Javier Alfonso Montenegro v. U .S. Atty. General , 339 F. App'x 914 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-11907 July 28, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency No. A78-411-252
JAVIER ALFONSO MONTENEGRO,
JAIRO ALFONSO MONTENEGRO,
ESTHER MONTENEGRO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
No. 08-17081
Non-Argument Calendar
________________________
Agency Nos. A079-476-470
A079-476-471
JAIRO ALFONSO MONTENEGRO,
ESTHER MONTENEGRO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 28, 2009)
Before BIRCH, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Jairo Montenegro and his wife, Esther Montenegro, who is a derivative
applicant on Montenegro’s asylum application, seek review in consolidated
petitions of the Board of Immigration Appeals’s (“BIA”) order, affirming the
immigration judge’s (“IJ”) denial of their application for asylum, 8 U.S.C. § 1158,
withholding of removal, 8 U.S.C. § 1231(b)(3), and relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”), 8 C.F.R. § 208.16(c), and of the BIA’s denial of their motion
to reopen.1 On appeal, Montenegro argues: (1) the BIA erred in denying him
asylum, withholding of removal and CAT relief; and (2) the BIA abused its
1
Javier Montenegro, the Montenegro’s son, filed a separate application for asylum,
withholding of removal, and CAT relief, and his application was consolidated with his parent’s
by the IJ. However, Javier returned to Colombia before the conclusion of these proceedings.
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discretion in denying his motion to reopen, as he presented “more than sufficient
evidence” to establish a prima facie case of eligibility for asylum or withholding of
removal. After careful review, we deny the petitions.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft,
257 F.3d 1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s
reasoning, we will review the IJ’s decision as well.” Id. Here, the BIA adopted the
IJ’s reasoning while also adding its own explanations, and, therefore, we review
both the IJ’s and the BIA’s decisions.
To the extent the IJ’s and BIA’s decisions are based on legal determinations,
our review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001). We review factual determinations, however, under the “highly deferential
substantial evidence test,” which requires us to “view the record evidence in the
light most favorable to the agency’s decision and draw all reasonable inferences in
favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir.
2004) (en banc). “Findings of fact made by the [IJ] may be reversed by [us] only
when the record compels a reversal; the mere fact that the record may support a
contrary conclusion is not enough to justify a reversal of the administrative
findings.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006)
(alterations and quotation omitted). We review the BIA’s denial of a motion to
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reopen for an abuse of discretion, and “the BIA’s discretion is quite broad.” Gbaya
v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003) (quotation omitted).
First, we are unpersuaded by Montenegro’s claim that the BIA erred in
denying him asylum, withholding of removal, and CAT relief. An alien may
receive asylum if he proves that he is a “refugee,” which is defined as:
any person who is outside any country of such person’s nationality . . .
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.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005) (quoting 8
U.S.C. § 1101(a)(42)(A)) (emphases omitted). “The asylum applicant must
establish eligibility for asylum by offering ‘credible, direct, and specific evidence
in the record.’” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005).
“Uncorroborated but credible testimony from the applicant may be sufficient alone
to sustain the burden of proof for asylum or withholding of removal.” D-Muhumed
v. U.S. Att’y Gen., 388 F.3d 814, 818-19 (11th Cir. 2004).
Accordingly, to be eligible for asylum, “the alien must, with credible
evidence, establish (1) past persecution on account of [his] political opinion or any
other protected ground, or (2) a ‘well-founded fear’ that [his] political opinion or
any other protected ground will cause future persecution.” Sepulveda, 401 F.3d
4
at 1230-31 (citing 8 C.F.R. § 1208.13(a) and (b)). Although the Immigration and
Nationality Act (“INA”) does not define persecution, we have recognized that
“persecution” is “an extreme concept, requiring more than a few isolated incidents
of verbal harassment or intimidation, and . . . mere harassment does not amount to
persecution.” Id. at 1231 (quotations and bracket omitted). We have held that
threats alone do not give rise to a persecution-based claim for relief. Silva,
448 F.3d at 1237-39.
Moreover the combination of verbal threats and a minor beating do not
amount to persecution. Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir.
