Filed: Feb. 13, 2008
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS - ELEVENTH CIRCUIT FEBRUARY 13, 2008 No. 07-11770 THOMAS K. KAHN Non-Argument Calendar CLERK - Agency Nos. A95-899-984 A95-899-985 JOSE EDUARDO RUIZ, ISABEL GRACIELA AVILES DE RUIZ, VERONICA ESTHER RUIZ, FRENANDA RUIZ, Petitioners, versus U.S. ATTORNEY GENERAL, Respondent. - Petition for Review of a Decision of the Board of Immigration Appeals - (February 13, 2008) Before EDMONDSON, Chief
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS - ELEVENTH CIRCUIT FEBRUARY 13, 2008 No. 07-11770 THOMAS K. KAHN Non-Argument Calendar CLERK - Agency Nos. A95-899-984 A95-899-985 JOSE EDUARDO RUIZ, ISABEL GRACIELA AVILES DE RUIZ, VERONICA ESTHER RUIZ, FRENANDA RUIZ, Petitioners, versus U.S. ATTORNEY GENERAL, Respondent. - Petition for Review of a Decision of the Board of Immigration Appeals - (February 13, 2008) Before EDMONDSON, Chief J..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
FEBRUARY 13, 2008
No. 07-11770
THOMAS K. KAHN
Non-Argument Calendar
CLERK
--------------------------------------------
Agency Nos. A95-899-984
A95-899-985
JOSE EDUARDO RUIZ,
ISABEL GRACIELA AVILES DE RUIZ,
VERONICA ESTHER RUIZ,
FRENANDA RUIZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
--------------------------------------
Petition for Review of a Decision of the
Board of Immigration Appeals
--------------------------------------
(February 13, 2008)
Before EDMONDSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Jose Eduardo Ruiz, his wife Isabel de Ruiz, and their minor children
Veronica and Fernanda Ruiz, natives and citizens of Peru,1 petition for review of
the affirmance by the Board of Immigration Appeals (“BIA”) of the decision of the
Immigration Judge (“IJ”). The decision denied asylum, withholding of removal,
and relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”). No reversible error
has been shown; we dismiss the petition in part and deny it in part.
We first must determine to what extent we have jurisdiction over Ruiz’s
petition. Chacon-Botero v. U.S. Attorney Gen., 427 F.3d 954, 956 (11th Cir.
2005) (we are “obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking”). On appeal, Ruiz argues that he demonstrated
changed circumstances to excuse his untimely asylum application and otherwise
makes arguments about his eligibility for asylum. But we do not have jurisdiction
to consider Ruiz’s asylum claims because the IJ and the BIA concluded that his
asylum application was untimely and that he failed to demonstrate an exception to
the filing deadline contained in 8 U.S.C. § 1158(a)(2)(B). Chacon-Botero, 427
1
Ruiz included his wife and children as derivatives in his asylum application; so our decision
about Ruiz also applies to them.
2
F.3d at 957 (we lack jurisdiction, under section 1158(a)(3), to review an IJ’s
timeliness ruling).
Ruiz also argues that the IJ erred in denying him CAT relief. But we lack
jurisdiction to consider this claim because Ruiz did not raise it in his appeal to the
BIA; so he has not exhausted his administrative remedies on this claim. 8 U.S.C.
§ 1252(d)(1) (we “may review a final order of removal only if . . . the alien has
exhausted all administrative remedies available to the alien as of right”);
Amaya-Artunduaga v. U.S. Attorney Gen., 463 F.3d 1247, 1250-51 (11th Cir.
2006) (we lack jurisdiction to review a claim unexhausted before the BIA, even if
the BIA has sua sponte addressed it).2 Accordingly, we dismiss the petition for
review of claims for asylum and CAT relief.
So, we have jurisdiction over Ruiz’s petition for review only of a claim for
withholding of removal. Ruiz sought relief based on his membership in a
particular social group -- those who would speak out against the corrupt activities
of former government official Vladimiro Montesinos and his cohorts.3 Montesinos
2
Even if we did have jurisdiction over Ruiz’s CAT relief claim, he has waived appellate review
of it by merely citing the relevant law and making only a generalized allegation of error. See Bayro
v. Reno, 142 F.3d 1377, 1379 (11th Cir. 1998) (concluding that when a party fails to address an
argument in their brief, they have abandoned it and waived their right to judicial review of it).
