Sandra Mercedes Sarmiento-Rodriguez v. U.S. Atty. , 181 F. App'x 919 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15745 MAY 25, 2006
No. 05-15747 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
BIA Nos. A78-311-070 & A78-311-071
SANDRA MERCEDES SARMIENTO-RODRIGUEZ
DIOMAR JESUS RODRIGUEZ-SANTIAGO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 25, 2006)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Diomar Jesus Rodriguez-Santiago (Rodriguez) and Sandra Mercedes
Sarmiento-Rodriguez, natives and citizens of Colombia, petition for review of the
Board of Immigration Appeals’ final order which adopted and affirmed the
immigration judge’s denial of their claims for asylum, withholding of removal
under the Immigration and Nationality Act (INA), and protection under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (CAT).1 We deny the petition.
The petitioners contend that Rodriguez was persecuted by guerrillas and
paramilitaries on account of his imputed political opinion. They assert that the
guerrillas imputed to Rodriguez an anti-guerrilla opinion because he would not
cooperate with them. They argue that the paramilitaries imputed to him a pro-
guerrilla opinion because Rodriguez’s home town is Teorama, which is known as a
guerilla stronghold. They say that although Rodriguez had resided in Bogota for
seventeen years, paramilitaries would know that he is from Teorama because his
national identity documents indicate that. The petitioners allege that Rodriguez
was subjected to verbal threats when he visited Teorama.
As an initial matter, in the petitioners’ application for asylum, they asserted
that Rodriguez was persecuted on account of political opinion, religion, and
1
The appeals of Rodriguez and his wife, Sandra Mercedes Sarmiento-Rodriguez, have
been consolidated.
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membership in a social group. However, in their petition to this Court they only
argue that Rodriguez was persecuted on account of his imputed political opinion.
Therefore, they have abandoned the arguments concerning religion and
membership in a social group. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005) (“When an appellant fails to offer argument on an issue,
that issue is abandoned.”). The petitioners also do not challenge the BIA’s and IJ’s
denial of withholding of removal under the INA and denial of protection under the
CAT, so they have abandoned those claims. See id.When the BIA issues a decision, we review only that decision, “except to the
extent that it expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). “Insofar as the Board adopts the IJ’s reasoning, we
review the IJ’s decision as well.” Id. In this case, the BIA expressly adopted the
IJ’s decision with regard to the denial of the petitioner’s claims for asylum.
Accordingly, we will review the IJ’s decision. See Al Najjar, 257 F.3d at 1284.
To the extent that the IJ’s and BIA’s decisions were 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). The IJ’s and BIA’s factual determinations are reviewed
under the substantial evidence test, and we must affirm those decisions “if . . .
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Al Najjar, 257 F.3d at 1283-84 (quotation omitted). The
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substantial evidence test is “deferential” and does not allow “re-weigh[ing] the
evidence from scratch.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th
Cir. 2001) (quotations omitted). “To reverse the IJ’s fact findings, we must find
that the record not only supports reversal, but compels it.” Mendoza, 327 F.3d at
1287.
As we have discussed, in the present case we will review only the asylum
claims because the petitioners have waived the other ones. Based on Rodriguez’s
testimony, which the IJ found credible, as well as the other evidence in the record,
the IJ denied Rodriguez’s and his wife’s claims for asylum. The IJ found that all
of the problems about which Rodiguez testified occurred during his visits to
Teorama, and nothing directly happened to him in Bogota, where he had resided
for seventeen years. Therefore, the IJ concluded that Rodriguez and his wife had
not demonstrated that they had a well-founded fear of persecution throughout
Colombia.
An alien may be granted asylum if he meets the INA’s definition of a
“refugee.” See 8 U.S.C. § 1158(b)(1)(A). A refugee is defined as:
any person who is outside any country of such person’s nationality or, in the
case of a person having no nationality, is outside any country in which such
person last habitually resided, 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.
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8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving
refugee status. See Al Najjar, 257 F.3d at 1284.
To establish asylum eligibility, the alien must, with specific and credible
evidence, establish (1) past persecution on account of a statutorily listed factor, or
(2) a “well-founded fear” that the statutorily listed factor will cause future
persecution. 8 C.F.R. § 208.13(a), (b). “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, which in
this case is Rodriguez’s imputed political opinion. Al Najjar, 257 F.3d at 1287
(citations and quotation marks omitted). We have held that “[a]n imputed political
opinion, whether correctly or incorrectly attributed, may constitute a ground for a
well-founded fear of political persecution within the meaning of the INA.” Al
Najjar, 257 F.3d at 1289 (citations and quotation marks omitted).
“To qualify for withholding of removal based on persecution by a guerilla
group on account of a political opinion, [a petitioner] must establish that the
guerillas persecuted her or will seek to persecute her in the future because of her
actual or imputed political opinion.” Sanchez v. U.S. Att’y Gen., 392 F.3d 434,
438 (11th Cir. 2004). In making that showing, “[i]t is not enough to show that [the
petitioner] was or will be persecuted or tortured due to her refusal to cooperate
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with the guerillas.” Id.An applicant who has not shown past persecution may be entitled to asylum
if he can demonstrate a well-founded fear of future persecution based on a
statutorily protected ground. 8 C.F.R. § 208.13(b). To establish a well-founded
fear, “an applicant must demonstrate that his or her fear of persecution is
subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289. If
the BIA finds that the applicant could avoid a future threat by relocating to another
part of his country, he cannot demonstrate a well-founded fear of persecution. See
8 C.F.R. § 208.13(b)(1)-(2); Mazariegos, 241 F.3d at 1327.
In the present case, substantial evidence supports the IJ’s denial of asylum.
The petitioners failed to establish that Rodriguez was singled out for persecution.
The evidence showed that the paramilitaries generally harassed people and that the
guerrillas generally harassed people who did not cooperate with them. See Al
Najjar, 257 F.3d at 1287.
Also, the two threats Rodriguez received from the guerrillas over a two-year
period did not rise to the level of persecution. See Sepulveda, 401 F.3d at 1231(“[P]ersecution is an extreme concept, requiring more than a few isolated incidents
of verbal harassment or intimidation,” and “mere harassment does not amount to
persecution.”). Those threats were isolated incidents of harassment rather than
persecution. See id. Moreover, Rodriguez did not have problems with guerrillas
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or paramilitaries while living in Bogota for seventeen years. Thus, the record
shows that he could avoid persecution by living in Bogota, and the petitioners
failed to establish that they could not relocate within Colombia. See Mazariegos,
241 F.3d at 1327.
The petitioners’ argument that the guerrillas imputed to Rodriguez an anti-
guerrilla political opinion because he refused to cooperate with them is without
merit because refusing to cooperate with guerrillas does not constitute a political
opinion. See Sanchez, 392 F.3d at 438. Therefore, the petitioners failed to
establish that Rodriguez was persecuted on a protected ground.
PETITION DENIED.
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