Mauricio Aranzazu Alzate v. U.S. Atty. Gen. , 160 F. App'x 912 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 23, 2005
No. 05-11882
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos.
A78-399-904
A78-399-905
MAURICIO ARANZAZU-ALZATE,
CLAUDIA PATRICIA UPEGUI JARAMILLO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(December 23, 2005)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Mauricio Aranzazu-Alzate and Claudia Patricia Upegui Jaramillo petition
for review of the Board of Immigration Appeals’ (“BIA’s”) decision affirming the
Immigration Judge’s (“IJ’s”) order, which found them removable and denied their
application for asylum, withholding of removal under the Immigration and
Nationality Act (“INA”) and for relief under the United Nations Convention
Against Torture (“CAT”), 8 U.S.C. §§ 1158, 1231; 8 C.F.R. § 208.1(c). After
review, we deny the petition for review.
I. BACKGROUND
Alzate and his wife, Jaramillo, both natives and citizens of Colombia, were
detained on July 22, 2000, at the Miami International Airport. Alzate admitted
using a back-dated stamp to mislead immigration officials to believe that, on a
prior visit to the United States, he had not overstayed his visa. During a credible
fear interview, Alzate explained that he sought to enter the United States because
he feared persecution from Revolutionary Armed Forces of Colombia (“FARC”)
guerillas because of his participation in an anti-FARC program for employees at
the company where he worked in Colombia and his active membership in the
Conservative party.
On August 3, 2000, the Immigration and Naturalization Service (“INS”)
filed a Notice to Appear (“NTA”) and sought their removal. At an initial hearing
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before the IJ, Alzate admitted to all the allegations in the NTA and conceded
removability as charged for willfully misrepresenting material facts to procure a
visa for admission into the United States, in violation of 8 U.S.C. § 1182(a)(6),
and for failing to have a validated or unexpired immigrant visa at the time of
application for admission into the United States, in violation of 8 U.S.C. §
1182(a)(7). The IJ also scheduled a hearing to allow Alzate sixty days to complete
the asylum application.
Alzate completed an application for asylum, withholding of removal and
CAT relief, alleging persecution based on his opposition to the FARC and his
membership in the Conservative party. According to Alzate, in November 1998,
while an accountant at a large manufacturing company in Medellin, he participated
as a leader in a two-to-three week program to educate company employees about
the FARC guerillas and to urge the employees not to support the FARC. Alzate
also supported the Conservative party by attending parties and campaign meetings.
Following the anti-FARC education program, Alzate received five
telephone calls from individuals identifying themselves as members of the FARC
warning him not to speak against the FARC and demanding money. Alzate
refused to pay the FARC, saying that he did not agree with their beliefs. Other
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employees and the company for which Alzate worked also received threats from
the FARC for a few months after the education program.
After Alzate refused to give in to the FARC’s money demand, his car was
stolen. The following day, he received a phone call from the FARC claiming
responsibility for the theft and again demanding money. When Alzate again
refused to give them money, the caller said Alzate’s life was at risk.
After this threatening conversation, Alzate, fearing that the FARC might try
to kidnap him or harm his wife, took a leave of absence from his job and decided
to leave Colombia temporarily for his safety. Alzate and his wife arrived in the
United States in January 1999 on “visitor for pleasure” visas. While in the United
States, Alzate kept in touch with family members and company employees in
Colombia who said that they continued to receive telephone threats from the
FARC and that one high-level executive had been kidnapped.
In December 1999, Alzate returned to Colombia to visit for fifteen to twenty
days. Although nothing happened to him during this visit, he decided he should
leave Colombia for two or three months to be sure that everything had calmed
down. On January 10, 2000, he re-entered the United States on the same visitor
visa he had used previously. Alzate then mailed his passport back to Columbia to
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obtain false entry stamps indicating that he had left the United States on January
30, 2000. He actually returned again to Colombia in July 2000.
Upon his arrival in Colombia, he called several of his friends from work,
who prepared a dinner in his honor. After receiving threatening phone calls at
both his parents’ and in-laws’ homes, however, Alzate decided that the FARC
would never leave him alone, that it was not safe to remain in Colombia and that
he needed to return to the United States. Alzate and his wife returned to the
United States on July 22, 2000, where they were detained by the INS at the airport.
