Ricardo E. Villarreal v. U.S. Attorney General , 192 F. App'x 908 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 11, 2006
No. 05-15770 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A78-581-700
A77-921-883
RICARDO E. VILLARREAL,
LUZ MARINA LLANOS ROJAS,
JUAN VILLARREAL LLANOS,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 11, 2006)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Ricardo E. Villarreal, Luz Marina Llanos Rojas, and Juan Villarreal Llanos,
through counsel, petition for review of the Board of Immigration Appeals’s
(“BIA”) decision. The BIA affirmed the Immigration Judge’s (“IJ”) order denying
their application for asylum and for withholding of removal under the Immigration
and Nationality Act (“INA”) and the United Nations Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment.1 For the
reasons set forth below, we grant the petition in part, dismiss in part, and remand to
the BIA for further proceedings.
I.
Petitioners contend that their application for asylum was not time-barred
because their late filing was justified. The government argues that we do not have
jurisdiction to review the BIA’s finding on this issue.
We review subject-matter jurisdiction de novo. Brooks v. Ashcroft, 283
F.3d 1268, 1272 (11th Cir. 2002). An alien can apply for asylum if he
“demonstrates by clear and convincing evidence that the application has been filed
within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. §
1158(a)(2)(B). However, “[a]n application for asylum of an alien may be
considered . . . if the alien demonstrates to the satisfaction of the Attorney General
1
Petitioners do not make any argument on appeal regarding the United Nations Convention
Against Torture. They argue only that the BIA improperly denied their applications for asylum and
withholding of removal.
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either the existence of changed circumstances which materially affect the
applicant’s eligibility for asylum or extraordinary circumstances relating to the
delay in filing an application within the period specified . . . .” 8 U.S.C. §
1158(a)(2)(D). Although the BIA may consider an untimely asylum application
where the applicant meets one of the exceptions to the one-year deadline, “no court
shall have jurisdiction to review any determination of the Attorney General under
[section 1158(a)(2)].” Mendoza v. U.S. Att’y General, 327 F.3d, 1283, 1287 (11th
Cir. 2003) (quoting 8 U.S.C. § 1158(a)(3)) (alteration in original). We have held
that § 1158(a)(3) divests this court of jurisdiction to review the BIA’s
determination that an asylum applicant filed an untimely application and failed to
establish changed or extraordinary circumstances to excuse his untimely filing.
See id. We have recently held that jurisdictional provisions in the REAL ID Act of
2005, Pub. L. No. 109-13, 119 Stat. 231, 310 (2005), did not affect prior
precedents on this issue, such as Mendoza. Chacon-Botero v. U.S. Att’y General,
427 F.3d 954, 957 (11th Cir. 2005).
The IJ determined that petitioners’ asylum application was untimely and that
they had failed to establish changed or extraordinary circumstances to excuse the
untimeliness. Accordingly, we lack jurisdiction to consider petitioners’ argument
on appeal that the BIA erred in this regard, and we dismiss the petition for review
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as to petitioners’ claims for asylum.
II.
Next, petitioners challenge the BIA’s denial of their withholding of removal
claim. Petitioners argue that they have suffered past persecution and have a well-
founded fear of future persecution because of Villarreal’s political opinion. In a
withholding of removal claim, 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. 8 U.S.C. §
1231(b)(3). The alien must show that it is “more likely than not that she will be
persecuted or tortured upon being returned to her country.” Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005).
“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 INS 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. “An alien who has not shown past persecution,
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though, 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.In evaluating a claim for withholding of removal, an IJ does not have the
discretion to refrain from making a determination as to the existence of past
persecution if the applicant has presented credible evidence of such persecution.
Antipova v. U.S. Att’y Gen., 392 F.3d 1259, 1265 (11th Cir. 2004). The failure to
make such a determination precludes meaningful review. Id.In the instant case, Villarreal presented evidence that his wife was abducted
in Colombia for four hours because of his political activity. The IJ found this
evidence credible, but failed to make a determination of whether Villarreal had
suffered past persecution.2 If Villarreal suffered past persecution, he is entitled to a
presumption that his life or freedom would be threatened by returning to Colombia.
In that situation, the burden would shift to the INS to prove, by a preponderance of
the evidence, that Villarreal’s life or freedom is not threatened in Colombia. Here,
the IJ did not apply that presumption, although the IJ found Villarreal’s testimony
credible. The IJ stated:
Even though I’ve viewed the record in the likable [sic] favor to the
respondent, even though I find that the respondent’s family did suffer
some mistreatment, the wife was kidnaped, I cannot find that the
record would allow me to find that it is more likely than not that the
2
Rojas and Llanos are deriative claimants on Villarreal’s application.
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respondent or a family member would suffer persecution in the future
if the family had to return to Colombia.
The IJ mentioned past mistreatment, but only discussed it in relation to whether
Villarreal and his family had a well-founded fear of future persecution. The IJ did
not make any explicit finding with regard to whether or not Villarreal or his family
suffered past persecution.
“Where an applicant for withholding of removal sets forth credible evidence
that she has suffered past persecution in the proposed country of removal, 8 C.F.R.
§208.16(b)(1)(i) requires the IJ to make a finding regarding past persecution.”
Antipova, 392 F.3d at 1265. Here, the IJ made no determination of whether
petitioners had suffered past persecution in Colombia. The IJ’s failure to make the
appropriate determination, and the BIA’s failure to rectify the error, precludes our
meaningful review of the merits of the removal order. Accordingly, we vacate the
removal order as to this issue and remand to the BIA for a finding regarding past
persecution and the applicability of a presumption of a future threat to petitioners’
life or freedom.
PETITION DISMISSED IN PART, GRANTED IN PART AND
REMANDED FOR FURTHER PROCEEDINGS.
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