                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                              JULY 28, 2010
                            No. 09-15927                       JOHN LEY
                        Non-Argument Calendar                    CLERK
                      ________________________

                       Agency Nos. A098-534-620
                            A098-534-621

DELON ANTHONY MAGUA,
TARYN WENDY MAGUA, et al.,


                                                                     Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                              (July 28, 2010)


Before TJOFLAT, BLACK and WILSON, Circuit Judges.

PER CURIAM:
       Delon Anthony Magua, his wife, Taryn Wendy Magua, and their children,

Caleb Ryden Magua and Shania Magua, all natives and citizens of South Africa,

seek review of the Board of Immigration Appeals’ (BIA’s) order dismissing their

appeal of the Immigration Judge’s (IJ’s) order denying their applications 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),1 pursuant to 8

U.S.C. §§ 1158, 1231(b)(3), and 8 C.F.R. § 208.16(c). Magua2 asserts the BIA

erred in denying his applications for asylum and withholding of removal because

the incidents of violence he suffered are sufficient to establish past persecution on

account of his race.3 After review,4 we deny the petition.


       1
          Magua fails to argue his CAT claim in his brief, and thus, the issue is abandoned. See
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (stating “[w]hen an
appellant fails to offer argument on an issue, that issue is abandoned”).
       2
          Throughout the remainder of this opinion, Magua’s name will be used to refer to all of
the petitioners collectively.
       3
          Magua further contends he has a well-founded fear of future persecution based on a
pattern and practice of persecuting white South Africans. However, he failed to raise this
argument before the BIA and we lack jurisdiction to consider an unexhausted argument. See
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (holding we lack
jurisdiction to review claims that were not exhausted before the BIA).
       4
          To the extent the BIA’s decision was based on a legal determination, review is de novo.
Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001). The BIA’s factual
determinations are reviewed under the substantial evidence test, and we “must affirm the BIA’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 (11th Cir. 2002). “To
reverse the IJ’s fact findings, we must find that the record not only supports reversal, but
                                                   2
       The Attorney General or the Secretary of Homeland Security has discretion

to grant asylum if an alien meets the INA’s definition of a “refugee.” See 8 U.S.C.

§ 1158(b)(1)(A). A “refugee” is:

       any person who is outside any country of such person’s nationality
       . . . 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 v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2002). In order to carry this burden, the applicant 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 future

persecution. 8 C.F.R. § 208.13(a), (b); Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,

1257 (11th Cir. 2006). Moreover, “evidence 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, 440 F.3d at 1258. In order to prove eligibility for

withholding of removal, an alien must show it is “more likely than not she will be

persecuted or tortured upon being returned to her country.” Sepulveda v. U.S. Att’y



compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
                                               3
Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (quotations omitted). This standard is

more stringent than the “well-founded fear” standard for asylum. Mazariegos v.

U.S. Att’y Gen., 241 F.3d 1320, 1324 n.2 (11th Cir. 2001).

       Substantial evidence supports the IJ’s and the BIA’s conclusions5 that

Magua did not show a nexus between the harm he suffered and a protected ground.

First, two of the incidents of robbery Magua described happened when he was not

home, so he had no way of knowing who committed the crimes or their motive.

Second, during one of the auto parts store robberies, the perpetrators robbed the

black store customers as well as Magua, suggesting that Magua was targeted for

his money, not because of his race. Third, the fact racial slurs were used during the

store robberies does not establish the perpetrators were singling Magua out because

of his race, because, as noted above, in one instance the perpetrators also robbed

the black customers. Finally, the frequency of the events does not show they were

related, as Magua presented no evidence the perpetrators were the same people or

had any connection to him or to each other. Accordingly, because the evidence

does not show that Magua was singled out because of his race, and because Magua

presented no evidence except for the frequency of the events to show they were




       5
          When the BIA issues a decision, we review only that decision, except to the extent the
BIA expressly adopts the IJ’s opinion. Al Najjar, 257 F.3d at 1284. Here, the BIA agreed with
the IJ’s opinion, but made additional findings, and, thus, we will review both decisions.
                                                 4
related, he failed to meet his burden of establishing he was targeted because of his

race. Furthermore, the evidence supports the IJ’s and the BIA’s determination

Magua was the victim of unfortunate crime, but not a victim of persecution on

account of his race. Therefore, Magua failed to establish his eligibility for asylum

or withholding of removal.

      PETITION DENIED.




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