Eliseo Julian Yax-Soch v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13621
Non-Argument Calendar
____________________
ELISEO JULIAN YAX-SOCH,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A206-444-821
____________________
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2 Opinion of the Court 22-13621
Before B RANCH, L AGOA , and BRASHER , Circuit Judges.
PER CURIAM:
Eliseo Julian Yax-Soch seeks review of the Board of
Immigration Appeals’ (“BIA”) order affirming the Immigration
Judge’s (“IJ”) denial of his application for asylum under 8 U.S.C.
§ 1158(a) and withholding of removal under 8 U.S.C. § 1231(b)(3).
On appeal, he argues that he established past persecution and a
well-founded fear of future persecution on account of his race and
religion. However, because he failed to challenge the agency’s
determination that Yax-Soch’s testimony alone was insufficient and
that he failed to provide evidence to corroborate his claims, he
abandoned any challenge to that issue. We conclude the lack of
corroboration is dispositive and therefore we deny the petition.
I. Background
Yax-Soch, a citizen of Guatemala of Mayan nationality,
entered the United States without inspection in February 2014.
The Department of Homeland Security (“DHS”) served him with
a Notice to Appear, charging himwith being removable under
8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States
without having been admitted or paroled. At a hearing in 2017,
Yax-Soch conceded removability.
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22-13621 Opinion of the Court 3
Yax-Soch then applied for asylum and withholding of
removal on account of his religion and nationality.1 He stated that
he is an Evangelical Christian, a religious minority in Guatemala,
and that his parents were well-known pastors of an Evangelical
church in the community. He asserted that he had been “harassed,
discriminated against[,] made fun of[,] and accosted” because of his
religion. He maintained that the police in Guatemala do not
protect his family, and his parents, who still live in Guatemala, are
forced to pay a “tax” to be able to travel freely throughout the
community and “hopefully prevent more abuse.” He stated that
he feared returning to Guatemala because he could “be hurt,
tortured, or killed as a result of [a] fight” he had been in with
individuals who are against his religion. According to Yax-Soch, he
defended his rights during the referenced fight and unspecified
people had come to his parents’ home and the homes of his
extended family looking for him. These unspecified people
threatened to kill his family members if they hid Yax-Soch.
Yax-Soch also included a written statement in support of his
application. In the statement, he reiterated that he is an Evangelical
Christian, which is a religious minority in Guatemala, and that he
fears being hurt, tortured or killed by people who are against his
religion if returned to Guatemala. He stated that, as a child, he
1 Yax-Soch also petitioned for relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”). The IJ determined that he did not meet the
requirements for CAT relief, and Yax-Soch affirmatively states that he is not
challenging that ruling on appeal.
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4 Opinion of the Court 22-13621
stopped attending school because other children would harass,
intimidate, “throw rocks and soil” at Yax-Soch and his brothers,
and “take away” and ruin their school items and clothes because of
Yax-Soch’s religion. He tried to reenter school as a teen, but
students at the school again began accosting him and beating him.
After the administration refused to intervene and local officials
refused to help, Yax-Soch stopped attending school. Because of his
lack of education, he never learned to speak Spanish and can only
speak in Quiche, a native dialect.
Yax-Soch explained that, when he turned 18 in 2013, he
wanted to start a business selling traditional clothing, but he was
“robbed and tortured” during his first day out. Later in December
2013, he “had a confrontation with these people.” Yax-Soch hit one
of the individuals in the head with a stick and injured others, and
then he ran away. These people later came to [Yax-Soch’s] parents’
home, and they told his father that if they found Yax-Soch, they
would kill him. Yax-Soch learned from his parents that these
people also visited members of Yax-Soch’s extended family and
threatened to kill them if they were hiding Yax-Soch. Finally, he
stated that his parents pay a “tax” to these people so that they can
travel freely. While his parents may be able to travel freely, they
do not live in peace “due to the constant oppression and belittling
they endure.”
