Ofir Alirio Barrera v. U.S. Attorney General , 268 F. App'x 821 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 6, 2008
THOMAS K. KAHN
No. 07-12339
CLERK
Non-Argument Calendar
________________________
BIA No. A95-263-330
OFIR ALIRIO BARRERA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 6, 2008)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Ofir Alirio Barrera, a native and citizen of Colombia seeks review of the
Board of Immigration Appeals’s (“BIA”) decision, affirming the immigration
judge’s (“IJ”) order of removal and denial of his application for asylum and
withholding of removal under the Immigration and Nationality Act (“INA”), INA
§§ 208, 241(b)(3), 8 U.S.C. §§ U.S.C. § 1158, 1231(b)(3), and relief under the
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158, 1231; 8 C.F.R.
§ 208.16(c). On appeal, Barrera argues that we have jurisdiction to review the
denial of his asylum application as time-barred and to consider whether he met one
of the exceptions to the one-year filing deadline. He also argues that the BIA erred
by finding that he failed to show that he was a victim of past persecution by the
National Liberation Army (“ELN”) or that he had a well-founded fear of future
persecution. After thorough review of the record, we dismiss the petition as to the
asylum claim, and deny the petition as to the claim for withholding of removal.1
We have jurisdiction to determine whether jurisdiction exists. Sosa-
Martinez v. U.S. Att’y Gen., 420 F.3d 1338, 1340 (11th Cir. 2005). We
consider de novo the issue of whether we have subject matter jurisdiction.
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
1
Barrera abandoned his CAT claim by not arguing it on appeal, so we will not address
this claim. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (“[w]hen an
appellant fails to offer argument on an issue, that issue is abandoned.”).
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An asylum application must be “filed within [one] year after the date of the
alien’s arrival in the United States.” INA § 208(a)(2)(B); 8 U.S.C.
§ 1158(a)(2)(B). An untimely application “may be considered . . . if the alien
demonstrates to the satisfaction of the Attorney General either the existence of
changed circumstances which materially affect the applicant’s eligibility for
asylum or extraordinary circumstances relating to the delay in filing an application
. . . .” INA § 208(a)(2)(D); 8 U.S.C. § 1158(a)(2)(D). Section 1158(a)(3) “divests
[us] of jurisdiction to review a decision regarding whether an alien complied with
the one-year time limit or established extraordinary circumstances that would
excuse his untimely filing.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287
(11th Cir. 2003). Further, we have held that the REAL ID Act of 2005, Pub. L.
No. 109-13, 119 Stat. 231 (2005) (“REAL ID Act”), does not change this
conclusion. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005)
(explaining that we “cannot review the IJ’s and BIA’s denial of [petitioner’s]
asylum claim, even considering the changes in the Real ID Act” because “[t]he
timeliness of an asylum application is not a constitutional claim or question of law
covered by the Real ID Act’s changes”).
Pursuant to § 1158(a)(3), we lack jurisdiction to consider Barrera’s argument
that the BIA erred in denying his asylum claim as time-barred. See id.; Mendoza,
327 F.3d at 1287. We also lack jurisdiction to review Barrera’s argument that the
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BIA erred, constitutionally or as a matter of law, by failing to find the existence of
changed circumstances to justify the untimely filing. See Chacon-Botero, 427 F.3d
at 957; Mendoza, 327 F.3d at 1287. Therefore, we are compelled to dismiss the
petition for review as to Barrera’s claim for asylum.
We turn then to Barrera’s appeal from the denial of his application for
withholding of removal. Because the BIA did not expressly adopt the IJ’s
reasoning in denying his application, we review only the BIA’s decision. See Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). “To the extent that the
BIA’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). We review
the BIA’s factual findings under the substantial evidence test, and must affirm
findings that are “supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Al Najjar, 257 F.3d at 1284 (quotation
omitted). “To reverse a factual finding by the BIA, [we] must find not only that
the evidence supports a contrary conclusion, but that it compels one.” Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc) (quotation omitted).
