Filed: Aug. 17, 2010
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Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-14961 ELEVENTH CIRCUIT AUGUST 17, 2010 Non-Argument Calendar JOHN LEY _ CLERK Agency Nos. A071-532-973, A070-689-185 BEZALEEL MORAN-PONCE, CLAUDIA MARIA MORAN, CLAUDIA HAIDEE MORAN, Petitioners, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (August 17, 2010) Before CARNES, HULL and MARCUS, Circuit Judges. PER CU
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-14961 ELEVENTH CIRCUIT AUGUST 17, 2010 Non-Argument Calendar JOHN LEY _ CLERK Agency Nos. A071-532-973, A070-689-185 BEZALEEL MORAN-PONCE, CLAUDIA MARIA MORAN, CLAUDIA HAIDEE MORAN, Petitioners, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (August 17, 2010) Before CARNES, HULL and MARCUS, Circuit Judges. PER CUR..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14961 ELEVENTH CIRCUIT
AUGUST 17, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency Nos. A071-532-973, A070-689-185
BEZALEEL MORAN-PONCE,
CLAUDIA MARIA MORAN,
CLAUDIA HAIDEE MORAN,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 17, 2010)
Before CARNES, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Petitioners Bezaleel Moran-Ponce (“Moran-Ponce”), his wife Claudia
Haidee Moran (“Moran”), and their daughter Claudia Marie Moran (“Claudia”),
seek review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) dismissal of their claims for asylum, withholding of
removal and relief under the United Nations Convention Against Torture
(“CAT”).1 Petitioners also seek review of the denial of Moran’s application for
cancellation of removal based on hardship to her two U.S.-born children. After
review, we deny in part and dismiss in part the petition for review.
I. BACKGROUND
Petitioners, Guatemalan citizens, entered the United States without being
admitted or paroled and filed applications for asylum, withholding of removal and
CAT relief. Petitioners claimed persecution by pro-communist guerrillas in
Guatemala.
A. Events in Guatemala
According to their applications and hearing testimony, Moran-Ponce was not
politically active or a member of any Guatemalan political organization. Moran-
1
The IJ and the BIA considered Moran-Ponce’s wife, Moran, and daughter, Claudia, as
derivative beneficiaries of Moran-Ponce’s asylum and withholding of removal claims. Thus, our
holding as to Moran-Ponce’s asylum claim applies equally to them. However, withholding of
removal does not include derivative rights. See Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862
(11th Cir. 2007). Thus, we affirm the denial of any derivative claims of withholding of removal
on that basis.
2
Ponce worked with his brother-in-law transporting appliance parts throughout
Guatemala. Guerrillas would set up road blocks around the country to stop drivers
and demand a “war tax.”
At some point in 1987 or 1988, guerrillas demanded that Moran-Ponce pay
the war tax. After Moran-Ponce refused, he and his brother-in-law began receiving
threatening anonymous notes stating that they must pay the war tax because they
were businessmen. Moran-Ponce and his brother-in-law ignored the notes because
they did not believe anything would happen to them.
In April 1988, Moran-Ponce’s brother-in-law was shot and killed in front of
his house. After the killing, Moran-Ponce was kidnapped by unidentified men
with machine guns, beaten and stabbed in the arm with a knife. The men told
Moran-Ponce that he had a “matter pending with them,” which Moran-Ponce
believed was a reference to the bribes he had refused to pay the guerrillas. The
men drove Moran-Ponce to the outskirts of the city, where they intended to kill
him. However, Moran-Ponce jumped out of the car and escaped.
In July 1989, Moran-Ponce fled to the United States, leaving his wife and
infant daughter, Claudia, in Guatemala. After Moran-Ponce left, his wife and
father continued to receive threatening phone calls and letters. Moran-Ponce’s
wife received about six anonymous notes at her home threatening that something
bad was going to happen to her and her daughter. The notes did not give a reason
3
for the threats. In June 1991, Moran-Ponce’s wife and daughter followed him to
the United States.
