[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-12036

Non-Argument Calendar

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Agency No. A201-098-241

JACQUES PERRIN DORANTE, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

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Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(January 21, 2015)

Before TJOFLAT, MARCUS and JULIE CARNES, Circuit Judges.

PER CURIAM: 

Jacques Perrin Dorante seeks review of the Board of Immigration Appeals’s 

(“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of his 

application for asylum under the Immigration and Nationality Act (“INA”), 8 

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U.S.C. § 1158(a), and withholding of removal under 8 U.S.C. § 1231(b)(3). On 

appeal, Dorante argues that the BIA and IJ erred in finding that he did not establish 

past persecution. After thorough review, we grant the petition.

We review only the decision of the BIA, except to the extent that the BIA 

expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 

(11th Cir. 2001). Where the BIA agrees with the IJ’s reasoning, we will also 

review the IJ’s decision to that extent. Id. Here, the BIA did not expressly adopt 

the IJ’s decision but agreed with the IJ’s findings regarding past persecution, wellfounded fear of future persecution, and withholding of removal. Thus, we review 

both decisions to that extent. See id.

We review our own subject matter jurisdiction de novo. Amaya-Artunduaga

v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). In a petition for review 

of a BIA decision, we review factual determinations under the substantial evidence 

test. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). 

Under the substantial evidence test, we draw every reasonable inference from the 

evidence in favor of the agency’s decision, and reverse a finding of fact only if the 

record compels a reversal. Id. at 1351. 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. The fact that the record may support a contrary 

conclusion is insufficient to reverse. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 

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(11th Cir. 2004) (en banc). Additionally, where the BIA fails to consider an issue, 

we cannot conduct our own review of the issue but must remand to give the agency 

the opportunity to address the matter in the first instance in light of its own 

expertise. INS v. Ventura, 537 U.S. 12, 16-17 (2002).

An applicant for asylum must meet the INA’s definition of a refugee. 8 

U.S.C. § 1158(b)(1). The INA defines a refugee as a person who cannot return to 

his home country due to “persecution or a well-founded fear of persecution on 

account of race, religion, nationality, membership in a particular social group, or 

political opinion.” 8 U.S.C. § 1101(a)(42)(A). To establish eligibility for asylum, 

an applicant must demonstrate either past persecution, or a well-founded fear of 

future persecution, based on a statutorily listed factor. Ruiz v. U.S. Att’y Gen., 

440 F.3d 1247, 1257 (11th Cir. 2006). If the applicant demonstrates past 

persecution, there is a rebuttable presumption that he has a well-founded fear of 

future persecution. Id. This presumption may be rebutted if the government 

shows, by a preponderance of the evidence, that conditions in the country have 

changed or that the applicant could avoid future persecution by relocating to 

another part of the country if, “under all the circumstances, it would be reasonable 

to expect the applicant to do so.” 8 C.F.R. § 208.13(b)(1)(i). 

If the applicant cannot demonstrate past persecution, he must establish a 

well-founded fear of future persecution that is subjectively genuine and objectively 

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reasonable. Ruiz, 440 F.3d at 1257. “An applicant does not have a well-founded 

fear of persecution if the applicant could avoid future persecution by relocating to 

another part of the applicant’s country of nationality . . . if under all the 

circumstances it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 

208.13(b)(2)(ii). Thus, if the applicant cannot demonstrate past persecution, then 

he, rather than the government, bears the burden of establishing that it would not 

be reasonable to relocate, unless the persecution he fears is governmental or 

government-sponsored. Id. § 208.13(b)(3)(i).

We have held that “[p]ersecution is an extreme concept, requiring more than 

a few isolated incidents of verbal harassment or intimidation, and . . . mere 

harassment does not amount to persecution.” Kazemzadeh, 577 F.3d at 1353

(quotations omitted). In determining whether the petitioner has suffered 

persecution, we evaluate the cumulative harm suffered by the petitioner. Shi v. 

