Jorge Alfredo Torres v. U.S. Attorney General , 222 F. App'x 893 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 16, 2007
No. 06-13609 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A96-292-634
JORGE ALFREDO TORRES,
MARIA MAGDALENA BELTRAN,
LAURA NATALIA TORRES,
LEONARDO TORRES,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 16, 2007)
Before TJOFLAT, CARNES and HULL, Circuit Judges.
PER CURIAM:
Petitioners Jorge Torres, Beltre Maria Magdalena, Leonardo Torres, and
Laura Torres (collectively “Torres”),1 petition for review of the BIA’s final order
summarily affirming the IJ’s denial of their withholding of removal claim under
the United Nations Convention Against Torture. On appeal, Torres contends that
the IJ erred in denying his request for CAT relief after finding that the Colombian
government did not acquiesce in his torture.2 Specifically, Torres argues that
where “a government knows that a private group is torturing people and is unable
or unwilling to protect the victims, the government has ‘acquiesced’ in that
torture.” Torres concedes that he is not entitled to relief under Eleventh Circuit
precedent. However, he requests that we adopt the Ninth Circuit’s holding in
Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003), and find that CAT petitioners
must only prove that public officials are aware of the torture and fail to intervene to
prevent the torture. Id. 1194.
When the BIA does not render its own opinion, but instead adopts the IJ’s
opinion, we review the IJ’s decision. D-Muhumed v. United States Att’y Gen.,
388 F.3d 814, 818 (11th Cir. 2004). We review de novo legal determinations, and
1
Beltre Maria Magdalena, Leonardo Torres and Laura Torres are the wife, son and
daughter respectively of Jorge Torres.
2
We only consider Torres’ CAT claim as he withdrew his asylum application and has
abandoned his withholding of removal claim by failing to raise it on appeal here. See Huang v.
United States Att’y Gen., 429 F.3d 1002, 1007 n.2 (11th Cir. 2005).
2
we review factual determinations under the substantial evidence test, affirming the
decision if it is “supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Id. at 817–18. “To reverse the IJ’s fact
findings, we must find that the record not only supports reversal, but compels it.”
Mendoza v United States Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
To qualify for CAT relief, the applicant must establish that it is “more likely
than not” that he would be tortured if removed to the proposed country of removal.
8 C.F.R. § 208.16(c)(2). “Torture is an extreme form of cruel and inhuman
treatment and does not include lesser forms of cruel, inhuman or degrading
treatment or punishment . . . .” Id. § 208.18(a)(2). To constitute torture, the actor
must specifically intend to cause severe mental or physical pain; an act causing
unanticipated or unintended pain is not torture. Id. § 208.18(a)(5). Additionally,
the torture must be inflicted by a government official or at the instigation or with
the acquiescence of a government official or someone acting in an official capacity.
Id. § 208.18(a)(1).
CAT relief carries a higher legal standard than asylum, and that standard is
very difficult to meet. Al Najjar v. Ashcroft, 257 F.3d 1262, 1303 (11th Cir. 2001)
(noting that the “more likely than not” CAT standard is harder to meet than the
“well-founded fear of persecution” standard applicable to asylum claims).
Evidence of past torture is relevant in determining whether the applicant is “more
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likely than not” to face future torture if removed. 8 C.F.R. § 208.16(c)(3)(i). We
have held that beating an applicant with fists, sticks and belts did not rise to the
level of torture. Cadet v. Bulger, 377 F.3d 1173, 1194–95 (11th Cir. 2004). We
have also determined that a pattern of threatening phone calls is insufficient to
establish torture. Sanchez v. United States Att’y Gen., 392 F.3d 434, 436, 438
(11th Cir. 2004).
Initially we note that, on appeal, Torres makes no argument about the IJ’s
finding that he failed to prove that it is more likely than not that he would be
tortured upon returning to Colombia. Issues not argued on appeal are abandoned.
Huang v. United States Att’y Gen., 429 F.3d 1002, 1007 n.2 (11th Cir. 2005).
Therefore, Torres has abandoned this issue, and the BIA’s denial of his CAT claim
can be affirmed on this basis. Nevertheless, we also find that the IJ’s decision to
deny Torres’ CAT claim was clearly supported by substantial evidence because he
failed to establish either “torture” or “acquiescence” by the Colombian
government.
First, the IJ properly determined that Torres failed to prove that he was
tortured or would be tortured, within the CAT meaning of the term, if removed to
Colombia. Torres testified that he was hit and insulted by members of the FARC,
was briefly kidnapped, and had received threatening phone calls. However, none
4
of this amounted to torture under the applicable regulations, which require “an
extreme form of cruel and inhuman treatment.” See 8 C.F.R. § 208.18(a)(1), (2).
Additionally, Torres testified that he was not harmed by the FARC when he was in
Colombia from March 2001 through August 2001, and, although his parents and
brother have remained in Colombia, they have not been harmed in any way by the
FARC. Because Torres did not present evidence that he had previously been
tortured by the FARC, and because neither he nor any family members was
physically harmed after the kidnapping incident, substantial evidence supports the
IJ’s determination that Torres failed to prove that it is more likely than not that he
would be tortured if removed to Colombia.
Second, the IJ’s determination that Torres failed to prove that the Colombian
government acquiesced in the actions of the FARC is supported by substantial
evidence. For the CAT to apply, torture must occur “with the consent or
acquiescence of a public official or other person acting in an official capacity.” Id.§ 208.18(a)(1). This requires “that the public official, prior to the activity
constituting torture, have awareness of such activity and thereafter breach his or
her legal responsibility to intervene to prevent such activity.” Id. § 208.18(a)(7).
We have affirmed the BIA’s holding that a government does not “acquiesce” to
torture where the government “actively, albeit not entirely successfully, combats”
the illegal activities. Reyes-Sanchez v. United States Att’y Gen., 369 F.3d 1239,
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1243 (11th Cir. 2004) (quotation marks omitted). In determining whether a
government is combating the actions of a private actor—and not acquiescing—the
IJ may “rely heavily” on any reports prepared by the United States Department of
State that are admitted into evidence. Id.Torres admits that he never told the Colombian authorities about the
kidnapping, and we find no evidence in the record indicating that public officials
were otherwise aware of the FARC’s actions with regard to Torres. Furthermore,
the IJ pointed out that the United States Department of State issued a report, which
was admitted into evidence, describing the efforts of the Colombian government to
combat the FARC’s illegal activities. Specifically, the report indicated that the
government has an elite anti-kidnapping unit. The IJ properly relied on this report
to show that the Colombian government is actively trying to combat the FARC’s
illegal actions, including kidnapping. Consequently, the IJ did not err in finding
that the Colombian government had not acquiesced to the FARC’s actions. For
these reasons Torres’ petition is denied.3
PETITIONS FOR REVIEW ARE DENIED.
3
We need not reach the question of whether we are foreclosed by existing circuit
precedent from following the Ninth Circuit’s holding in Zheng, 332 F.3d 1186, because the
record in this case clearly indicates that the Colombian government is not willfully blind to the
illegal activities of the FARC. Instead, the Colombian government is actively expending time
and resources to curb illegal FARC activities. See Reyes-Sanchez, 369 F.3d at 1242 n.6
(declining to adopt the holding in Zheng where it was not necessary to resolve the issue).
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