJ’s denial of his motion to change venue. The parties agree that
Escalona-Escalona makes a procedural due process challenge with
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20-14061 Opinion of the Court 11
this argument. Thus, we will consider, under a
de novo standard
of review, whether the IJ violated Escalona-Escalona’s due process
rights in denying his motion to change venue.
Lapaix, 605 F.3d at
1143.
The thrust of Escalona-Escalona’s argument is that the IJ
failed to follow pertinent regulations and BIA precedent in denying
his change-of-venue motion. An IJ may grant a motion for change
of venue “for good cause.” 8 C.F.R. § 1003.20(b). To determine
whether good cause exists, immigration courts “usually con-
sider[] . . . administrative convenience, expeditious treatment of
the case, the location of the witnesses, and the costs of transporting
witnesses or evidence to a new situs.”
Matter of Velasquez, 19 I. &
N. Dec. 377, 382–83 (BIA 1986);
see also Matter of Rahman, 20 I. &
N. Dec. 480, 483 (BIA 1992) (enumerating the same factors).
We see no indication that the IJ considered any of these fac-
tors. In denying the motion, the IJ said only that “if a respondent is
here, then I’ll handle his case. If he’s not here, then I probably will
not handle his case.” AR at 142. Notwithstanding the IJ’s failure to
consider the relevant factors under BIA precedent, the BIA af-
firmed the IJ’s decision because Escalona-Escalona failed to explain
how he was prejudiced by the denial of his motion to change
venue.
We reach the same conclusion as the BIA, for the same rea-
son. To be entitled to relief on this issue, Escalona-Escalona must
demonstrate that his case was “substantially prejudiced” by the de-
cision regarding venue.
Frech v. U.S. Att’y Gen., 491 F.3d 1277,
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12 Opinion of the Court 20-14061
1281 (11th Cir. 2007). In
Frech, for example, the petitioner filed two
motions to change venue, arguing that he needed to be closer to
his attorney and witnesses.
See id. at 1279–80. The IJ denied both
motions without mentioning “the factors he was required to bal-
ance under BIA precedent.”
Id. at 1279 n.3. We explained that alt-
hough the IJ “failed to consider several relevant factors . . . before
ruling on the motion[s],” the petitioner could not prevail without
establishing that “he was prejudiced by the denial of the mo-
tion[s].”
Id. at 1282 n.9. And because there was “no indication” that
permitting the petitioner to be closer to witnesses or the counsel of
his choice would have impacted the proceedings, we denied
Frech’s petition.
Id. at 1282.
This case is like
Frech. Escalona-Escalona has failed to artic-
ulate how he was prejudiced by the denial of the change-of-venue
motion. In the motion, he argued that his ability to communicate
with his attorney and to present witness testimony would be frus-
trated if his proceedings took place in Georgia. But the record
demonstrates that Escalona-Escalona’s attorney communicated
with him remotely and that he had a witness available to testify at
his hearing. Given that Escalona-Escalona’s fears of proceeding in
a Georgia venue were not realized, as in
Frech there is no indica-
tion that he was “substantially prejudiced” by the denial of the mo-
tion to change venue.
Id. at 1281. Therefore, he has not shown he
is entitled to relief on this issue.
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20-14061 Opinion of the Court 13
B. Motion to Suppress
We next turn to Escalona-Escalona’s argument that the BIA
erred in affirming the IJ’s denial of his motion to suppress. Esca-
lona-Escalona argues that the Border Patrol officers who encoun-
tered him near the border violated his Fourth Amendment rights
when they seized and searched him, discovering his Cuban pass-
port and Cuban identification card. He maintains, therefore, that
the exclusionary rule barred the DHS’s use of his passport, identifi-
cation card, and subsequent admission made under arrest that he
was present in the United States without authorization.3
We have not addressed in a published opinion whether evi-
dence obtained in violation of the Fourth Amendment must be ex-
cluded from removal proceedings. In
Immigration and Naturaliza-
tion Service v. Lopez-Mendoza, the Supreme Court held that the
exclusionary rule generally does not apply to civil immigration pro-
ceedings. 468 U.S. 1032, 1034 (1984). Leaving the door ajar, how-
ever, a plurality of the Court observed that the “conclusion[] con-
cerning the exclusionary rule’s value might change” in the event of
“egregious violations of [the] Fourth Amendment.”
Id. at 1050–51
(plurality opinion). In unpublished opinions, we have assumed, but
not decided, that the exclusionary rule would apply in the event of
an “egregious” violation of the Fourth Amendment.
See, e.g.,
Meza
3 Because the BIA explicitly adopted and agreed with the IJ’s reasoning on this
issue, we review both the BIA’s and the IJ’s decisions.
Ayala, 605 F.3d at 947–
48.
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14 Opinion of the Court 20-14061
v. U.S. Att’y Gen., 789 F. App’x 790, 796–97 (11th Cir. 2019);
Batres-
Garay v. U.S. Att’y Gen., 748 F. App’x 204, 209–10 (11th Cir. 2018);
Rampasard v. U.S. Att’y Gen., 147 F. App’x 90, 92 (11th Cir. 2005).
