992 F.3d 1283
11th Cir.2021Background
- Petitioner Luis Miguel Cabrera Martinez, a Cuban national, wrote for the dissident magazine Convivencia (under a pseudonym) and attended its meetings; Cuban local authorities learned of his affiliation.
- From 2015–2017 Martinez experienced repeated harassment: CDR warnings that he could be imprisoned/tortured, at least one beating by plain‑clothed men leaving him briefly unconscious and with a head laceration, two detentions and interrogations (one ~20 hours with threats to “make [him] disappear”), job terminations after government pressure on employers, a 72‑hour detention and expulsion from a town, and seizure of his phone/laptop at the airport when attempting to leave.
- Martinez left Cuba in August 2017 (with outside assistance) and arrived in the U.S. in September 2018; he applied for asylum, withholding of removal, and CAT protection.
- The IJ found Martinez credible but denied relief: past persecution not established (incidents deemed harassment, not extreme), and no objectively reasonable fear of future persecution; the BIA affirmed, adopting the IJ’s reasoning.
- The Eleventh Circuit held substantial evidence supports the BIA’s denial of past‑persecution, but vacated and remanded because the BIA/IJ failed to give reasoned consideration to Martinez’s pattern‑or‑practice claim that dissident journalists face persecution in Cuba; withholding and CAT claims were remanded as dependent on asylum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Past persecution (was Martinez persecuted on account of being a dissident journalist?) | Martinez: cumulative threats, repeated detentions, an assault causing unconsciousness, job loss, travel restrictions amount to past persecution | Gov: incidents were harassment, not severe enough; no serious physical injury or deprivation of means of livelihood | Denied — substantial evidence supports BIA that cumulative mistreatment did not compel finding of past persecution |
| Well‑founded fear of future persecution (pattern or practice toward dissident journalists) | Martinez: country reports + CDR and officer references to his writing show objective risk as a dissident journalist | Gov: generalized country conditions insufficient; no evidence Cuban government specifically recognizes him as an opposition journalist | Vacated and remanded — BIA/IJ failed to provide reasoned consideration of Martinez’s pattern‑or‑practice claim |
| Withholding of removal (more‑likely‑than‑not standard) | Martinez: same facts supporting asylum show likelihood of future persecution | Gov: because asylum failed, withholding also fails; higher burden not met | Remanded — BIA’s withholding denial rested on asylum denial and must be reconsidered after remand |
| CAT relief (likely tortured by or with acquiescence of officials) | Martinez: risk of torture follows from mistreatment and country conditions | Gov: record does not show likelihood of torture by/with official acquiescence | Remanded — BIA denied CAT based on asylum ruling; must reassess after asylum reconsideration |
Key Cases Cited
- Ayala v. U.S. Att’y Gen., 605 F.3d 941 (11th Cir.) (review of BIA and IJ when BIA adopts IJ opinion)
- Silva v. U.S. Att’y Gen., 448 F.3d 1229 (11th Cir.) (substantial‑evidence standard for BIA factual findings)
- De Santamaria v. U.S. Att’y Gen., 525 F.3d 999 (11th Cir.) (must consider cumulative effect of mistreatment in past‑persecution analysis)
- Mejia v. U.S. Att’y Gen., 498 F.3d 1253 (11th Cir.) (examples of cumulative threats/attacks amounting to persecution)
- Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223 (11th Cir.) (asylum eligibility standards and well‑founded‑fear framework)
- Ali v. U.S. Att’y Gen., 931 F.3d 1327 (11th Cir.) (BIA must give reasoned consideration to evidence and issues raised)
- Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341 (11th Cir.) (BIA must announce decision in terms sufficient for review)
- Diallo v. U.S. Att’y Gen., 596 F.3d 1329 (11th Cir.) (examples where threats/violence compelled finding of persecution)
- Zheng v. U.S. Att’y Gen., 451 F.3d 1287 (11th Cir.) (employment loss and inability to find work generally insufficient alone to show persecution)