Alvaro Emilio Cubides v. U.S. Attorney General ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 8, 2007
No. 07-11496 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A97-632-379
ALVARO EMILIO CUBIDES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 8, 2007)
Before BIRCH, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Alvaro Emilio Cubides, through counsel, seeks review of the Board of
Immigration Appeals’s (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
order dismissing Cubides’s applications for asylum, withholding of removal under
the Immigration and Nationality Act (“INA”), and relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”), INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); 8 C.F.R.
§ 208.16(c).1
Cubides contends that his testimony established that he is entitled to asylum.
The government argues that we do not have jurisdiction to review the IJ and BIA’s
findings that Cubides filed his asylum application untimely and no changed or
extraordinary circumstances excuse the untimely filing.
We review subject-matter jurisdiction de novo. Brooks v. Ashcroft, 283
F.3d 1268, 1272 (11th Cir. 2002). An alien can apply for asylum if he
“demonstrates by clear and convincing evidence that the application has been filed
within 1 year after the date of the alien’s arrival in the United States.” INA
§ 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B). However, “[a]n application for asylum
of an alien may be considered . . . if the alien demonstrates to the satisfaction of the
Attorney General either the existence of changed circumstances which materially
1
Cubides does not raise any challenge in his brief to the denial of CAT relief, and
therefore abandoned the issue. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th
Cir. 2005).
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affect the applicant’s eligibility for asylum or extraordinary circumstances relating
to the delay in filing an application within the period specified . . . .” INA
§ 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). Notwithstanding the BIA’s authority to
consider an untimely asylum application in circumstances where the applicant
meets one of the exceptions to the one-year deadline, “no court shall have
jurisdiction to review any determination of the Attorney General under [section
1158(a)(2)].” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2001)
(quoting INA § 208(a)(3), 8 U.S.C. § 1158(a)(3)) (alteration in original). We have
held that § 1158(a)(3) divests our jurisdiction to review the BIA’s determinations
that an asylum applicant filed an untimely application and failed to establish
changed or extraordinary circumstances to excuse his untimely filing. Delgado v.
U.S. Att’y Gen., 487 F.3d 855, 860 (11th Cir. 2007) (citing Mendoza, 327 F.3d at
1287). We have also held that the jurisdictional provisions in the REAL ID Act of
2005, Pub. L. No. 109-13, 119 Stat. 231, 310 (2005), did not alter our jurisdiction
over this matter. Delgado, 487 F.3d at 860 (citation omitted).
Here, the BIA determined that Cubides’s asylum application was untimely
and that he had failed to establish changed or extraordinary circumstances to
excuse his untimeliness. Therefore, we lack jurisdiction to consider whether the
BIA erred in this regard.
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Cubides argues that the totality of the death threats by the Revolutionary
Armed Forces of Colombia (“FARC”) shows that he has a well-founded fear of
future persecution based on his political opinion, entitling him to withholding of
removal. Cubides argues that his case is distinguishable from Sepulveda, because
Sepulveda was threatened by the National Liberation Army (“ELN”), a lesser
terrorist group than the FARC, and she received only three telephone calls over a
short period of time, while Cubides’s situation was objectively and subjectively
more severe.
When the BIA issues a decision, we review only that decision, “except to the
extent that the BIA expressly adopts the IJ’s decision.” Rodriguez Morales v. U.S.
Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007) (citation omitted). In this case, the
BIA issued its own decision.
To the extent that the BIA’s decision was based on a legal determination, we
review de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir.
2004). The BIA’s factual determinations are reviewed under the substantial
evidence test, 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.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1230 (11th Cir.
2007). The substantial evidence test is “highly deferential” and does not allow “re-
weigh[ing] the evidence from scratch.” Silva v. U.S. Att’y Gen., 448 F.3d 1229,
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1236 (11th Cir. 2006) (quotation and citation omitted). “To reverse the [BIA’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).
In a withholding of removal claim, an alien shall not be removed to a
country if his life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion. Id.; see
also INA § 241(b)(3), 8 U.S.C. § 1231(b)(3)(A). The alien must show that it is
“more likely than not that [he] will be persecuted or tortured upon being returned
to [his] country.” Sepulveda, 401 F.3d at 1232. This standard is more stringent
than the “well-founded fear” standard for asylum. Id. The applicant must show
that his fear of persecution is subjectively genuine and objectively reasonable. Id.
at 1231 (quotation and citation omitted) (asylum context).
The applicant can meet his burden by showing either (1) “past persecution in
his country based on a protected ground,” in which case a rebuttable presumption
is created that his life or freedom would be threatened if he returned to her country;
or (2) “a future threat to his life or freedom on a protected ground in his country.”
Mendoza, 327 F.3d at 1287. An applicant’s credible testimony “may be sufficient
to sustain the burden of proof without corroboration.” Mendoza, 327 F.3d at 1287
(quoting 8 C.F.R. § 208.16(b)).
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While the INA does not define persecution, we have held that persecution is
an “extreme” concept, mere harassment is not persecution, and that persecution
requires “more than a few isolated incidents of verbal harassment or intimidation.”
Sepulveda, 401 F.3d at 1231.
We are satisfied that substantial evidence supports the BIA’s determination
that Cubides is not entitled to withholding of removal. Cubides has not established
that he suffered from past persecution in Colombia as the threatening phone calls
he received does not rise to the level of persecution. Cubides also has not
established that it is more likely than not that he would be persecuted in the future
if forced to return to Colombia. Not only did threats to Cubides never escalate
beyond telephone calls, but Cubides actually left Colombia after being threatened
on two occasions, both times returning shortly thereafter, where he received more
threatening calls, but nothing more. Accordingly, we dismiss the petition in part
and deny the petition in part.
PETITION DISMISSED IN PART, DENIED IN PART.
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