Isolda Maria Zapata-Ramirez v. U.S. Attorney Gen , 154 F. App'x 156 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12012 November 8, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
BIA Agency Nos. A95-900-118, A95-900-119
ISOLDA MARIA ZAPATA-RAMIREZ,
AICARDO JARAMILLO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 8, 2005)
Before BIRCH, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Petitioners, Isolda Maria Zapata-Ramirez (“Zapata1”) and Aicardo Jaramillo
(“Jaramillo”), through counsel, petition for review of the Board of Immigration
Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) removal order
and denying their claims for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq.2 We DISMISS
in part and DENY in part their petition for review.
I. BACKGROUND
On 16 October 2002, the Immigration and Naturalization Service (“INS”)3
issued two separate Notice to Appear forms (“NTA”), charging that the
petitioners, a husband and wife who are natives and citizens of Columbia, were
subject to removal under 8 U.S.C. § 1227(a)(1)(B), as nonimmigrants who had
remained in the United States for a time longer than permitted.
Prior to this, on 20 August 2002, well over a year after she and her husband
1
Zapata is the lead petitioner and all following references to Zapata apply to both
petitioners unless specifically stated otherwise.
2
The IJ also denied Zapata’s claim for relief under the United Nations Convention
Against Torture (“CAT”). See 8 C.F.R. § 208.16(c)) (2005). This claim is deemed abandoned
because no such argument appeared in the briefs before us. Mendoza v. U. S. Att’y Gen., 327
F.3d 1283, 1286 n.3 (11th Cir. 2003).
3
On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002, which created a new Department of Homeland Security, abolished the INS, and transferred
its functions to the new department. See 6 U.S.C. §§ 201-298. Although this case was initiated
after the act was signed into law, many of the documents in the administrative record still refer to
the INS.
2
had entered the United States, Zapata applied for asylum, withholding of removal,
and relief under CAT based on persecution for political opinion for herself and
Jaramillo. In the alternative, she sought voluntary departure. In her application,
Zapata stated that she worked as an exporter for a shoe company in Columbia; she
had been a member of the Conservative party at least since 1994; and she had
worked on political election campaigns from 1994 until 2000.
Zapata also described how, in 1995, she was allegedly accidently shot by a
police officer who then left the scene without helping her. Zapata initially
attempted to denounce this officer for his conduct through the Colombian
Attorney General’s office, but her case was dismissed in 1996. That same year she
received treatment from a therapist for related trauma she experienced. Five years
later, in December 2000, she denounced the officer on the radio. In response, that
officer, in the company of another officer, came to her home and threatened to kill
her and her family if she did not stop the denunciation. He also told her to stop
her political activities. The next day, he confronted her outside her lawyer’s
office, but fled when she began to scream. That night, he threatened her by
phone,4 and over the next few weeks there were calls for her and hang-ups. She
4
The officer did not identify himself during the course of this phone call, but Zapata
claims that she recognized his voice.
3
again pursued therapy and then fled to the United States in January 2001. In
February 2001, the police officer threatened Zapata’s lawyer in Colombia to stop
the denunciation or he would kill him.5
The IJ granted Zapata’s application for voluntary departure with an
alternative order of removal to Colombia, and denied the applications for asylum,
withholding of removal, and relief under CAT. In his oral decision, the IJ first
noted that Zapata’s application for asylum was untimely and found she had not
presented evidence of changed conditions or extraordinary circumstances to
excuse the late filing under 8 U.S.C. § 1158(a)(2)(D). The IJ then denied her
application for withdrawal of removal because her claim did not fall within one of
the five protected grounds under 8 U.S.C. § 1231(b)(3). Specifically, Zapata
failed to meet her burden of proof with regard to her application based on political
opinion because the police officer’s actions were more probably motivated by his
5
In support of her application, Zapata attached (1) her report to the Human Rights Board;
(2) The Human Rights Attorney General’s report; (3) medical records of her injury; (4)
attestations to her membership in community groups by two different leaders; (5) a letter from
her psychologist confirming her time in treatment; and (6) a letter from her lawyer corroborating
her story. The application record also contained the U.S. State Department’s Columbia Country
Report on Human Rights Practices for 2002 which indicated that (1) there were between 4,025
and 4,416 politically motivated homicides in 2001, including 59 by state actors; (2) there were
reports that security forces members harassed members of human rights groups; (3) activists
continued to be victims of high levels of violence; and (4) female leaders of political and peasant
organizations were the targets of abuse, threats, torture, and executions.