B. Events in the United States
Since arriving in the United States, Moran-Ponce and his wife have had two
additional children, Derek and Rocio Moran, who are U.S. citizens. Moran applied
for cancellation of removal based on the hardship her removal would cause these
two U.S. citizen children. Moran testified that her children would suffer in
Guatemala due to lack of educational and economic opportunities and because of
Derek’s asthma and panic attacks. However, Moran did not submit any of Derek’s
medical records pertaining to his asthma or panic attacks.
In April 2000, Moran-Ponce was convicted of possession of cocaine in a
Florida state court. The government’s notice to appear (“NTA”) charged Moran-
Ponce with removability because, inter alia, his 2000 cocaine conviction was for a
controlled substance offense pursuant to INA § 212(a)(2)(A)(i)(II), 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). At his removal hearing, Moran-Ponce admitted the factual
allegations in the NTA and conceded the charges of removability.
C. IJ’s Ruling
As to asylum and withholding of removal, the IJ credited the petitioners’
testimony, but denied all relief from removal. The IJ concluded, inter alia, that the
petitioners were statutorily ineligible for asylum and withholding of removal
4
because they had not shown a nexus between the Guatemalan guerrillas’
mistreatment of them and any of the five protected grounds. As to Moran-Ponce’s
asylum claim, the IJ alternatively denied relief as an exercise of discretion due to
Moran-Ponce’s 2000 Florida cocaine conviction, which the IJ found was a crime of
moral turpitude and a serious crime involving a controlled substance. The IJ
denied Moran’s request for cancellation of removal, finding that Moran had not
established exceptional and extremely unusual hardship.
On appeal, the BIA agreed with the IJ that the petitioners had not shown the
required nexus, explaining that attempted criminal extortion does not constitute
persecution on a protected ground.2 The BIA declined to address the IJ’s findings
as to Moran-Ponce’s criminal conviction and stated that Moran-Ponce had not
contested them. The BIA affirmed the IJ’s denial of cancellation of removal,
finding the IJ correctly concluded that Moran had not shown the requisite level of
hardship to her U.S. citizen children.
II. DISCUSSION
2
Before the BIA, the petitioners did not challenge the IJ’s denial of Moran’s and
Claudia’s separate applications for asylum, withholding of removal and CAT relief. Instead,
they challenged the IJ’s findings as to Moran-Ponce’s claims for which they were considered
derivative beneficiaries. Likewise, in their petition for review to this Court, petitioners do not
challenge the denial of Moran’s and Claudia’s separate applications for relief. Thus, Moran and
Claudia have failed to exhaust and have abandoned these claims. See Sundar v. I.N.S., 328 F.3d
1320, 1323 (11th Cir. 2003) (“[This Court] lack[s] jurisdiction to consider claims that have not
been raised before the BIA.”); Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir.
2005) (“When an appellant fails to offer argument on an issue, that issue is abandoned.”).
5
A. Jurisdiction
As a threshold matter, our jurisdiction to review Moran-Ponce’s final order
of removal is limited by INA § 242(a)(2), 8 U.S.C. § 1252(a)(2), which strips this
Court of jurisdiction to review a final removal order “against an alien who is
removable by reason of having committed” a controlled substance offense pursuant
to INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), except to the extent
the alien raises “constitutional claims or questions of law.” INA § 242(a)(2)(C),
(D), 8 U.S.C. § 1252(a)(2)(C), (D). In cases involving aliens who are removable
by virtue of a controlled substance offense, we do not have jurisdiction to review
factual determinations made by the IJ or the BIA. Jean-Pierre v. U.S. Att’y Gen.,
500 F.3d 1315, 1320-22 (11th Cir. 2007); see also Cadet v. Bulger,
377 F.3d 1173,
1184 (11th Cir. 2004). However, we retain jurisdiction to review the application
of law to undisputed facts.
Jean-Pierre, 500 F.3d at 1322. Stated another way, we
retain jurisdiction to review “the application of an undisputed fact pattern to a legal
standard.”
Id. Accordingly, whether an undisputed fact pattern amounts to
persecution requires a court to apply a legal definition to a set of undisputed facts.
Thus, we retain jurisdiction to entertain whether the fact pattern here constitutes
persecution.