Withholding of removal may be granted if the alien establishes that it is
more likely than not that, if returned to his country, his life or freedom would be
threatened on account of his race, religion, nationality, membership in a particular
social group, or political opinion. INA § 241(b)(3); 8 U.S.C. § 1231(b)(3)(A).
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The burden of proof is on the alien, and he is entitled to withholding of removal if
he can establish, with specific and credible evidence: (1) a past threat to life or
freedom through proof of past persecution on account of a protected ground; or (2)
a future threat to life or freedom if it “is more likely than not” that the protected
ground will cause future persecution. 8 C.F.R. § 208.16(b)(1), (2). “A showing of
past persecution creates a presumption of a well-founded fear, subject to rebuttal
by the [government].” Sepulveda, 401 F.3d at 1231 (quotation omitted). If an alien
does not establish past persecution, he cannot demonstrate that his “life or freedom
would be threatened if the asylum officer or immigration judge finds that the
applicant could avoid a future threat to his . . . life or freedom by relocating to
another part of the proposed country of removal and, under all the circumstances, it
would be reasonable to expect the applicant to do so.” 8 C.F.R. § 208.16(b)(2).
The petitioner’s well-founded fear of persecution must be on account of one
of the statutorily listed factors. To establish the necessary causal connection, the
alien must present “specific, detailed facts showing a good reason to fear that he or
she will be singled out for persecution on account of” a statutorily listed factor.
Sepulveda, 401 F.3d at 1231 (quotation and emphasis omitted). Although the INA
does not expressly define “persecution,” we have stated that “persecution is an
extreme concept, requiring more than a few isolated incidents of verbal harassment
or intimidation,” and “[m]ere harassment does not amount to persecution.” Id.
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(quotations omitted). “[E]vidence that either is consistent with acts of private
violence or the petitioner’s failure to cooperate with guerillas, 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 v. U.S. Att’y Gen.,
440 F.3d 1247, 1258 (11th Cir. 2006).
Substantial evidence supports the BIA’s findings that Barrera was not
eligible for withholding of removal because he failed to establish that he was either
persecuted in the past on account of a statutorily protected ground or will “more
likely than not” suffer persecution on this ground in the future. Barrera argues that
he met this standard, establishing persecution on account of his political opinion,
by presenting evidence regarding threatening telephone calls and letters he and his
wife received, his involvement with the Liberal Party, the deaths of several of his
relatives, and the country conditions in Colombia. As for past persecution, the
record shows that Barrera received threatening telephone calls and letters in the
mail, but he was never physically harmed, nor did the ELN ever attempt to carry
through on its threats. Threats like these alone are insufficient to establish
persecution. See Sepulveda, 401 F.3d at 1231 (“menacing telephone calls and
threats . . . do not rise to the level of past persecution.”).
Moreover, although several of Barrera’s relatives were killed, the record
does not compel the conclusion that his relatives were killed in order to punish
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Barrera for an actual or imputed political opinion. Even if Barrera could establish
persecution on the basis of his relatives’ deaths, he did not establish the necessary
nexus between the persecution and his political opinion. See 8 U.S.C. § 1231(b)(3).
Barrera did not present any evidence to show that the ELN targeted him because he
was a member of the Liberal Party. Rather, substantial evidence supports the
conclusion that it targeted him for extortion based on his income level, and not for
persecution based on political opinion. See Ruiz, 440 F.3d at 1258.
Because Barrera did not establish the necessary nexus, he also could not
show that it “is more likely than not” that the protected ground would cause future
persecution. See 8 C.F.R. § 208.16(b)(2). Therefore, there is substantial evidence
to support the BIA’s finding that Barrera did not suffer past persecution and would
not more likely than not suffer persecution if returned to Colombia. See Mendoza,
327 F.3d at 1287. Accordingly, we deny Barrera’s petition as to the withholding-
of-removal claim.
PETITION DISMISSED IN PART AND DENIED IN PART.
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