Holmes Gutierrez-Ruiz v. U.S. Attorney General , 307 F. App'x 382 ( 2009 )


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  •                                                                [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    U.S. COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
    ________________________    JANUARY 15, 2009
    THOMAS K. KAHN
    No. 08-12043               CLERK
    Non-Argument Calendar
    ________________________
    Agency No. A98-706-353
    HOLMES GUTIERREZ RUIZ,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    _________________________
    (January 15, 2009)
    Before CARNES, BARKETT and WILSON, Circuit Judges.
    PER CURIAM:
    Holmes Gutierrez-Ruiz, a native and citizen of Colombia proceeding
    through counsel, seeks review of the Board of Immigration Appeals’s (“BIA”)
    decision, affirming the Immigration Judge’s (“IJ”) order of removal and denial of
    asylum, 
    8 U.S.C. § 1158
    , withholding of removal under the Immigration and
    Nationality Act (“INA”), INA § 241(b)(3), 
    8 U.S.C. § 1231
    (b)(3), and relief under
    the United Nations Convention Against Torture and Other Cruel, Inhuman, or
    Degrading Treatment or Punishment (“CAT”), 
    8 U.S.C. §§ 1158
    , 1231; 
    8 C.F.R. § 208.16
    (c).1 Gutierrez sought asylum and withholding of removal on the ground
    that he was threatened by members of the Revolutionary Armed Forces of
    Colombia (“FARC”), based on a political opinion that was imputed to him when he
    refused the FARC’s extortion demands.
    We review both the BIA decision and the IJ’s decision which the BIA
    appears to have adopted. Al Najjar v. Ashcroft, 
    257 F.3d 1262
    , 1284 (11th Cir.
    2001). Decisions based on a legal determination are reviewed de novo.
    Mohammed v. Ashcroft, 
    261 F.3d 1244
    , 1247 (11th Cir. 2001). Factual
    determinations are reviewed under the substantial evidence test, which requires us
    to “view the record evidence in the light most favorable to the [IJ]’s decision and
    draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 
    386 F.3d 1022
    , 1026-27 (11th Cir. 2004) (en banc).
    1
    Gutierrez has abandoned his claim for CAT relief by not arguing it on appeal. See
    Sepulveda, 401 F.3d at 1228 n.2 (“[w]hen an appellant fails to offer argument on an issue, that
    issue is abandoned.”).
    2
    An alien may receive asylum if he can carry the burden of proving that he is
    a “refugee,” which is defined as:
    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] 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) “Uncorroborated but credible
    testimony from the applicant may be sufficient alone to sustain the burden of proof
    for asylum or withholding of removal.” D-Muhumed v. U.S. Att’y Gen., 
    388 F.3d 814
    , 818-19 (11th Cir. 2004).
    Accordingly, to be eligible for asylum, “the alien must, with credible
    evidence, establish (1) past persecution on account of [his] political opinion or any
    other protected ground, or (2) a ‘well-founded fear’ that [his] political opinion or
    any other protected ground will cause future persecution.” Sepulveda, 401 F.3d at
    1230-31 (citing 
    8 C.F.R. § 208.13
    (a) and (b)). We have recognized that an alien’s
    imputed political opinion satisfies the requirement that persecution be based on a
    protected ground. 
    Id. at 1289
    . To establish persecution by a guerilla group on
    account of a political opinion, the petitioner must establish that the guerillas
    persecuted him, or will seek to persecute him in the future, because of his actual or
    imputed political opinion. Sanchez v. U.S. Att’y Gen., 
    392 F.3d 434
    , 438 (11th
    3
    Cir. 2004). “It is not enough to show that [he] was or will be persecuted or
    tortured due to [his] refusal to cooperate with the guerillas.” 
    Id.
     “A showing of
    past persecution creates a presumption of a ‘well-founded fear,’ subject to rebuttal
    by the [government].” Sepulveda, 401 F.3d at 1231 (citing 
    8 C.F.R. § 208.13
    (b)(1)).
    Withholding of removal may be granted if the alien establishes 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). If an alien does not establish
    past persecution, he bears the burden of showing that it is more likely than not that
    he will suffer persecution on the basis of a protected ground, and he would not be
    able to avoid persecution by relocating to another part of his country, if, under all
    of the circumstances, it would be reasonable to expect him to do so. 
    8 C.F.R. § 208.16
    (b)(2).
    Upon review of the record, and consideration of the briefs of the parties, we
    find no reversible error. Substantial evidence supports the IJ’s and the BIA’s
    determination that Gutierrez did not establish past persecution or a likelihood of
    future persecution based on a protected ground because the guerilla threats alleged
    by him constituted only criminal extortion efforts, and were not based on an
    imputed political opinion or other protected ground. Essentially, Gutierrez’
    4
    testified that he believed that the FARC was demanding money from him and his
    company, Coca Cola, in the form of a tax, to pay for the existence of each of the
    trucks that the company had in the region and to support the guerillas. Gutierrez
    did not offer any evidence to show that the persecution that he faced was because
    of an imputed political opinion, as he did not: (1) assert what his imputed political
    opinion was; (2) establish that the FARC imputed a political opinion to him as a
    result of his unwillingness to pay them; or (3) show any causal connection between
    his political opinion and the persecution. Accordingly, we affirm the BIA’s
    conclusion and deny the petition.
    PETITION DENIED.
    5
    

Document Info

Docket Number: 08-12043

Citation Numbers: 307 F. App'x 382

Judges: Carnes, Barkett, Wilson

Filed Date: 1/15/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024