Bersain Tomas-Perez v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10497
Non-Argument Calendar
____________________
BERSAIN TOMAS-PEREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A208-574-680
____________________
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2 Opinion of the Court 21-10497
Before J ILL PRYOR , L UCK , and LAGOA , Circuit Judges.
PER CURIAM:
Bersain Tomas-Perez petitions for review of the decision of
the Board of Immigration Appeals (the “Board”) affirming the
immigration judge’s denial of his applications for asylum and
withholding of removal. After careful consideration, we deny the
petition in part and dismiss it in part.
I. FACTUAL BACKGROUND
Tomas-Perez is a native and citizen of Guatemala. In 2016,
when he was 17 years old, he entered the United States. After en-
tering the country, he was charged with being removable as a
noncitizen present in the United States without having been ad-
mitted or paroled.
See 8 U.S.C. § 1182(a)(6)(A)(i). In immigration
proceedings, Tomas-Perez conceded removability and applied for
asylum and withholding of removal.1 He claimed that he feared
persecution if he returned to Guatemala based on his membership
in the particular social group consisting of street children who had
1 Tomas-Perez also applied for protection under the Convention Against
Torture (“CAT”), and the immigration judge denied his application. Because
Tomas-Perez does not raise any arguments in his petition for review regard-
ing the denial of his CAT claim, we do not discuss it further.
See Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (explaining when
a petitioner fails to offer argument on an issue on appeal to us, that issue is
abandoned).
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21-10497 Opinion of the Court 3
been abandoned by their parents and because of his race, as he is
an indigenous Mayan.
An immigration judge held a hearing on Tomas-Perez’s
application. The evidence before the immigration judge reflected
that Tomas-Perez and his family were members of the Mam Ma-
ya, an indigenous group in Guatemala. When Tomas-Perez was
approximately five years old, his father died, leaving behind his
mother and five young children. Because Tomas-Perez’s mother
was unable to find work in Guatemala and could not afford food
and housing for her family, she left Guatemala.
Over the next several years, Tomas-Perez moved between
Mexico and Guatemala, living with different family members. Ini-
tially he lived in Mexico with his older sister, Noemi. Noemi beat
and mistreated him. He moved back to Guatemala and lived with
his grandmother. But when his grandmother became severely ill,
he returned to Mexico and again lived with Noemi.
At this point, Tomas-Perez, who was twelve years old, be-
gan to work. Noemi collected his earnings from his employer and
refused to give him the money he had earned. When the employ-
er began to pay Tomas-Perez directly, Noemi became angry and
threw him out of the house. For a period of time, Tomas-Perez’s
employer provided him with housing. When Noemi discovered
this arrangement, she called the police on the employer, who
ended the employment. Tomas-Perez was left homeless and beg-
ging for money.
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4 Opinion of the Court 21-10497
Tomas-Perez’s mother urged him to leave Mexico and
move back to Guatemala. He was unwilling to return to Guate-
mala because he believed there was nothing there for him but
“the streets and the gangs.” AR 258.2 Instead, he came to the
United States and applied for asylum and withholding of removal.
The record before the immigration judge who reviewed
Tomas-Perez’s application for asylum and withholding of remov-
al also included evidence about country conditions in Guatemala.
Although Guatemala law guaranteed indigenous persons equal
rights, the country condition reports reflected that indigenous
persons in Guatemala remained largely outside the political, eco-
nomic, social, and cultural mainstream; had limited educational
opportunities; and faced widespread discrimination.
After reviewing the evidence, the immigration judge de-
nied Tomas-Perez’s application for asylum and withholding of
removal. Regarding the asylum claim, the immigration judge be-
gan by explaining that what happened to Tomas-Perez in Mexi-
co—suffering harm at the hands of his sister—could not form the
basis for his asylum claim. Because Mexico was not Tomas-
Perez’s country of nationality and Mexico had not been designat-
ed as an alternate country of removal, the questions of whether
Tomas-Perez had faced past persecution or would suffer future
2 “AR” refers to the administrative record.
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21-10497 Opinion of the Court 5
persecution in Mexico were irrelevant to his asylum claim.3 The
immigration judge instead looked at whether Tomas-Perez had
established that he had faced or would face persecution in Gua-
temala, which was his country of nationality.