2008) (alien’s claim that police officers beat him and detained him for 36 hours did
not compel the conclusion that the alien established persecution). We also have
held that neither threatening phone calls nor condolence notes are sufficient to
establish persecution. See Sepulveda, 401 F.3d at 1231 (“menacing telephone calls
and threats to [an alien] . . . do not rise to the level of past persecution”); see also
Silva, 448 F.3d at 1237. Nevertheless, we have found persecution where, despite
enduring no “significant physical attacks,” an alien received numerous death
threats, was dragged by her hair out of her vehicle, and was kidnapped and beaten.
De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1009-10 (11th Cir. 2008).
“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 (citing
5
8 C.F.R. § 208.13(b)(1)). If an alien does not establish past persecution, he bears
the burden of showing that it is more likely than not that he will suffer persecution
on the basis of the protected ground, and he would not be able to avoid persecution
by relocating to another part of his country, if, under all of the circumstances, it
would be reasonable to expect him to do so. 8 C.F.R. § 208.16(b)(2), (b)(3).
Withholding of removal may be granted if the alien establishes 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. 8 U.S.C. § 1231(b)(3). The burden of proof for an applicant seeking
withholding of removal is higher than the burden imposed on an asylum applicant.
Al Najjar, 257 F.3d at 1303. Accordingly, where a petitioner fails to establish
eligibility for asylum, he likewise fails to establish entitlement to withholding of
removal. Silva, 448 F.3d at 1243.
Eligibility for CAT relief requires the applicant to establish that it is more
likely than not that he would be tortured if returned to the proposed country of
removal. 8 C.F.R. § 208.16(c)(2). The CAT defines torture as the intentional
infliction of “severe pain or suffering.” See 8 C.F.R. § 208.18(a)(1). To obtain
CAT relief, the alien must demonstrate that the torture would be inflicted by the
government or with the government’s acquiescence, i.e., the government would be
aware of the torture and fail to intervene. Reyes-Sanchez v. U.S. Att’y Gen.,
6
369 F.3d 1239, 1242 (11th Cir. 2004). The burden of proof for an alien seeking
withholding of removal under the CAT, like the burden for an alien seeking
withholding of removal under the INA, is higher than the burden for showing
entitlement to asylum. Al Najjar, 257 F.3d at 1303. Thus, where the alien is
unable to meet the less stringent standard for asylum, his claim for CAT relief
necessarily fails. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1292 (11th Cir. 2006).
In this case, substantial evidence supports the IJ’s and BIA’s findings that
Montenegro was not eligible for asylum, withholding of removal, or CAT relief.
With regard to asylum, while Montenegro established that he was threatened on
account of his political opinion by the Revolutionary Armed Forces of Colombia
(“FARC”), the verbal threats of which he complained were insufficient to rise to
the level of persecution, as defined by our caselaw. See Silva, 448 F.3d at 1237-
39; Sepulveda, 401 F.3d at 1231. Montenegro did not allege that he was kidnaped,
beaten, or otherwise subjected to any actions beyond in-person verbal threats. See
De Santamaria, 525 F.3d at 1009-10. The evidence therefore does not compel the
conclusion that he experienced persecution. See Silva, 448 F.3d at 1236.
Further, substantial evidence supports the IJ’s and BIA’s conclusion that
Montenegro did not establish that he had a well-founded fear of future persecution,
particularly in light of the fact that he returned to Colombia for one week after
having taken refuge in the United States, and two of his sons remained in
7
Colombia unharmed. Moreover, Montenegro had not experienced anything
beyond mere harassment in the two years that he was threatened by the FARC
while living in Colombia. As a result, the record does not compel the conclusion
that Montenegro had a well-founded fear of persecution. See id.Finally, since Montenegro did not establish past persecution, he had the
burden of showing that he would be unable to avoid persecution by relocating to
another part of Colombia. See 8 C.F.R. § 208.16(b)(2), (b)(3). Although the 2005
Country Report indicated that the FARC’s presence in Colombia is country-wide,
it does not compel reversal of the IJ’s and BIA’s conclusion that Montenegro failed
to meet his burden, particularly where: (1) Montenegro did not try to relocate
within Colombia before moving to the United States; (2) two of his sons lived
safely in Colombia; and (3) he offered no basis for his conclusion that relocation
was impossible beyond his personal belief that the FARC dominated Colombia.
