Cielo Castro Arango v. U.S. Attorney General , 160 F. App'x 851 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
------------------------------------------- FILED
No. 04-16232 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar December 22, 2005
-------------------------------------------- THOMAS K. KAHN
CLERK
BIA No. A96-098-249
CIELO CASTRO ARANGO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
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(December 22, 2005)
Before EDMONDSON, Chief Judge, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Petitioner Cielo Castro Arango appeals from an order by the Board of
Immigration Appeals denying asylum and further denying withholding of removal
under the Immigration and Nationality Act. 8 U.S.C. §§ 1158, 1231. No
reversible error has been shown; we affirm.
Arango, a native citizen of Colombia, was admitted to the United States as a
non-immigrant tourist on 21 April 1999. She was authorized to remain in the
country only until 10 May 1999, but she did not leave. Arango applied for asylum
in the United States via an application dated 27 September 2002. On 4 December
2002 the Immigration and Naturalization Service served Arango with a notice to
appear charging her with being an alien subject to removal under 8 U.S.C. §
1227(a)(1)(B). The immigration judge (IJ) denied Arango’s asylum application,
because it was not timely filed, and held that she failed to establish her eligibility
for withholding removal.1 The IJ ordered her removed, and the Board of
Immigration Appeals (BIA) affirmed.
1
The immigration judge further found that Arango failed to establish her eligibility for relief
under the United Nations Convention Against Torture and Other Cruel, Unusual, or Degrading
Treatment or Punishment (CAT), 8 C.F.R. § 208.16(c). The Board of Immigration Appeals
affirmed the holding under CAT. Arango abandoned any CAT-related claims by failing to raise the
issue on appeal. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
We review the BIA’s and IJ’s2 legal determinations de novo and their
factual determinations under the substantial evidence test. Al Najjar v. Ashcroft,
257 F.3d 1262, 1284 (11th Cir. 2001). Under the highly deferential substantial
evidence test, we “must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Id.(quotation omitted). “To reverse the [BIA’s and] IJ’s fact findings, we must find
that the record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y
Gen., 327 F.3d 1283, 1287 (11th Cir. 2003) (emphasis added).
Arango testified she fled Colombia because she feared reprisals by the
Revolutionary Armed Forces of Colombia (the FARC), a guerilla organization, for
her involvement with a conservative youth group. She further testified that she
fears future persecution by the FARC if she were removed to Colombia. Arango
described three threatening phone calls and threats made by FARC guerillas while
she worked with the youth group in the Colombian countryside. She also
described one incident at her college graduation in which she was threatened by
someone who “may have been associated” with the FARC. And she believes her
2
“We review only the [BIA’s] decision, except to the extent it expressly adopts the IJ’s opinion.”
Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). In this case the BIA expressly adopted
the IJ’s decision; so we review the IJ’s analysis as if it were the BIA’s.
3
father and cousin were killed by the FARC. The IJ noted, however, that these
beliefs were “steeped in speculation.”
Due to the threats, Arango left her home and moved ten hours away to live
with her sister for two weeks. During that period she did not experience problems
with the FARC. Shortly afterward, Arango secured a visa and left Colombia for
the United States.
At Arango’s asylum hearing, the IJ determined that her asylum application
was not timely filed. An alien may apply for asylum if she “demonstrates by clear
and convincing evidence that the application has been filed within one year after
the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). The
Attorney General, however, may except from this timing requirement those
applicants who demonstrate “changed circumstances which materially affect the
applicant’s eligibility for asylum or extraordinary circumstances relating to the
delay in filing an application.” Id. § 1158(a)(2)(D). The IJ held that Arango did
not adequately demonstrate an exception to the one-year filing requirement.
8 U.S.C. § 1158(a)(3) states that “no court shall have jurisdiction” to review
the Attorney General’s determinations regarding the filing exceptions. We have
held that 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
4
extraordinary circumstances that would excuse his untimely filing.” Mendoza,
327 F.3d at 1287.
Aside from the jurisdictional issue, Arango failed to offer argument on
whether the IJ erred in determining that her application was not timely. She
therefore abandons that issue on appeal. See Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1228 n.2 (11th Cir. 2005) (concluding that where petitioner fails to
raise arguments regarding issue on appeal, that issue is deemed abandoned).
Accordingly, Arango’s petition for review on her asylum claim is dismissed.
Arango also argues that her removal should be withheld. 8 U.S.C. §
1231(b)(3)(A) prohibits the Attorney General from removing Arango to a country
if her “life or freedom would be threatened in that country because of [her] race,
religion, nationality, membership in a particular social group, or political opinion.”
Under this theory of relief, Arango “bears the burden of demonstrating that [she]
more-likely-than-not would be persecuted or tortured upon [her] return to the
country in question.” Mendoza, 327 F.3d at 1287. Arango could have carried her
burden had she adequately shown either incidents of actual past persecution on a
protected ground or the likelihood of future persecution upon her return. The BIA
and IJ held that Arango demonstrated neither.
5
We have said that persecution is an “extreme concept.” Sepulveda, 401
F.3d at 1231. Demonstrating past persecution requires showing “more than a few
isolated incidents of verbal harassment or intimidation,” and “mere harassment
does not amount to persecution.” Id. (citing Gonzalez v. Reno, 212 F.3d 1338,
1355 (11th Cir. 2000)). In Sepulveda, we determined that where the petitioner and
her family received threatening phone calls from guerillas and a bomb was planted
at petitioner’s place of employment, the evidence was not sufficient to overturn
the IJ’s denial of asylum and withholding removal. Id. at 1229, 1231. We stated
that “menacing phone calls and threats...do not rise to the level of past persecution
that would compel reversal of the IJ’s decision.” In a similar way, the FARC’s
threats and menacing phone calls to Arango and her family do not amount to the
kind of past persecution necessary to reverse the IJ’s decision. And other
incidents to which she testified, such as the death of her father and cousin, were
described by the IJ as “unclear,” “steeped in speculation,” and mere “conjecture.”
These facts do not compel reversal.
An alien who cannot adequately demonstrate past persecution may still be
entitled to withholding of removal if she can demonstrate that removal will cause a
future threat to her life or freedom on a protected ground. Mendoza, 327 F.3d at
6
1287. Any such demonstration fails, however, “if the IJ finds that the alien could
avoid a future threat by relocating to another part of [her] country.” Id.Arango failed to demonstrate that she could not avoid persecution by
relocating to another part of Colombia. The IJ found that, although guerilla
groups like the FARC have significant influence in the rural areas of Colombia,
their influence is considerably less in the country’s major cities. In fact, the record
below shows that Arango did not experience problems during the period in which
she left her home and lived with her sister. The IJ further found that, prior to
leaving Colombia for the U.S., Arango did not adequately try to “avoid this
geographical source of danger,” by moving to another part of Colombia. We have
said that “where the alleged persecutors are not affiliated with the government, it
is not unreasonable to require a refugee who has an internal resettlement
alternative in [her] own country to pursue that option before seeking permanent
resettlement in the United States.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320,
1327 (11th Cir. 2001). On this record, Arango failed to demonstrate that it is
more-likely-than-not that she will suffer persecution upon removal because she did
not demonstrate that she could not have avoided persecution by relocating within
her country. Accordingly, we deny Arango’s petition on withholding removal.
7
Based on the foregoing, we dismiss the petition for review for the asylum
claim and deny the petition for the withholding of removal claim.
DISMISSED in part and DENIED in part.
8