Luz Ledy Sandoval v. U.S. Attorney General , 212 F. App'x 893 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-13216 DECEMBER 28, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
BIA Nos. A95-228-974 & A95-228-975
LUZ LEDY SANDOVAL,
CARLOS ALBERTO GIRALDO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 28, 2006)
Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Lead petitioner, Luz Ledy Sandoval, and her husband, Carlos Alberto
Giraldo, both natives and citizens of Colombia, petition this Court to review the
final order of the Board of Immigration Appeals (“BIA”) adopting and affirming
the Immigration Judge’s (“IJ’s”) denial of asylum and withholding of removal
under the Immigration and Nationality Act (“INA”), and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (“CAT”). The IJ concluded that Sandoval had not
carried her burden to establish eligibility for asylum, because the incidents she
described “amount[ed] to civil chaos and/or generally dangerous conditions that
exist in Colombia [and] that affect all citizens[,]” and that Sandoval was a victim
of “civil strife that exists in Colombia.” On review, Sandoval argues that she was
entitled to asylum because she established past persecution, or a fear of future
persecution, by the National Liberation Army (“ELN”) on account of her
memberships in the Liberal Party and in the Convergence Party.1 After careful
consideration, we deny the petition.
In the case at bar, the BIA issued a decision in which it adopted the IJ’s
reasoning and did not make additional findings. “We therefore review the IJ’s
decision as if it were the BIA’s.” Wei Chen v. U.S. Att’y Gen., 463 F.3d 1228,
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Sandoval challenges only the denial of asylum under the INA. Accordingly, we do not
review the denial of withholding of removal under the INA or relief under the CAT, as any
arguments as to those claims are deemed abandoned. See Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1228 n.2 (11th Cir. 2005) (holding that, when an applicant fails to raise arguments
regarding an issue on appeal, that issue is deemed abandoned).
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2006 WL 2570870 at *2 (2006). As the fact-finder, it is the IJ’s duty to determine
credibility, and we will not substitute our judgment for that of the IJ with respect to
credibility findings. See Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th
Cir. 1977) (citation omitted). The IJ’s factual determination that an alien is not
entitled to asylum must be upheld if it is supported by substantial evidence. See
Mazariegos v. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001). Under this
highly deferential standard of review, a denial of asylum may be reversed only if
the evidence would compel a reasonable factfinder to find that the requisite fear of
persecution exists. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); see
also 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”).
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). 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 any person who is
unwilling to return to her home country or to avail himself of that country’s
protection “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 . . . .” 8 U.S.C. § 1101(a)(42)(A).
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The asylum applicant carries the burden of proving statutory “refugee”
status. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001); 8 C.F.R. §
208.13(a). The applicant satisfies this burden by showing, with specific and
credible evidence: (1) past persecution on account of a statutorily listed factor, or
(2) a “well-founded fear” that her statutorily listed factor will cause future
persecution. Al Najjar, 257 F.3d at 1287; 8 C.F.R. § 208.13(a), (b). “To establish
asylum based on past persecution, the applicant must prove (1) that she was
persecuted, and (2) that the persecution was on account of a protected ground.”
Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (citations omitted)
(emphasis added). “Demonstrating such a connection requires the alien to present
specific, detailed facts showing a good reason to fear that he or she will be singled
out for persecution on account of” a statutory factor. Al Najjar, 257 F.3d at 1287
(quotations omitted). We have held that persecution is 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 alterations omitted).
If the alien establishes past persecution, it is presumed that her life or
freedom would be threatened upon return to the country of removal unless the
government shows by a preponderance that the country’s conditions have changed
such that the applicant’s life or freedom would no longer be threatened or that the
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alien could relocate within the country and it would be reasonable to expect him to
do so. 8 C.F.R. §§ 208.13(b), 208.16(b). An alien who has not shown past
persecution may still be entitled to asylum if she can demonstrate a fear of future
persecution on account of a statutorily protected ground. 8 C.F.R. §§ 208.13(b)(2),
“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, that is (2) on account of a protected ground.”
Silva, 448 F.3d at 1236 (citations omitted). If an applicant satisfies these
requirements, she then must show that the persecution cannot be avoided by
relocating in the subject country. See Sepulveda, 401 F.3d at 1231; 8 C.F.R.
§ 208.13(b)(2)(ii).
Here, substantial evidence supports the IJ’s and the BIA’s denial of asylum
relief. Sandoval testified that between March 2000 and March 2001, she received
threatening telephone calls from members of the ELN and the letters “ELN” were
painted on her house. She further testified that a group of men -- suspected
guerilla members -- went looking for her at her parents’ house. There is no
evidence in the record, however, that either Sandoval or her husband were
physically harmed or ever confronted by the ELN. Mere harassment, without
more, is insufficient to establish persecution, as “persecution is an extreme
concept, requiring more than a few isolated incidents of verbal harassment or
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intimidation.” Sepulveda, 401 F.3d at 1231. “Not all exceptional treatment is
persecution.” Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000). We have
made clear that threatening phone calls and letters constitute mere “harassment and
intimidation,” and that they fail to rise to the level of persecution. Silva, 448 F.3d
at 1237; see also Sepulveda, 401 F.3d at 1231 (stating that “menacing telephone
calls and threats . . . do not rise to the level of past persecution that would compel
reversal of the IJ’s decision”) (citation omitted)). In short, the threatening phone
calls and other isolated incidents described by Sandoval do not rise to the level of
“past persecution” under the INA.
The record also supports the IJ’s determination that Sandoval did not
establish a well-founded fear of future persecution by the ELN. Sandoval and her
family lived in Colombia without incident from 1996 to 2000 and Sandoval failed
to present specific evidence that the ELN maintains an interest in harming her or
that she would be singled out for persecution by the ELN if she returned to
Colombia, where her parents continue to live without incident. Because Sandoval
did not show that she suffered past persecution or that she has a well-founded fear
of future persecution based on a protected ground, she did not establish eligibility
for asylum. Accordingly, we deny the petition for review.
PETITION DENIED.
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