As outlined above, it is undisputed that Moran-Ponce is removable due to his
cocaine conviction. Although we lack jurisdiction to review the IJ’s factual
6
determinations, we retain jurisdiction to determine the legal question of whether
those facts constitute persecution. To do that we retain jurisdiction to determine
whether the fact pattern here legally satisfied the requirement to show a nexus
between the alleged persecution and one of the statutorily protected grounds.3
B. Persecution Claim
To establish eligibility for asylum, a petitioner must show either past
persecution or a well-founded fear of future persecution on account of his race,
religion, nationality, membership in a particular social group or political opinion.
See INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1230-31 (11th Cir. 2005); 8 C.F.R. § 208.13(a), (b).
Similarly, an alien seeking withholding of removal must show that it is more likely
than not that if returned to his home country he will be persecuted based on one of
those same grounds. See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A);
Sepulveda, 401 F.3d at 1232; 8 C.F.R. § 208.16(b)(1)-(2).
It is well-settled that persecution for refusing to cooperate with guerillas is
not persecution on account of a protected ground. See Sanchez v. U.S. Att’y Gen.,
392 F.3d 434, 438 (11th Cir. 2004). Additionally, acts of private violence and
criminal activity do not constitute persecution on a protected ground. Ruiz v. U.S.
3
We review the IJ’s and the BIA’s legal determinations de novo. D-Muhumed v. U.S.
Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004).
7
Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006). Based on the foregoing settled
principles, we have concluded that being targeted by a guerrilla group for
extortionate purposes is not persecution on account of a protected ground. Rivera
v. U.S. Att’y Gen.,
487 F.3d 815, 821-23 (11th Cir. 2007) (involving a refusal to
pay the FARC’s “war tax”).
Here, the IJ found that the guerrillas in Guatemala demanded that Moran-
Ponce pay a war tax because he was a businessman and then threatened and
kidnapped him because he refused to pay. Under our precedent discussed above,
these facts do not show the required nexus.
Petitioners argue that the IJ and the BIA failed to consider mixed motives.
See Rivera, 487 F.3d at 821 (explaining that an applicant may be eligible for
asylum or withholding of removal if he shows that the persecution was motivated
in part by a protected ground). However, Moran-Ponce was not politically active
in Guatemala and offered no evidence that his refusal to pay was in any way
related to a protected ground or that the guerrillas believed his refusal to pay was
related to a protect ground. The only motives apparent from the facts were a desire
to extort money from Moran-Ponce because he was a successful businessman and
then to punish him because he did not comply with the guerrillas’ extortion
demands. Thus, as a matter of law, petitioners were not eligible for asylum or
8
withholding of removal.4 We deny the petition for review as to Moran-Ponce’s
claims of asylum and withholding of removal.
C. Cancellation of Removal
The Attorney General has the discretion to cancel the removal of a
nonpermanent resident who, among other things, establishes that removal would
result in “exceptional and extremely unusual hardship to the alien’s [United States
citizen or lawful permanent resident] spouse, parent, or child.” INA § 240A(b)(1),
8 U.S.C. § 1229b(b)(1). The IJ and the BIA concluded that Moran did not
establish the hardship requirement, and petitioners challenge that ruling on appeal.
We do not have jurisdiction to review the denial of relief under § 1229b,
including the discretionary determination that an alien failed to satisfy the hardship
requirement, except in appeals that raise a constitutional claim or question of law.
INA § 242(a)(2)(B)(i), (a)(2)(D), 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); see also
Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 (11th Cir. 2006). Here,
petitioners do not raise any constitutional or legal issues with respect to the denial
of Moran’s request for cancellation of removal. Therefore, we dismiss the petition
for review to the extent it challenges the denial of Moran’s application for
cancellation of removal.
4
Petitioners’ appellate briefs made only a passing reference to the denial of CAT relief
and did not offer any substantive argument as to that issue. Accordingly, that claim is deemed
abandoned. See Sepulveda, 401 F.3d at 1228 n.2.
9
PETITION DENIED IN PART, DISMISSED IN PART.
10