Alzate submitted, among other things, the following attachments to his 2000
asylum application: (1) a certificate of employment with the manufacturing
company; (2) a co-worker’s statement that he too participated in the anti-FARC
education campaign and received death threats from FARC guerillas, causing him
to leave the company; (3) an affidavit from his mother-in-law stating that Alzate
had received several threatening phone calls from the FARC, that these calls
continued after Alzate left for the United States and when he returned to Colombia
and that the callers told her not to hide Alzate because he needed to settle his
pending issues with the FARC; (4) letters from his parents stating that Alzate had
received threatening phone calls from the FARC while at their home and that they
continued to receive threatening calls from the FARC after Alzate left and when
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he returned; a letter from a legal representative of the Progressive Force F.P.
stating that Alzate had been a member for several years; (5) a police report
confirming that Alzate’s car was reported stolen on November 28, 1998 in
Medellin and was recovered and returned in February 1999; (6) the State
Department’s 1999 Country Report for Colombia, designating the FARC as a
foreign terrorist organization and stating, inter alia, that the FARC guerillas were
responsible for the majority of kidnapping in Colombia, that kidnappings were an
important source of revenue for the FARC and that businessmen were preferred
victims.
In his verbal decision in April 2003, the IJ denied petitioners’ applications
for asylum, withholding of removal and CAT relief. Specifically, the IJ found that
Alzate’s testimony was credible, but insufficient “to provide a plausible and
coherent account of the basis of his alleged fear” and that Alzate had no
objectively reasonable fear of persecution. The IJ also found that Alzate failed to
show that he was entitled to withholding of removal and was not eligible for CAT
relief.
Petitioners appealed the decision to the BIA. The BIA affirmed the IJ’s
decision. The BIA focused on the fact that Alzate had returned to Colombia on
several occasions, which undercut his assertion that he feared persecution, and that
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neither he nor anyone in his family have ever been harmed. Petitioners timely
filed a petition for review.
II. DISCUSSION
A. Asylum
An alien who arrives in or is present in the United States may apply for
asylum. See 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant
asylum if the alien meets the INA’s definition of a “refugee.” See 8 U.S.C. §
1158(b)(1). A “refugee” is
any person who is outside any country of such person’s nationality
. . . and 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 asylum applicant carries the burden of proving
statutory “refugee” status. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001).
To carry this burden of proving statutory “refugee” status, the alien must,
with specific and credible evidence, establish either (1) past persecution on
account of a statutorily listed factor, or (2) a “well-founded fear” that the
statutorily listed factor will cause future persecution. 8 C.F.R. §§ 208.13(a),(b);
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Al Najjar, 257 F.3d at 1287.1 In order to be well-founded, a fear of persecution
must be both “subjectively genuine and objectively reasonable.” Al Njjar, 257
F.3d at 1289. A finding of past persecution creates the presumption of a well-
founded fear of persecution and shifts the burden to the government to
demonstrate that either conditions have changed in the alien’s home country, or
the alien could avoid such persecution by relocating in the home country and that
relocation is reasonable. 8 C.F.R. § 208.13(b)(1).
B. Petitioners’ Claim
We conclude, based on the record as a whole, that the BIA’s denial of the
petitioners’ asylum applications is supported by substantial evidence.2 With
regard to past persecution, Alzate’s treatment at the hands of the FARC guerillas
does not rise to the level of persecution. “Although the INA does not expressly
define ‘persecution’ for purposes of qualifying as a ‘refugee,’ we have discussed
1
On appeal, petitioners argue that they are entitled to asylum based not only on political
opinion, but also on Alzate’s membership in a social group as a well-educated member of a
prominent and intellectual social class. Alzate failed to claim asylum on this basis in his
application for asylum or at any time in the administrative proceedings. Having failed to
administratively exhaust this issue, we do not have jurisdiction to consider it on review. See
Fernandez-Bernal v. United States Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001).
2
We review only the BIA’s decision, as it did not expressly adopt the IJ’s decision. Al
Najjar, 257 F.3d at 1284. The BIA’s 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.’” Id. (quoting Lorisme v. INS, 129 F.3d
1441, 1444-45 (11th Cir. 1997)). To the extent the BIA’s decision is based on a legal
determination, our review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001).
