Silvio Mauricio Tamayo Valencia v. U.S. Atty. Gen. , 176 F. App'x 979 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 20, 2006
No. 05-15748 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A96-101-608
SILVIO MAURICIO TAMAYO VALENCIA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 20, 2006)
Before TJOFLAT, HULL and FAY, Circuit Judges.
PER CURIAM:
Silvio Mauricio Tamayo Valencia (herein “Valencia”), a Colombian
national, petitions for review of the Board of Immigrations Appeals’ (“BIA”)
decision adopting and affirming an Immigration Judge’s (“IJ”) order of removal
and denial of his asylum and withholding of removal claims, as well as his claim
for relief under United Nations Convention Against Torture (“CAT”).1 On appeal,
Valencia challenges the constitutionality of the one-year filing deadline and the
“internal resettlement” rule, and further argues that the IJ improperly concluded
that (1) his application for asylum was time-barred; (2) he was not entitled to
withholding of removal; and (3) he failed to prove that resettlement in Colombia
was not a viable option. For the reasons set forth more fully below, we dismiss the
petition in part and deny in part.
Valencia was admitted into the United States on or about October 10, 1998,
as a non-immigrant visitor with authorization to remain until April 9, 1999.
Valencia filed an application for asylum and withholding of removal dated October
25, 2002, and later was served with a notice to appear charging him with
removability for remaining in the United States for a longer time than permitted,
INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).
In his application, Valencia stated that he received death threats from the
1
Valencia does not challenge the denial of relief under the CAT. Therefore, the claim is
abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
National Liberation Army (ELN), a guerilla group, because he refused to
collaborate with them and disagreed with their political ideology, and he feared
that, if returned to Colombia, he would be captured and tortured or killed for not
complying with the ELN’s demands. Valencia admitted that his application for
asylum was submitted more than one year after he arrived in the United States, and
stated that he was not aware of the asylum option until his cousin informed him of
it, and he was afraid to enter into immigration proceedings because he thought he
would be deported.
Submitted as evidence was a 1997 “Profile of Asylum Claims” for
Colombia. It identified the ELN as one of several guerilla groups that target
people who refuse to submit to recruitment or extortion. It also, however,
indicated that relocation was a viable option for many applicants. The 2001 State
Department Report on Human rights indicated that a large majority of political
killings were attributable to paramilitary groups, such as the ELN. The ELN
regularly attacked civilian populations, committed massacres, and killed medical
and religious personnel. The report further indicated that the ELN and the FARC
together commanded an estimated 21,645 combatants and undertook action in
nearly 1,000 of Colombia’s 1,097 municipalities.
Next, Valencia submitted numerous articles discussing the possibility of
3
temporary protected status for Colombian immigrants seeking asylum, as well as a
few articles discussing kidnaping. He also submitted notarized statements of
people who know him, and each statement avers that Valencia is a commercial
pilot and a good person who was forced to leave Colombia because he was
threatened and feared for his life. One of the statements indicated that Valencia
left Colombia “due to motives of security,” the political and social situation, and to
“seek better living conditions.” Also submitted was a police report, taken on
August 22, 1998, wherein Valencia complained to authorities that he had been
receiving anonymous phone calls with death threats from someone identifying
himself with the ELN.
Through counsel, Valencia admitted the allegations in the notice to appear
and conceded removability. Valencia testified that he was born and lived in Cali
for his entire life prior to coming to the United States, and completed education as
a commercial pilot from 1992 to 1994. He then obtained a job as a car salesman.
Both of his parents, as well as his brother and sister continue to live in Cali.
Valencia testified that, from 1992 to 1998, he was a member of the “Liberal
Youth of Cali,” and helped support a candidate for mayor by distributing flyers and
recruiting potential voters to hear the candidate speak. He sought asylum in the
United States because his life was in danger as a result of the National Liberation
4
Army (ELN). Consistent with his application, Valencia stated that the ELN
stopped him at a military roadblock and took all of his documents, including his
military license, driver’s license, pilot identification card, and bank cards. Later, in
April 1997, Valencia’s parents received a phone call seeking to verify and match
information the caller possessed regarding their address. Valencia believed the
caller to be a member of the ELN because he didn’t have many friends, and no one
he knew would have needed to verify whether or not he lived at that address.