In addition to his written statement, Yax-Soch submitted the
2017 and 2018 United States Department of State Human Rights
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22-13621 Opinion of the Court 5
Reports for Guatemala.2 Both reports stated that Guatemala’s
indigenous population, while comprising approximately 44% of
the country’s population, are “largely outside the political,
economic, social, and cultural mainstream” due in part to
“pervasive discrimination.” Neither of the reports mention
anything regarding discrimination or mistreatment of Evangelical
Christians.3
At the 2019 hearing on his application, Yax-Soch, age 23,
testified to the following. He is of indigenous Mayan descent and
is a citizen of Guatemala. His parents and three sisters still reside
in his birthplace, Totanicapán, Guatemala, and his three brothers
live with other family members in nearby Sololá. One of his uncles
lives in the United States.
2 A few days before the hearing on his application, Yax-Soch also attempted to
submit a written statement from his father in support of his application. The
IJ determined that the submission, which was filed after the designated filing
deadline, was untimely, and the IJ did not consider the statement. To the
extent Yax-Soch argues in his reply brief that the IJ erred in excluding his
father’s statement, he abandoned any challenge to the IJ’s ruling by failing to
raise this issue in his counseled initial brief. Cole v. U.S. Att’y Gen., 712 F.3d
517, 530 (11th Cir. 2013) (explaining that a party adequately raises an issue
when the party “specifically and clearly identifie[s] it in its opening brief;
otherwise the claim will be deemed abandoned and its merits will not be
addressed”), abrogated on other grounds by Nasrallah v. Barr, 140 S. Ct. 1683
(2020)); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 683 (11th Cir. 2014)
(explaining that we do not address arguments made for the first time in a reply
brief).
3 Additionally, both reports indicated “there were no reports of anti-Semitic
acts” for 2017 or 2018.
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6 Opinion of the Court 22-13621
He is an Evangelical Christian, and his parents are leaders
and pastors in the church. He was a youth leader in the church and
preached to non-believers. Evangelical Christians were the
minority religious group and the majority group was Catholic,
followed by non-believers.
He explained that he came to the United States “to look for
peace, tranquility, and love.” He elaborated on the problems he
faced in Guatemala, stating that people attacked, disliked, and
hated his family because of their religious beliefs and attempts to
preach. He stopped attending school at a very young age because,
on a daily basis, other children in the school beat him, threw rocks
at him, and bullied him because of his religion and his inability to
speak Spanish and communicate with them. At times he had to see
the medicine man in his village due to injuries from the bullies. He
reported the incidents to the “school leaders,” but they did not do
anything to help. Because he dropped out, he does not know how
to read and write and cannot speak Spanish.
Like his parents, Yax-Soch weaves traditional skirts and
clothing. When he was 18, he took some of their clothing out to
sell, and he was stopped by a group of three to four people who
beat him up and stole the merchandise. They did not say anything
to him while beating him, and they left him unconscious. After the
assault his back hurt, his arm was fractured, and his mouth was
swollen. He visited the medicine man for treatment. His parents
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22-13621 Opinion of the Court 7
reported the incident to the police, who said they would
investigate, but they did not because his family is indigenous.4
Sometime after that, he encountered the same people that
he believed had robbed and beaten him, and he believed they were
going to do it again. “[S]o this time around, [he] defended
[himself,]” by grabbing a stick and hitting some of the people. He
said these individuals were well-known in the village and “known
to be very well-connected.” After he hit one of them in the head,
he ran and hid at his uncle’s house. Yax-Soch’s father told him that
the individuals came armed to his parents’ house looking for Yax-
Soch. They told his father that they were looking for Yax-Soch and
were planning to kill him because he hit one of them. Yax-Soch
stated that he knew that these people had killed before and that if
he remained in Guatemala, he would be killed. His parents
reported the incident to police, but the police did not do anything
because Yax-Soch’s family is indigenous.
Yax-Soch testified that he left Guatemala because (1) these
people wanted to kill him, (2) he was unable to speak Spanish, and
(3) his indigenous nationality. He stated that, if he is returned to
Guatemala, he believes he will be killed by the people who beat
him up.
4 Yax-Soch explained that the indigenous people do not speak Spanish and their
culture and the way they dress is different from the non-indigenous people.
According to Yax-Soch, the police do not do anything to help indigenous
people.
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8 Opinion of the Court 22-13621
He stated that no safe place in Guatemala existed for him,
citing as an example that, at age 13, he moved to Sololá to live with
his grandmother, but “[p]eople were constantly bullying [him]
because of [his] inability to speak the Spanish language” and
because he was indigenous. He could not bear the treatment, so
after a month or two, he returned to his parents’ home. Similarly,
at age 15, he moved to San Reymundo to live with other relatives,
but he experienced similar treatment and hostility due to his race
and his religion and he could not “find peace.” He “was beaten up
because [of] the simple fact that [he] couldn’t speak to them in
Spanish and because of the way [he] looked.”
