Espilvio Sanchez-Benavidez v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Espilvio Ramiro Sanchez-Benavidez. Decision: Affirmed. Petition Denied in part, dismissed in part. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14485
Non-Argument Calendar
________________________
Agency No. A206-028-757

ESPILVIO RAMIRO SANCHEZ-BENAVIDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 16, 2017)
Before ED CARNES, Chief Judge, JULIE CARNES, and JILL PRYOR, Circuit
Judges.
PER CURIAM:
Espilvio Sanchez-Benavidez filed a petition for review of the Board of

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Immigration Appeals’ denial of his applications for asylum, withholding of
removal, and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment. SanchezBenavidez contends (1) the BIA’s decision was not supported by substantial
evidence, (2) that the BIA and IJ were biased and discriminated against him on
account of his social status, and (3) that the Board of Immigration Appeals abused
its discretion by denying his motion to remand his case to the Immigration Judge
for reconsideration in light of additional evidence.
I.
Sanchez-Benavidez is a young man in his twenties from Chinandega,
Nicaragua. He entered the United States in July 2013 without being admitted or
paroled after inspection by an immigration officer. Before entering the United
States, he resided with his grandmother, who remains at her home in Nicaragua.
Before the IJ, Sanchez-Benavidez testified that he applied for asylum because “the
Sandinista1 organization has tried to kill” him. He admitted removability, but
sought asylum, withholding of removal, and CAT relief.
A.
According to Sanchez-Benavidez’s testimony and application for asylum,
1

