Olga Patricia Montes v. U.S. Attorney General , 202 F. App'x 378 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 25, 2006
No. 05-17207 THOMAS K. KAHN
________________________ CLERK
Agency No. A95-905-140
OLGA PATRICIA MONTES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 25, 2006)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Olga Patricia Montes, a native and citizen of Colombia, seeks review of a
final order of the Board of Immigration Appeals. The BIA’s order affirmed an
Immigration Judge’s denial of her application for asylum and withholding of
removal under the Immigration and Nationality Act. Because substantial evidence
supports the IJ’s decision to deny asylum and not to withhold removal, we deny
Montes’ petition.
I.
Through her asylum application and hearing testimony, Montes relayed an
account—which the IJ accepted—of several unnerving encounters with the Armed
Revolutionary Forces of Colombia (FARC). These encounters began while she
worked as an administrative assistant for the National University Institute for
Environmental Studies. There she became involved in a special university road
building project, which FARC apparently opposed. In August 2001, while alone
on a visit to a construction site, a man claiming to be a FARC member approached
Montes and demanded that she induce her University superiors to reroute the road.
She refused the man’s request, saying that she had no influence over such matters.
FARC was persistent. The next month, again while traveling in connection
with work, Montes received a nighttime visit at her hotel room from two
unidentified women. The women took Montes to an undisclosed location where
they hit her and, using abusive language, again instructed her to get the route
changed. Failing to do so, the women warned, would produce consequences. The
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women, presumably FARC operatives, followed up this episode with a phone call
in early October 2001. During the call, they told Montes they were watching her
and that she had placed her own safety and security in jeopardy for not complying
with the earlier orders to get the new road rerouted. Finally, in mid-October, a
letter, allegedly from FARC, was sent to her sons at school. It told Montes’ sons
that their mother was now a military target because she had rejected the group’s
demands.
Montes took all of this as a sign that she and her sons needed to leave, and
soon. So she and her children came to the United States in early November 2001
as non-immigrant visitors allowed to remain until the next May. Several months
after arriving, Montes’ concerns grew when she heard that someone had ransacked
her abandoned Bogota apartment. In late July 2002, however, Montes received a
notice to appear before the IJ, which alleged that she and her sons were subject to
removal under the INA for overstaying their visa.
In proceedings before the IJ, Montes conceded that she was subject to
removal, but proceeded on her application for asylum under the INA and for
withholding of removal under the INA and the Convention Against Torture and
Other Cruel, Inhumane or Degrading Treatment or Punishment.1 In an oral
1
Montes’ children were eventually severed from the removal hearing on the basis that the
children’s father, Montes’ common law husband, had received asylum.
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decision, the IJ denied all of her application, notwithstanding the fact that he had
generally accepted all of Montes’ story. The IJ reasoned that FARC’s threats and
harassment did not amount to persecution under the INA and that it appeared that
FARC had not imputed any political opinion to Montes. Unable to meet the lower
“well-founded fear” standard for proving asylum, it followed that Montes did not
establish the more stringent “clear probability of persecution” standard required to
withhold her removal. Finally, because FARC is not a part of the Colombian
government, the IJ determined that the provisions of the Convention Against
Torture were inapplicable.
The BIA expressly adopted and affirmed the IJ’s decision, adding only that
it endorsed the IJ’s finding that FARC had not targeted Montes on account of any
political opinion. Montes’ petition for review followed.
II.
Because the BIA expressly adopted the IJ’s decision, that is the decision we
review. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). In doing
so, we review de novo the BIA’s legal conclusions. D-Muhumed v. United States
Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). By contrast, we review the BIA’s
factual determinations under the deferential substantial evidence test and will
affirm its decision “if it is supported by reasonable, substantial, and probative
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evidence on the record considered as a whole.” Id. at 817–18 (quoting Al Najjar,
257 F.3d at 1283–84) (quotations omitted). “To reverse the IJ’s fact findings, we
must find that the record not only supports reversal, but compels it.” Mendoza v.
United States Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
The crux of Montes’ appeal is that “the Immigration Judge neglected to
analyze the case correctly, as [Montes] clearly demonstrated that she was being
persecuted due to her imputed political opinion.”2 (Petr.’s Br. 11.) This imputed
political opinion, Montes argues, was that of her University employer whose road
building projects “involv[ed] political issues.” (Id.) We take Montes’ argument as
a challenge both to the IJ’s conclusion that Montes had not been subject to
“persecution” within the meaning of the INA and to the IJ’s finding that FARC had
not imputed any political opinion to her.
These grounds of the IJ’s decision are rooted in the INA’s definition of the
term “refugee,” a statutory prerequisite for asylum. 8 U.S.C. § 1158(b)(1)(A). The
INA defines a “refugee” as:
2
Montes makes no argument as to her eligibility for relief under the Convention Against
Torture and therefore has abandoned the issue. See Huang v. United States Att’y Gen., 429 F.3d
1002, 1007 n.2 (11th Cir. 2005). In her brief, Montes does note that her two children and husband
were granted asylum, and that the IJ stated that the “immigration laws are steeped in keeping
families together.” (Petr.’s Br. 14.) She does not, however, elaborate on this argument. See
Flanigan’s Enters., Inc. of Ga. v. Fulton County, Ga., 242 F.3d 976, 987 n.16 (11th Cir. 2001)
(noting that a party waives an argument when it fails to elaborate on it or cite authority in support
of it in its brief).
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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 . . . .
8 U.S.C. § 1101(a)(42)(A). An applicant for asylum carries the burden of
establishing his status as a refugee. See Al Najjar, 257 F.3d at 1284. Thus, to be
eligible for asylum, the alien must offer specific and credible evidence to 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).
We agree with the BIA “that the evidence indicates that . . . FARC targeted
[Montes] because of her refusal to assist FARC . . . rather than on account of her
political opinion, actual or imputed.” The FARC members’ comments to Montes
revealed an interest in her for purely pragmatic reasons. Even assuming the
University’s opinion as to the roadway location constitutes a “political opinion”
within the meaning of the INA, there is no evidence that FARC imputed that
opinion to Montes. Instead, the evidence shows that FARC viewed Montes as
someone who had the ability to influence the University’s plans for the roadway
regardless of her own opinion. See Sanchez v. United States Att’y Gen., 392 F.3d
434, 438 (11th Cir. 2004) (refusal to cooperate with guerilla group was not
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persecution on the basis of a political opinion). Rather than compel a finding
contrary to that of the IJ, the record supports the IJ’s determination that FARC was
not harassing Montes on account of her own political opinion, actual or imputed.
Having failed to show past persecution or a “well-founded fear” of
persecution on account of any statutorily listed factor, Montes does not qualify as a
refugee. We thus need not address the issue of whether Montes’ FARC encounters
amount to harassment. The BIA properly denied her application for asylum.
It likewise follows that the BIA properly denied Montes’ request for
withholding of removal. “An applicant for withholding of deportation must show a
‘clear probability of persecution,’ or that he will more likely than not be persecuted
if deported. If an applicant is unable to meet the ‘well-founded fear’ standard for
asylum, he is generally precluded from qualifying for either asylum or withholding
of deportation.” Nkacoang v. INS, 83 F.3d 353, 355 (11th Cir. 1996) (internal
citations omitted). Because Montes was not eligible for asylum, the denial of the
withholding of removal was proper as well.
PETITION DENIED.
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