Santiago Bello Clavijo v. US Attorney General , 244 F. App'x 990 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 13, 2007
No. 07-10042 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A95-263-103
SANTIAGO BELLO CLAVIJO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 13, 2007)
Before ANDERSON, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Santiago Bello Clavijo, through counsel, seeks review of the order of the
Board of Immigration Appeals (“BIA”) summarily affirming the Immigration
Judge’s (“IJ”) denial of his application for withholding of removal under the
Immigration and Nationality Act (“INA”) and for relief under the United Nations
Convention Against Torture (“CAT”). After review, we deny the petition.
I. BACKGROUND
Clavijo is a native and citizen of Colombia. In August 1998, Clavijo’s three
sisters were murdered in Colombia after they refused to make extortionate
payments to the Revolutionary Armed Forces of Colombia (“FARC”). Clavijo
began assisting Colombian authorities with the investigation into his sisters’
murders.
Two days after the murders, Clavijo’s brother received a telephone call from
an individual who identified himself as a member of the FARC. The caller
threatened to kill Clavijo if he continued to assist with the murder investigation.
Clavijo continued to assist the police and continued to receive telephone death
threats from the FARC.
During the investigation, police detained four individuals who were “urban
guerrillas” of the FARC. The urban guerrillas took orders from the FARC’s
“jungle guerrillas.” The four detainees were tried and, according to Clavijo, two
were convicted and two were set free. One of the convicted detainees was Maria
Concepcion Ladino Gutierrez, who was the leader of the urban guerrillas. After
2
Gutierrez was convicted, Clavijo began to receive frequent threatening telephone
calls in which unidentified callers stated that they would catch Clavijo. Clavijo
learned during the investigation that the leader of the “jungle guerrillas,” Efrain
Diaz-Sanchez, had been involved with his sisters’ murders and wanted Clavijo
killed because of his involvement in the murder investigation.
In May 2000, a friend told Clavijo that he had overheard a group of men
saying that they knew where Clavijo was and that money had been paid to have
Clavijo killed. After hearing this information, Clavijo feared for his life and
decided to leave Colombia.
Clavijo was admitted to the United States on June 12, 2000, as a
nonimmigrant visitor with authorization to remain until December 11, 2000. On
March 25, 2002, Clavijo filed an application for asylum, withholding of removal
and CAT relief, alleging that he was persecuted by the FARC based on his political
opinion. In response to the asylum application, the Department of Homeland
Security served Clavijo with a notice to appear, charging him with removability
under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B) for overstaying his visa.
Clavijo conceded removability.
At his asylum hearing, Clavijo withdrew his application for asylum and
proceeded with his application for withholding of removal and CAT relief. The
parties stipulated to the facts in Clavijo’s application. Clavijo also testified during
3
the hearing consistent with his application.
The government submitted the 2004 United States Department of State
Country Report for Colombia. The 2004 Country Report noted that the FARC had
committed hundreds of intentional killings and also had kidnapped civilians to help
finance subversion and to put political pressure on the government. The 2004
Country Report also explained that the FARC persecutes and assassinates political
leaders and government officials.
The IJ denied the application for withholding of removal and for CAT relief.
The IJ found Clavijo credible, but concluded that Clavijo was statutorily ineligible
for withholding of removal for two reasons. First, noting that Clavijo had not been
arrested, detained or harmed directly, the IJ concluded that Clavijo had failed to
demonstrate that he had suffered past persecution. Second, the IJ found that the
FARC’s death threats were motivated by Clavijo’s involvement in the investigation
into his sisters’ murders, rather than by a protected ground. The IJ also concluded
that Clavijo had failed to show that he had a well-founded fear of future
persecution based on a protected ground. Finally, the IJ concluded that Clavijo
was not entitled to CAT relief.
Clavijo appealed to the BIA, which adopted, without opinion, the IJ’s
decision. Clavijo filed this petition for review.