We take the same approach here.
Assuming the exclusionary rule would apply following an
egregious Fourth-Amendment violation, we have no occasion to
apply the rule here. The only evidence Escalona-Escalona points to
in support of his motion is his affidavit, which describes his encoun-
ter with the Border Patrol officers. His affidavit says only that Bor-
der Patrol officers approached him in a vehicle, shined their lights
on him, told him not to run, handcuffed him, and searched him. It
lacks any details to distinguish the encounter from a routine border
stop. Without more, Escalona-Escalona’s argument regarding his
motion to suppress does not persuade us he is entitled to relief on
this issue.
C. Application for Asylum, Withholding of Removal, and CAT
Relief
Finally, we consider Escalona-Escalona’s argument that the
BIA erred in affirming the IJ’s denial of his application for asylum,
withholding of removal, and relief under CAT. We first consider
his asylum and withholding-of-removal claims. Then, we consider
his CAT claim.
1.
Asylum and Withholding of Removal
We begin with Escalona-Escalona’s asylum and withhold-
ing-of-removal claims. To qualify for asylum, a petitioner must
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20-14061 Opinion of the Court 15
demonstrate either (1) past persecution on account of a statutorily
protected ground or (2) a well-founded fear of future persecution
on account of a statutorily protected ground.
Ruiz v. U.S. Att’y
Gen., 440 F.3d 1247, 1257 (11th Cir. 2006). We have applied the
substantial evidence test in reviewing the BIA’s conclusion on
whether a petitioner suffered past persecution or has a well-
founded fear of future persecution.
Kazemzadeh v. U.S. Att’y Gen.,
577 F.3d 1341, 1353 (11th Cir. 2009) (applying the substantial-evi-
dence test in reviewing past persecution);
Zheng v. U.S. Att’y Gen.,
451 F.3d 1287, 1290–92 (11th Cir. 2006) (applying the substantial
evidence test in reviewing well-founded fear of future persecution).
If a petitioner fails to meet the requirements for asylum, the peti-
tioner cannot meet the higher standard for withholding of re-
moval.
See Jathursan, 17 F.4th at 1373.
i. Past Persecution
We begin with Escalona-Escalona’s argument that he suf-
fered past persecution.4 Persecution is an “extreme concept” that
requires more than mere harassment or “a few isolated incidents
of verbal harassment or intimidation.”
Kazemzadeh, 577 F.3d at
1353 (internal quotation marks omitted). We have said that
“[m]inor physical abuse and brief detentions do not amount to per-
secution.”
Id.
4 Here, too, the BIA explicitly adopted and agreed with the IJ’s reasoning, so
we review both the BIA’s and the IJ’s decisions on past persecution.
Ayala, 605
F.3d at 947–48.
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16 Opinion of the Court 20-14061
Escalona-Escalona suffered considerable mistreatment at
the hands of Cuban police. He was detained and beaten on two
occasions. During the first beating, the police hit him with their
batons. He nearly lost consciousness and had trouble breathing for
a week. The Cuban government then forced him to resign from his
job, and when he protested in response, the police detained him a
second time. During his second detention, the police held him in a
cold room for 30 hours. They hit him with their fists and batons
over a dozen times. They poured cold water on him. Escalona-Es-
calona nearly lost consciousness. The police threatened to make
him “disappear” if he continued to speak out against the govern-
ment. He suffered a dislocated shoulder and contracted pneumo-
nia.
Reviewing all the evidence cumulatively, the BIA and IJ both
concluded that Escalona-Escalona’s mistreatment did not rise to
the level of persecution. The BIA agreed with the IJ’s findings that
his injuries were not “serious or severe” because he recovered at
home following both detentions. AR at 7, 69–70. The BIA also
noted there was no indication Escalona-Escalona suffered “severe
economic disadvantage” from the loss of his job.
Id. And the IJ
found that the threat to make him “disappear” was “not credible”
because he was released from detention without charges. AR at 70.
Our substantial-evidence standard of review is highly defer-
ential; we must construe all the evidence in favor of the BIA’s deci-
sion and accept the findings of fact supporting it unless “the record
compels a reversal.”
Martinez, 992 F.3d at 1290 (internal quotation
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20-14061 Opinion of the Court 17
marks omitted). Given the IJ’s factual findings that Escalona-Esca-
lona’s injuries were not serious or severe, that he suffered no severe
economic disadvantage from the loss of his job, and that the threat
to make him disappear was not credible—findings for which we
cannot say that the record compelled a different conclusion—we
must affirm the BIA’s conclusion that what the Cuban police in-
flicted on him did not rise to the level of past persecution. See
id.
(finding the record did not compel a finding of past persecution
when petitioner was beaten to the point of losing consciousness for
a few minutes, detained for 20 hours on another occasion, fired
from three restaurant jobs, and threatened with disappearance).
ii. Well-Founded Fear of Future Persecution
We turn next to Escalona-Escalona’s argument that he had
a well-founded fear of future persecution. To establish a well-
founded fear of future persecution, the applicant must show a rea-
sonable possibility that he will be singled out for persecution on
account of a protected ground and that his fear is both (1) “subjec-
tively genuine” and (2) “objectively reasonable.”