The immigration judge provided several reasons for deny-
ing Tomas-Perez’s petition for asylum. For one, the immigration
judge concluded that Tomas-Perez failed to demonstrate a suffi-
cient nexus between his race or particular social group and the
persecution he claimed he would face in Guatemala. The immi-
gration judge reasoned that any harm Tomas-Perez would face in
Guatemala would not be “because of his race or membership in
the proposed particular social group.”
Id. at 50.
For another, the immigration judge rejected Tomas-Perez’s
proposed particular social group of street children abandoned by
their parents. The immigration judge determined that this pro-
posed group was not a cognizable social group because being a
child was not an immutable characteristic. But even if it could be
a cognizable social group, the immigration judge concluded, To-
mas-Perez, who was over 18 years old, was no longer a member
of the group.
3 Given this determination, the immigration judge did not address whether
the harm that Tomas-Perez experienced in Mexico at the hands of his sister
rose to the level of persecution.
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6 Opinion of the Court 21-10497
The immigration judge also denied Tomas-Perez’s applica-
tion for withholding of removal. The immigration judge ex-
plained that the standard regarding the probability of being sub-
jected to persecution for a withholding-of-removal claim was
more demanding than the standard for an asylum claim. Because
Tomas-Perez failed to meet the relevant standard for asylum, the
immigration judge concluded, he could not satisfy the standard
for withholding of removal.
Tomas-Perez sought review before the Board, arguing that
the immigration judge erred in denying his applications for asy-
lum and withholding of removal. He argued that his credible tes-
timony established that he had suffered past persecution in Gua-
temala because the Mayan population is treated differently in
Guatemala and as a child he had been orphaned and forced to live
in the streets. Because he established past persecution, he argued,
he enjoyed a presumption of a well-founded fear of future perse-
cution that the government would be unable to overcome.
The Board dismissed Tomas-Perez’s appeal. The Board ex-
pressly “adopt[ed] and affirm[ed]” the immigration judge’s order
denying Tomas-Perez’s claims for asylum and withholding of re-
moval.
Id. at 3. The Board acknowledged that Tomas-Perez had
endured “abuse and hardship . . . as a youth in Mexico.”
Id. But,
the Board explained, Tomas-Perez’s asylum claim was “premised
on him being a refugee from his native Guatemala.”
Id. The
Board concluded that Tomas-Perez failed to establish that he suf-
fered past persecution because the harm that he “suffered in Mex-
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21-10497 Opinion of the Court 7
ico d[id] not support a claim of past persecution in Guatemala.”
Id.
Tomas-Perez now petitions for our review of the Board’s
decision.
II. STANDARD OF REVIEW
We review the Board’s decision only, except where the
Board expressly adopted or agreed with the immigration judge’s
decision, in which case we review both decisions.
See Jathursan v.
U.S. Att’y Gen., 17 F.4th 1365, 1372 (11th Cir. 2021). Here, the
Board expressly adopted the immigration judge’s decision.
On appeal from the Board’s decision, we review legal ques-
tions
de novo.
Zhou Hua Zhu v. U.S. Att’y Gen., 703 F.3d 1303,
1307 (11th Cir. 2013). Factual determinations are reviewed under
a substantial evidence standard, which requires us to “view the
record evidence in the light most favorable to the agency’s deci-
sion and draw all reasonable inferences in favor of that decision.”
Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en
banc). Findings of fact may be reversed “only when the record
compels a reversal.”
Id. at 1027. “[T]he mere fact that the record
may support a contrary conclusion is not enough to justify a re-
versal of the administrative findings.”
Id.
III. LEGAL ANALYSIS
In his petition for review, Tomas-Perez challenges the de-
nial of his claims for asylum and withholding of removal. We
consider each claim in turn.
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8 Opinion of the Court 21-10497
A. Asylum
An undocumented immigrant who is present in the United
States may apply for asylum. 8 U.S.C. § 1158(a)(1). The govern-
ment has discretion to grant asylum if an applicant establishes that
he is a “refugee.”
Id. § 1158(b)(1)(A). A “refugee” is defined as:
any person who is outside any country of such per-
son’s nationality . . . and who is unable or unwilling
to return to, and is unable or unwilling to avail him-
self or herself of the protection of, that country be-
cause of persecution or a well-founded fear of perse-
cution on account of race, religion, nationality,
membership in a particular social group, or political
opinion.
