FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Aug. 28, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-16010

Non-Argument Calendar

________________________

BIA No. A96-173-483

FABIO MARTINEZ-CASTANO, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(August 28, 2008)

Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:

Petitioner Fabio Martinez-Castano, through counsel, seeks review of the
 Although the IJ and the BIA denied relief under Article 3 of the United Nations 1

Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or

Punishment, 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16, Martinez-Castano does not raise the

issue in his petition or brief to this court. Thus, he abandoned that claim. Sepulveda v. U.S.

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

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Board of Immigration Appeals’ (“BIA”) decision to affirm without opinion the

immigration judge’s (“IJ”) removal order and denial of his applications for asylum

and withholding of removal under the INA. Martinez-Castano argues that he was 1

persecuted based upon his political opinion. Martinez-Castano also argues that

wealthy doctors are a particular social group and he was targeted based on his

membership in that group.

I. Political Opinion

With regard to Martinez-Castano’s political activity, “[w]e review subject

matter jurisdiction de novo.” Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331,

1332 (11th Cir. 2003). We lack jurisdiction to consider claims raised in a petition

for review when the petitioner has not exhausted his administrative remedies with

respect to those claims. See 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S.

Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). In order to exhaust all

administrative remedies, an alien must raise his claims before the agency. See id.

A purpose of exhaustion is to ensure that the agency compiles “a record which is

adequate for judicial review.” Id. (quotation omitted).
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Martinez-Castano did not raise with the IJ his asylum and withholding-ofremoval claims based on his political opinion. Thus, we conclude he did not

exhaust his administrative remedies. Accordingly, we lack jurisdiction to consider

his claims based on his political opinion, and we dismiss the petition as to this

claim.

II. Wealthy Doctors

“When the BIA summarily affirms the IJ’s decision without an opinion, the

IJ’s decision becomes the final removal order subject to review.” Sepulveda v.

U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005). We, therefore, review the

IJ’s decision as if it was the decision of the BIA. Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001).

When evaluating a petition to review a decision by the BIA dismissing an

application for asylum and withholding of removal, we review findings of fact

under the “substantial evidence test,” and must affirm the decision “if it is

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) (quotation omitted). Under the highly deferential substantial evidence test,

we consider “only whether there is substantial evidence for the findings made by

the [IJ], not whether there is substantial evidence for some other finding that could

have been, but was not, made.” Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th
4

Cir. 2004) (quotation omitted). We review the record evidence in the light most

favorable to the agency’s decision and may not overturn findings of fact unless the

record compels it. Forgue, 401 F.3d at 1287. 

An alien who arrives in or is present in the United States may apply for

asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General or

Secretary of DHS has discretion to grant asylum if the alien meets the INA’s

definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is

any person who is outside any country of such person’s nationality or,

in the case of a person having no nationality, is outside any country in

which such person last habitually resided, and who is unable or

unwilling to return to, and is unable or unwilling to avail himself or

herself of the protection of, that country because of 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). The asylum applicant carries the burden of proving

statutory “refugee” status. Al Najjar, 257 F.3d at 1284. To establish asylum

eligibility, the alien must, with specific and credible evidence, establish (1) past

persecution on account of a statutorily listed factor, or (2) a “well-founded fear”

that the statutorily listed factor will cause such future persecution. 8 C.F.R.

§ 208.13(a), (b); Al Najjar, 257 F.3d at 1287. There must be a nexus between the

persecution and the protected activity, i.e., the persecution must be because of the

victim’s protected characteristic. Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d
5

884, 890 (11th Cir. 2007)

To demonstrate the connection, the petitioner must present specific, detailed

facts that show a good reason to fear that because of a statutory factor he will be

singled out for persecution, or that he is a member of or is identified with a group

that is subjected to a pattern of persecution. Djonda v. U.S. Att’y Gen., 514 F.3d

1168, 1174 (11th Cir. 2008) (citing 8 C.F.R. § 208.13(b)(2)(iii)); Al Najjar, 257

F.3d at 1287. An asylum applicant may not show merely that he is a member of a

particular social group, but must show that he was persecuted because of his

membership in that social group. INS v. Elias-Zacarias, 502 U.S. 478, 483, 112

S.Ct. 812, 816, 117 L.Ed.2d 38 (1992). “[E]vidence that either is consistent with

acts of private violence . . . or that merely shows that a person has been the victim

of criminal activity, does not constitute evidence of persecution based on a

statutorily protected ground.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th

Cir. 2006). 

The statutes governing withholding of removal protect not only against

persecution by government forces, but also against persecution by

non-governmental groups that the government cannot control. Sanchez v. U.S.

Att’y Gen., 392 F.3d 434, 437 (11th Cir. 2004). When a petitioner fails to

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

eligibility for withholding of removal.” Forgue, 401 F.3d at 1288 n.4.
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Whether wealthy doctors are a particular social group is immaterial because

there was substantial evidence to support the IJ’s finding that Martinez-Castano

was not targeted because he was a wealthy doctor. Thus, Martinez-Castano cannot

establish he was eligible for asylum. Since Martinez-Castano was not eligible for

asylum, he was not eligible for withholding of removal. Accordingly, we deny this

part of the petition for review. 

III. Conclusion

After reviewing the record and reading the parties’ briefs, we dismiss the

petition in part and deny the petition in part.

PETITION DISMISSED IN PART, DENIED IN PART.