On cross-examination, Yax-Soch admitted that he did not
have any proof of these incidents or police reports, but that this was
mainly because the police did not write anything down. He also
had no proof of any medical treatment sought for injuries because
the medicine man “does not provide any receipt or any writings.”
The IJ issued an oral decision denying Yax-Soch’s
application. The IJ found that Yax-Soch was “credible as to his own
subjective understanding of the experiences and information to
which he testified.” However, his testimony “lacked detail” and he
could not recall the exact dates of important events.” And “[t]he
only two events [Yax-Soch] described with even a reasonable
amount of detail were the time he was robbed and the subsequent
attempted repeat of the same crime.” Accordingly, the IJ found
that Yax-Soch “ha[d] not provided testimony to sufficiently carry
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22-13621 Opinion of the Court 9
his burden of proof.” Relatedly, the IJ found that Yax-Soch “failed
to provide the [necessary] evidence to corroborate his claims.”
Setting aside the evidentiary burden issues, the IJ found that
Yax-Soch did not demonstrate that the reason he was attacked was
on account of his race or religion. And even if the harms Yax-Soch
suffered were on account of his religion and race, the IJ concluded
that the harms did not raise to the level of persecution.
Accordingly, the IJ concluded that Yax-Soch did not qualify for
asylum.
Furthermore, the IJ concluded that Yax-Soch failed to
demonstrate a well-founded fear of future persecution for purposes
of asylum because his family continues to live in the same area in
Guatemala, and there was no evidence that they have experienced
any harm that would rise to the level of persecution. The IJ also
found that relocation within Guatemala was an option.
Moreover, because Yax-Soch failed to demonstrate his
eligibility for asylum, the IJ concluded that his claim for
withholding of removal necessarily failed.
Yax-Soch appealed to the BIA. The BIA affirmed the IJ’s
decision without opinion. Yax-Soch then filed the present petition
for review with this Court.
II. Discussion
Yax-Soch argues that the BIA and IJ erroneously denied his
application for asylum and withholding of removal because
substantial evidence supported his claim that he suffered past-
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10 Opinion of the Court 22-13621
persecution and had a well-founded fear of future persecution
based on his race and religion. On the other hand, the government
argues that we need not reach the merits of Yax-Soch’s arguments,
and we may affirm the IJ’s decision because Yax-Soch does not
challenge the IJ’s determination that he failed to meet his burden
of proof and failed to present corroborating evidence.
Where the BIA affirms the IJ’s opinion without issuing its
own, “we review the IJ’s decision as if it were the BIA’s decision.”
Mutua v. U.S. Att’y Gen., 22 F.4th 963, 967–68 (11th Cir.), cert. denied
142 S. Ct. 1674 (2022). We review legal conclusions de novo and
factual findings for substantial evidence. Perez-Zenteno v. U.S. Att’y
Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). Under the substantial
evidence standard, we review the evidence in the light most
favorable to the agency’s decision and draw all reasonable
inferences in favor of that decision. Silva v. U.S. Att’y Gen., 448 F.3d
1229, 1236 (11th Cir. 2006). The agency’s decision will be affirmed
“if it is ‘supported by reasonable, substantial, and probative
evidence on the record considered as a whole.’” Id. (quoting
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005)).
When a petitioner “fails to offer argument on an issue, that
issue is abandoned.” Sepulveda, 401 F.3d at 1228 n.2; see also
Sapuppo, 739 F.3d at 680 (“When an appellant fails to challenge
properly on appeal one of the grounds on which the district court
based its judgment, he is deemed to have abandoned any challenge
of that ground, and it follows that the judgment is due to be
affirmed.”).