Id. § 1101(a)(42)(A).
To establish eligibility for asylum, an applicant must, with
specific and credible evidence, show “(1) past persecution on ac-
count of a statutorily listed factor” or “(2) a well-founded fear that
the statutorily listed factor will cause future persecution.”
Ruiz v.
U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (internal quo-
tation marks omitted). Persecution is an “extreme concept, re-
quiring more than a few isolated incidents of verbal harassment
or intimidation,” and “mere harassment does not amount to per-
secution.”
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th
Cir. 2005) (alteration adopted) (internal quotation marks omitted).
In addition, “a petitioner cannot show past persecution based on
threatening or harmful acts against family members where the
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21-10497 Opinion of the Court 9
petitioner has not been directly threatened or harmed.”
Rodri-
guez v. U.S. Att’y Gen., 735 F.3d 1302, 1309 (11th Cir. 2013).
When an applicant demonstrates past persecution, there
arises a rebuttable presumption that he has a well-founded fear of
persecution.
Sepulveda, 401 F.3d at 1231. That presumption may
be rebutted if the government establishes that “[t]here has been a
fundamental change in circumstances such that the applicant no
longer has a well-founded fear of persecution” or “[t]he applicant
could avoid future persecution by relocating to another part of
the applicant’s country of nationality . . . and under all the cir-
cumstances, it would be reasonable to expect the applicant to do
so.” 8 C.F.R. § 208.13(b)(1)(i)(A), (B).
An applicant also may establish a well-founded fear of per-
secution without proving past persecution.
See Kazemzadeh v.
U.S. Att’y Gen., 577 F.3d 1341, 1352 (11th Cir. 2009). To do so,
the applicant must show “a fear of persecution in his country of
nationality on account of a protected ground, a ‘reasonable possi-
bility’ of suffering persecution if the applicant returns to that
country, and that he is unable or unwilling to return because of
his fear.”
Id. The applicant’s fear must be both “subjectively genu-
ine and objectively reasonable.”
Id. (internal quotation marks
omitted).
To be eligible for asylum, an applicant also must satisfy the
nexus requirement, meaning he must prove he suffered persecu-
tion “on account of’ a protected basis.”
Perez-Sanchez v. U.S.
Att’y Gen., 935 F.3d 1148, 1158 (11th Cir. 2019) (internal quota-
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10 Opinion of the Court 21-10497
tion marks omitted). To satisfy this nexus requirement, “an appli-
cant must establish his membership in a particular social group
was or is ‘at least one central reason’ for his persecution.”
Id.
(quoting 8 U.S.C. § 1158(b)(1)(B)(i)).
In his petition for review, Tomas-Perez raises several ar-
guments challenging the immigration judge’s decision to deny his
asylum application. Among other things, he argues that the im-
migration judge erred by “fail[ing] to sufficiently separate and dis-
cuss the individual elements necessary to establish the Petitioner’s
eligibility for asylum.” Petitioner’s Br. at 20. Tomas-Perez con-
tends that the immigration judge improperly collapsed the ques-
tion of whether he had suffered past persecution or had a well-
founded fear of future persecution with the separate question of
whether any such persecution was on account of a protected
ground.
We lack jurisdiction to review this argument because To-
mas-Perez failed to raise it before the Board. It is well-established
that we lack jurisdiction to consider an argument raised in a peti-
tion for review if the petitioner failed to exhaust his administra-
tive remedies with respect to that argument.
See Amaya-
Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.
2006). We dismiss the portion of Tomas-Perez’s petition contend-
ing that the immigration judge erred in failing to discuss separate-
ly the elements of his asylum claim because he failed to raise this
argument in his appeal to the Board.
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21-10497 Opinion of the Court 11
With this jurisdictional issue resolved, we now proceed to
the arguments in support of Tomas-Perez’s asylum claim that he
exhausted. He primarily argues that substantial evidence does not
support the immigration judge’s determination that he failed to
establish he had suffered past persecution in Guatemala. And be-
cause he established past persecution, he says, the immigration
judge should have applied a rebuttable presumption that he had a
well-founded fear of future persecution, concluded that the pre-
sumption was not overcome, and granted his asylum application.
