## Facts

- Ingrida Mockeviciene and her daughter, Vesta Mockeviciute, are citizens of Lithuania who entered the United States as nonimmigrant visitors in April 2000 and overstayed their visas.
- In January 2004, Mockeviciene applied for asylum, withholding of removal under the INA, and Convention Against Torture (CAT) protection, claiming she was persecuted in Lithuania because she is a lesbian (membership in a particular social group).
- She supported her application with her own testimony describing harassment, loss of employment and housing, and abuse by her husband, neighbors, and police after she disclosed that she was a lesbian.
- She also submitted corroboration, including testimony from her daughter, letters from friends stating that she was a lesbian, and country-conditions materials describing discrimination and violence against homosexual individuals in Lithuania.
- The Immigration Judge (IJ) found the asylum application time-barred and denied withholding and CAT relief. A central basis for the IJ’s denial was an adverse credibility finding regarding Mockeviciene’s claim that she was a lesbian; the IJ cited, among other things, her lack of a lesbian relationship and lack of participation in lesbian organizations after arriving in the United States.
- Mockeviciene appealed to the Board of Immigration Appeals (BIA). The BIA affirmed the denial of relief; it did not expressly adopt each of the IJ’s stated credibility rationales but relied on record evidence that Mockeviciene had recently married a man as support for rejecting her claim.
- Mockeviciene petitioned for review in the Eleventh Circuit, challenging the denial of withholding of removal. She did not pursue review of the asylum time-bar ruling or the CAT denial.

## Issues

1. Whether substantial evidence supported the BIA’s determination that Mockeviciene failed to establish eligibility for withholding of removal where the agency relied on evidence (including her recent marriage to a man) to reject her claim of lesbian identity.
2. Whether, even assuming her testimony was true, the record compelled a finding of past persecution or that it was more likely than not she would be persecuted in Lithuania on account of her sexual orientation.

## Decision

- The Eleventh Circuit denied the petition for review.
- The court treated the asylum time-bar issue and CAT claim as abandoned because petitioners did not argue them on appeal.
- Applying substantial-evidence review, the court upheld the BIA’s denial of withholding of removal.
- The court concluded that, even taking Mockeviciene’s account as true for purposes of analysis, the record did not compel a finding that the harms she described rose to the level of “persecution” required for withholding of removal.
- The court also concluded the record did not compel a finding that it was more likely than not she would face persecution if returned to Lithuania.

## Legal Principles

- Withholding of removal requires the applicant to show it is more likely than not that her life or freedom would be threatened in the country of removal on account of a protected ground.
- An applicant can try to meet the burden through proof of past persecution (which may support an inference of future risk) or through proof of a clear probability of future persecution.
- “Persecution” is an extreme concept; harassment, discrimination, and other serious mistreatment may be insufficient unless the record compels the conclusion that the harm is severe enough under circuit precedent.
- Under the substantial-evidence standard, the court must affirm the agency unless the record compels a contrary result.
- Credibility and eligibility determinations affirmed by the BIA are reviewed deferentially under the substantial-evidence standard; the reviewing court examines the BIA’s decision and the IJ’s decision to the extent the BIA relied on it.
- Issues not raised in the petition for review are treated as abandoned.

## Conclusion

The Eleventh Circuit denied review because the petitioners abandoned any challenge to the asylum time bar and CAT denial, and substantial evidence supported the BIA’s rejection of withholding of removal; even assuming Mockeviciene’s account was true, the record did not compel a finding of past persecution or a showing that persecution in Lithuania was more likely than not on account of her sexual orientation.


Mockeviciene v. U.S. Attorney General, 237 Fed. App’x 569, 2007 WL 1827836, 2007 U.S. App. LEXIS 15167 (2007)