3
In his asylum application, Ruiz indicated that he sought relief based on his political opinion. But
at his asylum hearing, Ruiz clarified that he sought relief based only on his membership in a
particular social group.
3
was the former head of Peru’s intelligence agency and assistant to former
president Alberto Fujimori. The record indicates that, in 1998 and 1999, Ruiz
received death threats on several occasions from his employers Luis, Alberto, and
Wilfredo Venero (“the Venero brothers”) -- who were cousins and alleged cohorts
of Montesinos -- based on Ruiz’s implication in a corruption investigation of their
company about government contracts. During the investigation, the Venero
brothers forced Ruiz to testify -- by threat of death and harm to his family in
addition to physical assault -- in a certain way to government officials. Both the
company and Ruiz eventually were exonerated at the end of 1999.
Ruiz also claimed to be a member of the political party of then-president
Fujimori and that, based on his political activities in Fujimori’s 2000 re-election
campaign, he feared reprisal from Montesinos. Records submitted by Ruiz
indicate that Montesinos is in prison because of several suspected corrupt
activities, but commands his supporters from prison in an effort to prevent more
anti-corruption investigations. Ruiz indicated the he feared returning to Peru
because of the Venero brothers and Montesinos and his mafia.
The IJ denied Ruiz withholding of removal because the mistreatment he
suffered was not on account of an enumerated ground, but instead was the product
of a private business matter involving possible extortion. In his appeal to the BIA,
4
Ruiz asserted that he was part of a particular social group of “men threatened by
Vladimiro Montesinos, participating in social activities designed to better the lives
of other similarly situated individuals.” The BIA rejected this theory, concluding
that Ruiz had not provided evidence of activities designed to better the lives of
others and that the threats he received from the Venero brothers were not on
account of Ruiz’s association with a particular social group or political opinion,
but instead because of a single corruption investigation of the Venero brothers’s
company.
We review the decisions of the IJ and the BIA in this case. See Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (noting that we review the BIA’s
decision; but “[i]nsofar as the [BIA] adopts the IJ’s reasoning, we will review the
IJ’s decision as well”). An IJ’s factual determination that an alien is unentitled to
relief “must be upheld if it is supported by substantial evidence.” Mazariegos v.
U.S. Attorney Gen.,
241 F.3d 1320, 1323 (11th Cir. 2001). “To reverse the IJ’s
fact findings, we must find that the record not only supports reversal, but compels
it.” Mendoza v. U.S. Attorney Gen.,
327 F.3d 1283, 1287 (11th Cir. 2003).
An alien seeking withholding of removal must show that his life or freedom
would more likely than not be threatened upon return to his country because of his
race, religion, nationality, political opinion, or membership in a particular social
5
group. Id; see also 8 U.S.C. § 1231(b)(3). An alien bears the burden of
demonstrating that he more-likely-than-not would be persecuted or tortured upon
his return to the country in question. Mendoza, 327 F.3d at 1287.
In his brief, Ruiz cites the relevant law for withholding of removal, and
states that he has established eligibility for relief under controlling caselaw based
on his membership in a particular social group.4 But he does not show how the
mistreatment he received was on account of his alleged membership in an
opposition group to Montesinos or how the conduct complained of was not merely
about a private business matter and possible extortion. While Ruiz fears reprisal
from Montesinos if he returns to Peru, nothing in the record evidences that he ever
directly was threatened by Montesinos or that Ruiz would be singled out by him
upon return to Peru. See Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1231
(11th Cir. 2005) (“The applicant must also establish a causal connection between
the [statutory factor] and the feared persecution, presenting specific, detailed facts
showing a good reason to fear that he or she will be singled out for persecution on
account of such [a factor].”) (internal quotation omitted). He also provided no
4
Ruiz also asserts that he suffered persecution based on his membership in group of “persons
whose immutable ideological anti-corruption beliefs place them in danger of those who may be
prosecuted as a result of ingrained beliefs.” To the extent that Ruiz is now asserting a new social
group, we are without jurisdiction to consider it because he did not raise it before the BIA.
See Amaya, 463 F.3d at 1250-51.
6
evidence of a connection between Montesinos and the investigation of the Venero
brothers’s company other than his own conclusory testimony. In addition, nothing
evidences that the extortion and threats by the Venero brothers were on account of
Ruiz’s opposition to Montesinos. Therefore, because the evidence does not
compel us to conclude that Ruiz is entitled to relief, we deny his petition for
review of his claim for withholding of removal.
PETITION DISMISSED IN PART, DENIED IN PART.
7
