Soraida Henao Nunez v. U.S. Attorney General , 314 F. App'x 205 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 14, 2008
No. 08-10554 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A77-007-400
SORAIDA HENAO NUNEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 14, 2008)
Before ANDERSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Soraida Henao Nunez, a native and citizen of Colombia, petitions this court
for review of the Board of Immigration Appeals’ (“BIA”) affirmance of the
Immigration Judge’s (“IJ”) order of removal and denial of withholding of removal.
After a thorough review of the record, we deny the petition.
Nunez entered the United States in 1999 without being admitted or paroled,
and the INS charged her with removability under INA § 212(a)(6)(A)(i); 8 U.S.C.
§ 1182(a)(6)(A)(i). In 2002, Nunez filed an application for asylum, withholding of
removal, and relief under the CAT, alleging that she had been persecuted on
account of her political opinion.1
At the removal hearing, Nunez testified as follows: Nunez’s family operated
a funeral home in Cali, Colombia. The home had a contract with the government
to perform funeral services for military personnel. The family disagreed with the
agenda of guerilla organizations such as FARC, and thus refused to perform
funeral services for any guerillas. Nunez’s family would determine if someone
was a guerilla by the way the person died. Nunez experienced her first problem
with FARC on July 7, 1999. As Nunez and her mother were opening the funeral
home that morning, three men entered and demanded to know where Nunez’s
brother Alexander was. Nunez said he was not there, and the men threatened her
and insulted her, telling her that they would “beat her today and kill her
1
The IJ and BIA determined that the application was untimely. This court has dismissed the
petition to the extent that it challenges this determination. In addition, Nunez did not challenge the
denial of CAT relief before the BIA, and she does not raise it in her petition for review. Thus, the
issue is not exhausted and abandoned. Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317
n.13 (11th Cir. 2001); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 (11th Cir. 2005).
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tomorrow.” The men slapped her in the face, and when she fell to the ground, they
kicked her twice in the leg. The men also beat her mother before they left. Nunez
was pregnant at the time and started to bleed. She and her mother went to the
hospital. Nunez did not have a medical report because the hospital records were
not computerized. After the attack, Nunez hid at home for a week and then came to
the United States. She then learned that her family had received several
threatening calls from FARC, but that her family had not told her of these
problems because they did not want to worry her. After she fled Colombia, her
family received a condolence card and wreath. Then, on July 23, 2001, her brother
was kidnaped by FARC, held for about two hours, and beaten. Neither Nunez or
her brother went to the police because the police had been infiltrated and were
corrupt. Friends in the military told the family that they had obtained a copy of a
hit list, which included the names of Alexander and his uncle. In 2002, the uncle
was shot and killed. Nunez feared that she would be killed if she returned to
Colombia because FARC never forgot and the threat was country-wide.
Alexander Henao testified to the following: The family had the contract for
military funerals since 1992. In 1998, they began to receive calls from FARC
warning them to stop military funerals. Between 1998 and 2001, Alexander
received 23 threatening calls. In 1999, his sister and mother were beaten. In 2001,
Alexander’s car was intercepted and he was taken to another location where he was
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threatened and beaten. He was able to escape when some men approached and the
kidnappers ran away. Alexander then learned from his military friends that he and
his uncle were included on a list of people to be killed. Alexander did not go to the
police because they were corrupt. Instead, he sold the business to a friend who was
later killed. In December 2001, FARC members warned the uncle that they were
still looking for Alexander and his family. Alexander explained that he never told
Nunez of the problems, even when she wanted to return to visit their sick father,
because he did not want to worry her.
In support of the asylum application, Nunez submitted several articles on
FARC and the 2005 State Department Country Reports on Human Rights. None of
the articles or reports were specific to the events Nunez and Alexander described.
Nunez also submitted the death certificates for her uncle and the man who bought
the funeral home. Additionally, she submitted letters from her mother and her aunt
dated 2005, referring to threats the family continued to receive, and statements
from two family friends, Alberto Garcia and Leyda Sandoval. Garcia stated that he
knew Nunez and knew that FARC came to the funeral home. He stated that Nunez
had been beaten, leaving bruises on her body and face. Sandoval stated that she
knew Nunez and her mother had been beaten by FARC and taken to the hospital
for treatment. Sandoval had attempted to get the medical records for Nunez, but
was told the records were not available because the hospital was not computerized.
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Finally, Nunez submitted Alexander’s asylum application and notice of relief from
removal.
The IJ denied relief, questioning the lack of corroborating evidence from the
hospital and to confirm the circumstances of the uncle’s death, and noting that
Nunez’s several trips to Colombia negated her fear of harm. The IJ found that the
reasons given for allegedly not telling Nunez of the threats were not credible. On
the merits, the IJ noted that the family had a contract with the government since
1992, but did not experience any issues with FARC until 1998, and Nunez suffered
only a single incident. He further noted that the family had friends in the military
and in government, but did not seek assistance once the threats began. The court
gave no weight to the letters from family and friends, as they were vague, general,
and contradicted the testimony.
Nunez appealed to the BIA, which affirmed, finding that the evidence was
insufficient to establish entitlement to withholding of removal. The BIA explained
that Nunez’s decision to return to Colombia twice after the threats began and the
three-year wait to file for relief undermined her claims. The BIA pointed to the
weaknesses in the claims, and noted that the corroborating evidence was
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insufficient. The BIA noted that Nunez had not challenged the IJ’s findings that
the corroborating evidence was deficient.2 This petition for review followed.
We review only the decision of the BIA, except to the extent that it expressly
adopts the IJ’s opinion. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir.