According to Valencia, in April 1998 (one year later), he was organizing the
public appearance of a political candidate when an ELN member approached him
and told Valencia to stop playing the role of a politician and join the “true cause.”
The man told Valencia that he would “pay for the offense.” Valencia did not
report the incident to police for fear that something might happen to him or his
family. Later, in May 1998, a man identifying himself as the ELN called Valencia
at his home and told Valencia that he and Valencia had a pending matter. The man
told Valencia that he had to do what the ELN wanted, and that they wanted to
recruit him.
In June 1998, a man called Valencia and told him that he would meet
Valencia at his car dealership. Three weeks later, Valencia was leaving work when
a man stopped him and said they “needed people like [him]” and that Valencia
5
should provide a list of pilots as soon as possible. Valencia refused to provide the
list and was never physically harmed, although he testified that he feared for his
life. He did not report the incident to police until shortly before he decided to
leave Colombia, and then only to report anonymous phone calls. Since his arrival
in the United States, nothing happened to his remaining family in Colombia.
However, Valencia testified that if returned, he would be captured, tortured, and
possibly killed by the ELN because they had assured him he would pay for the
offense of not agreeing with their ideals.
On cross-examination, Valencia admitted that his parents were also Liberal
Party supporters, although they never actively campaigned for any candidates. He
further testified that, after he stopped working at the car dealership, he “hid out” at
his home address, the same address that he had been living at his entire life. He
hid there because he was with his family and it was the only safe place. When
further questioned, Valencia admitted that his sister had a home at a different
address five minutes away, and that he had not thought about living there at the
time.
The IJ issued an oral decision, first finding that Valencia was time-barred
from seeking asylum. Next, it found that “the tragic and widespread danger that
face[s] all citizens of Colombia as a result of the civil strife and anarchy does not in
6
and of itself establish per se persecution.” It found that the ELN’s efforts to recruit
Valencia did not impute any political opinion to him, and, furthermore, it was not
clear that the ELN had any specific information about Valencia’s membership in
the Liberal Youth Movement, but rather wanted to obtain a list of pilots. The IJ
also found that Valencia had always lived in the same house in Cali, and, therefore,
failed to establish country-wide fear of persecution or that it was unreasonable to
have explored internal resettlement. Finally, it found that Valencia had not
established a clear probability of harm or torture, and, thus, failed to establish that
he was entitled to either withholding of removal or CAT relief.
Valencia appealed the IJ’s decision to the BIA, arguing that: (1) the IJ erred
by finding that Valencia suffered no more than the widespread danger facing all
citizens of Colombia; (2) the one-year bar for filing asylum claims was
unconstitutional under the Supremacy and Due Process Clauses; and (3) the
internal relocation rule was unconstitutional and improperly applied in this case
because Valencia’s reasonable fears rendered the rule irrelevant.
The BIA adopted and affirmed the IJ’s decision, specifically concurring with
the IJ’s finding that Valencia was time-barred from filing for asylum. It further
concurred that Valencia failed to meet his burden of proof with respect to
withholding of removal and CAT relief, noting that he has several family members
7
living in his home town, even in the same house where he previously lived, that
remained unharmed. The BIA also found that Valencia had failed to show that the
government of Colombia had tortured him or would torture him in the future and
that he admitted to not attempting to relocate outside of Cali. Finally, the BIA
declined to rule on Valencia’s constitutional challenges to the one-year time-bar
and internal resettlement rule because it was not empowered to do so.
Since the passage of the REAL ID Act of 2005, the permanent rules are
applicable to all petitions for review, and, therefore, the permanent rules apply to
Valencia’s petition as well. See Tovar-Alvarez v. U.S. Att’y Gen., 427 F.3d 1350,
1351 (11th Cir. 2005). We will review only the BIA’s decision, except to the
extent that it expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001) (citation omitted). Insofar as the BIA adopts the IJ’s
reasoning, this Court will review the IJ’s decision as well. Id. (citation omitted).
On appeal, Valencia first argues that the IJ improperly applied the one-year
time bar to his asylum claim. While Valencia argues that certain factual matters
support his claim for asylum, his principal challenge is that the one-year time bar
for filing asylum claims violates the Supremacy Clause of the U.S. Constitution
and due process because it does not comport with the United Nations Convention
of the Status of Refugees.
8
We review de novo questions of subject matter jurisdiction. Brooks v.
Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002). Questions of constitutional law
are also reviewed de novo. Loyd v. Alabama Dep’t of Corrections, 176 F.3d 1336,
1339 (11th Cir. 1999).
As amended by IIRIRA, INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B),
provides that an alien may not apply for asylum unless he demonstrates by clear
and convincing evidence that the application was filed within one year of his
arrival in the United States. A late application for asylum may be considered if the
alien demonstrates to the Attorney General’s satisfaction the existence of either
changed circumstances or extraordinary circumstances relating to the delay in
filing the application. See INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D).
Pursuant to § 1158(a)(3), however, “[n]o court shall have jurisdiction to review
any determination of the Attorney General under paragraph (2).” INA § 208(a)(3),
8 U.S.C. § 1158(a)(3).
In May 2005, Congress passed the REAL ID Act of 2005, which amended
the judicial review provisions of INA § 242(a), 8 U.S.C. § 1252(a), to permit
review of all constitutional claims and questions of law, notwithstanding any other
provision of the statute.2 See REAL ID Act, Pub. L. 109-13, 119 Stat 231
2
The amendment adds § 242(a)(2)(D) to read: “Nothing in subparagraph (B) or (C), or in
any other provision of this Act (other than this section) which limits or eliminates judicial
9
§ 106(a)(1)(ii) (May 11, 2005).
We have concluded that, even in light of the REAL ID Act, we lack
jurisdiction to review whether a petitioner had filed his asylum application within
one year or established extraordinary circumstances. See Chacon-Botero v. U.S.
Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005). Holding that such determinations
were factual and discretionary, we adhered to our “existing precedent that 8 U.S.C.
§ 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.” Id. Accordingly, the
propriety of the IJ’s determination that Valencia’s application for asylum is time
barred and we dismiss the petition for lack of jurisdiction. However, Valencia’s
constitutional challenges and his withholding of removal claim will be addressed.
As to Valencia’s constitutional challenge to the one-year time-bar, the
Supremacy Clause provides as follows:
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding
review, shall be construed as precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals in accordance with
this section.”
10
U.S. Const. Art. VI, cl. 2. With respect to the Supremacy Clause, the Supreme
Court explained the relationship between a treaty and a federal statute as follows:
A treaty is primarily a contract between two or more independent
nations, and is so regarded by writers on public law . . .When the
stipulations are not self-executing, they can only be enforced pursuant
to legislation to carry them into effect . . . If the treaty contains
stipulations which are self-executing, that is, require no legislation to
make them operative, to that extent they have the force and effect of a
legislative enactment . . . By the constitution, a treaty is placed on the
same footing, and made of like obligation, with an act of legislation.
Both are declared by that instrument to be the supreme law of the
land, and no superior efficacy is given to either over the other. When
the two relate to the same subject, the courts will always endeavor to
construe them so as to give effect to both, if that can be done without
violating the language of either; but, if the two are inconsistent, the
one last in date will control the other: provided, always, the stipulation
of the treaty on the subject is self-executing.
Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 458, 31 L.Ed. 386 (1888).
Valencia cites to Chapter I, Art 1, Sub. F of the U.N. Convention 3 in his
brief, which reads:
The provisions of this Convention shall not apply to any person with
respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a
crime against humanity, as defined in the international
instruments drawn up to make provision in respect of such
crimes;
3
The United States is not a signatory to the U.N. Convention itself, but rather to the
Protocol, which bound all signatories to comply with the substantive provisions of Articles 2-34.
See I.N.S. v. Stevic, 467 U.S. 407, 416, n.9, 104 S.Ct. 2489, 2494, n.9, 81 L.Ed.2d 321 (1984).
11
(b) he has committed a serious non-political crime outside the
country of refuge prior to his admission to that country as a
refugee;
(c) he has been guilty of acts contrary to the purposes and
principles of the United Nations.
Protocol Relating to the Status of Refugees, Nov. 1, 1968, Ch. I., Art. 1, Sub. F, 19
U.S.T. 6223. Valencia argues that this provision is essentially the only limitation
to granting an alien political asylum.
Notwithstanding the numerous other provisions of the treaty establishing
limitations on its applicability to certain aliens (see, e.g, Art I. Ch. 1, Subs. C-E),
Valencia ignores two other important provisions of the convention and protocol, as
well as the manner in which the United States has chosen to comply. The first is
Chapter III, Art. 34, which reads:
The Contracting States shall as far as possible facilitate the
assimilation and naturalization of refugees. They shall in particular
make every effort to expedite naturalization proceedings and to reduce
as far as possible the charges and costs of such proceedings.