II. DISCUSSION
4
On appeal, Clavijo argues that the IJ erred in concluding that Clavijo failed
to demonstrate either past persecution or a well-founded fear of future
persecution.1 An alien seeking withholding of removal must show that his “life or
freedom would be threatened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or political opinion.” INA
§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). In other words, the alien has the burden
of proof to show that he “more-likely-than-not” would be persecuted on account of
one of the five protected grounds if returned to the country in question. See
Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). To establish
eligibility, the alien must show either that he suffered past persecution or that he
has a well-founded fear of future persecution. See 8 C.F.R. § 208.16(b)(1), (2);
Mendoza, 327 F.3d at 1287.
Here, the IJ’s finding that Clavijo did not suffer past persecution is
supported by substantial evidence. The telephone death threats Clavijo received
from the FARC do not rise to the level of persecution. See Sepulveda v. U.S. Att’y
1
Where, as here, the BIA summarily affirms the IJ’s decision without opinion under 8
C.F.R. § 1003.1(e)(4), the IJ’s decision becomes the final agency determination subject to
review. See Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003). We review
a factual determination that an alien is statutorily ineligible for withholding of removal under the
substantial evidence test. Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001).
Under the substantial evidence test, “we must find that the record not only supports reversal, but
compels it.” Mendoza, 327 F.3d at 1287. The fact that evidence in the record may support a
conclusion contrary to the administrative findings does not warrant reversal. Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
5
Gen., 401 F.3d 1226, 1231 (11th Cir. 2005).
Furthermore, substantial evidence supports the IJ’s finding that the FARC’s
death threats were motivated by Clavijo’s involvement in the investigation into his
sisters’ murders, and not by Clavijo’s actual or imputed political opinion.
Likewise, substantial evidence supports the IJ’s finding that any future persecution
Clavijo fears also would be on account of Clavijo’s involvement in the murder
investigation and not on account of his actual or imputed political opinion. See
INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S. Ct. 812, 816 (1992) (explaining
that an alien’s refusal to cooperate with Colombian guerrillas because of the alien’s
political opinion is not sufficient; the alien must also show that the guerrillas’s
persecution occurs “because of that political opinion, rather than because of his
refusal to [cooperate] with them.”); Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438
(11th Cir. 2004) (same).
Clavijo presented no evidence that the FARC’s interest in him was due to his
political opinion. Indeed, Clavijo essentially concedes as much in his counseled
appeal brief, arguing that the FARC will kill him if he is returned to Colombia and
asking, “what is more important, the compliance with one of the five protected
grounds or a human life?” Clavijo did not present evidence that he belonged to a
particular political party or that the threatening callers mentioned his political
opinion or accused him of being involved in politics. The undisputed evidence
6
shows that Clavijo was targeted by the FARC because he refused to comply with
the FARC’s demands to stop assisting the Colombian police with their murder
investigation.2 In other words, the death threats resulted from Clavijo’s refusal to
cooperate with the FARC’s efforts to obstruct the murder investigation, not
because of any political opinion held by Clavijo.3 Accordingly, the IJ’s finding
that Clavijo was not statutorily eligible for withholding of removal is supported by
substantial evidence.4
PETITION DENIED.
2
Notably, the FARC did not kill Clavijo’s sisters because of their political opinions, but
because they failed to continue making extortionate payments to the FARC. See Rivera v. U.S.
Att’y Gen., ___ F.3d ___, No. 06-10209, 2007 WL 1485954, at *6 (May 23, 2007) (concluding
that persecution resulting from an alien’s refusal to make extortionate payments to the FARC is
not persecution “on account of” political opinion).
3
For the first time on appeal, Clavijo argues that he need not show that he would be
singled out by the FARC if he returned to Colombia because there is a pattern and practice of
persecution against those who collaborate in criminal investigations against the FARC. We lack
jurisdiction to review this claim because Clavijo failed to exhaust it before the BIA. See
Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001).
4
On appeal, Clavijo did not raise any argument challenging the denial of CAT relief and,
therefore, has abandoned that issue. See Sepulveda, 401 F.3d at 1228 n.2.
7