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MATEO NOLASCO v. ATTORNEY GENERAL (2020)

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United States Court of Appeals, Eleventh Circuit.

Gloria Virginia MATEO NOLASCO, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 19-12242

Decided: May 07, 2020

Before WILSON, GRANT, and ANDERSON, Circuit Judges. Gloria Virginia Mateo-Nolasco, Pro Se Joseph D. Hardy, Anthony Cardozo Payne, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, Raya Jarawan, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Michelle Ressler, District Counsel's Office, USICE, MIAMI, FL, for Respondent

Gloria Mateo Nolasco (Mateo) seeks review of the Board of Immigration Appeals (BIA) order affirming the denial of her application for asylum and withholding of removal under the Immigration and Nationality Act. Because substantial evidence supports the agency's findings that Mateo did not establish past persecution, a well-founded fear of future persecution, or a nexus between any mistreatment and her political opinion, we deny the petition.

I.

Mateo and her daughter Karen Gabriel Mateo, natives and citizens of Guatemala, entered the United States without inspection in November 2015. The Department of Homeland Security served them with notices to appear, charging that they were removable for not having valid entry or travel documents at the time of their application for admission. Mateo conceded removability as charged and filed an application for asylum and withholding of removal based on her political opinion, and for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).

In her application and at a subsequent hearing before an immigration judge (IJ), Mateo explained that she left Guatemala after receiving an anonymous letter threatening to kidnap her daughter if she did not pay three thousand quetzals. Earlier, she had received several anonymous phone calls threatening to kidnap her daughter if she did not give the caller money. Mateo did not go to the drop-off location that the caller gave her, and the phone calls stopped after she told the caller that she did not have the money that he demanded.

When she found the anonymous letter on her doorstep, Mateo was afraid because she and her daughter lived alone. She did not call the police because the anonymous villain said that he would kill her if she did. Besides, Mateo testified, police in Guatemala are ineffective against the violence that is common there, including gang violence, robberies, and kidnappings.

In support of her application, Mateo submitted affidavits from her mother-in-law, brother-in-law, and a neighbor, all of whom had spoken to her about the anonymous threatening letter that she received. Mateo also submitted the 2016 Human Rights Report for Guatemala, which reported widespread institutional corruption, including in the police; security force involvement in kidnappings, human trafficking, and extortion; and problems with gang activity and societal violence, including violence against women. The report also noted problems in Guatemala with gangs recruiting children “for purposes of stealing, transporting contraband, prostitution, and conducting illegal drug activities”; commercial sexual exploitation of children; sexual harassment against women; and human trafficking.

The IJ issued an oral decision denying Mateo's application for asylum, withholding of removal, and CAT relief. The IJ found that Mateo had not suffered past persecution and did not have a well-founded fear of future persecution based on her political opinion, imputed political opinion, or any other protected ground under the INA, as required to qualify for asylum or withholding of removal. The IJ also found that she had not shown that it was more likely than not that she would be tortured by or with the acquiescence of a public official if she returned to Guatemala, as required to be eligible for CAT relief.

Mateo appealed to the BIA, arguing that she suffered persecution based on the threats she received from men who had the ability to act on the threats, and that she would more likely than not suffer future persecution based on the past threats and the conditions in Guatemala. She also argued that her flight from sexual violence in Guatemala “was an expression of [her] political opinion regarding female autonomy.” Mateo did not challenge the IJ's denial of CAT relief.

The BIA dismissed Mateo's appeal, agreeing with the IJ's reasoning and concluding that Mateo had shown only that she was the victim of private criminal violence, and had not shown that the threats that she received were motivated by her political opinion or an imputed political opinion. Mateo now seeks review of the BIA's decision.

II.

This Court generally reviews the BIA's order as the agency's final judgment. Gonzalez v. U.S. Att'y Gen., 820 F.3d 399, 403 (11th Cir. 2016). “Where the BIA agrees with the IJ's reasoning, we review the decisions of both the BIA and the IJ to the extent of the agreement.” Id. In other words, where the BIA affirms the IJ's determinations for the IJ's stated reasons, “we review the IJ's analysis as if it were the Board's.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).

We review the agency's factual determination that an alien has not shown past persecution or a well-founded fear of future persecution under the substantial evidence test. See Rodriguez v. U.S. Att'y Gen., 735 F.3d 1302, 1308 (11th Cir. 2013); Al Najjar, 257 F.3d at 1286. Under this “highly deferential” test, we are required to “view the record evidence in the light most favorable to the agency's decision and draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc). The agency's factual findings “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We must affirm those determinations as long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Forgue v. U.S. Att'y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quoting Al Najjar, 257 F.3d at 1284).

To show that she is eligible for asylum, an alien must establish that she was persecuted in the past or has a well-founded fear of future persecution in her home country “on account of” her “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). An alien seeking asylum based on her political opinion must “present ‘specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution’ on account of such an opinion.” Al Najjar, 257 F.3d at 1287 (emphasis in the original) (citation omitted).

An applicant for withholding of removal must show that her “life or freedom would be threatened” in the country of removal because of a protected ground. 8 U.S.C. § 1231(b)(3)(A); Tan v. U.S. Att'y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). “The alien bears the burden of demonstrating that it is ‘more likely than not’ she will be persecuted or tortured upon being returned to her country.” Tan, 446 F.3d at 1375 (citation omitted). This is a higher evidentiary standard than what is required to be eligible for asylum. Id. Thus, when an applicant fails to make the required showing for asylum, she necessarily fails to meet the higher standard for withholding of removal. Amaya-Artunduaga v. U.S. Att'y Gen., 463 F.3d 1247, 1249 n.3 (11th Cir. 2006).

On the record before us, we cannot say that the evidence that Mateo presented is “so compelling that a reasonable factfinder would be compelled to reach a conclusion contrary to that of the BIA.” Al Najjar, 257 F.3d at 1292. As an initial matter, the anonymous threatening phone calls and letter that Mateo received do not amount to past persecution. “[P]ersecution is an extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation.” Sanchez Jimenez v. U.S. Att'y Gen., 492 F.3d 1223, 1232 (11th Cir. 2007) (citation omitted). Evidence that is “consistent with acts of private violence” or “that merely shows that a person has been the victim of criminal activity” is not evidence of persecution based on a protected ground. Rodriguez, 735 F.3d at 1310.

Moreover, Mateo has not presented any evidence showing that past or future mistreatment in Guatemala was or would be “at least in part, motivated by a protected ground.” Tan, 446 F.3d at 1375. Based on Mateo's description of the calls and letter she received, the author never even mentioned her name, and made no reference to Mateo's actual or imputed political opinion. Instead, the caller and writer only asked for money. Mateo has not shown that the anonymous criminal was aware of any protected characteristic that would distinguish her from other Guatemalans suffering from the violence and criminal activity there, much less that his actions were motivated by a protected ground.

Substantial evidence supports the agency's findings that Mateo did not establish past persecution, a well-founded fear of future persecution, or a nexus between any mistreatment and her political opinion. Accordingly, Mateo has not met her burden of showing that she is eligible for asylum or withholding of removal, and we deny her petition.

PETITION DENIED.

PER CURIAM:

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