Kazemzadeh, 577
F.3d at 1352 (internal quotation marks omitted). The subjective
component is usually satisfied by the petitioner’s credible testi-
mony that he fears persecution.
See De Santamaria v. U.S. Att’y
Gen., 525 F.3d 999, 1007 (11th Cir. 2008). There is no dispute that
Escalona-Escalona has a subjectively genuine fear of persecution.
But he must establish that his fear of persecution is objectively rea-
sonable.
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18 Opinion of the Court 20-14061
There are two alternative pathways for a petitioner to show
his fear of persecution is objectively reasonable. First, a petitioner
can point to “specific, detailed facts showing [that he has] a good
reason to fear that he will be singled out for persecution on account
of a statutorily protected ground.”
Murugan v. U.S. Att’y Gen., 10
F.4th 1185, 1193 (11th Cir. 2021) (alteration adopted) (emphasis
omitted) (internal quotation marks omitted). Or second, a peti-
tioner may show “a pattern or practice” of persecution against a
group of similarly situated persons.
Id. We proceed by considering
both pathways, asking whether the record compels a finding that
Escalona-Escalona has an objectively reasonable fear of future per-
secution.
We start with the first pathway—whether there are specific
detailed facts suggesting that Escalona-Escalona would be singled
out for persecution upon his return to Cuba. On this point, the BIA
observed that his problems with the Cuban police escalated after
he started dating an American while working at a Cuban bank. The
BIA reasoned that Escalona-Escalona’s encounters with police
were “motivated in large part” by his access to “banking secrets.”
AR at 7 (internal quotation marks omitted). The BIA determined
that because he “no longer works for the bank, . . . there is no indi-
cation that the police has any continued, current[,] or future inter-
est” in him.
Id. at 8. And the IJ observed that Escalona-Escalona was
released from custody without charges and that, after he lost his
job, he was permitted to leave the country freely, belying any no-
tion that the Cuban government was looking to harm him further.
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20-14061 Opinion of the Court 19
In light of the evidence considered by the BIA and the IJ, we cannot
say that the record compels a finding that Escalona-Escalona would
be singled out for persecution upon his return to Cuba.
As to the second pathway—whether Escalona-Escalona
showed a pattern or practice of persecution against similarly situ-
ated individuals—he asserts that he is similarly situated to other
political dissidents in Cuba who have been persecuted by the Cu-
ban government.5 The IJ considered Escalona-Escalona’s docu-
mentary evidence—the U.S. Department of State’s 2019 Human
Rights Report—and found that “[f]or private citizens such as [Esca-
lona-Escalona] who oppose the Cuban government, the evidence
indicates that they would experience harassment and short-term
detentions that can last from a few hours to a few days.” AR at 71.
That evidence, the IJ concluded, did not indicate that there was a
pattern or practice of conduct amounting to persecution against
private citizens. The record does not compel another conclusion
on Escalona-Escalona’s pattern or practice theory.
In sum, Escalona-Escalona has failed to demonstrate that the
record compels a finding of past persecution or a well-founded fear
of future persecution. So he is not entitled to relief on his asylum
claim.
Ruiz, 440 F.3d at 1257. And because he has failed to demon-
strate his entitlement to relief on his asylum claim, he likewise has
failed to establish that he qualifies for withholding of removal.
See
5 On this argument, the BIA adopted the IJ’s reasoning. We therefore review
both the BIA’s and the IJ’s decisions.
Ayala, 605 F.3d at 947–48.
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20 Opinion of the Court 20-14061
D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004)
(holding that a petitioner unable to meet the standard of proof for
asylum cannot meet the more stringent standard for withholding
of removal).
2.
CAT Claim
Lastly, we consider Escalona-Escalona’s CAT claim. To suc-
ceed, he must establish that, more likely than not, he would be tor-
tured if removed to Cuba.
Reyes-Sanchez v. U.S. Att’y Gen., 369
F.3d 1239, 1242 (11th Cir. 2004). Torture is defined, in relevant part,
as:
[A]ny act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a per-
son for such purposes as . . . punishing him . . . for an
act he . . . has committed or is suspected of having
committed . . . when such pain or suffering is inflicted
by or at the instigation of or with the consent or ac-
quiescence of a public official acting in an official ca-
pacity . . . .
8 C.F.R. § 208.18(a)(1).
Most pertinently for this claim, Escalona-Escalona repre-
sents in his briefing that he was tortured when he was “water-
boarded until he lost consciousness” in Cuba and that he is likely
to suffer similar treatment in the future. Petitioner’s Br. at 15–16.
But the record does not support Escalona-Escalona’s representa-
tion that he was waterboarded. Rather, the relevant testimony
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20-14061 Opinion of the Court 21
indicates that cold water was “pour[ed]” on him. AR at 249. Failing
to describe the evidence accurately, he cannot establish that the ev-
idence compels a finding that he more likely than not would face
torture in the future. He therefore cannot demonstrate that he is
entitled to relief on his CAT claim.
IV. CONCLUSION
For the foregoing reasons, the petition is DENIED.
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