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other circuits’ holdings that ‘persecution’ is an ‘extreme concept,’ requiring ‘more
than a few isolated incidents of verbal harassment or intimidation,’ and that
‘[m]ere harassment does not amount to persecution.” Sepulveda v. United States
Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (quoting Gonzalez v. Reno, 212
F.3d 1338, 1355 (11th Cir. 2000) and holding that menacing phone calls and
threats to family members and other members of group do not rise to level of past
persecution). Alzate received threatening phone calls, and his car was stolen, but
then returned by the police without any payment to the FARC. Such threats and
acts of intimidation, without any significant harm, do not rise to the level of past
persecution. See id.Turning to future persecution, we cannot say that the record compels the
finding that Alzate will more likely than not be subjected to persecution upon
removal. See Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004) (en
banc), cert. denied, 125 S. Ct. 2245 (2005). The BIA concluded that Alzate’s fear
was not objectively reasonable. As the BIA noted, despite Alzate’s subjective fear
of the FARC, Alzate was able to return to Colombia several times without
suffering any harm. See Hakeem v. INS, 273 F.3d 812, 816-17 (11th Cir. 2001)
(holding that an applicant’s claim of asylum is weakened, even undercut, when the
applicant has returned to the country without incident). During one of his return
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visits, Alzate made contact with co-workers and met them for an uneventful
celebratory dinner even though he admitted that the FARC learned of his return
visits via friends and co-workers. Additionally, while the FARC knew the
telephone numbers of members of Alzate’s family, his family was never threatened
or harmed. Moreover, although Alzate had heard that a high-level company
executive had been kidnapped, Alzate never received a face-to-face threat during
any of his return visits. Under these circumstances, there is substantial evidence to
support the finding that Alzate’s fear of future persecution was objectively
unreasonable.
Alzate contends that he has established a well-founded fear of future
persecution as a matter of law by the fact alone that he received death threats after
refusing to make extortion payments to the FARC. We disagree. The cases cited
by Alzate – Mgoian v. INS, 184 F.3d 1029 (9th Cir. 1999) and Gonzales-Neyra v.
INS, 122 F.3d 1293 (9th Cir. 1997) – are notably different from Alzate’s. Indeed,
Mgoian did not involve allegations of extortion at all, and Gonzales-Neyra
involved death threats made after an extortion payment was made and it then
became apparent to the extortionists that the applicant had reported them to the
police.3 Furthermore, the facts supporting a well-founded fear of persecution in
3
Gonzales-Neyra also did not address whether death threats following extortion attempts
establish an objective fear of future persecution. The issue in Gonzales-Neyra was whether an
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Mgoian and Gonzales-Neyra were more egregious than those presented by Alzate,
and neither applicant in those cases was able to visit their home country safely.
Here, during the eighteen months following Alzate’s participation in the anti-
FARC education program, he was never confronted face-to-face by the FARC, he
and his family were never harmed, his car was recovered without payment and he
returned to Columbia twice without any harm. The facts of this case do not
establish a reasonable fear of future persecution.
Given Alzate’s failure to carry his lower burden of proof with regard to past
persecution or future persecution, he was not entitled to withholding of removal or
CAT relief. See Forgue v. United States Att’y Gen., 401 F.3d 1282, 1288 n.4 (11th
Cir. 2005) (noting that, where an applicant fails to establish a claim of asylum on
the merits, his other claims for withholding of removal under the INA or for CAT
relief generally fail); Al Najjar, 257 F.3d at 1292-93(same).
For the above reasons, we conclude that the BIA’s decision is supported by
substantial evidence and deny Alzate’s petition.
PETITION DENIED.
applicant can prove fear of persecution “on account of” political opinion when the initial motive
for extortion was economic, but the subsequent threats to the applicant’s life and business were
made only after the applicant made his political opposition to the extortionists known. Id. at
1296. Because substantial evidence supports the BIA’s determination that Alzate’s fear that the
FARC would carry out its threats was not objectively reasonable, we do not reach the separate
question of whether the FARC’s motive for carrying out those threats was “on account of”
Alzate’s political opinion, the issue addressed in Gonzales-Nevra.
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