Luis Antonio Diaz Vesga v. U.S. Atty. Gen. , 200 F. App'x 935 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-11674 OCTOBER 17, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA Nos. A95-903-580 & A95-903-556
LUIS ANTONIO DIAZ VESGA,
JHOAN CAMILO DIAZ OLIVEROS,
ANDRES FELIPE DIAZ OLIVEROS,
MARIA DE JESUS OLIVEROS BERNAL,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 17, 2006)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Luis Antonio Diaz-Vesga (Vesga), his wife, and their two children,1 citizens
of Colombia, S.A., petition this court to review the decision of the Board of
Immigration Appeals (“BIA”) decision adopting and affirming the order of an
Immigration Judge (“IJ”) denying their application for asylum and withholding of
removal under the Immigration and Nationality Act (“INA”).2
Vesga contends that the IJ erred in denying his claim for asylum and
withholding of removal because he established that he suffered past persecution on
account of his political opinion and that it is more likely than not that he will be
persecuted upon returning to Colombia by the National Liberation Army (“ELN”).
The Government responds that we lack jurisdiction to review the denial of
Vesga’s application for asylum because the application was time-barred.
We review only the BIA’s decision, except to the extent that the BIA
expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). Insofar as the BIA adopts the IJ’s reasoning, as occurred here,
we review the IJ’s decision as if it were the BIA’s. Id.1
The asylum application in this case and the petition for review are based on Vesga’s claims
of persecution. Therefore, this opinion refers only to Vesga; our decision, however, applies to all
petitioners.
2
Vesga also applied for relief under the U. N. Convention Against Torture (“CAT”). Vesga
makes no arguments on appeal concerning the denial of his request for CAT relief. Therefore, he
has waived that issue. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
To the extent the IJ’s decision was based upon a legal determination, our
review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001). We review the IJ’s factual determinations under the substantial evidence
standard and “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); see also INA § 242(b)(4)(B), 8
U.S.C. § 1252(b)(4)(B)) (“administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary”). To
reverse the IJ’s decision, we must conclude 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). That evidence in the record may also support a conclusion contrary to
the administrative findings is not enough to justify a reversal. Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004), cert. denied, 125 S.Ct. 2245(2005).
An alien may apply for asylum if he “demonstrates by clear and convincing
evidence that his application has been filed within one year after the date of the
alien’s arrival in the United States.” INA § 208(a)(2)(B), 8 U.S.C.
§ 1158(a)(2)(B). However,
An application for asylum of an alien may be considered . . . if the
alien demonstrates to the satisfaction of the Attorney General either
the existence of changed circumstances which materially affect the
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applicant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application within the period
specified . . . .
INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). Nevertheless, “[n]o Court shall
have jurisdiction to review any determination of the Attorney General under [§
1158(a)(2)].” INA § 208(a)(3), 8 U.S.C. § 1158(a)(3); Mendoza, 327 F.3d at 1287.
Consequently, § 1158(a)(3) divests this court 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.” Mendoza, 327
F.3d at 1287. Jurisdictional provisions in the REAL ID Act of 2005, Pub. L. No.
109-13, 119 Stat. 231, 310 (2005), do not affect our precedents, such as Mendoza.
Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005).
The IJ determined that Vesga’s asylum application was untimely and that he
failed to establish changed or extraordinary circumstances to excuse the
untimeliness. Accordingly, we lack jurisdiction to review the denial of Vega’s
asylum application and dismiss the petition for review as to such denial.
An alien shall not be removed to a country if his life or freedom would be
threatened on account of race, religion, nationality, membership in a particular
social group, or political opinion. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). The
alien must show that it is “more likely than not that [he] will be persecuted or
tortured upon being returned to [his] country.” Sepulveda v. U.S. Att’y Gen., 401
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F.3d 1226, 1232 (11th Cir. 2005). This standard is more stringent than the
“well-founded fear” standard for asylum. Mazariegos v. Office of the U.S. Att’y
Gen, 241 F.3d 1320, 1324 n.2 (11th Cir. 2001).
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 [Department of
Homeland Security] 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.
Mendoza, 327 F.3d at 1287. In the absence of a showing of past persecution,
however, the alien “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. Moreover, “[a]n 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. An alien
may also sustain his burden of proof by showing a pattern or practice of
persecution of groups similarly situated to him in which he is included or with
which he is identified. 8 C.F.R. § 208.16(b)(2).
Persecution is an “extreme concept.” Sepulveda, 401 F.3d at 1231.
Although the INA does not define persecution, courts have generally held that
persecution is “punishment or the infliction of harm for political, religious, or other
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reasons that this country does not recognize as legitimate.” See, e.g., Tamas-
Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000). “[P]ersecution encompasses
more than threats to life or freedom; non-life threatening violence and physical
abuse also fall within this category.” Id. Mere harassment is not persecution;
persecution requires “more than a few isolated incidents of verbal harassment or
intimidation.” Sepulveda, 401 F.3d at 1231; see also Nelson v. INS, 232 F.3d 258,
263 (1st Cir. 2000) (persecution “must rise above unpleasantness, harassment, and
even basic suffering”). Furthermore, with regard to political opinion claims, “[i]t
is not enough to show that [the alien] was or will be persecuted or tortured due to
[his] refusal to cooperate with the guerillas.” Sanchez v. U.S. Att’y Gen., 392 F.3d
434, 438 (11th Cir. 2004).
Substantial evidence supports the IJ’s finding that Vesga did not show that it
was more likely than not that he would be persecuted upon returning to Colombia.
The record does not compel a finding that Vesga established more than a few
isolated incidents of verbal harassment or intimidation; therefore, the IJ’s finding
that Vesga did not show past persecution is supported by substantial evidence.
Additionally, the record does not contain evidence compelling a conclusion that
Vesga demonstrated a future threat to his life or freedom. His encounters with the
ELN occurred more than ten years ago and his family members who remained in
Colombia have had no specific problems with or threats from the ELN.
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Finally, there is substantial evidence to support the IJ’s conclusion that
Vesga failed to establish a nexus between the feared persecution and his political
opinion. The evidence in the record reflects a three-year lag between Vesga’s first
encounter with the ELN and his two months of political activity, which consisted
of campaigning on behalf of a friend. This is not sufficient to compel a conclusion
that there was a connection between his political activity and the ELN’s actions
against him.
Accordingly, we deny Vesga’s petition for review of his withholding of
removal claim.
PETITION DISMISSED, in part; DENIED, in part.
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