2007). We review legal conclusions de novo and factual findings under the
substantial evidence test.3 Adefemi v. Ashcroft, 386 F .3d 1022, 1026-27 (11th
Cir. 2004) (en banc). “Under the substantial evidence test, we view the record
evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Id. at 1027. The fact that
evidence in the record may support a conclusion contrary to the administrative
findings is not enough to justify a reversal. Id. Rather, reversal is only appropriate
where the record “compels” it. Id.
2
Nunez also argued that she was denied the opportunity to rebut the government’s argument
at the removal hearing. The BIA concluded that Nunez had not shown that she was unable to rebut
the government’s argument or how she was prejudiced. Nunez does not raise this issue in her
petition for review; thus, it has been abandoned. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 (11th Cir. 2005).
3
In considering a petitioner’s claim for withholding of removal, the IJ must determine
credibility in the same manner as in asylum cases. See 8 U.S.C. § 1231(b)(3)(C); 8 U.S.C.
§ 1158(b)(1)(B)(ii)-(iii). IJs must make “clean determinations of credibility.” Yang v. U.S. Att’y
Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). Here, although the IJ explained that he found certain
explanations to lack credibility, the IJ did not make a specific adverse credibility finding. Thus, we
take the testimony as true. De Santamaria v. U.S. Att’y Gen., 512 F.3d 1308, 1320 n.10 (11th Cir.
2008).
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An alien seeking withholding of removal must show that “it is more likely
than not [s]he will be subject to persecution based upon race, religion, nationality,
political opinion, or membership in a particular social group.” Javier Ruiz v.
Gonzales, 479 F.3d 762, 765-766 (11th Cir. 2007). The statute also covers
persecution by non-governmental groups that the “government cannot control.”
Jaime Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257-58 (11th Cir. 2006). The
applicant must show either past persecution on a protected ground, which raises a
rebuttable presumption of future harm, or show a future threat to her life or
freedom based on a protected ground. Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,
1287 (11th Cir. 2003).
To qualify for withholding of removal based on persecution by a
guerilla group on account of a political opinion, [the alien] must
establish that the guerillas persecuted [him] or will seek to persecute
[him] in the future because of [his] actual or imputed political opinion.
It is not enough to show that [he] was or will be persecuted or tortured
due to [his] refusal to cooperate with the guerillas.
Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004) (citations omitted)
(holding that the evidence was “consistent with a finding that FARC harassed [the
alien] due to her refusal to cooperate with them, which is not enough to qualify for
withholding of removal under the INA”). Moreover, “[e]ven if the evidence
compels the conclusion that the petitioner refused to cooperate with the guerrillas
because of his political opinion, the petitioner still has to establish that the record
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also compels the conclusion that he has a ‘well-founded fear’ that the guerrillas
will persecute him because of that political opinion, rather than because of his
refusal to cooperate with them.” Rivera v. U .S. Att’y Gen., 487 F.3d 815, 822
(11th Cir. 2007) (citation and alteration omitted).
Persecution is an extreme concept, requiring “more than a few isolated
incidents of verbal harassment or intimidation ... [and m]ere harassment is not
persecution.” Javier Ruiz, 479 F.3d at 766. Menacing phone calls and threats are
not sufficient evidence of past persecution to require reversal. Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005). This court has held that threats,
attempted attacks, and a physical attack on account of an applicant’s political
opinion was sufficient evidence of past persecution. Mejia v. U.S. Att’y Gen., 498
F.3d 1253, 1257-58 (11th Cir. 2007) (asylum context). However, resistance to
forced recruitment does not by itself qualify as persecution on account of political
opinion. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481-82, 112 S. Ct. 812, 815-16,
117 L .Ed.2d 38 (1992). Additionally, acts of private violence or failure to
cooperate with guerillas “does not constitute evidence of persecution based on a
statutorily protected ground.” Jaime Ruiz, 440 F.3d at 1257-58. “In assessing past
persecution [this court must] consider the cumulative impact of the mistreatment
the petitioner [ ] suffered.” Mejia, 498 F.3d at 1258; see also, e.g., Ruiz v.
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Gonzales, 479 F.3d 762, 766 (11th Cir. 2007) (holding that the cumulative effect of
a beating, threatening phone calls, and a kidnaping constituted persecution).
Here, we conclude the BIA properly denied relief from removal. First, the
incident did not rise to the level of past persecution. See Djonda v. U.S. Att’y
Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (holding that a minor beating resulting
in only scratches and bruises does not constitute persecution).
Second, the IJ and BIA noted that there were weaknesses in Nunez’s claims
and thus she needed to present corroborating evidence, a finding that Nunez does
not challenge on appeal. Although an applicant’s uncorroborated but credible
testimony may be sufficient to sustain the burden of proof, “[t]he weaker an
applicant’s testimony ... the greater the need for corroborative evidence.” Yang v.
U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). In this case, Nunez
provided no relevant corroborating evidence of past persecution. She could not
provide hospital records to confirm the alleged beating, and the letters from family
and friends were either vague or inconsistent with Nunez’s version of the event.
Moreover, none of the articles or State Department reports made any reference to
the incidents Nunez and her family suffered; the reports merely indicated that
FARC was a guerilla organization with strong control in Colombia and well-
known for its violent tactics. It is not for this court to re-weigh the evidence.
Lorisme v. I.N.S., 129 F.3d 1441, 1445 (11th Cir. 1997).
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Third, Nunez failed to establish it is more likely than not she will be
persecuted if she returns to Colombia. As the government notes, the family no
longer owns the funeral home. Moreover, Nunez’s mother and aunt continue to
live in Colombia, and Nunez herself traveled to the country twice after the alleged
attack. Family members living unharmed in the home country weakens a claim of
well-founded fear of future persecution. Jaime Ruiz, 440 F.3d at 1259.
Accordingly, substantial evidence supports the BIA’s conclusion, and we
DENY the petition.
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