Margarita Saldarriaga v. U.S. Attorney General , 177 F. App'x 21 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-15084 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 12, 2006
________________________ THOMAS K. KAHN
CLERK
BIA Nos. A95-219-545 & A95-219-547
MARGARITA SALDARRIAGA,
JORGE EDUARDO VARGAS BAEZ,
SERGIO ARTURO VARGAS SALDARRIAGA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(April 12, 2006)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Petitioners Margarita Saldarriaga (“Saldarriaga”), Jorge Eduardo Vargas
Baez (“Jorge”), and Sergio Arturo Vargas Saldarriaga (“Sergio”) (collectively
“petitioners”), all citizens of Colombia, through counsel, petition this court for
review of the Board of Immigration Appeals’ (“BIA’s”) order affirming without
opinion the immigration judge’s (“IJ’s”) decision to deny their application for
asylum and withholding of removal under the Immigration and Nationality Act
(“INA”).1 The petitioners argue that the IJ erred in determining that Saldarriaga
did not suffer past persecution or the threat of future persecution based on six
threats that she received from being a member of the Liberal Party, including a
threat from a man who identified himself as a member of the National Liberation
Army (“ELN”). The petitioners argue that the IJ erred in applying a standard of
“physical mistreatment” or “harm” to establish past persecution and in finding that
there was no correlation between Saldarriaga’s political activities and the
guerrillas. The petitioners further argue that the IJ erred in determining that
Saldarriaga could relocate in Colombia and in finding that Saldarriaga was not
credible.
We review the IJ’s decision in this case, not the BIA’s, because the BIA
affirmed the IJ’s decision without opinion, thereby making the IJ’s decision the
final agency determination. See 8 C.F.R. § 1003.1(e)(4)(ii); Mendoza v. U.S. Att’y
1
The petitioners do not challenge in this court the denial of relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”), and, thus, this issue is abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d. 1226, 1228
n.2 (11th Cir. 2005).
2
Gen., 327 F.3d 1283, 1284 n.1. (11th Cir. 2003). To the extent that the IJ’s
decision was based on a legal determination, review is de novo. D-Muhumed v.
U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). However, we examine factual
findings under the substantial evidence test. Id. at 817-18. Under this highly
deferential standard of review, the IJ’s decision must be deferred to if supported by
substantial evidence, unless the evidence “compels” a reasonable factfinder to find
otherwise. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1, 112 S. Ct. 812, 815 n.1,
117 L. Ed. 2d 38 (1992). Therefore, a finding of fact will be reversed “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 . . . .” Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004), cert. denied, 125 S. Ct. 2245 (2005); see also 8
U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary .
. . .”).
We also review credibility determinations under the substantial evidence
test.2 Ruiz v. U.S. Att’y Gen., No. 05-13987, ___ F.3d __ (11th Cir. Jan. 4, 2006).
2
The REAL ID Act of 2005 amended credibility determinations, adding INA
§§ 208(b)(3)(B)(iii), 240(c)(4)(C), 8 U.S.C. §§ 1158(b)(3)(B)(iii), 1229a(c)(4)(C). Section
101(a)(3) and (d), Pub. L. No. 109-13, 119 Stat. 231, 303, 304-05. The Act states that these
provisions “shall apply to applications for asylum, withholding, or other relief from removal made
on or after” the date of enactment of the act, May 11, 2005, and, thus, the provisions do not affect
this appeal. Pub. L. No. 109-13, 119 Stat. at 305.
3
The trier of fact determines credibility under this test, and this court “may not
substitute its judgment for that of the [IJ] with respect to credibility findings.”
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quotation
omitted). Furthermore,
[T]he IJ must offer specific, cogent reasons for an adverse credibility
finding. Once an adverse credibility finding is made, the burden is on
the applicant alien to show that the IJ’s credibility decision was not
supported by specific, cogent reasons or was not based on substantial
evidence. A credibility determination, like any fact finding, may not
be overturned unless the record compels it.
Id. at 1287 (citations and quotations omitted).
Any alien who arrives in or is present in the United States may apply for
asylum, which the Secretary of Homeland Security or the Attorney General (“AG”)
has discretion to grant if the alien is a “refugee” as defined in 8 U.S.C.
