Adriana Patricia Hurtado v. U.S. Attorney General , 136 F. App'x 331 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 23, 2005
No. 04-12220 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A79-467-192
ADRIANA PATRICIA HURTADO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(June 23, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Petitioner Adriana Patricia Hurtado, a native and citizen of Colombia,
through counsel, petitions this court for review of the Board of Immigration
Appeals’s (“BIA”) order affirming without opinion the Immigration Judge’s (“IJ”)
decision denying her application 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, or Degrading Treatment or
Punishment (“CAT”). Hurtado argues that the IJ erred in concluding that she was
not entitled to asylum because the death threats she received from the
Revolutionary Armed Forces of Colombia (“FARC”), an established guerilla group
in Colombia known for its “barberic curriculum,” demonstrated that she was
persecuted and also established that she has a well-founded fear of persecution if
she returns to Colombia.1 Hurtado also asserts that the internal relocation
requirement is unconstitutional as it directly violates the Supremacy Clause of the
United States Constitution.
We review the IJ’s decision in this case, not the BIA’s, because the BIA
affirmed the IJ’s decision without opinion, thereby making that the final agency
determination. See 8 C.F.R. § 1003.1(a)(7); Mendoza v. U.S. Att’y Gen., 327 F.3d
1283, 1284 n.1 (11th Cir. 2003). The IJ’s factual determinations are reviewed
under the substantial evidence test, and we “must affirm the [IJ’s] decision if it is
1
Hurtado does not argue on appeal that she should have been granted withholding of
removal or CAT relief, but only mentions it in passing in her conclusion. Claims not clearly outlined
on appeal are deemed abandoned, and thus will not be addressed. See Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1317 n.17
(11th Cir. 1999).
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supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Sepulveda, 401 F.3d at 1230 (quotation omitted)
(alteration in original), superseding 378 F.3d 1260 (11th Cir. 2004). Under this
highly deferential standard of review, the IJ’s decision must be deferred to as
supported by substantial evidence, unless the evidence would compel a reasonable
fact finder to find otherwise. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1, 112
S. Ct. 812, 815 n.1, 117 L. Ed. 2d 38 (1992); see also INA § 242(b)(4)(B), 8
U.S.C. § 1252(b)(4)(B) (“administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary”).
Any alien who arrives in or is present in the United States may apply for
asylum, which the Attorney General (“AG”) has discretion to grant if the alien
meets the definition of a “refugee.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). A “refugee” is:
[A]ny person who is outside any country of such person’s nationality
or, in the case of a person having no nationality, is outside any
country in which such person last habitually resided, 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. . . .
Id. (emphasis added) (citing 8 U.S.C. § 1101(a)(42)(A)). The asylum applicant
carries the burden of proving statutory “refugee” status and thereby establishing
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asylum eligibility. Id. (citing 8 C.F.R. § 208.13(a)). If she meets that burden, the
AG may exercise his discretion to grant asylum. Id. Here, because the IJ
determined that Hurtado failed to establish eligibility for asylum, he did not
address whether he would exercise his discretion. Accordingly, we need only
address whether substantial evidence supports the finding that Hurtado failed to
show statutory eligibility for asylum.
To establish asylum eligibility, the alien must establish, with specific,
detailed, and credible evidence (1) past persecution on account of her political
opinion, membership in a particular social group, or other statutorily listed factor,
or (2) a “well-founded fear” that her political opinion, membership in a particular
social group, or other statutorily listed factor will cause future persecution. Al
Najjar, 257 F.3d at 1287; see also 8 C.F.R. § 208.13(a), (b). “[A]n applicant must
demonstrate that his or her fear of persecution is subjectively genuine and
objectively reasonable.” Sepulveda, 401 F.3d at 1231 (quotation omitted)
(alteration in original). Establishing a nexus between the statutorily listed factor
and the feared persecution “requires the alien to present specific, detailed facts
showing a good reason to fear that he or she will be singled out for persecution on
account of” the statutorily listed factor. D-Muhumed v. U.S. Att’y Gen., 388 F.3d
814, 818 (11th Cir. 2004) (emphasis in original) (quotation omitted).
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Neither the INA nor the regulations define “persecution.” “[P]ersecution is
an extreme concept, requiring more than few isolated incidents of verbal
harassment or intimidation, and . . . mere harassment does not amount to
persecution.” Sepulveda, 401 F.3d at 1231 (quotations omitted). Persuasive
authority indicates that, to be an act of persecution, the behavior must threaten
death, punishment, or the infliction of substantial harm or suffering. See Sharif v.
INS, 87 F.3d 932, 935 (7th Cir. 1996). “Threats alone generally do not constitute
actual persecution; only rarely, when they are so immediate and menacing as to
cause significant suffering or harm in themselves, do threats per se qualify as
persecution.” Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003). “To
qualify as persecution, a person’s experience must rise above unpleasantness,
harassment, and even basic suffering.” Nelson v. INS, 232 F.3d 258, 263 (1st Cir.
2000).
If the alien demonstrates past persecution, she is presumed to have a well-
founded fear of future persecution unless the government can rebut the
presumption. 8 C.F.R § 208.13(b)(1). If, however, the alien does not establish
past persecution, she bears the burden of demonstrating a well-founded fear of
persecution by showing that (1) she fears persecution based on her political
opinion, social group, or other statutorily listed factor; (2) there is a reasonable
possibility she will suffer persecution if removed to her native country; and (3) she
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could not avoid persecution by relocating to another part of her country, if under
all the circumstances it would be reasonable to expect relocation. See 8 C.F.R.
§ 208.13(b)(2), (3)(i).
In the case at bar, we conclude from the record that substantial evidence
exists to support the IJ’s conclusion that Hurtado did not suffer past persecution or
a well-founded fear of future persecution. Although she testified that she received
about 50 threatening telephone calls, mere harassment does not constitute
persecution. See Sepulveda, 401 F.3d at 1231. Further, despite these threats,
Hurtado was never physically harmed. As to future persecution, Hurtado’s son
remains in Colombia under his grandmother’s care without incident in the same
town where Hurtado had been threatened. See Tawm v. Ashcroft, 363 F.3d 740,
743 (8th Cir. 2004) (holding that an alien did not establish a well-founded fear
where, inter alia, the alien’s family continued to live in Lebanon without incident).
Based on this analysis, substantial evidence exists to support the IJ’s decision that
Hurtado failed to meet her burden of proving that she faced past persecution or had
a well-founded fear of persecution and, therefore, was ineligible for asylum. See 8
C.F.R. § 208.13(b)(2)(i).
In addition, since Hurtado failed to establish that she faced past persecution
or had a well-founded fear of persecution, regardless of whether she could have
relocated elsewhere in Colombia, we need not decide whether the internal
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relocation requirement is constitutional. See Alltel Communications, Inc. v. City of
Macon, 345 F.3d 1219, 1221 n.2 (noting principle that federal courts should decide
constitutional issues unless the court cannot avoid the question).
Based on the foregoing reasons, we deny the petition for review.
PETITION DENIED.
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