Julio Jimenez-Molina v. Eric Holder, Jr.

Filing 920100902

Opinion

Case: 09-60459

Document: 00511223736

Page: 1

Date Filed: 09/02/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60459 September 2, 2010 Lyle W. Cayce Clerk J U L I O JIMENEZ-MOLINA, P e titio n e r v. E R I C H. HOLDER, JR., U. S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A088 054 127

B e fo r e GARZA and BENAVIDES, Circuit Judges, and LYNN,* District Judge. P E R CURIAM:* * J u lio Jimenez-Molina, a native and citizen of Venezuela, petitions this c o u r t to review an order of the Board of Immigration Appeals (BIA) denying his a p p lic a t io n for withholding of removal and protection under the Convention A g a in s t Torture (CAT). He argues that he is eligible for withholding of removal a n d CAT relief based upon his political opinion and membership in a particular s o c ia l group, i.e., Venezuelans who have fallen victim because they oppose the
*

District Judge of the Northern District of Texas, sitting by designation.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

**

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s o c ia lis t reforms of President Hugo Chavez. He asserts that he experienced past p e r s e c u t io n because he signed a referendum opposing Chavez and worked as a c a m e r a m a n for a television station that government supporters destroyed b e c a u s e of its perceived anti-government views. He argues that his past

o p p o s it io n to the government ­ both explicit and imputed ­ renders him v u ln e r a b le to future persecution and torture if he returns to Venezuela. T h is court reviews the BIA's legal conclusions de novo and its findings of fa c t , including its determination that an alien is not eligible for withholding of r e m o v a l, for substantial evidence. See Efe v. Ashcroft, 293 F.3d 899, 903 (5th C ir . 2002). Under the substantial evidence standard, this court will affirm the B I A 's determination unless the evidence compels a contrary conclusion. See C a r b a ja l-G o n z a le z v. INS, 78 F.3d 194, 197 (5th Cir. 1996). T h e Government argues that Jimenez-Molina has abandoned his claim of p a s t persecution by failing to raise it in his initial brief. We agree that the claim w a s inadequately briefed. Nonetheless, even assuming arguendo that the claim w a s properly raised, the record does not compel a conclusion contrary to the B I A 's finding that Jimenez-Molina did not demonstrate past persecution on a c c o u n t of his political opinion or membership in a particular social group. See C a r b a ja l-G o n z a le z , 78 F.3d at 197; 8 C.F.R. § 1208.16(b)(1). He has not shown t h a t the alleged threats and limited physical abuse, which occurred during times o f civil unrest, rise to the level of persecution. See Eduard v. Ashcroft, 379 F.3d 1 8 2 , 188 (5th Cir. 2004); Abdel-Masieh v. U.S. INS, 73 F.3d 579, 584 (5th Cir. 1 9 9 6 ). The record also does not compel a conclusion contrary to the BIA's finding t h a t Jimenez-Molina did not show that it was more likely than not that he would b e persecuted on account of his political opinion or membership in a particular s o c ia l group if he returns to Venezuela. See Carbajal-Gonzalez, 78 F.3d at 197; 8 C.F.R. § 1208.16(b)(2). He specifically has not shown that the Venezuelan g o v e r n m e n t or any government-affiliated group has any persistent or continuing 2

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in t e r e s t in him, i.e., there is no indication that he would likely be singled out in d iv id u a lly for persecution if he returned. See Zhao v. Gonzales, 404 F.3d 295, 3 0 7 (5th Cir. 2005). He has not established that his role as cameraman was a p o s it io n of high visibility or is a position usually targeted for persecution; there is no indication that whatever notoriety he may have had has outlasted his le n g t h y absence such that he would be targeted for persecution upon his return. Moreover, while the record suggests that there may be negative consequences fo r opponents of the government, particularly those who signed anti-Chavez r e fe r e n d u m s , the deprivations experienced by those individuals (e.g., denial of p a s s p o r t s , contracts, government identifications, public employment, and other g o v e r n m e n t benefits) do not rise to the level of persecution. See Tesfamichael v. G o n z a le s , 469 F.3d 109, 114 (5th Cir. 2006); Shehu v. Gonzales, 443 F.3d 435, 4 4 1 & n.7 (5th Cir. 2006). Jimenez-Molina has not shown that the consequences fo r his political opposition would be more severe. He thus has not established t h a t the BIA erred in denying his request for withholding of removal. See C a r b a ja l-G o n z a le z , 78 F.3d at 197. J im e n e z -M o lin a also asserts that the BIA wrongly held that he was not e lig ib le for protection under CAT. He asserts that he established that it is more lik e ly than not that he would be tortured if he returned to Venezuela. However, J im e n e z -M o lin a did not include in his brief before the BIA any argument or a n a ly s is relevant to his CAT claim. The Government contends that this court m a y not review a claim for protection that has not properly been exhausted. Judicial review of a final removal order is available only if the applicant has e x h a u s t e d all administrative remedies as of right. 8 U.S.C. § 1252(d)(1). Failure t o exhaust administrative remedies creates a jurisdictional bar to this court's c o n s id e r a t io n of an issue. Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001). Despite his failure to brief the claim, the BIA specifically addressed w h e t h e r Jimenez-Molina had shown that he was eligible for CAT protection; the B I A found that he "has not established on this record that the Venezuela 3

