                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                  MAY 4, 2006
                                No. 05-15214                    THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                          ________________________

                             BIA No. A76-915-863

MARIE ANITE NICOLAS,


                                                                Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                Respondent.


                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                          _________________________

                                 (May 4, 2006)

Before TJOFLAT, CARNES and WILSON, Circuit Judges.

PER CURIAM:

     Marie Anite Nicolas, a Haitian citizen, petitions pro se for review of the
Board of Immigration Appeals’ (“BIA”) decision affirming without opinion the

immigration judge’s (“IJ”) removal order and 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, or Degrading Treatment or Punishment (“CAT”), pursuant to 8 U.S.C.

§§ 1158, 1231 and 8 C.F.R. § 208.16(c). On appeal, Nicolas argues that the district

court erred in denying her petition because the Haitian police had a mixed-motive

for persecuting her on account of her imputed political opinion. Nicolas contends

that the police persecuted her because she investigated her claim that the police

killed her husband.

      When a single member of the BIA summarily affirms the IJ’s decision

without an opinion, such as here, the IJ’s decision becomes the final removal order

subject to review. Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1284 n.1 (11th Cir.

2003). “To the extent that the IJ’s decision was based on a legal determination,

[our] review is de novo.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th

Cir. 2004). The IJ’s factual determinations are reviewed under the substantial-

evidence test, and we must affirm the IJ’s decision “if it is supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (2001) (quotation omitted).



                                          2
“To reverse the IJ’s fact findings, we must find that the record not only supports

reversal, but compels it.” Mendoza, 327 F.3d at 1287.

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

asylum. 8 U.S.C. § 1158(a)(1). The Secretary of Homeland Security or the

Attorney General has discretion to grant asylum if the alien meets the INA’s

definition of a “refugee.” 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. See Al Najjar, 257 F.3d at 1284. To establish asylum

eligibility, the alien must establish past persecution or well-founded fear of future

persecution on account of a statutorily listed factor. 8 C.F.R. § 208.13(b).

“Demonstrating such a connection requires the alien to 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 [or other statutory factor].” Al Najjar,

257 F.3d at 1287 (quotations omitted). An asylum applicant may not show merely

that she has a political opinion, but must show that she was persecuted because of

                                           3
that opinion. INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S. Ct. 812, 816, 117 L.

Ed. 2d 38 (1992).

       To qualify for withholding of removal under the INA, an alien must show

that it is more likely than not that if returned to her country, the alien’s life or

freedom would be threatened on account of race, religion, nationality, membership

in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3). If a

petitioner is unable to meet the “well-founded fear” standard for asylum, she is

generally precluded from qualifying for withholding of deportation. Al Najjar, 257

F.3d at 1292-93.

       The alien’s testimony, if credible, may be sufficient to sustain the burden of

proof for asylum or withholding of removal without corroboration. 8 C.F.R.

§§ 208.13(a), 208.16(b). “However, the weaker the applicant’s testimony, the

greater the need for corroborative evidence.” In re Y-B-, 21 I. & N. Dec. 1136,

1139 (1998). If the alien establishes past persecution, it is presumed that her life or

freedom would be threatened upon a return to that country. 8 C.F.R. §§

208.13(b)(1), 208.16(b)(1). An alien who has not shown past persecution may still

be entitled to asylum or withholding of removal if she can demonstrate a future

threat to her life or freedom on a protected ground in her country. Id.

§§ 208.13(b)(2), 208.16(b)(2). To establish a “well-founded fear,” “an applicant



                                             4
must demonstrate that his or her fear of persecution is subjectively genuine and

objectively reasonable.” Al Najjar, 257 F.3d at 1289.

       We have held that “[a]n imputed political opinion, whether correctly or

incorrectly attributed, may constitute a ground for a well-founded fear of political

persecution within the meaning of the INA.” Al Najjar, 257 F.3d at 1289

(quotations omitted). “An asylum applicant may prevail on a theory of imputed

political opinion if he shows that the persecutor falsely attributed an opinion to

him, and then persecuted him because of that mistaken belief about his views.” Id.

(alterations and quotations omitted).

       Although we have not addressed a mixed-motive argument in a published

opinion, the Second and Ninth Circuits have held that there is no requirement that

persecution be based solely on account of a protected ground.1 See Borja v. INS,

175 F.3d 732, 735-36 (9th Cir. 1999) (en banc); Osorio v. INS, 18 F.3d 1017, 1028

(2d Cir. 1994); see also In re S-P-, 21 I. & N. Dec. 486, 490 (1996) (noting that, in

a mixed-motive case, “the standard for review is whether the applicant has

produced evidence from which it is reasonable to believe that the harm was

motivated by a protected ground”).


       1
          The recent amendments to the INA, 8 U.S.C. § 1158(b), enacted by the Real ID Act
of 2005, Pub. L. No. 109-13, 119 Stat. 231, concerning “mixed-motive” cases are not applicable
since those provisions apply only to applications for asylum and other relief from removal made on
or after May 11, 2005. Real ID Act, § 101(h)(2). Nicolas filed her application in 1999.
                                                5
       In this case, substantial evidence supports the IJ’s denial of asylum and

withholding of removal. Nicolas failed to present facts that would entitle her to

relief. Nicolas asserted that the police killed her husband. Although she argues

that part of the police’s mixed-motive was imputed political opinion, she failed to

cite any facts in support of this assertion. Thus, Nicolas has failed to show facts

that compel a reversal of the IJ’s denial of her asylum application. Likewise,

Nicolas failed to show facts establishing a well-founded fear of future persecution

because of a protected ground.

       Because Nicolas did not meet her burden of proof for her asylum claim, she

cannot meet the higher burden of proof for withholding of removal. Al Najjar, 257

F.3d at 1292-93. Similarly, when a petitioner “has failed to establish a claim of

asylum on the merits, [s]he necessarily fails to establish eligibility for . . .

protection under CAT.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1288 n.4 (11th

Cir. 2005).

       Accordingly, we conclude that substantial evidence supports the IJ’s finding

that Nicolas was not entitled to asylum, withholding of removal under the INA, or

relief under the CAT.

       PETITION DENIED.




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