Andres Diaz Jimenez v. U.S. Attorney General , 198 F. App'x 908 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 2, 2006
No. 06-11293 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A78-616-374 & A79-429-324
ANDRES DIAZ JIMENEZ,
LUZ JANETH BAUTISTA,
ELIZABETH DIAZ BAUTISTA,
IVONNE ALEXANDRA DIAZ BAUTISTA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 2, 2006)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Andres Diaz Jimenez (“Diaz”) seeks review of the Board of Immigration
Appeals (“BIA”) order affirming the Immigration Judge’s (“IJ”) decision that he
failed to qualify for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture. Diaz’s wife, Luz Janeth Bautista, and two of
their daughters, Ivonne Alexandra Diaz Bautista, and Elizabeth Diaz Bautista, are
derivative applicants and thus rely on Diaz’s asylum application.1
Diaz contends that in affirming the IJ’s decision, the BIA erred in ignoring
the testimony that he spoke out against the Fuerzas Armadas Revolucionarias de
Colombia (“FARC”) guerillas, that he received threatening phone calls from the
FARC, and that, in the City of Bogata, two men in a taxi cab, whom he believed
were associated with the FARC, shot at him while he was in his car waiting for the
traffic light to change. Moreover, because he has established past persecution at
the hands of the FARC, the IJ and the BIA should have presumed that he would be
persecuted if returned to Colombia, and, on the basis of that presumption, should
have concluded that he was eligible for withholding of removal.2
1
Diaz filed the instant application for asylum and withholding of removal on January 9,
2000. Prior to filing the application, he had traveled to the United States for pleasure and
returned to Columbia on several occasions. He came to the United States on January 30 and
June 16, 1998, on January 2 and September 5, 1999, and on June 4, 2000.
2
Other than a passing referencing in the “statement of the issue” section in his brief to
us, Diaz does not argue on appeal that the BIA erred by affirming the IJ’s decision that he did
not qualify for relief under the United Nations Convention Against Torture. As this passing
reference is insufficient to preserve an argument that the IJ and BIA erred in denying him such
relief, we treat him as having abandoned the point. Sepulveda v. U.S. Att’y Gen., 401 F.3d
2“We review only the [BIA’s] decision, except to the extent that it expressly
adopts the IJ’s opinion.” Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242
(11th Cir. 2004). We review legal issues de novo, Mohammed v. Ashcroft, 261
F.3d 1244, 1247-48 (11th Cir. 2001), and “administrative fact findings under the
highly deferential substantial evidence test,” Adefemi v. Ashcroft, 386 F.3d 1022,
1026 (11th Cir. 2004) (en banc), cert. denied, 544 U.S. 1035 (2005). Under this
test, we will not reverse the BIA’s factual finding unless the record compels a
reversal. Id. at 1027. “We must affirm the agency’s decision unless there is no
reasonable basis for [that] decision.” Id. at 1029 (emphasis added).
“To establish asylum eligibility based on [political opinion (or any other
protected ground)], the alien must, with credible evidence, establish (1) past
persecution on account of [one or more of the] protected ground[s], or (2) a
‘well-founded fear’ that [his] political opinion or any other protected ground will
cause future persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230-31
(11th Cir. 2005) (emphasis added). “To establish asylum based on past
persecution, the applicant must prove (1) that [he] was persecuted, and (2) that the
persecution was on account of a protected ground. To establish eligibility for
asylum based on a well-founded fear of future persecution, the applicant must
prove (1) a ‘subjectively genuine and objectively reasonable’ fear of persecution,
1226, 1228 n.2 (11th Cir. 2005).
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that is (2) on account of a protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d
1229, 1236 (11th Cir. 2006) (citations omitted and emphasis added).
“To qualify for withholding of removal, [petitioner] must have established
that it is more likely than not that [his] life or freedom would be threatened on
account of a statutorily protected factor if returned to [his country].” Silva, 448
F.3d at 1243 (citing 8 U.S.C. § 1231(b)(3)). “Where an applicant is unable to meet
the ‘well-founded fear’ standard for asylum, he is generally precluded from
qualifying for either asylum or withholding of [removal].” Najjar v. Ashcroft, 257
F.3d 1262, 1292-93 (citations omitted).
After carefully reviewing the record and the briefs on appeal, we discern no
reversible error. It is not necessary for us to consider as an abstract matter whether
an alien has established past persecution by testifying that guerillas shot at him
because of his political opinion. See Sepulveda, 401 F.3d at 1231 (noting that
“persecution is an extreme concept”). This is because Diaz could not identify the
men who shot at him at the Bogata traffic light, and there was no evidence, other
than the threatening phone calls that had been ongoing at that point for over a year,
that the FARC was implicated in the shooting. This is why the IJ and BIA found
that the shooting was unrelated to Diaz’s political opinion. And nothing in this
record compels us to find otherwise. Silva, 448 F.3d at 1238.
Because he failed to establish past persecution, Diaz still had to show that he
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had a well-founded fear of future persecution. As the evidence before the IJ
indicated, Dias had been involved in politics in Columbia only minimally, and by
the time he testified before the IJ, on July 8, 2004, he had been out of that country
for over four years. This lapse of time undercut the objective reasonableness of his
testimony that he feared persecution at the hands of the FARC if he were returned
to Columbia. Furthermore, as the BIA noted, Diaz and his family made several
trips to the United States while the FARC was purportedly harassing him; yet, he
never applied for asylum. This also weakened his claim to having a genuine
subjective fear of persecution. In sum, the record does not compel a finding
contrary to the BIA’s finding that Diaz failed to demonstrate a well-founded fear of
future persecution. We therefore find no error in the BIA’s asylum ruling.
As Diaz failed to establish a well-founded fear of future persecution, the
record provides us with no basis at all for reversing the BIA’s decision that he also
failed to satisfy the withholding of removal standard, i.e., that it was more likely
than not that he would be persecuted upon his return to Columbia. The BIA’s
decision therefore stands undisturbed.
PETITION DENIED.
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