Maria Beatriz Chavarro Aguilera v. U.S. Atty. Gen. , 192 F. App'x 945 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10747 AUG 15, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency No. A97-191-319
A97-191-320
MARIA BEATRIZ CHAVARRO AGUILERA,
HENRY SERNA GOMEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 15, 2006)
Before DUBINA, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Maria Beatriz Chavarro Aguilera, also on behalf of her husband, Henry Serna
Gomez (“Petitioners”), seeks review of the Board of Immigration Appeals’s
(“BIA”) decision affirming the Immigration Judge’s (“IJ”) order denying asylum,
withholding of removal, and relief under the U.N. Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). We hold
that substantial evidence supports the IJ’s finding that the petitioners failed to
establish eligibility for asylum or withholding of removal.1 Accordingly, we deny
the petition.
I. Background
Petitioners, both natives and citizens of Colombia, entered the United States
on December 21, 2002 on tourist visas, with authorization to remain until June 19,
2003. On April 1, 2003, Aguilera filed an application on behalf of herself and
Gomez for asylum, withholding of removal, and relief under CAT. In the
application, Aguilera stated that she was seeking asylum or withholding of removal
because of the persecution she suffered based on her political opinion and
membership in a particular social group. Aguilera cited her active involvement in
the New Generation political party, in which she organized meetings, campaigns,
and social events to attract new voters; designed and implemented literacy
1
Petitioners failed to raise any arguments with regard to the denial of CAT relief and,
thus, have abandoned that issue. Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1228 n.2
(11th Cir. 2005).
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campaigns; and often spoke at public events, encouraging people to reject the
influence of violent groups in Colombia.
Aguilera attached to her application an affidavit further supporting her claim
for asylum or withholding of removal. Aguilera noted that she had worked as an
elementary school teacher for over thirty years and practiced law as an independent
attorney, representing juveniles and advocating for the rights of abused and
mistreated children. According to Aguilera, on December 15, 2002, two members
of the Revolutionary Armed Forces of Colombia (“FARC”) approached her at a bus
stop, identified her as a teacher and attorney, and threatened to kill her if she
continued her political work in the community. Aguilera resigned her teaching
position. Aguilera filed a formal complaint with the police on December 20, 2002.
The police stated that they would conduct an investigation and refer her case to the
prosecuting attorney, but the police did not provide her with any protection.
Aguilera fled to the United States the next day out of fear that she would be killed
by FARC if she remained in Colombia.
The Petitioners remained in the United States beyond the date authorized by
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their visa, and the Immigration and Naturalization Service (“INS”)2 subsequently
issued notices to appear for both, charging them with removability under INA
§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). Aguilera appeared at her initial hearing
and conceded removability. Aguilera’s testimony was largely consistent with the
information she provided in her application and affidavit. In support of her
application, Aguilera submitted: (1) a police report and written statement filed
December 20, 2002, indicating that Aguilera was threatened by two members of the
44th Front of FARC; (2) a letter from John Sandoval, president of the community
action board of El Cortijo neighborhood, confirming Aguilera’s participation in
community activities; (3) a letter from the Department of Education Secretary’s
Office, confirming Aguilera’s employment as a teacher; (4) a flyer from a teacher’s
group, noting the violence teachers face and encouraging teachers to participate in a
public demonstration to demand greater protection from the government; (5) a news
article describing violence against teachers; (6) a copy of Aguilera’s diploma,
indicating completion for her degree in law and political science from the Free
University of Colombia; (7) a letter dated December 17, 2002, from a leader in the
2
On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002, Pub. L. No. 107-296, 116 Stat. 2135. The Act created the Department of Homeland
Security, abolished the INS, and transferred the INS’s functions to the new department.
Although this case was initiated after the transfer, the application and notices to appear refer to
the INS. For consistency’s sake, we refer to the INS.
4
New Generation party, stating that Aguilera was a member of the party; and (8) a
letter dated October 7, 2002, from the president of a community action group in
Cali, Colombia, confirming her involvement in community activities.
Additionally, the petitioners submitted copies of the 2003 U.S. Department of
State Country Report on Human Rights Practices in Colombia (“Country Report”)
and a report (“INS Report”) dated May 20, 2002, from the INS Resource
Information Center. According to the Country Report, FARC was responsible for
hundreds of unlawful killings in Colombia, including numerous politically
motivated killings and kidnappings. Over 70% of all civilian deaths were
attributable to guerilla organizations such as FARC. Furthermore, FARC regularly
threatened, kidnapped, and murdered public school teachers. The INS report
indicated that FARC had an established presence throughout the country,
widespread capability to harm, significant intelligence capabilities, and
demonstrated ability to track down individuals.
Although two of the letters Aguilera submitted in support of her application
raised credibility concerns, the IJ concluded that “I do not believe it can support an
adverse credibility finding.” The IJ noted that “[t]he problem with the respondent’s
asylum claim really is not with her credibility, but it is with her not being able to
meet her burden of proof and persuasion[].” The IJ found that Aguilera could not
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establish that she suffered harm from a single, verbal threat from FARC, and as
such, the threat did not rise to the level of persecution contemplated by the INA.
The IJ further found that, although Aguilera expressed a credible, subjective fear of
persecution, she failed to establish that a threat of persecution exists for her
throughout Colombia. The IJ noted that Aguilera received a single threat to leave a
certain area and that she did not relocate. The IJ added that other members of the
New Generation party remained in Colombia without harm, and that this fact
undercut Aguilera’s claim of future political persecution.