A Sandinista is “[a] member or advocate of the leftist political party that governed
Nicaragua from 1970 to 1990.” Sandinista, Am. Heritage Dictionary (5th ed. 2016). “Sandinista
leader Daniel Ortega was reelected as president [of Nicaragua] in 2006, 2011, and 2016.”
Sandinista, Britannica Academic, Encyclopædia Britannica (Nov. 8, 2016),
http://academic.eb.com/levels/collegiate/article/Sandinista/65474.
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his family has a long history of being persecuted by the Sandinistas. Three of his
uncles were killed by the Sandinistas — two were killed in 1979 and one was
killed in 1980. Though they were killed before Sanchez-Benavidez was born, he
learned of their deaths from his grandmother. His grandmother also told him that
another uncle had received political asylum in Mexico; Sanchez-Benavidez’s
asylum application asserts that this uncle fled to Mexico after he was threatened by
Sandinista officers. His asylum application also asserts that a fifth uncle was
“wounded” by Sandinista officers in 1986 after which he fled to Costa Rica.
According to his application, all of those uncles were accused of being fighters for
the Sandinistas’ enemies, the Contras.
Sanchez-Benavidez’s father was suspected of collaborating with the Contras
and detained by the Sandinistas several times before leaving Nicaragua in 1987.
His father currently lives in El Salvador. Sanchez-Benavidez has brothers and
sisters who have moved to Costa Rica because they were threatened or accosted by
the Sandinistas, though they had never been harmed in Nicaragua.
Sanchez-Benavidez’s grandmother is also against the Sandinistas. The
Sandinistas throw rocks at her house and “criticize” her, calling her an “antirevolutionary.” They also draw graffiti on the house. The graffiti says “damned”
or “you’re damned anti-Sandinistas, anti-revolutionary” and has included
skeletons. When the Sandinistas vandalize Sanchez-Benavidez’s grandmother’s
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house, they do so as a “mob” during “marches.” No one has been hurt on those
occasions.
B.
Moreover, Sanchez-Benavidez himself has experienced harassment and was
involved in anti-Sandinista activity in Nicaragua. He said that, around 2006, the
Sandinistas began to call him “anti-Sandinista’ and “anti-revolutionary” and would
“insult [him] very harshly.”
When he was eighteen, Sanchez-Benavidez joined the Independent Liberal
Party, which is opposed to the Sandinistas. And he was the leader of a youth group
for the party, organizing meetings to talk about democracy or human rights.
Sanchez-Benavidez made his support for free elections and human rights publicly
known. And he testified that the Sandinistas consider him to be a counterrevolutionary and anti-Sandinista because he has the same political views that his
uncles did.
As a result of his work with the Independent Liberal Party, he received
threats from the Sandinista youth group in May or June 2013. According to
Sanchez-Benavidez: “They would say you damn dog, we’re going to screw you
up, the same thing that happened to your uncle is going to happen to you.” He
testified that “the very strong threats” he was receiving are what prompted him to
flee Nicaragua. Sanchez-Benavidez explained that he was targeted because the
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Sandinistas wanted to take advantage of his leadership position with the youth
group and wanted to force him to join their group. They told him that, if he didn’t
join, the same thing that happened to his uncles would happen to him. They also
offered him money to join, which he refused.
Sanchez-Benavidez also testified that, once the Sandinistas threatened him,
he didn’t wait around for them to threaten him many times. Knowing what had
happened to his uncles, he left the country after they had threatened him two or
three times within a two-week period. He fears the Sandinistas would kill, torture,
or imprison him if he returns to Nicaragua. Sanchez-Benavidez also testified that
he could not relocate within Nicaragua because it was a small country and he
would be located very quickly. He explained that the Sandinistas would
communicate through email to find him.
Sanchez-Benavidez did not provide any documentation of his membership in
the Independent Liberal Party or of his role as a youth group leader. Nor did he
provide any letters or affidavits from his mother or grandmother supporting his
application. Nor did he provide any proof that his uncles had been killed,
imprisoned, or tortured.
C.
The IJ found Sanchez-Benavidez’s testimony credible, but denied his
application for relief. He first concluded that Sanchez-Benavidez had failed to
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provide adequate corroboration for his story, placing particular emphasis on his
failure to obtain letters from his mother or grandmother confirming his story and
his failure to provide death certificates for his uncles. The IJ also noted that
Sanchez-Benavidez did not provide a State Department Country Report for
Nicaragua, which would have described political conditions in that country.
Next, the IJ found that even if Sanchez-Benavidez had provided
corroborating evidence, he would not have granted relief because SanchezBenavidez had failed to establish past persecution or a well-founded fear of future
persecution. He emphasized that mere threats and harassment do not amount to
persecution, Sanchez-Benavidez had not been physically harmed, and his
grandmother continued to live unharmed in her home in Nicaragua. He concluded
that, although Sanchez-Benavidez’s uncles may have been killed by Sandinistas,
that was not sufficient to establish his eligibility for relief. They were killed well
before he was born and their deaths could not be considered persecution of
Sanchez-Benavidez. The IJ also noted that Sanchez-Benavidez failed to show that
he had “ever sought police protection or that the government [was] unwilling or
unable to protect him.”
Additionally, the IJ was not persuaded that Sanchez-Benavidez was targeted
because of his political affiliation. He suggested the Sandinistas might have
targeted Sanchez-Benavidez because of his leadership position in the Independent
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Liberal Party youth group and their desire to recruit him.
Finally, the IJ concluded that Sanchez-Benavidez did not provide enough
evidence to show that he was unable to safely relocate within Nicaragua. The IJ
was not persuaded by his claims that the Sandinistas could locate him using email,
noting that he “simply has not met his burden of establishing to the Court’s
satisfaction that he is a person of high enough stature or standing that people would
continue to look for him if he returned to Nicaragua . . . .”
As for Sanchez-Benavidez’s CAT claim, the IJ noted that he failed to
identify any government officials who would be in the position to torture him or
inclined to do so. The IJ noted that Sanchez-Benavidez failed to mention any
government officials at all in his testimony.
D.
Sanchez-Benavidez appealed the IJ’s decision to the BIA. In addition to
challenging the substance of the IJ’s decision, he claimed the IJ was biased and
discriminatory. He also provided the BIA with an affidavit from his mother
corroborating most of his story.
The BIA adopted and affirmed the IJ’s judgment. The BIA, like the IJ,
based its decision on Sanchez-Benavidez’s failure to (1) provide adequate
