FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 6, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-11123

Non-Argument Calendar

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BIA No. A97-637-408

MARYORI MARIN, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(November 6, 2007)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Maryori Marin, a citizen of Venezuela, through counsel, seeks review of the
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Board of Immigration Appeals’s (“BIA”) decision summarily affirming the

Immigration Judge’s (“IJ”) order denying her application for asylum and

withholding of removal under the Immigration and Nationality Act (“INA”), and

relief under the United Nations Convention Against Torture and Other Cruel,

Inhuman and Degrading Treatment or Punishment (“CAT”). We dismiss Marin’s

petition as to her withholding of removal and CAT claims because she failed to

exhaust her administrative remedies for those claims. We grant her petition as to

her asylum claim, however, and remand to the BIA.

I. BACKGROUND

In July 2003, the Department of Homeland Security (“DHS”) admitted

Marin to the United States in Miami as a non-immigrant B-2 visitor for a

temporary period not to exceed January 19, 2004. On September 15, 2003, Marin

applied to the DHS for asylum, withholding of removal, and protection under the

CAT. On March 16, 2004, the DHS filed a Notice to Appear with the Miami

Immigration Court, charging Marin with removability under 8 U.S.C. §

1227(a)(1)(B) because she remained in the United States for a longer time than

permitted. On June 30, 2004, Marin appeared before the IJ with counsel, conceded

removability and stated that she wished to seek asylum, withholding of removal,

and protection under the CAT. 

At her removal hearing on July 11, 2005, Marin testified in support of her
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application. She testified that she worked as a chemical engineer for Venezuela

petroleum from September 2001 to January 2003 and that she was an active

member of the Petroleum Workers Union, UNAPETROL. Marin allegedly

attended all of UNAPETROL’s activities, including bi-monthly marches in

demonstration against President Hugo Chavez’s government, and served as a

leader for some UNAPETROL activities. 

While Marin described several instances of alleged persecution in her

application, the most pertinent on appeal are the phone call and shooting of June 3,

2003. Marin claims that she received an anonymous call that morning from a man

who said he knew her class schedule, when she came and left her home, and where

her friends lived. The man purportedly threatened that Marin would “pay dearly”

if she continued to protest against President Chavez. That evening, as Marin drove

home from class, a car allegedly approached her vehicle and tried to force Marin to

lose control thereof. Marin asserts that as she began to speed up, the men in the

vehicle began to shoot at her car, destroying her windshield. As they drove away,

Marin said, they made a hand signal identifying themselves as Chavez supporters. 

 After the presentation of evidence, the IJ issued an oral decision denying

Marin’s application for asylum. Specifically, the IJ noted that Marin did not

provide evidence apart from her own testimony to support her claim that she was

involved with UNAPETROL beyond mere membership. Furthermore, the IJ
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indicated that to rule in Marin’s favor, it would have needed some corroboration of

her car-chase story, like a police report. According to the IJ, Marin’s argument

that she did not go to the police because the police supported Chavez did not

suffice. Thus, the IJ found that Marin did not show past persecution or a wellfounded fear of future persecution under the INA. 

In her brief before the BIA, Marin challenged the IJ’s conclusion that she

had failed to show that she was specifically targeted on account of her political

beliefs as contrary to the weight of the evidence. The BIA, however, affirmed the

IJ’s decision without an opinion. 

On appeal from the BIA, Marin argues that the IJ erred because her oral

testimony was sufficient to establish past persecution or a well-founded fear of

future persecution based on her anti-Chavez opinions. In response, the

Government argues that we (1) lack jurisdiction over Marin’s asylum claims

because she abandoned them, and (2) lack jurisdiction over her withholding of

removal and CAT claims because she did not exhaust them below and abandoned

them here. Furthermore, the government argues that even if we disagree on the

abandonment issue, the record does not compel reversal of the IJ’s decision. Marin

did not file a reply brief.

II. DISCUSSION

A. Jurisdiction
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We review jurisdictional matters de novo. Brooks v. Ashcroft, 283 F.3d

1268, 1272 (11th Cir. 2002). “The exhaustion requirement applicable to

immigration cases is found in 8 U.S.C. § 1252(d)(1), which provides that ‘[a] court

may review a final order of removal only if . . . the alien has exhausted all

administrative remedies available to the alien as of right.’” Sundar v. I.N.S., 328

F.3d 1320, 1323 (11th Cir. 2003). Because we view that requirement as

jurisdictional, we lack “jurisdiction to consider claims that have not been raised

before the BIA.” Id. In her brief before the BIA, Marin does not mention her

claim under the CAT and only mentions withholding of removal in her concluding

sentence. Thus, we agree with the government that we do not have jurisdiction to

consider these claims.

We disagree, however, with the government’s argument that Marin

abandoned her asylum claim by inadequately raising it before us on appeal. 

“When an appellant fails to offer argument on an issue, that issue is abandoned,”

and passing references to an issue are insufficient to prevent abandonment.

Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per

curiam). The government argues that “Marin has not made any statement in her

brief that might, even liberally, be construed as a coherent argument relating to the

dispositive bases on which the Immigration Judge denied Marin’s claim for

asylum.” (Red Brief at 26). Despite the absence of coherence and sophisticated
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legal argument in her brief, however, Marin does explicitly challenge the IJ’s

asylum determination. Because we read Marin’s brief liberally, therefore, we

conclude that she has sufficiently raised her asylum claim before us, and we

address that claim here. See Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th

Cir. 1994) (“briefs should be read liberally to ascertain the issues raised on

appeal”).

B, Asylum 

Because the BIA summarily affirmed the IJ’s decision, we review the IJ’s

decision directly. Sanchez-Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th

Cir. 2007). We review the IJ’s factual determinations under the substantial

evidence test. Id. at 1230. Accordingly, we will “affirm the [IJ’s] decision if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Id. Furthermore, we may only reverse the IJ’s fact

findings if we find that the record compels, not merely supports, reversal. Id. 

1. Credibility

An alien bears the burden of proving eligibility for asylum. Id. at 1231. The

applicant’s credible testimony “may be sufficient to sustain the applicant’s burden

without corroboration.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818-19

(11th Cir. 2004) (citing 8 C.F.R. §§ 208.13(a), 208.16(b)). If an IJ wishes to make

an adverse credibility finding, he must do so explicitly, Yang v. U.S. Att’y Gen.,
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418 F.3d 1198, 1201 (11th Cir. 2005), and if the IJ fails to do so, “the applicant or

witness shall have a rebuttable presumption of credibility on appeal.” 8 U.S.C.

§ 1158(b)(1)(B)(iii). Accordingly, because the IJ did not make an explicit

determination that Marin’s testimony was not credible, Marin’s testimony has a

rebuttable presumption of credibility on appeal. 

2. Marin’s Claim

In seeking asylum, Marin’s burden was to “establish (1) past persecution on

account of her political opinion or any other protected ground, or (2) a ‘wellfounded fear’ that her political opinion or any other protected ground will cause

future persecution.” Sepulveda, 401 F.3d at 1230-31 (citing 8 C.F.R. § 208.13(a),

(b)). “A showing of past persecution creates a presumption of a ‘well-founded

fear,’ subject to rebuttal by the [government].” Id. at 1231; see also Antipova v.

U.S. Att’y Gen., 392 F.3d 1259, 1265-66 (11th Cir. 2004) (vacating and remanding

to the BIA for a finding regarding past persecution and the applicability of a

presumption of a future threat to applicant). We conclude that Marin sufficiently

demonstrated past persecution on account of her political opinion to raise a

presumption of well-founded fear. 

Persecution is “an extreme concept, requiring more than a few isolated

incidents of verbal harassment or intimidation.” Sepulveda, 401 F.3d at 1231. We

recently determined that “intentionally being shot at in a moving car multiple
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times” constitutes persecution. Sanchez-Jimenez, 492 F.3d at 1233. Thus, Marin’s

presumptively credible, unrebutted allegations concerning the attack she

experienced while driving home from class on June 3, 2003 compels the

conclusion that she suffered persecution. 

The next question is whether the record compels the conclusion that the

persecution Marin suffered was on account of her political opinion. The IJ found

that Marin’s UNAPETROL involvement, which allegedly included leadership

activities, community presentations, signature collecting, meetings and marches,

did not adequately demonstrate political opinion. We need not reach the question

of whether Marin held the requisite political opinion, however, because we have

recognized that an alien’s imputed political opinion can satisfy the requirement that

persecution be based on a protected ground. Najjar v. Ashcroft, 257 F.3d 1262,

1289 (11th Cir. 2001) (“An asylum applicant may prevail on a theory of imputed

political opinion if he shows that the [p]ersecutor falsely attribute[d] an opinion to

[him], and then persecute[d][him] because of that mistaken belief about [his]

views.”) (internal quotation marks omitted) (alterations in original). Accordingly,

despite the IJ’s finding that Marin did not sufficiently demonstrate political

opinion, Marin could still have satisfied the requirement if her testimony

established that the persecutors were motivated by what they perceived to be

Marin’s political opinion. 
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Marin’s testimony concerning the threatening call and the attackers’ hand

gesture indicating allegiance to Chavez compels the conclusion that the persecution

she suffered was on account of political opinion. Marin received the threatening

phone call on the morning of the attack, and was told that she would “pay dearly”

unless she stopped protesting against Chavez. The caller specifically told her that

he knew her class schedule and the attack occurred as Marin was on her way home

from class later that day. The attackers made hand gestures indicating their

allegiance to Chavez as they drove away. The caller and attackers, therefore,

clearly acted because of the political opinion they imputed to Marin. Accordingly,

we conclude that the evidence Marin offered compels the finding that she suffered

persecution on account of her political opinion. 

 At this point, the IJ should have shifted the burden to the government to

rebut the presumption that Marin had a well-founded fear of future persecution. 

CONCLUSION

We dismiss Marin’s petition as to the withholding of removal and CAT

claims. We vacate the IJ’s decision as to asylum, however, and remand to the BIA

to give the government the opportunity to rebut the presumption that Marin had a

well-founded fear of future persecution. 

PETITION GRANTED IN PART, DISMISSED IN PART, AND

REMANDED.