U.S. Att’y Gen., 707 F.3d 1231, 1235 (11th Cir. 2013). Such a determination is a 

highly fact-intensive inquiry that requires consideration of the totality of the 

circumstances on a case-by-case basis. Id. at 1235-36. We have previously 

concluded that circumstances involving only minimal violence do not compel a 

finding of persecution. See Kazemzadeh, 577 F.3d at 1353 (upholding the BIA’s 

determination of no past persecution where the petitioner was “arrested while 

participating in a student demonstration, interrogated and beaten for five hours, and 

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detained for four days, but . . . did not prove that he suffered any physical harm”); 

Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1171, 1174 (11th Cir. 2008) (upholding 

the BIA’s determination of no past persecution where the petitioner had been 

detained for 36 hours, sustained a “minor beating” by police officers, and suffered 

only “scratches and bruises”). 

Nevertheless, we have also rejected a rigid requirement of physical injury, 

and have made clear that “attempted murder is persecution, regardless of whether 

the petitioner was injured.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008 

(11th Cir. 2008) (quoting Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 

1233 (11th Cir. 2007)). In Sanchez Jimenez, we held that repeated death threats 

accompanied by the attempted kidnapping of the petitioner’s daughter and the 

attempted murder of the petitioner, whose moving vehicle was shot at multiple 

times but who was not struck by the bullets or physically injured, constituted 

persecution. Id. at 1233-34. Additionally, we’ve held that the totality of verbal 

death threats and attempted attacks over an 18-month period, culminating in a 

roadside assault at gunpoint, during which persecutors threw the petitioner to the 

ground and hit him in the face with the butt of a rifle, resulting in a broken nose, 

amounted to persecution. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1257-58 (11th 

Cir. 2007). Thus, past persecution may be found absent a serious physical injury 

where the applicant demonstrates repeated threats combined with other forms of 

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severe mistreatment, such as kidnapping or attempted murder. De Santamaria, 525 

F.3d at 1009 (finding past persecution where the applicant suffered “repeated death 

threats, two physical attacks [which resulted in minor physical injuries], the murder 

of a family friend, and a kidnaping cut short only by a harrowing escape”). 

Furthermore, we “may consider a threatening act against another as evidence that 

the petitioner suffered persecution where that act concomitantly threatens the 

petitioner.” Id. at 1009 n.7.

Finally, an alien seeking withholding of removal similarly must show that 

his “life or freedom would be threatened in [his] country because of the alien’s 

race, religion, nationality, membership in a particular social group, or political 

opinion.” 8 U.S.C. § 1231(b)(3)(A). The burden of proof for withholding of 

removal, however, is “more likely than not,” and, thus, is “more stringent” than the 

well-founded fear standard for asylum relief. Sepulveda v. U.S. Att’y Gen., 401 

F.3d 1226, 1232 (11th Cir. 2005). Accordingly, where a petitioner fails to 

establish a claim of asylum on the merits, often he necessarily fails to establish any 

claims for withholding of removal. See Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 

1292 (11th Cir. 2006). 

As an initial matter, the only issue we have jurisdiction to review is 

Dorante’s challenge to the finding that he did not establish past persecution. As 

we’ve said, if a petitioner has failed to exhaust his administrative remedies by not 

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raising a claim before the BIA, we lack jurisdiction to consider the claim, even if 

the BIA sua sponte considered the claim. Amaya-Artunduaga, 463 F.3d at 1250-

51. Further, when an appellant fails to offer argument on an issue on appeal, that 

issue is deemed abandoned. Sepulveda, 401 F.3d at 1228 n.2. In this case, 

Dorante did not argue before the BIA, and does not argue on appeal, that he 

established a well-founded fear of future persecution independently of the 

presumption created by past persecution. Thus, he has abandoned that issue and, 

even if he had not, he has failed to exhaust it. 