Protocol Relating to the Status of Refugees, Nov. 1, 1968, Ch. III., Art. 34, Sub. F,
19 U.S.T. 6223.
The United States Supreme Court has explained that the United States has
met its obligation to comply with this Article by establishing discretionary relief in
the form of asylum for those aliens who qualify as refugees under the INA. See
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 441, 107 S.Ct. 1207, 1218, 94 L.Ed.2d
12434 (1987).
The second is Chapter III, Art. 33, which states:
(1) No Contracting State shall expel or return ("refouler") a refugee in
any manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion.
(2) The benefit of the present provision may not, however, be claimed
by a refugee whom there are reasonable grounds for regarding as a
danger to the security of the country in which he is, or who, having
been convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community of that country.
Protocol Relating to the Status of Refugees, Nov. 1, 1968, Ch. III., Art. 33, Sub. F,
19 U.S.T. 6223.
The Supreme Court has noted that neither Article 33 nor Article 34 of the
Protocol are self-executing or precatory. See I.N.S. v. Chevic, 467 U.S. 407, 426,
n.22, 104 S.Ct. 2489, 2500 n.22, 81 L.Ed.2d 321 (1984) (stating that Article 34 is
not self-executing); Cardoza-Fonseca, 480 U.S. at 441, 107 S.Ct. at 1218(describing Article 33 as precatory); see also Haitian Refugee Center, Inc. v.
Baker, 949 F.2d 1109, 1110 (11th Cir. 1992) (holding that Article 33 is not self-
executing). Furthermore, the Third Circuit has persuasively rejected the same
argument made here on grounds that the treaty is not self-executing. Sukwanputra
v. Gonzales, 434 F.3d 627, 631-32 (3d Cir. 2006). Thus, we conclude that,
13
because the Protocol is not self-executing, there can be no violation of the
Supremacy Clause.
As to Valencia’s due process argument, his main point appears to be that the
time limit is arbitrary and unreasonable. “Due process requires that aliens be given
notice and opportunity to be heard in their removal proceedings.” Fernandez-
Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1310 n.8 (11th Cir. 2001). The Supreme
Court has held that due process is not violated when Congress imposes a
reasonable limitations period on the filing of naturalization petitions. I.N.S. v.
Pangilinan, 486 U.S. 875, 885, 108 S.Ct. 2210, 2217, 100 L.Ed.2d 882 (1988). As
the Third Circuit has persuasively held, “[t]he one-year period of limitations for
filing an asylum application under 8 U.S.C. § 1158(a)(2)(B), which is tempered by
the tolling provisions of § 1158(a)(2)(D), provides an asylum applicant an
opportunity to be heard at a meaningful time and in a meaningful manner.”
Sukwanputra, 434 F.3d at 632. Moreover, the “one-year period is not an
unreasonable requirement for triggering the right to an adjudication, and, thus, an
alien is not deprived of due process when his or her asylum claim is denied for
failure to comply with the requirement.” Id. We agree, and conclude Valencia’s
constitutional challenges to the one-year time-bar lack merit.
Valencia next argues that the IJ erred by finding that he suffered only the
14
“tragic and widespread danger that face[s] all citizens in Colombia as a result of
the civil strife and anarchy,” because specific facts demonstrate that Valencia’s
political opinion led to his refusal to give the ELN a list of pilots, and, therefore his
refusal to provide cooperation to the ELN, based on his own political convictions,
proved that he was entitled to relief. He further argues that the “internal
resettlement” rule is unconstitutional and it was unreasonable to request a pilot
fearing for his life to try to resettle in Colombia when the ELN has a country-wide
presence.
To the extent that the IJ’s decision was based on a legal determination,
review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001). As noted above, questions of constitutional law are also reviewed de novo.
Loyd, 176 F.3d at 1339. The IJ’s factual determinations are reviewed under the
substantial evidence test, and we “must affirm the [IJ’s] decision if it is ‘supported
by reasonable, substantial, and probative evidence on the record considered as a
whole.’” Al Najjar, 257 F.3d at 1283-84 (citation omitted). Thus, factual
determinations “may be reversed by this court 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.” Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004).