Consequently, we deny the petition with respect to Montenegro’s asylum claim.
Because the burden of proof for an applicant seeking withholding of removal
or CAT relief is higher than that for an applicant seeking asylum, and Montenegro
failed to meet his burden for asylum, he necessarily failed to satisfy his burden for
withholding of removal or CAT relief, and the IJ and BIA properly denied these
claims. See Al Najjar, 257 F.3d at 1303; see also Zheng, 451 F.3d at 1292. The
IJ’s and BIA’s denial of CAT relief also was proper on the additional basis that the
8
2005 Country Report supported the conclusion that the Colombian government
does not acquiesce to the FARC’s torture and killings. Accordingly, Montenegro
did not meet his burden of showing that he would be tortured by the Colombian
government, or with its acquiescence, if returned to Colombia, and the IJ and BIA
properly denied CAT relief.
We also reject Montenegro’s claim that the BIA abused its discretion in
denying his motion to reopen. It is within the discretion of the BIA to deny a
motion to reopen for at least three reasons: “(1) failure to establish a prima facie
case [of eligibility for asylum]; (2) failure to introduce evidence that was material
and previously unavailable; and (3) a determination that despite the alien’s
statutory eligibility for relief, he or she is not entitled to a favorable exercise of
discretion.” Al Najjar, 257 F.3d at 1302. To establish a prima facie showing of a
well-founded fear of future persecution, an asylum applicant must show that
“[t]here is a reasonable possibility of suffering such persecution” if he is returned
to his native country. 8 C.F.R. § 1208.13(b)(2)(i)(B). For withholding of removal,
an applicant must demonstrate a “clear probability” of persecution if returned to
their home country, which is a higher burden than that for asylum. INS v. Stevic,
467 U.S. 407, 424-25, 429 (1984).
Here, the BIA did not abuse its discretion in denying Montenegro’s motion
to reopen, as the documents that he submitted did not establish a prima facie case
9
of his eligibility for asylum or withholding of removal. None of the documents
related to past persecution, and they were insufficient to demonstrate a well-
founded fear of future persecution: (1) the condolence note allegedly sent by the
FARC was an example of harassment and intimidation, but not persecution,
especially since Montenegro received numerous other threats without experiencing
any further action by the FARC, see Silva, 448 F.3d at 1237 (finding that a
condolence note alone was insufficient to entitle the applicant to asylum); (2) the
letters from the elected officials were based on knowledge garnered by
“acquaintances” and did not reflect their own firsthand information or personal
knowledge; (3) the 2007 Country Report did not contain any information regarding
a specific threat to Montenegro or people who are similarly situated to him, and,
thus, did not establish a “reasonable possibility” that he would be persecuted if
returned to Colombia, see 8 C.F.R. § 1208.13(b)(2)(i)(B); and (4) the letter that
Javier sent to Montenegro also did not establish this “reasonable possibility,” as it
was not specific regarding the threat from the FARC and did not point to any
specific instances in which either Javier or Montenegro was threatened. Therefore,
because none of the documents that Montenegro submitted established a prima
facie case of eligibility for asylum, they also necessarily did not meet the higher
burden of establishing a prima facie case of eligibility for withholding of removal,
and the BIA did not abuse its broad discretion in denying the motion to reopen.
10
See Stevic, 467 U.S. at 424-25; see also Gbaya, 342 F.3d at 1220.
Lastly, regarding Montenegro’s claim that the BIA failed to consider
Javier’s letter, this argument is contradicted by the BIA’s order, which specifically
referred to the letter and one of its claims. Moreover, even if the BIA did err, the
error was harmless, because, as discussed above, Javier’s letter was not specific as
to the threat that the FARC posed to Montenegro. See 8 C.F.R.
§ 1208.13(b)(2)(i)(B).
PETITIONS DENIED.
11