Patricia Del Pilar Mejia-Montoya v. U.S. Atty. Gen , 132 F. App'x 297 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
___________________________ May 20, 2005
THOMAS K. KAHN
No. 04-12989 CLERK
Non-Argument Calendar
___________________________
BIA Nos. A95-225-990
& A95-225-991
PATRICIA DEL PILAR MEJIA-MONTOYA,
ARTURO PENA RAMIREZ,
JUAN SEBASTIAN PENJA MEJIA,
FREDY ARTURO PENA QUESADA,
MARIA PAULA PENA MEJIA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_______________________________
Petition for Review of a Decision
of the Board of Immigration Appeals
________________________________
(May 20, 2005)
Before EDMONDSON, Chief Judge, CARNES and MARCUS Circuit Judges.
PER CURIAM:
Petitioners Patricia Del Pilar Mejia-Montoya, Arturo Pena-Ramirez, and
their three children, petition for review of the Board of Immigration Appeals
(“BIA”) order affirming the immigration judge’s (“IJ”) removal order and the
denial of their applications for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158, 1231(b)(3).
Substantial evidence supports the findings that Petitioners failed to establish
eligibility for asylum or for withholding of removal under the INA; the petition is
denied.1
When, as was the case here, the BIA adopts the IJ’s opinion and summarily
affirms the IJ’s decision, the IJ’s decision becomes the final removal order.
Sepulveda v. U.S. Attorney General, 401 F.3d 1226, 1230 (11th Cir. 2005). We
review the IJ’s factual findings under the substantial evidence standard. Id.“Under this highly deferential standard of review, the IJ’s decision can be reversed
1
Before the IJ, Petitioners had sought relief also under the Convention Against Torture (“CAT”),
but they failed to raise the denial of CAT relief before the BIA and only made a passing reference
to it in their brief before this Court. We do not consider the denial of CAT relief. See Sundar v.
INS, 328 F.3d 1320, 1323 (11th Cir. 2003) (“we lack jurisdiction to consider claims that have not
been raised before the BIA”); see also Sepulveda v. U.S. Attorney General, 401 F.3d 1226, 1228
n.2 (11th Cir. 2005) (issues on which only passing reference is made are deemed abandoned).
2
only if the evidence ‘compels’ a reasonable fact finder to find otherwise.” Id.,quoting INS v. Elias-Zacarias, 112 S.Ct. 812, 815 n.1 (1992).
Petitioners, natives and citizens of Columbia, claim they are “refugees”
within the meaning of the INA, and, as such, the Attorney General has discretion
to grant them asylum. 8 U.S.C. § 1158(a)(1),(b)(1). A “refugee” is
any person who is outside any country of such person’s
nationality ... who is unable or unwilling to return to, and
is unable or unwilling to avail himself or herself 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.
8 U.S.C. §1101(a)(42)(A). The applicant bears the burden of showing refugee
status, and the applicant’s testimony, if credible, may be sufficient to sustain the
burden of proof without corroborating evidence. See Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001); 8 C.F.R. § 208.13. If an application establishes
refugee status, the decision to grant asylum is a matter of discretion. Al Najjar,
257 F.3d at 1284. The discretionary judgment of the Attorney General on whether
asylum is granted “shall be conclusive unless manifestly contrary to the law and an
abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D). See Sepulveda, 401 F. 3d at
1231.
3
Petitioners tie their claim to refugee status to persecution based on political
opinion. Mejia-Montoya and her husband were active members of a cooperative
business organization and claim they were targeted by the FARC, a guerilla
organization, because the cooperative encouraged members not to be intimidated
by subversive groups. Petitioners received threatening and extortionate phone
calls which they claim left them with no choice but to leave Columbia. At first,
the children remained in Columbia with grandparents. Petitioners claim
suspicious activity at the children’s school in Columbia suggests that the FARC
was still after them. Petitioners maintain that these circumstances show past
persecution and a reasonable and well-founded fear of future persecution.
To establish eligibility for asylum based on political opinion, “the alien
must, with credible evidence, establish (1) past persecution on account of her
political opinion ... or (2) a ‘well-founded fear’ that her political opinion ... will
cause future persecution.” Sepulveda, 401 F.3d at 1230-31, citing 8 C.F.R. §
208.13(a)(b). “An imputed political opinion, whether correctly or incorrectly
attributed, may constitute a ground for a well-founded fear of political persecution
within the meaning of the INA.” Al Najjar, 257 F.3d at 1289 (internal quotation
and citation omitted). “[P]ersecution is an extreme concept requiring more than a
few isolated incidents of verbal harassment or intimidation”; “mere harassment
4
does not amount to persecution.” Sepulveda, 401 F.3d at 1231. The asylum
applicant must provide some evidence, direct or circumstantial, to show that the
persecutor’s acts were on account of the political opinion. See INS v. Elias-
Zacarias, 112 S.Ct. 812, 817 (1992).
Petitioners argue that the FARC imputed a political opinion to them based
on their membership in the cooperative business organization, although Petitioners
profess no understanding about why the FARC perceived that membership to
evidence a political viewpoint in opposition to the FARC ideology. The IJ
concluded that Petitioners failed to show that the threatening phone calls made by
the FARC were “on account of” an imputed political opinion. Substantial
evidence supports the IJ’s finding.
The evidence proffered by Petitioners suggests that the FARC targeted
Petitioners as it targeted other business owners to require them to pay taxes if they
had substantial assets. See Sanchez v. U.S. Attorney General, 392 F.3d 434, 438
(11th Cir. 2004) (concluded that evidence was consistent with finding that FARC
harassed Sanchez because of refusal to cooperate, not because of an actual or
imputed political opinion). A showing that the FARC harassed Petitioners
because of their refusal to cooperate is insufficient to qualify for asylum or
5
withholding of removal.2 Id.; see Elias-Zecarias, 112 S.Ct. at 816 (concluding that
persecution because of refusal to join forces with the guerillas is not persecution
on account of a political opinion).
Substantial evidence also supports the IJ’s conclusion that Petitioners’ fear
of future persecution is not well-founded. The cooperative business organization
continues to operate and Mejia-Montoya’s father and brother, who remain in
Columbia, are still members without, on this record, fear of persecuton by FARC.
Substantial evidence supports the conclusion that Petitioners failed to
establish eligibility for asylum or withholding of removal.3 Accordingly, we deny
their petition for review.
PETITION DENIED.
2
An alien is entitled to withholding of removal upon showing that her “life or freedom would be
threatened ... because of the alien’s ... political opinion.” 8 U.S.C. § 1231(b)(3)(A). The applicant
bears the burden of showing that it is “more likely than not” that persecution or torture will follow
upon return to her country. Sepulveda , 401 F.3d at 1232. “Where an applicant is unable to meet
the ‘well-founded fear’ standard for asylum, he is generally precluded from qualifying for either
asylum or withholding of deportation.” Al Najjar, 257 F.3d at 1292-93 (internal quotation and
citation omitted).
3
Petitioners requested that this Court consider new evidence about conditions in Columbia
indicating that in-country relocation provides little protection to targets of threats by groups such as
the FARC. Our review, however, is limited to the administrative record. See 8 U.S.C. §
1252(b)(4)(A).
6