To support this argument, Tomas-Perez asserts that “[t]he
record is replete with example after example” of instances where
he was threatened or subjected to physical violence. Petitioner’s
Br. at 20. But his brief identifies not a single instance when he was
subjected to threats or violence in Guatemala, his country of na-
tional origin. Certainly, the record contains ample evidence that
Tomas-Perez’s sister beat and threatened him, but this conduct
occurred in Mexico, not Guatemala. Tomas-Perez offers no ex-
planation for how this mistreatment in Mexico established that
Tomas-Perez suffered past persecution in Guatemala.
See
8 U.S.C. § 1101(a)(42)(A) (explaining that to qualify as a refugee, a
person must show that he faced past persecution or future perse-
cution in his country of national origin).
Tomas-Perez also argues the immigration judge erred by
ignoring evidence that his family members had experienced past
persecution in Guatemala where they had been subjected to “oral
threats [and] violence.” Petitioner’s Br. at 20. But, again, Tomas-
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12 Opinion of the Court 21-10497
Perez’s brief fails to identify even a single instance when his fami-
ly members were subjected to threats or violence in Guatemala.
And even if the record contained such evidence, it would not nec-
essarily establish past persecution. Evidence of threatening or
harmful acts against an asylum applicant’s family members estab-
lishes past persecution only when the applicant also was “directly
threatened or harmed,” which was not the case here.
See Rodri-
guez, 735 F.3d at 1309.
Tomas-Perez further argues that because he suffered past
persecution, the Board and immigration judge were required to
apply a rebuttable presumption that had a well-founded fear of
future persecution and should have concluded that the presump-
tion was not overcome here.4 Because, as we explained above,
substantial evidence supports the immigration judge’s determina-
tion that Tomas-Perez failed to establish that he suffered past per-
secution, neither the Board nor the immigration judge erred in
failing to apply the rebuttable presumption. And because the pre-
4 An applicant may be eligible for asylum without proving past persecution if
he has a “subjectively genuine and objectively reasonable fear” of future per-
secution if returned to his country of nationality.
Kazemzadeh, 577 F.3d at
1352 (internal quotation marks omitted). But, in his petition for review, To-
mas-Perez raises no argument that he established a well-founded fear of fu-
ture persecution independent of the presumption created by past persecu-
tion. Tomas-Perez thus has abandoned any claim that he established a well-
founded fear of future persecution independent of the presumption created
by past persecution.
See Sepulveda, 401 F.3d at 1228 n.2.
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21-10497 Opinion of the Court 13
sumption did not apply, there was no need for the Board or the
immigration judge to address whether the presumption had been
overcome.
See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a
general rule . . . agencies are not required to make findings on is-
sues the decision of which is unnecessary to the results they
reach.”).5
B. Withholding of Removal
We now turn to Tomas-Perez’s withholding-of-removal
claim. Under the withholding-of-removal statute, an applicant
shall not be removed to a country if his life or freedom would be
threatened in such country “because of” a protected ground.
8 U.S.C. § 1231(b)(3)(A). For a withholding-of-removal claim, the
applicant must show that it is “more likely than not” that he will
be persecuted if returned to a particular country.
Sepulveda,
401 F.3d at 1232 (internal quotation marks omitted). “If an appli-
cant is unable to meet the well-founded fear standard for asylum,
[he] is generally precluded from qualifying for” withholding of
removal.
Id. at 1232–33 (alteration adopted) (internal quotation
5 Tomas-Perez also argues that substantial evidence does not support the
immigration judge’s determinations that his proposed particular social group
of street children abandoned by their parents was not a cognizable social
group and that he failed to establish a sufficient nexus between the alleged
persecution and his membership in the group. Because we conclude that
substantial evidence supports the immigration judge’s determination that
Tomas-Perez failed to establish he suffered past persecution, we need not
reach these arguments.
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14 Opinion of the Court 21-10497
marks omitted). Tomas-Perez’s failure to satisfy the well-founded
fear standard thus dooms his withholding-of-removal claim as
well.
IV. CONCLUSION
For the reasons set forth above, we deny the petition in
part and dismiss the petition in part.
PETITION DENIED IN PART AND DISMISSED IN
PART.
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