The petitioners filed a notice of appeal with the BIA. The BIA adopted and
affirmed the IJ’s decision, “except insofar as the [IJ] found that the respondent
could relocate to another area of Colombia.” The BIA agreed, however, with the
IJ’s finding that Aguilera failed to demonstrate that she had a well-founded fear that
she would be singled out for persecution and concluded that the evidence did not
“indicate that her notoriety as a member [of the New Generation party] would
outlast her 3-year absence from Colombia.”
II. Standard of Review
We “review only the [BIA’s] 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 [BIA] adopts the IJ’s reasoning, we will review the IJ’s
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decision as well.” Id. Here, because the BIA expressly adopted the IJ’s decision,
we review the IJ’s and BIA’s decisions, except we review only the BIA’s decision
regarding Aguilera’s ability to relocate within Colombia. Id.To the extent that the IJ’s and BIA’s decisions were based on a legal
determination, review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48
(11th Cir. 2001). We review the IJ’s factual determinations under the substantial
evidence test, and we “must affirm the BIA’s [and the IJ’s] decision if it is
supported by reasonable, substantial and probative evidence on the record
considered as a whole.” Al Najjar, 257 F.3d at 1283-84 (quotation 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. Attorney Gen., 327 F.3d 1283, 1287
(11th Cir. 2003).
III. Discussion
An alien who arrives in or is present in the United States may apply for
asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of the Department
of Homeland Security or the Attorney General has the discretion to grant asylum if
the alien meets the INA’s definition of a “refugee.” 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 or, in the case of a person having no
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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 . . . membership in a particular social group []
or political opinion.
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the
burden of proving “refugee” status. 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
persection. Id. at 1287; 8 C.F.R. § 208.13(a), (b). “Demonstrating such a
connection requires the alien to present specific, detailed facts showing a reason to
fear that he or she will be singled out for persecution on account of” a statutorily
listed factor. Al Najjar, 257 F.3d at 1287.
We have held that “persecution” is an “extreme concept, requiring more than
a few isolated incidents of verbal harassment or intimidation, and that mere
harassment does not amount to persecution.” Sepulveda v. U.S. Attorney Gen., 401
F.3d 1226, 1231 (11th Cir. 2005). Furthermore, we have noted that “[n]ot all
exceptional treatment is persecution.” Gonzalez v. Reno, 212 F.3d 1338, 1355
(11th Cir. 2000).
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If the alien meets her burden of showing she has suffered past persecution, a
presumption arises that she also has a well-founded fear of future persecution. Al
Najjar, 257 F.3d at 1285. The government rebuts that presumption, however, if it
shows by a preponderance of the evidence that the country’s conditions have
changed such that the applicant’s life or freedom would no longer be threatened or
that the alien could relocate within the country and it would be reasonable to expect
him to do so. 8 C.F.R. § 208.13(b), § 208.16(b).
An alien who has not shown past persecution may still be entitled to asylum
if he can demonstrate a well-founded fear of future persecution. The alien must
show that he has a fear of persecution in his home country and that “there is a
reasonable possibility of suffering such persecution if he or she were to return to
that country.” 8 C.F.R. § 208.13(b)(2)(i). Further, “an applicant must demonstrate
that his fear of persecution is subjectively genuine and objectively reasonable.” Al
Najjar, 257 F.3d at 1289.
After thorough review of the record, we conclude that substantial evidence
supports the IJ’s and BIA’s decision that the petitioners were not entitled to asylum
or withholding of removal under the INA. The single incident of verbal harassment
that Aguilera suffered at the hands of FARC is insufficient to establish past
9
persecution. Mere harassment, without more, is insufficient to establish
persecution. Sepulveda, 401 F.3d at 1231.
Substantial evidence also supports the IJ’s determination that Aguilera failed
to establish a well-founded fear of future persecution if she returned to Colombia.
Although the BIA determined that the IJ erred in finding that Aguilera could
reasonably relocate within Colombia, the record indicates that other leaders of the
New Generation party have remained in Colombia without incident. Additionally,
Aguilera failed to present evidence that FARC maintained an interest in harming
her or that would she would be singled out for persecution by FARC if she returned
to Colombia. Id. at 1232 (holding that the record did not compel reversal of the IJ’s
determination that the applicant failed to establish a well-founded fear of future
persecution because “the evidence does not indicate her notoriety as an activist
would outlast her four-year absence from Colombia”). Consequently, we hold that
the record does not compel reversal of the IJ’s finding that Aguilera does not have a
well-founded fear of future persecution.3
3
We also reject Aguilera’s argument that 8 C.F.R. § 1208.13(2)(iii)(A) & (B) eliminate
her need to show that she will be singled out for persecution because of a statutorily listed factor.
Those regulations state that an alien need not show that she will be singled out for persecution if
she establishes a pattern or practice in her country of nationality “of persecution of a group or
persons similarly situated to the applicant on account of race, religion, nationality, membership
in a particular social group, or political opinion” and her inclusion in such a group. 8 C.F.R.
§ 1208.13(2)(iii)(A) & (B). Aguilera contends that FARC has engaged in a pattern or practice of
persecuting “individuals who participate in politics in Colombia” and that she is similarly
situated to those individuals. Aguilera’s argument casts a much wider net than allowed by the
10
Because Aguilera failed to meet her burden to establish her eligibility for
asylum, we also conclude that Aguilera failed to meet the higher standard for
withholding of removal. Al Najjar, 257 F.3d at 1292-93. Accordingly, we DENY
the petition.
PETITION DENIED.
regulations, which list very specific groups that fall within the regulation. Therefore, we
conclude that Aguilera is required to show that she will be singled out for persecution.
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