corroboration, (2) establish past persecution, (3) establish that any subjective fear
of future persecution was objectively reasonable, and (4) establish that relocation
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within Nicaragua was not viable. It also concluded that Sanchez-Benavidez failed
to “meaningfully contest[ ]” the denial of his claim for CAT relief and, as a result,
had waived that issue.
Construing the submission of his mother’s affidavit as a motion for a remand
for further consideration, the BIA concluded that remand was not warranted. It
held that Sanchez-Benavidez failed to demonstrate that the affidavit could not have
been “obtained or discovered” before the IJ issued his decision.
Finally, the BIA rejected Sanchez-Benavidez’s claim that the IJ was biased.
It concluded it was appropriate for the IJ to consider whether Sanchez-Benavidez
“was of such notoriety that it was unreasonable for him to internally relocate to
avoid persecution” and that he “had a full opportunity to present his claim.”
Sanchez-Benavidez petitions this Court for review of the BIA’s decision.
II.
Before reaching the merits of Sanchez-Benavidez’s petition, we consider
whether we have jurisdiction to consider his CAT claim. The government
contends that we do not, because he failed to exhaust those arguments before the
BIA.
“We lack jurisdiction to review final orders in immigration cases unless ‘the
alien has exhausted all administrative remedies available to the alien as of right.’”
Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015) (quoting 8
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U.S.C. § 1252(d)(1)). “A petitioner fails to exhaust h[is] administrative remedies
with respect to a particular claim when [he] does not raise that claim before the
BIA.” Id. We will not consider a claim to have been raised before the BIA unless
the petitioner argued there the “core issue now on appeal[;]” simply making
“[u]nadorned, conclusory statements” is not sufficient. Id. (quotation marks
omitted).
In his brief to the BIA, Sanchez-Benavidez made only passing reference to
his claim for CAT relief. He mentioned CAT relief only when describing the sorts
of relief he had applied for and the sorts of relief the IJ had denied him. Moreover,
he mentioned the Nicaraguan government itself only three times. First, he
mentioned that the “country” when “under Sandinista rul[e]” had a “history of
persecuting people in circumstances similar to” Sanchez-Benavidez’s. Second, he
discussed the violent way that the Sandinistas took power in the late 1970s and
early 1980s. Finally, he mentioned that opponents of the Sandinistas do not go to
the police because the police will not protect them and will sometimes punish
them. All of those statements were made not to support an argument for CAT
relief, but to refute the IJ’s findings as to his asylum and withholding of removal
applications. As the BIA concluded, none of that was sufficient to raise the issue
of CAT relief before the BIA. For that reason, Sanchez-Benavidez’s claim to CAT
relief is unexhausted and we have no jurisdiction to consider it. See id.
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III.
Sanchez-Benavidez contends (1) that substantial evidence did not support
the BIA’s denial of his applications for asylum and withholding of removal,
(2) that the BIA abused its discretion by failing to remand his case to the IJ in light
of his mother’s affidavit, and (3) that the BIA and IJ were biased and discriminated
against him based on his social status. We are not persuaded.
A.
We turn first to Sanchez-Benavidez’s applications for asylum and
withholding of removal. One of the reasons the IJ and the BIA concluded that
Sanchez-Benavidez was not eligible for asylum was that he had failed to
demonstrate either past persecution or a well-founded fear of future persecution.
He contends that conclusion was not supported by substantial evidence.
“Where the BIA issues a decision, we review that decision, except to the
extent that it expressly adopts the IJ’s opinion.” Chen v. U.S. Att’y. Gen., 463
F.3d 1228, 1230 (11th Cir. 2006). “Insofar as the BIA adopts the IJ’s reasoning,
we review the IJ’s decision as well.” Id. In this case, the BIA issued its own
opinion and adopted the IJ’s opinion, so we review both opinions to the extent that
the IJ’s opinion is not duplicated by the BIA’s.
“We review the BIA’s factual determinations under the substantial evidence
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test.” Min Yong Huang v. Holder, 774 F.3d 1342, 1344 (11th Cir. 2014). “Under
this test, we must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Id.
(quotation marks omitted). “To reverse the [BIA’s] fact findings, [this Court] must
find that the record not only supports reversal, but compels it.” Rodriguez-Morales
v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007) (alterations in original)
(quotation marks omitted). “[O]nly in a rare case does the record compel the
conclusion that an applicant for asylum suffered past persecution or has a wellfounded fear of future persecution.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1239
(11th Cir. 2006) (emphasis added). This is not such a case.
As an initial matter, the threats directed at Sanchez-Benavidez are not
sufficient to compel a finding of past persecution. See Djonda v. U.S. Att’y Gen.,
514 F.3d 1168, 1174 (11th Cir. 2008). The fact that Sandinista supporters threw
rocks at and drew graffiti on his grandmother’s house does not change our
conclusion. Isolated instances of harassment, even when coupled with threats, are
not enough to compel a finding that he suffered past persecution. Delgado v. U.S.
Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007) (“[P]ersecution is an extreme
concept, requiring more than a few isolated incidents of verbal harassment or
intimidation.”) (alteration in original) (quotation marks omitted).
And although three of Sanchez-Benavidez’s uncles were killed and other
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family members were detained or harassed in the 1970s and 1980s, an applicant for
asylum must do more than simply show that his family members were persecuted
for their political beliefs; he must show that the same will happen to him. See
Djonda, 514 F.3d at 1176. Sanchez-Benavidez has failed to do so here. By his
own admission, Sanchez-Benavidez’s uncles and father were persecuted long
before he was born because of their involvement with the Contras. But SanchezBenavidez did not testify that he has or had any association with the Contras. And
his testimony did not establish that anyone in his family has been detained, beaten,
or killed in recent years. Instead, his testimony established only that he and his
grandmother have been sporadically harassed and that he has been threatened.
Moreover, there is plenty of evidence in the administrative record to support
the IJ and BIA’s conclusion that Sanchez-Benavidez’s fear of future persecution is
not well-founded. His grandmother continues to live in Nicaragua unharmed. And
Sanchez-Benavidez himself was never harmed while he lived there, despite the fact
that he was threatened and despite the vandalism of his grandmother’s home.
As a result, Sanchez-Benavidez has not established his eligibility for asylum.
And it follows that he also has not carried the even greater burden of establishing
that he was entitled to withholding of removal.2 D-Muhumed v. U.S. Att’y Gen.,

