Christian Parra-Reina v. U.S. Attorney General , 350 F. App'x 372 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10556 ELEVENTH CIRCUIT
OCTOBER 23, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A097-903-347
CHRISTIAN PARRA-REINA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 23, 2009)
Before TJOFLAT, EDMONDSON and CARNES, Circuit Judges.
PER CURIAM:
Christian Parra-Reina, a native and citizen of Colombia, seeks review of the
Board of Immigration Appeals’ decision affirming the Immigration Judge’s denial
of his application for asylum and withholding of removal under the Immigration
and Nationality Act (INA), 8 U.S.C. §§ 1158, 1231(b)(3), and relief under the
United Nations Convention Against Torture and Other Cruel, Inhumane, or
Degrading Treatment or Punishment (CAT), 8 C.F.R. § 208.16(c). Parra-Reina’s
real name is Christian Andres Tofino Morillo, and he fled to the United States
under an assumed name after receiving death threats from a paramilitary
organization known as the United Self-Defense Forces of Colombia (AUC).
Parra-Reina testified before the IJ that he had been the victim of identity
theft perpetrated by AUC. AUC had used Parra-Reina’s real name to open bank
accounts and extort money from people. In 2003 Parra-Reina was arrested in
Colombia on charges of extortion. He defended himself from those charges based
on the fact that his fingerprints and handwriting samples did not match those used
to open the bank account. He was temporarily released from prison, and then he
and his mother received threatening phone calls. He testified that charges were
still pending against him in Colombia, and he feared that if he returned there, he
would be arrested and then killed by AUC members in prison.
The IJ found Parra-Reina’s testimony credible. The IJ also found, however,
that Parra-Reina was not being targeted because of his political opinion or any
other immutable characteristic. Even though he claimed to have been witness to a
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crime, he admitted that he did not know anything about the crime or about who had
used his identity. The IJ also found that Parra-Reina failed to meet the
requirements for withholding of removal and CAT relief.
In his appeal to the BIA, Parra-Reina contended that “the nexus of this case
is not so much membership in a particular group as a ‘witness to a crime,’ as it
would be as a ‘victim of a crime.’” He asserted that he had a fear of persecution on
account of political opinion, or in the alternative, imputed political opinion. The
BIA held that Parra-Reina had failed to establish a nexus between any persecution
and a protected ground, and it affirmed the IJ’s decision.
“We review only the [BIA’s] decision, except to the extent that it expressly
adopts the IJ’s opinion.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s
decision as well.” Id. We review de novo the BIA’s legal conclusions.
Mohammad v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001). We review the
BIA and IJ’s factual findings under the “substantial evidence” test. Forgue v.
United States Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). That test is
“highly deferential,” and we must affirm the BIA’s decision “if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Id. (quotation marks omitted).
Parra-Reina contends that he is entitled to relief as a witness to a crime
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because: (1) being a witness is immutable and the crime was publicized and thus
socially visible; (2) the theft of his identity was a “paramilitary crime”; and (3) he
had information to exonerate himself and to implicate AUC. Parra-Reina did not
raise this “witness to a crime” argument before the BIA. In fact, he argued to the
BIA that his membership in a protected group was based on being a victim of a
crime rather than being a witness to one. Therefore, we lack subject matter
jurisdiction to review that argument. Amaya-Artunduaga v. United States Att’y
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (holding that we lack jurisdiction to
consider claims raised in a petition unless the petitioner has exhausted his
administrative remedies by raising the claim on appeal before the BIA).
As for Parra-Reina’s other grounds for seeking relief, being a victim of the
crime of identity theft does not make him a member of a particular social group.
Evidence that “merely shows a person has been the victim of criminal activity . . .
does not constitute evidence based on a statutorily protected ground.” Ruiz v.
United States Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006). Parra-Reina has
not shown that he was victimized because of his political opinion. Persecution on
account of political opinion must be on account of the victim’s political opinion,
not the persecutors’. Sanchez v. United States Att’y Gen., 392 F.3d 434, 437–38
(11th Cir. 2004). Evidence that AUC harassed Parra-Reina because he refused to
cooperate with them is not enough to qualify for relief under the INA. See id. at
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438. The BIA’s denial of asylum is supported by substantial evidence on the
record considered as a whole. See Forgue, 401 F.3d at 1286. Because Parra-Reina
“has failed to establish a claim of asylum on the merits, he necessarily fails to
establish eligibility for withholding of removal or protection under CAT.” Id. at
1288 n.4.
PETITION DENIED.
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