Ovidio Saavedra v. U.S. Attorney General , 221 F. App'x 902 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 29, 2007
No. 06-14189 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A97-622-136
A97-622-137
OVIDIO SAAVEDRA,
FABIOLA CASTRO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 29, 2007)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
Ovidio Saavedra, a Colombian national, petitions for review of the final
order of the Board of Immigration Appeals (BIA), which affirmed the Immigration
Judge’s (IJ’s) denial of his application for asylum and withholding of removal. 8
U.S.C. §§ 1158, 1231(b)(3).1 Substantial evidence supports the IJ’s and BIA’s
decisions. We deny the petition.
The BIA adopted the IJ’s decision and made some additional findings; thus,
we review both decisions. See Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954,
956 (11th Cir. 2005). “[F]indings of fact are reviewed under the substantial
evidence test,” and we must affirm the decision “if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Antipova
v. U.S. Att’y Gen., 392 F.3d 1259, 1261 (11th Cir. 2004) (quotations omitted). “To
reverse the IJ’s fact findings, we must find that the record not only supports
reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th
Cir. 2003).
An 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 has
1
As an initial matter, we lack jurisdiction to consider claims a petitioner failed to raise
before the BIA, even if the BIA addressed the issue sua sponte. Amaya-Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). Saavedra did not raise his Convention Against
Torture claim in his appeal to the BIA. Thus, we lack jurisdiction over that claim.
2
discretion to grant if the alien meets the INA’s definition of a “refugee.” 8 U.S.C.
§ 1158(a)(1), (b)(1). 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.
8 U.S.C. § 1101(a)(42)(A). To establish asylum eligibility, the alien must establish
(1) past persecution on account of a protected ground, or (2) a well-founded fear
that a protected ground will cause future persecution. 8 C.F.R. § 208.13(a), (b).
“[P]ersecution is an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation.” Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1231 (11th Cir. 2005) (quotations omitted). In Sepulveda, we upheld
the IJ’s finding the petitioner had not demonstrated past persecution, where the
petitioner alleged (1) she received three threatening phone calls from ELN
members, (2) ELN members placed a bomb in a mailbox at her workplace, which
exploded just after her shift ended, and (3) her brother was threatened due to her
political activities. Id.Saavedra testified the ELN threatened him over the phone and vandalized
his door, but these problems ceased when he relocated to his sister’s house. He
3
had no other problems until he ventured into an area he knew to be dangerous, and
a guerilla shot at his car as he sped off from a roadblock. As in Sepulveda, these
circumstances do not compel a conclusion the IJ erred in finding Saavedra did not
suffer past persecution.
A showing of past persecution creates a presumption of a well-founded fear
of future persecution. 8 C.F.R. § 208.13(b)(1). “[A]n applicant must demonstrate
that his or her fear of persecution is subjectively genuine and objectively
reasonable.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir. 2001).
“[W]here the alleged persecutors are not affiliated with the government, it is not
unreasonable to require a refugee who has an internal resettlement alternative in his
own country to pursue that option before seeking permanent resettlement in the
United States.” Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320, 1327 (11th
Cir. 2001).
Saavedra testified the police quickly responded to protect his apartment after
his door was vandalized, and he experienced no problems while living with his
sister as long as he did not venture into guerilla-infested areas. Saavedra further
testified that his friend, Dr. Salazar, a member of his political movement who was
kidnaped by the ELN in 1998, continued to live in a guerilla stronghold until 2003,
suffering no further persecution. The IJ’s conclusion that Saavedra lacked a well-
founded fear of future persecution was supported by substantial evidence, and the
4
record does not compel the conclusion that Saavedra’s notoriety as an activist
would cause the ELN to target him on his return to Colombia. See Sepulveda, 401
F.3d at 1231-32 (finding because the petitioner did not show that her notoriety as
an activist would lead the ELN to seek her out for persecution, the record did not
compel a finding that she had a well-founded fear of future persecution).
Because the evidence does not compel the conclusion that Saavedra
established the standards for asylum relief, he necessarily has not established the
more stringent standards for withholding of removal. See Zheng v. U.S. Att’y Gen.,
451 F.3d 1287, 1292 (11th Cir. 2006), cert. denied, 127 S. Ct. 1124 (2007) (stating
an alien unable to meet the stringent asylum standard necessarily fails the more
stringent withholding of removal analysis).
PETITION DISMISSED in part and DENIED in part.
5