§ 1101(a)(42)(A). See INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A), as amended
by the REAL ID Act § 101(c), Pub. L. No. 109-13, 119 Stat. 231, 302 (2005); Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). That statute defines a
“refugee” 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 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 . . . .
4
8 U.S.C. § 1101(a)(42)(A) (emphasis added). The asylum applicants carry the
burden of proving statutory “refugee” status and thereby establishing asylum
eligibility. 8 C.F.R. § 208.13(a); D-Muhumed, 388 F.3d at 818.
“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 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.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230-
31 (11th Cir. 2005) (citing 8 C.F.R. § 208.13(a), (b)). Absent corroborating
evidence, the applicant’s testimony, “if credible, may be sufficient to sustain the
burden of proof.” 8 C.F.R. § 208.13(a).
Neither the INA nor the regulations define “persecution.” We have stated,
however, that “persecution is an extreme concept, requiring more than few isolated
incidents of verbal harassment or intimidation, and . . . mere harassment does not
amount to persecution.” Sepulveda, 401 F.3d at 1231 (quotations omitted). To be
an act of persecution, the behavior must threaten death, punishment, or the
infliction of substantial harm or suffering. See Sharif v. INS, 87 F.3d 932, 935 (7th
Cir. 1996). “Threats alone generally do not constitute actual persecution; only
rarely, when they are so immediate and menacing as to cause significant suffering
or harm in themselves, do threats per se qualify as persecution.” Vatulev v.
5
Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003). “To qualify as persecution, a
person’s experience must rise above unpleasantness, harassment, and even basic
suffering.” Nelson v. INS, 232 F.3d 258, 263-64 (1st Cir. 2000) (citing various
cases regarding past persecution and finding that three episodes of solitary
confinement accompanied by physical abuse did not constitute persecution).
“A showing of past persecution creates a presumption of a ‘well-founded
fear,’ subject to rebuttal by the INS.” Sepulveda, 401 F.3d at 1231 (citing 8 C.F.R
§ 208.13(b)(1)). If, however, the alien does not establish past persecution, she
bears the burden of demonstrating a well-founded fear of persecution by showing
that (1) she fears persecution based on her political opinion or other statutorily
listed factor; (2) there is a reasonable possibility she will suffer persecution if
removed to her native country; and (3) she could not avoid persecution by
relocating to another part of her country, if under all the circumstances it would be
reasonable to expect relocation. See 8 C.F.R. § 208.13(b)(2), (3)(i); see also
Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320, 1327 (11th Cir. 2001)
(holding that the petitioner must show that she could not avoid persecution by
relocating to another part of her country if it was possible).
To establish eligibility for withholding of removal under the INA, the alien
must show that it is more likely than not that, if she returned to her country, her life
or freedom would be threatened because of one of the five covered grounds.
6
Sepulveda, 401 F.3d at 1232. Where an applicant fails to establish a claim of
asylum on the merits, her other claims for withholding of removal under the INA
generally fail. Forgue, 401 F.3d at 1288 n.4.
Here, the record demonstrates that the IJ provided specific, cogent reasons
for finding Saldarriaga not credible, specifically listing several facets of
Saldarriaga’s story that the IJ found incredible, and which were supported by
substantial evidence. Thus, a reasonable factfinder would not be compelled to
reach a conclusion different than the IJ. Forgue, 401 F.3d at 1287. In addition,
even if Saldarriaga was credible, she was not eligible for asylum because
substantial evidence supports the IJ’s finding that Saldarriaga neither has suffered
past persecution nor has a well-founded fear of future persecution because, while
the events that Saldarriaga described may have been unpleasant, they amount more
to isolated incidents of verbal harassment or intimidation, which is not persecution.
See Sepulveda, 401 F.3d at 1231. Further, Saldarriaga cannot establish a fear of
future persecution because she has not shown that there is a reasonable possibility
that she will suffer persecution if removed to Colombia or that she could not avoid
persecution by relocating to another part of that country. See 8 C.F.R.
§ 208.13(b)(2), (3)(i). Because the petitioners failed to establish a claim of asylum,
their petition for withholding of removal under the INA also fail, as it requires a
more stringent standard to be satisfied. See Forgue, 401 F.3d at 1288 n.4.
7
For the above-stated reasons, we deny the Petition for Review.
PETITION DENIED.
8