15
An alien who arrives in or is present in the United States may apply for
asylum.4 See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of Homeland
Security or the Attorney General has discretion to grant asylum if the alien meets
the INA’s definition of a “refugee.” See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1).
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. . . .
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (emphasis supplied). The asylum
applicant carries the burden of proving statutory “refugee” status. See Al Najjar,
257 F.3d at 1284. To establish asylum eligibility, the alien must, with specific and
credible evidence, establish (1) past persecution on account of a statutorily listed
factor, or (2) a “well-founded fear” that the statutorily listed factor, in this case
political opinion, will cause such future persecution. 8 C.F.R. § 208.13(a), (b); Al
Najjar, 257 F.3d at 1287. The INA does not expressly define “persecution” for
4
While Valencia’s asylum claim is not at issue in this appeal, the terminology and
definitions relevant to asylum claims are similarly relevant to the withholding of removal claims
raised in this appeal. We note that the burden of proof for asylum claims is less stringent than
the burden of proof with respect to withholding of removal claims. Al Najjar, 257 F.3d at 1292-
93.
16
purposes of qualifying as a “refugee.” See INA § 101(a)(42), 8 U.S.C.
§ 1101(a)(42). However, we have discussed other circuits’ holdings that
“persecution” is an “extreme concept,” requiring more than “a few isolated
incidents of verbal harassment or intimidation,” or “[m]ere harassment.” Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005).
A showing of past persecution creates a presumption of a “well-founded
fear,” subject to rebuttal by the INS. 8 C.F.R § 208.13(b)(1). A “well-founded
fear” of persecution may also be established by showing a reasonable possibility of
personal persecution that cannot be avoided by relocating within the subject
country. 8 C.F.R. § 208.13(b)(2)(i) & (ii). It is “well-established” that the well-
founded fear inquiry contains both an objective and subjective component, i.e., the
petitioner must be genuinely afraid and that fear must be objectively reasonable.
Al Najjar, 257 F.3d at 1289. Furthermore, it is the petitioner’s burden to present
“specific, detailed facts showing a good reason to fear that he or she will be singled
out for persecution.” Id. at 1287 (internal quotation, emphasis, and citation
omitted). We have further held 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 his own country to pursue that option before
seeking permanent resettlement in the United States, or at least to establish that
17
such an option is unavailable.” Sepulveda, 401 F.3d at 1231.
As for withholding of removal, an alien “must show that his life or freedom
would be threatened on account of race, religion, nationality, membership in a
particular social group, or political opinion.” Sanchez v. U.S. Att’y Gen., 392 F.3d
434, 437 (11th Cir. 2004). “An alien bears the burden of demonstrating that he
more-likely-than-not would be persecuted or tortured upon his return to the country
in question.” Id. “If the alien establishes past persecution in his country based on
a protected ground, it is presumed that his life or freedom would be threatened
upon return to his country unless the INS shows by a preponderance of the
evidence that, among other things, (1) the country’s conditions have changed such
that the applicant’s life or freedom would no longer be threatened upon his
removal; or (2) that the alien could avoid a future threat to his life or freedom by
relocating to another part of the proposed country of removal, and it would be
reasonable to expect him to do so.” Id. “An alien who has not shown past
persecution, though, may still be entitled to withholding of removal if he can
demonstrate a future threat to his life or freedom on a protected ground in his
country.” Id. “An alien cannot demonstrate that he more-likely-than-not would be
persecuted on a protected ground if the IJ finds that the alien could avoid a future
threat by relocating to another part of his country.” Id.18
In Sanchez, we held that a petitioner was not entitled to withholding of
removal because she had failed to provide any evidence of her political opinion,
actual or imputed, or of a nexus between her opinion and the alleged persecution.
Id. at 438. There, the petitioner refused to meet with a FARC commander because
she disagreed with the way the FARC had destroyed the country, prompting the
FARC to demand 20 million pesos from her. Id. at 436. In rejecting the
petitioner’s claims, we noted that the evidence suggested that the FARC had
harassed her for her failure to cooperate, which was insufficient to prove that she
qualified for withholding of removal. Id. at 438.