Nevertheless, in our view, the BIA and IJ’s finding that Dorante did not 

suffer mistreatment that rose to the level of persecution is not supported by 

substantial evidence in the record. Dorante testified that, in 2008, he joined an 

organization in his hometown of Saint Louis du Sud (“Saint Louis”), called the 

“MPC,” which translated into the Movement for Change. At the time, the 

organization had 13 members, including President Claudy Morose, and worked to 

clean the streets, address irrigation and literacy problems, and teach civil rights and 

civic engagement to local citizens. The people they taught began to tell MPC 

members about the problems they were having with local politicians, which 

prompted the MPC to create a weekly radio program as an outlet for local residents 

to discuss their problems on the air. After the program’s creation, Morose received 

a phone call from someone stating that if he did not stop the radio program, there 

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would be “problems.” Morose was then threatened by Andre Masner, an 

influential member of the Lavalas party and a security guard for Representative 

Jean Candio, who had himself been arrested for human rights violations he 

committed in Haiti. Masner told Morose that he would make Morose “pay for his 

mouth.” On June 10, 2010, Masner and his crew entered Morose’s home and beat 

Morose to death in front of his family.

In July 2010, a month after Morose had been beaten to death by Masner’s 

men in his own home, Masner and his men forced their way into Dorante’s home 

and began beating him, until they were interrupted by a group of people passing by 

who responded to his wife’s calls for help. Following the beating, Dorante 

received a number of threatening phone calls from Masner and his men. After 

Dorante fled his hometown, his wife was beaten by Masner and his men in 

December 2010 in order to ascertain Dorante’s whereabouts, after which Dorante 

had to relocate and his wife had to leave her home. Then, in August 2013, upon 

his wife’s brief return to their hometown for a funeral, after an absence of more 

than two years, their home was burned down under unknown circumstances, 

though Dorante claims Masner is responsible. While none of these discrete 

instances of mistreatment, when considered alone, would meet the threshold for 

persecution, the determination is whether the mistreatment cumulatively amounts 

to persecution. See Shi, 707 F.3d at 1235. We conclude that Dorante’s beating, 

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combined with Masner’s repeatedly threatening him, then beating his wife to try to 

find him, and then possibly burning down his home once someone returned to it, 

compel a finding that Dorante suffered persecution. See De Santamaria, 525 F.3d 

at 1009; Mejia, 498 F.3d at 1257-58. 

In finding that Dorante did not suffer past persecution, the BIA and IJ 

implied that they relied, in part, on the fact that Dorante did not sustain serious 

physical harm as a result of his mistreatment by Masner and his men. However, 

we have explicitly rejected the notion that a physical injury is required to find past 

persecution. De Santamaria, 525 F.3d at 1008. Moreover, the fact that Dorante 

did not suffer serious physical harm during his beating is not because his attackers 

voluntarily retreated but rather because they were interrupted. Given that these 

same attackers recently had beaten Morose to death in his home, it appears that this 

interrupted beating of Dorante in his home rises to the level of attempted murder, 

which we’ve held constitutes persecution. See Sanchez Jimenez, 492 F.3d at 1233. 

Notably, however, our conclusion rests on Dorante’s credibility, and the BIA 

declined to reach the IJ’s alternative finding that Dorante was not credible. Thus, 

because the record compels a finding that Dorante suffered past persecution if his 

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testimony is credible, we remand for the BIA to consider Dorante’s challenge to 

the IJ’s adverse credibility finding.1

PETITION GRANTED.

 1 Finally, Dorante briefly argues on appeal that the BIA and IJ erred in finding that he did 

not meet his burden of showing that could not relocate safely within Haiti. But he failed to 

exhaust this issue because he did not raise before the BIA any challenge to the IJ’s finding that 

he failed to show he could not relocate. Nevertheless, if Dorante prevails on his past persecution 

claim on remand, the burden would switch to the government to show that Dorante could safely 

and reasonably relocate to another part of Haiti. See 8 C.F.R. § 208.13(b)(1)(i). Importantly, no

agency has made no finding on whether the government has met its burden on relocation. Thus, 

if the BIA reverses the IJ’s credibility finding on remand, it would likely need to remand for the 

IJ to make a new relocation finding in light of the new burden of proof.

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