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g o v e r n m e n t would torture him or acquiesce in his torture by others, as required fo r relief under [CAT]." (citing 8 C.F.R. §§ 1208.16(c)(3), 1208.18(a)). This court r e c e n tly addressed whether an issue is considered exhausted if the BIA reaches t h e merits of the claim despite a petitioner's failure to properly present it. Lopez-Duhon v. Holder, 609 F.3d 642, 644­45 (5th Cir. 2010). In Lopez-Dubon, w e agreed with the Tenth Circuit's reasoning that "the purpose of the statutory e x h a u s t io n requirement is to allow the BIA `the opportunity to apply its s p e c ia lize d knowledge and experience to the matter' and to `resolve a controversy o r correct its own errors before judicial intervention.'" Id. at 644 (quoting

S id a b u ta r v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007)). Joining a majority o f the circuits, we held that "[i]f the BIA deems an issue sufficiently presented t o consider it on the merits, such action by the BIA exhausts the issue as far as t h e agency is concerned and that is all that [8 U.S.C.] § 1252(d)(1) requires to c o n fe r our jurisdiction." Id. (quoting Sidabutar, 503 F.3d at 1119). As

p r e v io u s ly set forth, in the instant case, the BIA addressed the merits of the C A T claim, which is sufficient to confer this court with jurisdiction to reach the c la im .1 W it h respect to the merits of the claim, Jimenez-Molina has not shown t h a t he is entitled to CAT relief. CAT provides that "[n]o State Party shall expel, r e t u r n . . . or extradite a person to another State where there are substantial g r o u n d s for believing that he would be in danger of being subjected to torture." Efe, 293 F.3d at 907. Instead of requiring proof of persecution, CAT requires the h ig h e r showing of torture. Id. Torture is the intentional infliction of severe

The Government attempts to distinguish the holding in Lopez-Dubon on the basis that Lopez-Dubon raised the issue before the BIA in a motion to reconsider. 609 F.3d at 644. Although Jimenez-Molina did not raise the instant issue in a motion to reconsider, we see no indication that the holding of exhaustion rested on the motion to reconsider. The Government also attempts to distinguish Lopez-Dubon on the basis that the BIA did not have an "in depth discussion of the issue in this case." We reject the contention that the brevity of the analysis renders the claim unexhausted. This court made clear that if the BIA considers the claim on the merits, the claim is exhausted. Lopez-Dubon, 609 F.3d at 644.

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m e n ta l or physical pain by a governmental official for the purpose of obtaining in fo r m a t io n , intimidation, punishment, or discrimination. See § 208.18(a)(1). Torture is "an extreme form of cruel and inhuman treatment." § 208.18(a)(2). The petitioner has the burden of proving that he will likely be tortured if he is r e m o v e d . 8 C.F.R. § 208.16(c)(2). T h e record does not reflect that it is more likely than not that JimenezM o lin a would be tortured if he returned to Venezuela. To the contrary, as set fo r t h above, the record shows that Jimenez-Molina does not even face a specific r is k of harm in Venezuela; Jimenez-Molina has failed to show that he would be s u b je c t to persecution, and he therefore would not be able to satisfy the higher b u r d e n of establishing the likelihood of torture. See Efe, 293 F.3d at 907. T h e petition for review is DENIED.

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