[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 29, 2007
No. 06-16106 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A78-411-350
DORA STELLA MEJIA-RESTREPO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 29, 2007)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Petitioner Dora Stella Mejia-Restrepo, a citizen of Colombia, petitions for
review of the order by the Board of Immigration Appeals (BIA) affirming the
Immigration judge’s (IJ’s) order of removal and denial of asylum under the
Immigration and Nationality Act (INA) § 208,
8 U.S.C. § 1158, withholding of
removal under INA § 241(b)(3)(A),
8 U.S.C. § 1231(b)(3)(A), 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). In her petition,
Mejia-Restrepo argues that the BIA’s denial of asylum is not supported by
substantial evidence and that the IJ denied her due process. Because
Mejia-Restrepo does not challenge the BIA’s findings with regard to withholding
of removal or protection under the CAT, any argument with regard to those
findings has been abandoned. Djonda v. U.S. Att’y Gen., No. 06-11275,
manuscript op. at 9 (11th Cir. July 24, 2007).
With regard to her claim for asylum, Mejia-Restrepo argues that she
established that she had a well-founded fear of persecution on account of her
imputed political opinion and membership in a particular social group, as a
professional employed by a foreign company working in areas largely controlled
by terrorists. In addition, Mejia-Restrepo asserts that she proved that she had been
persecuted in the past and was entitled to a presumption of future persecution,
which the government had failed to rebut.
2
We review “administrative fact findings under the highly deferential
substantial evidence test . . . . Under the substantial evidence test, we view the
record evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Djonda v. U.S. Att’y Gen., No.
06-11275, manuscript op. at 8-9 (11th Cir. July 24, 2007) (quotation omitted).
When reviewing for substantial evidence, we do not “ask whether the evidence
presented by an applicant might support a claim for relief; instead we ask whether
the record compels us to reverse the finding to the contrary.” Id.;
8 U.S.C.
§ 1252(b)(4)(B). When, as here, the BIA issues its own opinion without expressly
adopting the IJ’s decision, we review only the BIA’s decision. See Morales v. U.S.
Att’y Gen.,
488 F.3d 884, 890 (11th Cir. 2007). Because the BIA treated Mejia-
Restrepo’s testimony as credible, we must accept her testimony. Niftaliev v. U.S.
Att’y Gen.,
487 F.3d 834, 839 (11th Cir. 2007).
An alien may receive asylum, at the discretion of the Attorney General, if
she can carry the burden of proving that she 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 . . . 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.
3
INA § 101(6)(42)(A),
8 U.S.C. § 1101(a)(42)A); Sepulveda v. U.S. Att’y Gen.,
401
F.3d 1226, 1230 (11th Cir. 2005). Accordingly, “the alien must, with credible
evidence, establish (1) past persecution on account of her political opinion or any
other protected ground, or (2) a ‘well-founded fear’ that her political opinion or
any other protected ground will cause future persecution.”
Id. at 1230-31 (citing
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C.F.R. § 208.13(a) and (b)). We have recognized that an alien’s imputed political
opinion may satisfy the requirement that persecution be based on a protected
ground. Al Najjar v. Ashcroft,
257 F.3d 1262, 1289 (11th Cir. 2001). Although the
INA does not provide a definition, we have defined “persecution” as “an extreme
concept, requiring more than a few isolated incidents of verbal harassment or
intimidation, and that mere harassment does not amount to persecution.”
Sepulveda,
401 F.3d at 1231 (quotations and bracket omitted). “A showing of past
persecution creates a presumption of a ‘well-founded fear,’ subject to rebuttal by
the [government].”
Id. Otherwise, an applicant must demonstrate that her fear of
being singled out for future persecution on account of a protected ground is
subjectively genuine and objectively reasonable.
Id. Should the alien show a
“well-founded fear” of future persecution, she must establish that the persecution
cannot be avoided by relocating within the country designated for removal.
Id.
4
We need not decide whether Mejia-Restrepo’s profession or employment
status constituted a protected ground, because even if it could be construed as
imputed political opinion or membership in a particular social group, there is
substantial evidence in the administrative record to support the BIA’s finding that
Mejia-Restrepo failed to establish that she had been persecuted in the past based on
her profession or imputed political opinion or that she had an objectively
reasonable fear of being singled out for future persecution based on her profession
or imputed political opinion. Mejia-Restrepo testified that, in 1992, she was
amongst a team of oil workers held at gunpoint by the ELN for, at most, four
hours, threatened with death, and called traitors for working for a foreign oil
company. She provided a police report and testimony describing an incident from
1995, during which she was amongst a team of oil workers driving in cars that
encountered armed members of the FARC who fired weapons over their heads,
called them traitors for working for the oil company, and stole all of their
belongings. The third episode Mejia-Restrepo described during her testimony
occurred in 1999, when she drove past members of a paramilitary group disposing
of the corpse of a local broadcaster along the side of the road. Subsequently,
Mejia-Restrepo was approached by a stranger who told her not to speak about what
she had seen. She also described receiving phone calls, beginning in 1999, from
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individuals who threatened her and warned her not to report having seen the
corpse.
We are not compelled by this evidence to conclude that Mejia-Restrepo was
persecuted. Mejia-Restrepo described three incidents over the span of seven years,
all committed by different subversive groups, and none of which resulted in any
harm to her. This pattern of activity, or “a few isolated incidents of verbal
harassment or intimidation,” does not amount to persecution. Sepulveda,
401 F.3d
at 1231. Although the 1992 incident may have been motivated by her employment
status, it was a single episode of harassment that does not rise to the level of
persecution.
