Cesar Augusto H. Moncada v. U.S. Atty. General , 287 F. App'x 842 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 31, 2008
No. 07-15995
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
BIA No. A98-735-014 & A98-135-015
CESAR AUGUSTO HERNANDEZ MONCADA,
GINA ASTRID GUEVARA ALFONSO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 31, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Cesar Hernandez Moncada and his wife Gina Alfonso, proceeding pro se,
seek review of the Board of Immigration Appeals’s (“BIA”) decision adopting and
affirming the Immigration Judge’s (“IJ”) removal order and denial of their
applications for asylum and withholding of removal under the Immigration and
Nationality Act (“INA”), and relief under the United Nations Convention on
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c).
Because the BIA did not adopt the IJ’s decision, we review only the BIA’s
decision in this case. Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
We review the BIA’s legal conclusions de novo and the BIA’s factual findings
under the substantial evidence test. 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. Therefore, the fact
that evidence in the record may support a conclusion contrary to the administrative
findings is not enough to justify a reversal, rather, reversal is only appropriate
where the record “compels” it. Id.I. Asylum and Withholding of Removal
Moncada argues that the BIA erred when it denied his applications for
asylum and withholding of removal on the ground that he had not suffered past
persecution. Moncada must show that the evidence “was so compelling that no
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reasonable factfinder could fail to find the requisite fear of persecution.” INS v.
Elias-Zacarias, 502 U.S. 478, 483-84, 112 S. Ct. 812, 817, 117 L. Ed. 2d 38(1992).
“Although the INA does not define persecution, we have often repeated 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.” Sanchez-Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th Cir.
2007) (internal quotation marks omitted). The petitioner does not, however, need
to have suffered serious physical injury when there are physical threats combined
with other forms of mistreatment such as kidnapping or attempted murder. De
Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1009 (11th Cir. 2008). Moreover,
“[i]n determining whether an alien has suffered past persecution, the [BIA] must
consider the cumulative effects of the [allegedly persecutory] incidents.” Delgado
v. U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007) (per curiam). Additionally,
we “may consider a threatening act against another as evidence that the petitioner
suffered persecution where that act concomitantly threatens the petitioner.” De
Santamaria, 525 F.3d at 1009 n.7.
We are compelled to conclude that Moncada suffered past persecution in
light of the cumulative effect of his encounters with the Revolutionary Armed
Forces of Colombia (“FARC”). He was repeatedly threatened over the course of
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more than four years, chased by a vehicle containing armed gunmen who shot at
him, and his brother was kidnapped and physically mistreated. Accordingly, we
grant the petition as it relates to the BIA’s denial of Moncada’s applications for
asylum and withholding of removal. Because, however, the BIA did not address
whether there was a nexus between the persecution and a protected ground, we
remand the case for the BIA to determine whether Moncada is now entitled to
relief.
II. CAT Relief
Moncada contends that he is entitled to CAT relief because he is subject to
being tortured by the FARC, and the Colombian government is unable to control
the FARC.
To be entitled to relief under CAT, an applicant must establish that it is
“more likely than not that he or she would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 208.16(c)(2). The alien must also demonstrate
that the feared torture would be by the government or with the government’s
acquiescence, i.e., the government is aware of misconduct that it has a duty to
prevent and fails to intervene. Morales v. U.S. Att’y Gen., 488 F.3d 884, 891 (11th
Cir. 2007) (per curiam).
Moncada is not entitled to CAT relief. After the police became aware of
Moncada’s trouble with the FARC, it investigated, advised him concerning how to
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protect his safety, monitored his telephone, and determined the area from which
one of the telephone threats against Moncada had originated. Therefore, the
Colombian government did not acquiesce in the FARC’s misconduct.
Accordingly, substantial evidence supports the BIA’s denial of CAT relief, and we
deny the petition as it relates to this claim.
PETITION GRANTED IN PART AND DENIED IN PART.
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