The evidence here is that the ELN threatened Valencia by saying that he
would pay for his offense, although it is unclear whether the offense was telling the
ELN member that he did not support the ELN’s cause or that Valencia was
campaigning for the Liberal Party. Even assuming that it was related to Valencia’s
actions on behalf of a Liberal candidate, it amounted to only one threat, and
Valencia was never harmed. This was insufficient to demonstrate past persecution,
and, therefore, insufficient to meet the burden of proof for withholding of removal.
Sepulveda, 401 F.3d at 1231 (holding that menacing threats and telephone calls
were not sufficient to prove that the petitioner suffered past persecution); Al
Najjar, 257 F.3d at 1292-93 (noting that the failure to meet the well-founded fear
19
burden of proof for asylum necessarily means a failure to meet the more stringent
burden of proof for withholding of removal).
The remainder of the ELN’s interest appears to be related not to Valencia’s
political opinion, but to his unwillingness to provide a list of pilots. Similar to
Sanchez, the record here suggests that Valencia feared reprisal for his failure to
cooperate with the ELN, not because the ELN was opposed to his political
opinions. Thus, like in Sanchez, the evidence is not sufficient to show that
Valencia will be persecuted in the future because of his political opinion. Sanchez,
392 F.3d at 438 (“It is not enough to show that [the petitioner] was or will be
persecuted or tortured due to her refusal to cooperate with the guerillas.”). In any
event, Valencia received phone calls and threats, and that is not sufficient to meet
the “extreme concept” of persecution. Sepulveda, 401 F.3d at 1231.
Moreover, the record shows that Valencia lived in the same place his entire
life, and did not attempt to change his address, even choosing to “hide out” there
when he could have stayed with his sister at a different location within Cali. While
we have noted that the use of the State Department’s country reports is not enough,
standing alone, to warrant a finding that a petitioner could viably relocate to an
area where the ELN was non-existent or minimal, Valencia here, like in Sepulveda,
has failed to show that he will be “singled out” for persecution on the basis of a
20
protected ground, or, for that matter, why the ELN would still be interested in him
seven years later, and we conclude that the IJ did not err by finding that Valencia
had failed to demonstrate that internal resettlement was not a viable option.
Sepulveda, 401 F.3d at 1232 n.7.
It is noted that, in Arboleda v. U.S. Att’y Gen., 434 F.3d 1220, 1224-26
(11th Cir. 2006), we concluded that the 2000-2001 Country Reports established
that the FARC has a country-wide presence in Colombia, and the government
could not prove, by a preponderance of the evidence, that the petitioner could
relocate in Colombia out of the FARC’s reach. Unlike the facts in Arboleda,
however, Valencia here failed to prove past persecution. Moreover, even if we
concluded that the 2001country reports in this case demonstrated that the ELN’s
presence and influence was country-wide, a decision we decline to reach, the
record would still not compel a different result than that reached by the IJ and the
BIA in this case because Valencia failed to show that he would be “singled out” for
persecution on a protected ground. See Sepulveda, 401 F.3d at 1232 n.7 (affirming
the IJ’s denial of asylum, despite the inclusion in the 1999 and 2000 Country
Reports for Colombia that guerillas exercised an influence throughout the country,
because the petitioner had failed to establish that she would be singled out for
persecution on account of a protected ground).
21
Lastly, to the extent Valencia argues that the requirement that an alien not
have a reasonable resettlement alternative in his own country violates the United
States Constitution and was improperly applied in the present case, the treaty he
relies upon, as discussed above, is not self-executing and cannot give rise to a
Supremacy Clause violation. Furthermore, we have held that:
[I]t is not unreasonable to require a refugee who has an internal
resettlement alternative in his own country to pursue that option
before seeking permanent resettlement in the United States, or at least
to establish that such an option is unavailable. As a matter of
immigration policy, a government may expect that an asylum seeker
be unable to obtain protection anywhere in his own country before he
seeks the protection of another country. We therefore uphold the
BIA’s imposition of a country-wide requirement in this case.
Mazariegos v. Office of the United States Attorney General, 241 F.3d 1320, 1327
(11th Cir. 2001). Accordingly, the “internal relocation” rule is not unconstitutional
as applied, and, as discussed above, Valencia’s petition was correctly denied even
in the absence of the rule.
Based on the foregoing, we dismiss Valencia’s petition in part for lack of
subject matter jurisdiction and deny in part the remainder of his arguments that we
do have jurisdiction to entertain.
DISMISSED in part, DENIED in part.
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