2

Because we conclude that at least one of the BIA’s grounds for denying SanchezBenavidez’s applications for asylum and withholding of removal was supported by substantial
evidence, we need not decide whether the denial could be sustained on other grounds. For that
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388 F.3d 814, 819 (11th Cir. 2004).
B.
Sanchez-Benavidez also contends that the BIA abused its discretion by
failing to remand his case to the IJ to consider his mother’s affidavit, which he
submitted with his appeal to the BIA. He is mistaken. “We construe a motion to
remand that seeks to introduce new evidence as a motion to reopen . . . and we
review the denial of a motion to reopen for an abuse of discretion.” Ali v. U.S.
Att’y Gen., 643 F.3d 1324, 1329 (11th Cir. 2011) (citation omitted).3 Despite
Sanchez-Benavidez’s argument to the contrary, documentary evidence cannot be
submitted at any time. It is within the discretion of the BIA to deny a motion to
reopen where the evidence a petitioner seeks to present on appeal was available to
the petitioner at the time of his initial hearing before the IJ. See 8 C.F.R.
§ 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted unless it
appears to the Board that [the] evidence sought to be offered is material and was
not available and could not have been discovered or presented at the former

reason, we decline to review the BIA’s conclusions that Sanchez-Benavidez should have
provided additional evidence to corroborate his testimony and that he failed to demonstrate he
could not safely relocate within Nicaragua.
3
At one point, Sanchez-Benavidez appears to contend that the BIA should not have
construed the submission of his mother’s affidavit as a motion to remand. But he does so only in
passing and so has abandoned that argument. See Sapuppo v. Allsatate Floridian Ins. Co., 739
F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant abandons a claim when he
either makes only passing references to it or raises it in a perfunctory manner without supporting
arguments and authority.”).
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hearing . . . .”). 4 There is no indication in the record that the affidavit and the
information it contains could not have been obtained and presented to the IJ before
he made his initial ruling. Indeed, Sanchez-Benavidez testified at the IJ hearing
that he “possibly” could have asked his mother to write a letter supporting his
applications. As a result, the BIA did not abuse its discretion by declining to
remand Sanchez-Benavidez’s case to the IJ.
C.
Finally, Sanchez-Benavidez contends that his due process rights were
violated because the BIA and IJ were biased against him. He bases this claim on
the BIA and IJ’s reliance on his relative lack of notoriety in Nicaragua to support
their conclusion that relocation would be feasible within the country. That is not
bias. The BIA and IJ merely used all the evidence in the record to draw a
permissible inference that undermines Sanchez-Benavidez’s claim for relief. We
have ourselves relied on similar evidence in the past. See Sepulveda, 401 F.3d at
1231–32.
IV.
We lack jurisdiction to review the IJ’s denial of Sanchez-Benavidez’s
4

Sanchez-Benavidez’s assertion, in his brief to this Court, that “reject[ing] this affidavit
is just unfair, arbitrary, capricious, and in violation of due process of law” might have been
intended to raise a due process or Administrative Procedure Act challenge to the BIA’s decision
not to allow new evidence to be presented at any time. But such a conclusory statement,
unsupported by any argument or legal citation, is not sufficient to raise that issue in this Court.
See Sapuppo, 739 F.3d at 681.
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application for CAT relief. The record does not compel the conclusion that
Sanchez-Benavidez was eligible for asylum or entitled to withholding of removal.
The BIA did not abuse its discretion by declining to remand his case to the IJ. And
Sanchez-Benavidez’s due process rights were not violated.
DENIED IN PART; DISMISSED IN PART.

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