Id. Indeed, Mejia-Restrepo does not describe any further incident
with the ELN in the eight years that she remained in the country following the
1992 incident. With regard to the 1995 and 1999 incidents, neither were motivated
by Mejia-Restrepo’s status as an employee for BP. A fair interpretation of the
1995 incident is that the armed guerillas intended to rob the occupants of cars on
the highway, regardless of their identities or occupational statuses. Essentially,
Mejia-Restrepo was in the wrong place at the wrong time and, while unfortunate,
the robbery was not related to her employment status. Similarly, the acts of
intimidation that Mejia-Restrepo faced in 1999 were likely the result of her
observing the commission or concealment of a murder. Because substantial
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evidence supports the BIA’s ruling that Mejia-Restrepo failed to establish past
persecution, the BIA correctly denied her a presumption of future persecution.
Mejia-Restrepo sought to demonstrate that she possessed a well-founded
fear of future persecution should she be returned to Colombia. While a fear of the
unstable country conditions in Colombia may be reasonable, and her individual
fear may be genuine, the administrative record does not compel us to find that
Mejia-Restrepo would be singled out for persecution on account of her profession
if she returned to Colombia. Sepulveda,
401 F.3d at 1231. Mejia-Restrepo’s claim
of a well-founded fear of future persecution is belied by her safe return to
Colombia, from April until September 2000, after she spent six months in the
United States following the last of the alleged acts of persecution, and the fact that
her mother has remained in Colombia unharmed. Thus, substantial evidence
supports the BIA’s conclusion that Mejia-Restrepo failed to demonstrate a well-
founded fear of future persecution.
Mejia-Restrepo also argues that she was deprived of due process because the
IJ did not allow her to develop fully her testimony at the second hearing by
limiting her testimony to new evidence that was not presented at a previous
hearing, where she was represented by ineffective counsel. Also, Mejia-Restrepo
alleges that the IJ was biased, and that this bias rose to the level of a due process
violation.
7
“We review constitutional challenges de novo.” Lonyem v. U.S. Att’y Gen.,
352 F.3d 1338, 1341 (11th Cir. 2003). Aliens are entitled to due process in
removal proceedings. Reno v. Flores,
507 U.S. 292, 306,
113 S. Ct. 1439, 1449
(1993). Due process requires that an alien have the right to a hearing before an IJ,
the right to notice of the hearing, and an opportunity to be heard.
Id. at 309,
113 S.
Ct. 1450-51; Sebastian-Soler v. U.S. Att’y Gen.,
409 F.3d 1280, 1287 n.14 (11th
Cir. 2005). The IJ is granted the authority to “receive and consider material and
relevant evidence, rule upon objections, and otherwise regulate the course of the
hearing.”
8 C.F.R. § 1240.1(c). Although an IJ is provided with discretion to run
the proceedings, an alien must be provided with “a full and fair hearing.” Ibrahim
v. INS,
821 F.2d 1547, 1550 (11th Cir. 1987). “In order to establish a due process
violation, an alien must show that he or she was deprived of liberty without due
process of law . . . and that the asserted error caused h[er] substantial prejudice.”
Garcia v. U.S. Att’y Gen.,
329 F.3d 1217, 1222 (11th Cir. 2003) (citations
omitted). The Supreme Court has held that “expressions of impatience,
dissatisfaction, annoyance, and even anger, that are within the bounds of what
imperfect men and women, . . . sometimes display,” and do not “establish[ ] bias or
partiality.” United States v. Liteky,
510 U.S. 540, 555-56,
114 S. Ct. 1147, 1157
(1994).
8
The administrative record demonstrates that Mejia-Restrepo received a “full
and fair” hearing before the IJ. Ibrahim,
821 F.2d at 1550. The BIA determined
that since Mejia-Restrepo was represented by ineffective counsel during her first
hearing, she would be “provided the opportunity to present further evidence and
testimony regarding” her application for asylum, withholding of removal, and
protection under the CAT. Consistent with the BIA’s mandate, and the IJ’s
authority to regulate hearings, the IJ limited the remanded proceedings to evidence
not previously presented. This included the testimony of Mejia-Restrepo’s
daughter, a more complete copy of the police report regarding the 1995 incident
that had been described at the initial hearing, and testimony about the 1992
incident that Mejia-Restrepo had omitted from her prior testimony. Therefore,
Mejia-Restrepo had a full and fair hearing because she was provided an
opportunity to present fully her claim.
The record indicates that the IJ showed impatience with Mejia-Restrepo and
her counsel for repeating evidence that had been presented at the initial hearing,
but the IJ’s actions were consistent with her authority to “otherwise regulate the
course of the hearing,”
8 C.F.R. § 1240.1(c). Moreover, as the BIA noted, the
IJ’s actions were “within the bounds of what imperfect men and women . . .
sometimes display.” Liteky,
510 U.S. at 556,
114 S. Ct. at 1157. Accordingly, we
9
conclude that Mejia-Restrepo was not deprived of liberty without the due process
of law.
Finally, even if she were to demonstrate that she was deprived of due
process at her second hearing, the record does not support a finding that any error
caused Mejia-Restrepo substantial prejudice. As explained above, the harassment
Mejia-Restrepo alleged was insufficient to show that she suffered past prejudice or
would be singled out to suffer future prejudice as a result of her imputed political
opinion or membership in a particular social group.
Accordingly, for the above-stated reasons, we deny Mejia-Restrepo’s
petition for review.
PETITION DENIED.
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