4
own interests than by governmental persecution. The IJ also found Zapata could
easily have relocated within Colombia to avoided persecution by that officer.
Finally, the IJ denied her application for CAT relief because there was no evidence
that (1) the police officer had Zapata under his control; (2) the government would
continue to torture her throughout the country; or (3) she could not avoid the
police officer by moving to another location in Colombia.
Zapata filed a notice of appeal with the BIA, asserting that the IJ had abused
his discretion and misinterpreted and misapplied the law. She also explained that
she had not timely applied for asylum because she had been depressed and because
she had become pregnant in late August 2001 and thought it best for the baby that
she not apply for asylum while she was pregnant. The BIA adopted and affirmed
the IJ’s decision and dismissed the appeal. It agreed Zapata had not met her
burden of proof as to persecution and that the asylum application was time-barred,
and affirmed the grant of voluntary departure with an alternate order of removal.
Zapata now claims the BIA erred in adopting the IJ’s order finding she had
failed to show changed conditions or extraordinary circumstances that would
excuse her lateness in filing for asylum. She also argues the BIA erred in adopting
the IJ’s finding that she had failed to demonstrate eligibility for withholding of
removal. The Attorney General argues that we lack jurisdiction to consider
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Zapata’s claims regarding asylum and that there was substantial evidence to
support the IJ’s finding as to withholding of removal.
II. DISCUSSION
When the BIA issues a decision, we review only that decision, “except to
the extent that it expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). In this case, because the BIA expressly adopted
the IJ’s decision, we review both.
A. Jurisdiction to Review BIA’s Conclusion as to Timeliness
The Attorney General argues that we lack jurisdiction to consider Zapata’s
argument regarding the denial of the asylum claims as untimely. We review our
subject-matter jurisdiction de novo. Brooks v. Ashcroft, 283 F.3d 1268, 1272
(11th Cir. 2002). Under 8 U.S.C. § 1158(a)(2)(B) (2005), an asylum applicant
must show by clear and convincing evidence that the application for asylum was
filed within one year of the alien's arrival in the United States. Although a late
application for asylum can be considered if changed or extraordinary
circumstances exist, the evaluation of those circumstances is committed to the sole
discretion of the Attorney General. 8 U.S.C. §§ 1158(a)(2)(D)-(a)(3). The
decision of the Attorney General “is not reviewable by any court.” Fahim v. U.S.
Att'y Gen., 278 F.3d 1216, 1217 (11th Cir. 2002) (per curiam). Further, the
6
timeliness of an asylum application is not a constitutional question or a question of
law, and therefore the recently enacted REAL ID Act, Pub. L. No. 109-13, Div. B,
§ 106(a)(1)(A)(iii), 119 Stat. 231 (2005), does not grant jurisdiction. See Chacon-
Botero v. U.S. Attorney General, ___ F.3d ___, No. 04-16442, 2005 WL 2456877,
at *2 (11th Cir. Oct. 6, 2005) (per curiam).6
Here, the BIA fully adopted the IJ’s determination that Zapata’s asylum
application was untimely and that Zapata had failed to establish changed or
extraordinary circumstances to excuse the untimeliness. This was a discretionary
ruling based on findings of fact. Therefore, we lack jurisdiction to review it.
Accordingly, we must dismiss the petition as to this issue.
B. Withholding of Removal
To the extent that the BIA’s decision was based on a legal determination,
our review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir.
