Luis Miguel H. Echeverri v. U.S. Atty. Gen. , 157 F. App'x 147 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
November 29, 2005
No. 05-12609 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A95-553-299
LUIS MIGUEL HERNANDEZ ECHEVERRI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 29, 2005)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Luis Miguel Hernandez Echeverri petitions for review of the Board of
Immigration Appeals’ (BIA’s) decision affirming the immigration judge’s (IJ’s)
order finding him removable and denying his application for asylum, withholding
of removal under the Immigration and Nationality Act (INA), and the United
Nations Convention on Torture and Other Cruel, Inhuman, or Degrading Treatment
or Punishment (CAT), 8 U.S.C. §§ 1158, 1231(b)(3), 8 C.F.R. § 208.16(c).
Echeverri asserts the evidence supports the finding he suffered past persecution
and has a well-founded fear of future persecution on account of a protected ground,
namely imputed political opinion, and thus the IJ erred in denying his requests for
asylum and withholding of removal.1 Because Echeverri has failed to show he was
persecuted or has a well-founded fear of future persecution on account of a
protected ground, we deny his petition.
When the BIA issues a decision, we review only that decision, except to the
extent the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). Insofar as the BIA adopts the IJ’s reasoning, we
review the IJ’s decision as well. Id. Here, we review the IJ’s decision because the
BIA expressly adopted it.
1
Echeverri has abandoned review of (1) his claim he and his family were persecuted
based on their membership in the social group of cattle and landowners, and (2) the IJ’s decision
to deny him CAT relief, because he failed to raise these claims on appeal. See Mendoza v. U.S.
Att’y Gen., 327 F.3d 1283, 1286 n.3 (11th Cir. 2003) (stating the petitioner abandoned his CAT
claim because he did not raise it in his appellate brief).
2
To the extent the IJ’s decision was based on a legal determination, review is
de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247–48 (11th Cir. 2001). The
IJ’s factual determinations are reviewed under the substantial evidence test, and we
“must affirm 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 (citation omitted). The substantial evidence test is “deferential” and does
not allow “‘re-weigh[ing] the evidence’ from scratch.” Mazariegos v. Office of
U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001) (citation omitted). “To
reverse the IJ’s fact findings, we must find that the record not only supports
reversal, but compels it.” Mendoza, 327 F.3d at 1287 (considering withholding of
removal claim). The fact the record may support a contrary conclusion is
insufficient to justify reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.
2004) (en banc), cert. denied, 125 S. Ct. 2245 (2005).
An alien who arrives in or is present in the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant
asylum if the alien meets the INA’s definition of a “refugee.” 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 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
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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) (emphasis added). The asylum applicant carries the
burden of proving statutory “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” the statutorily listed factor will cause such future persecution.
8 C.F.R. § 208.13(a), (b). “Demonstrating such a connection requires the alien to
present specific, detailed facts showing a good reason to fear that he or she will be
singled out for persecution on account of such an opinion [or other statutory
factor].” Al Najjar, 257 F.3d at 1287 (internal quotations, citation, and emphasis
omitted). An asylum applicant may not show merely that he has a political
opinion, but must show he was persecuted because of that opinion. INS v. Elias-
Zacarias, 112 S. Ct. 812, 816 (1992). An asylum applicant’s refusal to cooperate
with guerillas is not sufficient to show persecution based on political opinion. See
Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004) (discussing
withholding of removal).
An alien who has not shown past persecution may still be entitled to asylum
if he can demonstrate a future threat to his life or freedom on a protected ground in
his country. 8 C.F.R. §§ 208.13(b)(2), 208.16(b)(2). To establish a well-founded
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fear, “an applicant must demonstrate that his or her fear of persecution is
subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289.
“An imputed political opinion, whether correctly or incorrectly attributed, may
constitute a ground for a well-founded fear of political persecution within the
meaning of the INA.” Id. (quotations and citations omitted).
To qualify for withholding of removal under the INA, an alien must show
his life or freedom would be threatened, if returned to his country, on account of
race, religion, nationality, membership in a particular social group, or political
opinion. Mendoza, 327 F.3d at 1287. “An alien bears the burden of demonstrating
that he more-likely-than-not would be persecuted or tortured upon his return to the
country in question.” Id.Substantial evidence supports the IJ’s decision that Echeverri was not
entitled to asylum or withholding of removal under the INA. Even if the events
Echeverri testified to constitute past persecution or a well-founded fear of future
persecution, Echeverri’s claim fails because the record does not demonstrate any
specific, detailed evidence the persecution was based on actual or imputed political
opinion. Though Echeverri asserts he suffered past persecution based on an
imputed political opinion because his father, after informing the Colombian army
of the FARC’s presence on the family farm, was viewed as an enemy of the FARC,
nothing in his testimony demonstrates this nexus. Though he testified his family
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did not agree with the ideas of the guerillas, his testimony indicates the FARC
killed his father, uncles, and cousins to take “revenge on them” because of their
refusal to cooperate with their demands concerning the family farm, not because of
any political opinion. Refusing to cooperate with the FARC does not sufficiently
create a nexus between persecution and political opinion. See Sanchez, 392 F.3d at
438.
Echeverri testified he and his family sympathized with the conservative
party. Merely having this sympathy is not enough to constitute persecution based
on an actual or imputed political opinion. See id. Thus, even if the events
Echeverri testified to constitute past persecution or a well-founded fear of future
persecution, substantial evidence supports the IJ’s finding that Echeverri did not
suffer this persecution based on a protected ground. As Echeverri did not establish
eligibility for asylum, which carries a lower burden of proof, his withholding of
removal claim also fails. See Mendoza, 327 F.3d at 1287.
PETITION DENIED.
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