Bravo v. Ashcroft ( 2003 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2524
GUILLERMO A. PARA BRAVO,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL, AND STEVE FAQUAHARSON,
IMMIGRATION AND NATURALIZATION SERVICE,
Respondents.
ON PETITION FOR REVIEW OF AN ORDER
FROM THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Siler,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Michael G. Moore, was on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
with whom David M. McConnell, Deputy Director, Office of
Immigration Litigation, and Chad N. Boudreaux, Counsel to the
Assistant Attorney General, were on brief for respondents.
August 27, 2003
*
Of the Sixth Circuit Court of Appeals, sitting by
designation.
Per Curiam. Petitioner Guillermo A. Para Bravo, who is a
native and citizen of Colombia, petitions for review of a final
order of removal issued by the Board of Immigration Appeals (BIA),
affirming the immigration judge’s (IJ’s) denial of his requests for
asylum and for withholding of removal. For the reasons that
follow, we AFFIRM the BIA.
I. BACKGROUND
In 1994, Bravo entered the United States from Colombia on a
visitor’s visa. Approximately three years later, and after
overstaying his visa, he married a United States citizen. Shortly
thereafter his wife filed a visa petition on his behalf, and Bravo
concurrently filed an application to adjust his status to that of
a lawful permanent resident. The applications were denied after
Bravo and his wife failed to appear for an interview. He later
indicated that the couple missed the interview because they had
separated. After removal proceedings commenced against him, his
wife filed another visa petition on his behalf, and Bravo again
requested an adjustment of status. That request was withdrawn,
however, because he and his wife continued to experience marital
difficulties. During this process, Bravo appeared with counsel
before an IJ and conceded removability for having remained longer
than authorized. Eventually, he filed a formal asylum application
with the immigration court, which the court later converted into an
application for asylum, withholding of removal, and protection
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under the United Nations Convention Against Torture.1 Following a
hearing, the IJ found Bravo removable as charged and denied his
applications. Subsequently, the BIA dismissed his appeal.
At his asylum hearing, Bravo testified that between 1986 and
1993 he owned and operated three discotheques in Colombia. Much of
Bravo’s asylum and withholding-of-removal claims rest on an
incident that allegedly occurred in 1989. According to Bravo,
while working in one of his clubs, he observed a man selling (or
attempting to sell) drugs to one of his patrons. After breaking up
the buy, Bravo learned that the patron’s wife had also been offered
drugs in the ladies’ restroom by another drug pusher. Having a
zero tolerance drug policy at his discotheques, Bravo called the
police, who arrested the two individuals suspected of selling (or
attempting to sell) narcotics.
Although he never spoke to or saw the perpetrators after that
night, he testified that he believes this incident caused him to
become the victim of a “systematic exercise of terror and
intimidation,” one that lasted several years, and that included:
verbal and written threats, vandalism of personal property, the
bombing of one of his clubs, a shooting attack in the same club,
the burning (or partial burning) of another club, and a drive-by
1
In this review petition, Bravo does not seek relief under the
United Nations Convention Against Torture. Accordingly, this claim
is waived. See Mediouni v. INS, 314 F.3d 24, 28 n.5 (1st Cir.
2002) (citation omitted).
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shooting in front of one of his clubs that resulted in the death of
his porter. According to Bravo, “[t]hese persons [i.e., the drug
dealers] were detained by the police, [sic] because I told [on]
them. . . . And that’s when everything started for me . . . .”
After each incident, authorities were called to the scene and an
investigation was conducted. For instance, after a small bomb was
detonated in one of his clubs, the police placed undercover agents
at the targeted club for fifteen or twenty days. Unfortunately,
the police were unable to arrest anybody in connection with the
bombing, or any other incident for that matter. Although Bravo has
no knowledge of who was responsible for these events, it is his
suspicion that his misfortunes were connected to the drugs dealers
he had arrested. Because of his troubles, Bravo liquidated his
first discotheque in 1991, another in 1992, and his last in 1993.
In addition to the problems he experienced with his
discotheque businesses, Bravo allegedly experienced extortion from
guerrilla groups located in the vicinity of a farm that he owned
but did not live on. According to his testimony, when he visited
his farm, guerrillas would approach him and ask for money.
Although the details of these occurrences are unclear and
incomplete in the record, Bravo apparently would not cave in to
these requests. Ultimately, he sold his farm at a loss because his
farmhand was giving the guerrillas food, cattle, and probably
money. It is not clear when the farm was sold.
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Bravo arrived in the United States as a visitor in 1994 after
spending over a year working on the liquidation of his last
discotheque, and also attempting to collect unpaid loans owed to
him. Also, his departure from Colombia was not until approximately
one year and six months after the last known incident in which any
attempt was made on his life or any harm was inflicted upon him
through his property or those associated with him. When he left,
Bravo apparently believed that if he distanced himself from
Colombia for a period of time, people were going to “forget” about
him and things were going to “calm down” so that he could
eventually return home. However, since arriving in the United
States, Bravo allegedly has been told by his two daughters, who
remain in Colombia, that they have received a phone call from an
unidentified person who has indicated that people are aware that
Bravo has left the country, and that they would “finish with [him]”
if he returned to Colombia.
