Betancur Lopez v. Gonzales , 192 F. App'x 19 ( 2006 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2092
CARLOS A. BETANCUR LÓPEZ,
Petitioner,
v.
ALBERTO R. GONZÁLES, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
Roxana V. Muro and FitzGerald & Company, LLC, for petitioner.
Peter D. Keisler, Assistant Attorney General, Barbara C.
Biddle, and Jeffrey Clair, Attorneys, Civil Division, for
respondent.
September 6, 2006
LIPEZ, Circuit Judge. Petitioner Carlos Alberto Betancur
López, a native and citizen of Colombia, seeks review of the Board
of Immigration Appeals ("BIA") decision affirming the Immigration
Judge's ("IJ") decision denying Betancur's application for asylum.
The IJ had found that Betancur failed to meet his burden of either
establishing past persecution or a well-founded fear of future
persecution. We deny the petition for review.
I.
Carlos Alberto Betancur López ("Betancur"), is a
20-year-old citizen of Colombia. Betancur entered the United
States on August 4, 2002 in Miami, Florida, and applied for asylum.
Immigration officials interviewed him at the airport and paroled
him into the United States after determining that he had a credible
fear of persecution. He was charged with removability pursuant to
§§ 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I) of the Immigration and
Nationality Act. At his hearing before the IJ on December 12,
2003, Betancur conceded removability. The IJ then took testimony
on his application for asylum, and also considered his claims for
withholding of removal and relief under the Convention Against
Torture ("CAT").
A. Betancur's testimony
As a 19-year-old in Colombia, working on his family's
farm, he was approached by a group of men who identified themselves
as members of the "Revolutionary Armed Forces of Colombia"
-2-
("FARC"). FARC is Colombia's largest and most active guerrilla
organization and has employed extortion, kidnaping, and murder to
further its political and economic objectives. Betancur testified
that the guerrillas asked him to join FARC and stated that "life
could be rough" if he refused. He refused, and later received a
phone call at his farm and a separate phone call to his home,
demanding that he join FARC. He again refused, and the guerrillas
told him that "[he] should be careful because the offense [he] had
made against them was unforgiveable."
At his father's urging, Betancur left his home and farm
and went to the home of an uncle in Medellín, approximately one
hour and fifteen minutes away by car. He stayed in hiding in
Medellín for three weeks before leaving for the United States.
After Betancur left Colombia, the guerrillas began to extort
"protection payments" from his father, and told his father that if
his son "ever come[s] back, he should forget that he ever had a
son." Betancur testified that his family could not safely avoid
FARC retribution by relocating to Medellín because "FARC has people
everywhere, including in Medellin." As of the time of the removal
hearing, Betancur testified that his father continues to make
monthly payments to FARC and no one in his family has been
physically harmed.
-3-
B. The decisions of the IJ and the BIA
The IJ found Betancur's testimony credible. However, he
concluded that, "as an objective matter, the conditions [Betancur]
faced in Colombia fall short of the standard for asylum, let alone
withholding of removal." The IJ noted that "[i]t does appear that
once [Betancur] refused to join the FARC . . . their threats could
be construed as harm threatened on account of his political
opinion." However, the IJ noted that while it is "deplorable" that
"farm owners are frequently either forced off their land or forced
to provide protection money to various groups," the IJ concluded
"that is not, in the Court's estimation, what Congress contemplated
when enacting the refugee statutes and creating asylum for people
here in the United States. . . . [Betancur] does not have,
objectively speaking, reasons to fear persecution, that is harm
inflicted upon him on account of his political opinion, race,
religion, nationality, or membership in a particular social group."
The IJ also stated that, "in the Court's estimation, [Betancur]
could have lived elsewhere in Colombia, and although perhaps facing
a generalized threat of forced recruitment or other violence, did
not [] appear to have objectively any reason to fear that members
of the FARC would come looking for him on account of his refusing
to join them."
Because the IJ concluded that Betancur failed to
establish a well-founded fear of persecution meriting the grant of
-4-
asylum, the IJ also concluded that the petitioner failed to
establish the higher burden for withholding of removal. The IJ
also denied him CAT relief because he made no claim that the
government would torture him or acquiesce to his torture on his
return to Colombia. The IJ thus ordered him removed.
Betancur appealed to the BIA, which issued a per curiam
decision. The BIA noted that it reviewed the record. Having done
so, it "agree[d] that [Betancur] failed to meet his burden of
establishing past persecution or a well-founded fear of persecution
on account of one of the statutorily protected grounds, or that it
is more likely than not that he will be persecuted or subjected to
torture upon his return to Colombia." The BIA therefore affirmed
the decision of the IJ.
II.
A. Standards of review
We review the factual findings of the BIA under the
deferential "substantial evidence" standard. See Romilus v.
Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004). "[A]dministrative
findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary." 8 U.S.C.
§ 1252(b)(4)(B). We review claims of legal error de novo. See
Romilus, 385 F.3d at 5. "In this case, where the BIA's decision
adopts portions of the IJ's opinion, we review those portions of
-5-
the IJ's opinion that the BIA has adopted." Romilus, 385 F.3d 1 at
5.
Betancur bears the burden of establishing eligibility for
asylum by demonstrating that he is a "refugee." 8 U.S.C.
§ 1158(b)(1)(B)(i); 8 C.F.R. § 208.13(a). A refugee is generally
defined as any person who is outside his or her home country and
"is unable or unwilling to return . . . 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). If the applicant establishes
past persecution, there is a legal presumption that the applicant
has a well-founded fear of future persecution. See 8 C.F.R.