2001). 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
6
The REAL ID Act of 2005 amended the judicial review provisions of 8 U.S.C. §
1252(a)(2) to grant jurisdiction to review constitutional claims and questions of law,
notwithstanding other provisions in the statute. REAL ID Act, Pub. L. No. 109-13, Div. B, §
106(a)(1)(A)(iii), 119 Stat. 231 (2005). We have held that “we cannot review the IJ's and BIA's
denial of [petitioner's] asylum claim, even considering the changes in the Real ID Act.” Chacon-
Botero, ___ F.3d ___, No. 04-16442, 2005 WL 2456877, at *3.
7
whole.’” Al Najjar, 257 F.3d at 1283-84 (citation omitted). To reverse the BIA’s
decision, we must conclude that the record not only supports such a reversal, but
“compels” it. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en
banc), cert. denied, Adefemi v. Gonzalez, __ U.S. __, 125 S. Ct. 2245 (2005).
An alien shall not be removed to a country if her “life or freedom would be
threatened in that country because of [her] race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). The
alien has the burden of proof “to establish that she would face persecution on
account of one of five covered grounds upon [her] return to the proposed country
of removal.” Antipova v. U.S. Att’y Gen., 392 F.3d 1259, 1264 (11th Cir. 2004).
To establish eligibility the applicant must show that she suffered past persecution
or that she has a well-founded fear of future persecution. 8 C.F.R. § 208.16(b)(1)-
(2). There must also be a causal connection between the feared persecution and
the protected ground. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th
Cir. 2005) (per curiam).
Further, where the alien has not actually suffered past persecution, she bears
the burden of establishing that she would “more likely than not” suffer persecution
upon removal. Antipova, 392 F.3d at 1264. “An alien cannot demonstrate that
[s]he more-likely-than-not would be persecuted on a protected ground if the IJ
8
finds that the alien could avoid a future threat by relocating to another part of [her]
country.” Mendoza, 327 F.3d at 1287. In other words, at least for non-
governmental persecution, the applicant must also show that the threat of
persecution is country-wide. Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d
1320, 1327 (11th Cir. 2001).
Finally, to show a well-founded fear of future persecution, the “applicant
must demonstrate that [the] fear is subjectively genuine and objectively
reasonable.” Al Najjar, 257 F.3d at 1289. “[M]enacing telephone calls and
threats to [the applicant] do not rise to the level of past persecution that would
compel reversal of the IJ’s decision.” Sepulveda, 401 F.3d at 1231. Moreover,
“[n]ot all exceptional treatment is persecution”; it is an “extreme concept”
requiring “more than a few isolated incidents of verbal harassment or
intimidation.” Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000) (quoting
Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995), and Mikhailevitch v. INS, 146
F.3d 384, 390 (6th Cir. 1998)).
Zapata experienced two face-to-face confrontations with a police officer,
one threatening telephone call, and several harassing telephone calls in which the
caller asked for her or called and hung up. These incidents do not rise to the level
of extreme treatment that constitutes past persecution. Further, Zapata has failed
9
to show that her fear of future persecution is objectively reasonable or related to
her political opinion. She was not physically harmed in the five years between the
incidents (the accidental shooting and the confrontation by the police officer) even
though she was involved in community activism. The threats against her were by
one, and there was never any indication that the police generally were involved, or
even that the officer in question intended to carry through with his threats.
Finally, after Zapata left the country, when that officer threatened her lawyer, he
made no comments or threats related to Zapata’s political opinion or activities.
Thus, substantial evidence supports the agency’s conclusion that Zapata did not
meet her burden to establish a well-founded fear and a causal link between the
alleged persecution and her political opinion.
Neither has Zapata shown that she could not escape persecution by
relocating within Colombia. Again, except in one instance, only one police officer
harassed her, and there was no indication of any general effort by the police to
persecute her. Accordingly, the BIA’s finding that Zapata was not entitled to
withholding of removal is supported by substantial evidence.
III. CONCLUSION
Zapata and Jaramillo’s petition for review of the BIA decision denying
their claims for asylum and withholding of removal must fail, even under the
10
recently enacted REAL ID Act. First, we lack jurisdiction to review the finding
that Zapata failed to show changed or extraordinary circumstances to allow an
extension of the filing deadline for her asylum petition. Second, substantial
evidence supported the denial of withholding of removal. Accordingly, the
petition is DISMISSED in part and DENIED in part.
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