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22-13621 Opinion of the Court 11
The petitioner bears the burden of establishing eligibility for
asylum or withholding of removal by offering “credible, direct, and
specific evidence in the record.”5 Forgue v. U.S. Att’y Gen., 401 F.3d
1282, 1287 (11th Cir. 2005) (quotations omitted). “The testimony
of the applicant may be sufficient to sustain the applicant’s burden
without corroboration, but only if the applicant satisfies the trier of
fact that the applicant’s testimony is credible, is persuasive, and
refers to specific facts sufficient to demonstrate that the applicant is
a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii). If found to be credible, an
5 A petitioner seeking asylum must establish either (1) that he was persecuted
in the past “on account of race, religion, nationality, membership in a
particular social group, or political opinion,” or (2) that he has a “well founded
fear” of persecution in the future “on account of” any of those enumerated
grounds. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1); Sanchez Jimenez v. U.S. Att’y.
Gen., 492 F.3d 1223, 1232 (11th Cir. 2007). If the petitioner demonstrates that
he was subject to past persecution, he is “presumed to have a well-founded
fear of persecution on the basis of the original claim.” 8 C.F.R. § 208.13(b)(1).
But where the petitioner has not demonstrated past persecution, to establish
a well-founded fear of persecution, he “must prove (1) a subjectively genuine
and objectively reasonable fear of persecution, that is (2) on account of a
protected ground.” Silva, 448 F.3d at 1236 (quotation omitted).
To qualify for withholding of removal under the INA, the petitioner
must demonstrate that, if removed to his country, his “life or freedom would
be threatened in that country because of [his] race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3). The petitioner must show that it is “more likely than not” that
he will be persecuted or tortured upon returning to his country. Carrizo v. U.S.
Att’y Gen., 652 F.3d 1326, 1331 (11th Cir. 2011) (quotations omitted).
Generally, if a petitioner is unable to meet the standard of proof for asylum,
he will be precluded from qualifying for withholding of removal. Id.
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12 Opinion of the Court 22-13621
applicant’s testimony may be sufficient to establish eligibility on its
own, without corroborative evidence. Ruiz v. U.S. Att’y Gen., 440
F.3d 1247, 1255 (11th Cir. 2006). “However, [w]here the trier of
fact determines that the applicant should provide evidence
that corroborates otherwise credible testimony, such evidence
must be provided unless the applicant does not have the evidence
and cannot reasonably obtain the evidence.” Morales v. U.S. Att’y
Gen., 33 F.4th 1303, 1308 (11th Cir. 2022) (alteration in original)
(quotations omitted). “An applicant’s failure to corroborate his
testimony can be fatal to his asylum application.” Id.; see also Nreka
v. U.S. Att’y Gen., 408 F.3d 1361, 1369 (11th Cir. 2005) (holding that,
in light of the IJ’s express concerns regarding the credibility of the
applicant’s testimony—albeit not an express adverse credibility
determination—and the applicant’s failure to address those
concerns with sufficient corroborating evidence, the evidence did
not compel the conclusion that he suffered past persecution or that
he had a well-founded fear of future persecution). “The weaker an
applicant’s testimony, . . . the greater the need for corroborative
evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.
2005).
Here, Yax-Soch failed to challenge the IJ’s determinations
that his testimony alone failed to meet his burden of proof and that
he failed to present sufficient corroborating evidence. Thus, he
abandoned any challenge to those issues.6 Sepulveda, 401 F.3d at
6 To the extent he seeks to address those issues for the first time in his
counseled reply brief, his arguments come too late. Cole, 712 F.3d at 530
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22-13621 Opinion of the Court 13
1228 n.2; see also Sapuppo, 739 F.3d at 680. As we explained in
Morales, “[w]here the trier of fact determines that the applicant
should provide evidence that corroborates otherwise credible
testimony, such evidence must be provided unless the applicant
does not have the evidence and cannot reasonably obtain the
evidence.” 33 F.4th at 1308 (alteration in original) (quotations
omitted). And “[a]n applicant’s failure to corroborate his testimony
can be fatal to his asylum application.” Id. Accordingly, we affirm
on the ground that Yax-Soch failed to present sufficient
corroborating evidence in support of his claim.
AFFIRMED.
(explaining that a party adequately raises an issue when the party “specifically
and clearly identifie[s] it in its opening brief; otherwise the claim will be
deemed abandoned and its merits will not be addressed”), abrogated on other
grounds by Nasrallah v. Barr, 140 S. Ct. 1683 (2020)); Sapuppo, 739 F.3d at 683
(explaining that we do not address arguments made for the first time in a reply
brief).
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