§ 208.13(b)(1). To rebut this presumption, the government must
show by a preponderance of the evidence that "[t]here has been a
fundamental change in circumstances such that the applicant no
longer has a well-founded fear of persecution" or that "[t]he
applicant could avoid future persecution by relocating to another
part of the applicant's country of nationality . . . and under all
the circumstances, it would be reasonable to expect the applicant
to do so." 8 C.F.R. § 208.13(b)(1)(i). If the applicant has not
established past persecution, the applicant retains the burden of
establishing future persecution. See Palma-Mazariegos v. Gonzales,
428 F.3d 30, 35 (1st Cir. 2005). "Such a showing involves both
subjective and objective components. The first component entails
-6-
a showing that the asylum seeker's fear of future persecution is
genuine. The second component entails a showing that this fear is
objectively reasonable." Id. (internal citations omitted).
In this case, the BIA found that Betancur had failed to
establish past persecution or a well-founded fear of future
persecution. Betancur challenges both of these determinations.
First, he asserts that he has established past persecution, arguing
that the IJ implicitly found that he had established past
persecution based on imputed political opinion and therefore erred
in assigning him the burden of establishing that relocation would
be unsafe. Second, he argues that, even if he has not established
past persecution, he has established a well-founded fear of future
persecution and that he could not safely relocate to another part
of Colombia.
B. Past persecution
There is substantial evidence to support the BIA's
determination that Betancur had not established past persecution.
The BIA did not supply its own reasoning in its affirmance of the
IJ's decision, only stating that it "agreed that [Betancur] failed
to meet his burden of establishing past persecution." The IJ found
that "[i]t does appear that once [Betancur] refused to join the
FARC . . . their threats could be construed as harm threatened on
account of his political opinion." However, the IJ also found that
the type of harm that Betancur and his family suffered due to his
-7-
repeated refusal to join FARC -– i.e., economic extortion -- "is
not . . . what Congress contemplated when enacting the refugee
statutes and creating asylum for people here in the United States."
This harm was part of the "deplorable situation [in Colombia] in
which both FARC and the paramilitaries wreak havoc upon the
civilian population" but it did not constitute "persecution" within
the meaning of asylum law.
The record does not compel a contrary determination. "To
establish past persecution more than harassment or spasmodic
mistreatment . . . must be shown." Guzman v. INS, 327 F.3d 11, 15
(1st Cir. 2003). "[I]nconvenience, unpleasantness, and even a
modicum of suffering may not be enough to meet th[e] benchmark [for
'persecution']." Negeya v. Gonzales, 417 F.3d 78, 83 (1st Cir.
2005). Here, the record does not compel a finding that the
guerrillas' demands that Betancur join their forces, and their
economic extortion, rose to the level of persecution. See Guzman,
327 F.3d at 16 (finding that a "one-time kidnaping and beating [by
possible guerrilla forces] falls well short of establishing 'past
persecution'"). Having failed to establish past persecution,
Betancur had the burden of establishing future persecution.1
1
Betancur argues that the IJ erred by placing the burden of
establishing the futility of relocation on him. However, this
argument is predicated on Betancur's contention that he established
past persecution. See 8 C.F.R. § 208.13(b)(1)(ii) (stating that
the government has the burden of establishing the possibility and
reasonableness of relocation where the asylum applicant has
established past persecution). Since we have rejected that
-8-
C. Future persecution
The IJ held that Betancur's fear of future persecution on
the basis of political opinion was not objectively reasonable. "To
satisfy the 'objectively reasonable' component of the [well-founded
fear of persecution] test, an applicant must usually provide
evidence that there is a reasonable possibility he or she would be
singled out individually for persecution." Pieterson v. Ashcroft,
364 F.3d 38, 43 (1st Cir. 2004) (internal quotation marks and
citation omitted). The IJ noted that the possibility of harm that
Betancur faced on return to Colombia was the same harm that other
Colombians faced generally, and that he had not established that
the guerrillas would persecute him on his return because of his
political opinion. Notably, the petitioner himself lived in
Medellín for three weeks without incident prior to his departure
from Colombia. While his father has been subject to demands for
protection money, neither his father nor any other family members
have been harmed. On these facts, the BIA was not compelled to
find that Betancur established a well-founded fear of future
persecution. See Guzman, 327 F.3d at 16 (finding no well-founded
fear of future persecution where "[t]he record established that
other relatives of Guzman have lived, undisturbed, in Guatemala for
more than a decade"); Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st
argument, there is no basis for the petitioner's challenge to the
IJ's allocation of the burden on the relocation issue.
-9-
Cir. 1999) ("The fact that close relatives continue to live
peacefully in the alien's homeland undercuts the alien's claim that
persecution awaits his return.").2
For these reasons, the petition for review is denied.
2
On appeal, Betancur makes no argument regarding the BIA's
denial of his withholding of removal and CAT claims. Thus, those
claims have been waived. See Tai v. Gonzales, 423 F.3d 1, 6 (1st
Cir. 2005). Even if Betancur had not waived his withholding claim,
"[b]ecause the standard for withholding deportation is more
stringent than that for asylum, a petitioner unable to satisfy the
asylum standard fails, a fortiori, to satisfy the former."
Mediouni v. INS, 314 F.3d 24, 27 (1st Cir. 2002) (internal
quotation marks and citation omitted).
-10-