Clemente Gomez v. U.S. Attorney General , 274 F. App'x 829 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 22, 2008
No. 07-13568 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A79-475-849
CLEMENTE GOMEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 22, 2008)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Clemente Gomez, a native and citizen of Colombia, seeks review of the
Board of Immigration Appeals’s (“BIA”) decision, affirming the Immigration
Judge’s (“IJ”) order finding him removable and denying his applications for
asylum, withholding of removal, and relief based on the United Nations
Convention on Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”). The BIA affirmed the IJ’s findings that any persecution or
fear of persecution by the Revolutionary Armed Forces of Colombia (“FARC”)
that Gomez might have suffered was solely on account of his governmental
contacts through his work as a salesperson and, thus, lacked a nexus to one of the
five enumerated grounds in the Immigration and Nationality Act (“INA”) to
establish eligibility for asylum and withholding of removal. On petition for
review, Gomez contends that he met his burden in proving eligibility for asylum
and withholding of removal, contending that he was persecuted, and fears future
persecution, by the FARC on account of: (1) his political opinion and imputed
political opinion, based on his contacts with government officials; and (2) his
membership in a particular social group consisting of his family, because his
brother was killed, allegedly for his failure to cooperate with the FARC.
The BIA’s factual determinations are reviewed under the substantial
evidence test, and we “must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
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whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (quotation
omitted). We lack jurisdiction to consider claims that Gomez raises in his petition
for review unless he exhausted his administrative remedies with respect thereto by
raising them before the BIA, regardless of whether the BIA addressed the claims
sua sponte. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.
2006).
The Attorney General or the Secretary of Homeland Security has discretion
to grant asylum if an 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 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 . . . .
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). As the asylum applicant, Gomez
carried the burden of proving his statutory “refugee” status. See Al Najjar, 257
F.3d at 1284. In order to have carried this burden, Gomez must have, with specific
and credible evidence, established (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. See 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. To
qualify for withholding of removal under the INA, Gomez must have shown that it
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is more likely than not that, if returned to his country, his life or freedom would be
threatened on account of his race, religion, nationality, membership in a particular
social group, or political opinion. INA § 241(b)(3); 8 U.S.C. § 1231(b)(3).
Upon review of the entire administrative record, and upon consideration of
the briefs of the parties, we discern no reversible error. We conclude, first, that
Gomez did not challenge, before the BIA, the IJ’s denial of his claim for CAT
relief and, likewise, did not argue before the BIA, as he now argues before us, that
he feared persecution on account of his membership in a social group consisting of
his family. Accordingly, he failed properly to exhaust these claims before the BIA,
and, we, therefore, are without jurisdiction to consider them on petition for review.
Second, we conclude that substantial evidence supports the BIA’s findings that
Gomez has not demonstrated that he suffered past persecution, or has a well-
founded fear of persecution if returned to Colombia, on account of his political
opinion or imputed political opinion. Gomez’s evidence demonstrates, rather, that
the FARC was interested in him solely on the basis of his potentially useful
connections to government officials. Thus, the record does not compel reversal,
and, we deny Gomez’s petition for review.
PETITION DENIED.
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