Although the IJ found Bravo’s testimony to be credible, she
nonetheless determined that he was not eligible for asylum for two
reasons. First, she concluded that Bravo failed to file his
application for asylum within the one-year filing deadline set
forth in § 208(a)(2)(B) of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1158(a)(2)(B). Related to this finding, the IJ
also held that Bravo failed to establish either of the two
statutory exceptions to the one-year filing period. See INA
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§ 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). Second, she also held
that Bravo failed to show past persecution or a well-founded fear
of future persecution. Thus, the IJ also denied Bravo’s claims for
both asylum and withholding of removal on the merits.
According to the IJ, the threats and economic harm Bravo
endured were not the effects of political persecution, but rather,
“on account of a personal dispute with two individuals who were
attempting to deal in drugs.” She continued, “[Bravo] has not in
any way indicated that he stated a political opinion to these
individuals, or that this was anything other than retaliation
against his causing their arrest.” The IJ also found relevant the
fact that Bravo did not leave Colombia until after he had
liquidated his last discotheque, and attempted to collect debts
owed to him, actions that resulted in a delay of approximately a
year and six months after the last alleged violent incident. It
was the IJ’s view that “this is not the behavior of an individual
who feels that if he was to remain in Colombia . . . he would
continue to have threats made or that he would be at risk for
harm.” She also found that there was no evidence to establish that
Bravo “could not have remained in Colombia [and] either started up
a different kind of business which would not be the target of drug
dealers, or otherwise worked for somebody else as he had prior to
1986.” Thus, the IJ concluded by holding that Bravo “has not
established that the [type] of crime that was inflicted upon him
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constitutes persecution as defined [by the INA], and he has not
established that it is more likely than not [that] . . . if he were
to return to Colombia that he would suffer harm of any kind.”
The BIA dismissed Bravo’s appeal in its entirety, and, in
doing so, determined that the IJ had properly concluded that Bravo
had not met his burden of proof. Specifically, it found that “even
if [Bravo] were to qualify for an exception to the 1 year filing
deadline, he has not met his burden of demonstrating his
eligibility for asylum or withholding of removal.” That is, it
determined in the alternative, that even if the application was
timely, it would not be sufficient to render Bravo eligible for
asylum.
II. ANALYSIS
We have jurisdiction to review final orders of the BIA
pursuant to 8 U.S.C. § 1252. Here, although the IJ found that
Bravo’s asylum application was untimely, the BIA did not affirm on
that basis. Accordingly, we leave for another day the question of
whether INA § 208(a)(3), 8 U.S.C. § 1158(a)(3), strips this court
of jurisdiction to review administrative decisions made pursuant to
8 U.S.C. § 1158(a)(2). See Kayembe v. Ashcroft, 334 F.3d 231, 235
(3d Cir. 2003) (explaining that “[o]ur power of review . . .
extends only to the decision of the BIA . . . [and that] only if
the BIA expressly adopts or defers to a finding of the IJ, will we
review the decision of the IJ”) (internal citation omitted).
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BIA determinations of “statutory eligibility for relief from
deportation, whether via asylum or withholding of deportation, are
conclusive if ‘supported by reasonable, substantial, and probative
evidence on the record considered as a whole.’” Mediouni v. INS,
314 F.3d 24, 26-27 (1st Cir. 2002) (quoting INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992) (citation omitted)). “We will not reverse
simply because we disagree with the Board's evaluation of the
facts.” Velasquez v. Ashcroft, 316 F.3d 31, 34 (1st Cir. 2002)
(citation omitted). Instead, under the deferential "substantial
evidence" standard “if [an alien] seeks to obtain judicial reversal
of the BIA’s determination, he must show that the evidence he
presented [not only supports his petition for relief, but] was so
compelling that no reasonable factfinder could fail to find” that
he statutorily qualified for asylum and/or withholding of removal.
Elias-Zacarias, 502 U.S. at 483-84. It is “the alien [who] bears
the burden of establishing eligibility for asylum by proving either
past persecution or a well-founded fear of persecution.”
Velasquez, 316 F.3d at 34. Furthermore, the standard for
withholding removal is more stringent than the “well-founded fear”
touchstone applicable to an asylum claim. Id. at 34 n.2. “[A]
petitioner unable to satisfy the asylum standard fails, a fortiori,
to satisfy the former.” Alvarez-Flores v. INS, 909 F.2d 1, 4 (1st
Cir. 1990).
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In the instant case, the IJ made detailed findings of fact and
conclusions of law in connection with her merits review of Bravo’s
claims of asylum and withholding of removal. The BIA agreed with
these on-the-merit determinations. According to the BIA, “[a]ny
harm that [Bravo] has suffered and any future danger that he may
face stems from his refusal to cooperate with drug dealers.
Neither the harm nor the danger is on account of any of the
statutorily protected grounds for asylum or withholding of
removal.”
The BIA’s decision was the product of “reasonable,
substantial, and probative evidence on the record considered as a
whole.” Elias-Zacarias, 502 U.S. at 481. Bravo has failed to
demonstrate either past persecution or a well-founded fear of
future persecution on account of his or her race, religion,
nationality, membership in a particular social group, or political
opinion. Certainly, he has not demonstrated that the “evidence he
presented was so compelling that no reasonable factfinder could
fail to find the requisite . . . persecution.” Id. at 483-84.
Accordingly, we find no basis to disturb the BIA’s asylum and
withholding-of-removal decisions pursuant to the substantial
evidence standard of review.
AFFIRMED.
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