Nelson Javier Vargas v. U.S. Atty. General , 157 F. App'x 244 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13294 DECEMBER 7, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA No. A78-410-523
NELSON JAVIER VARGAS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(December 7, 2005)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Nelson Javier Vargas petitions, through counsel, for review of the Board of
Immigration Appeals’s (“BIA”) affirmation of the Immigration Judge’s (“IJ”)
orders which held first, that Vargas’s asylum claim was untimely under INA §
208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B), and that he presented no extraordinary
circumstances excusing the untimely filing as required by INA § 208(a)(2)(D), 8
U.S.C. § 1158(a)(2)(D), and second, that he had failed to establish eligibility for
withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and 8
C.F.R. § 208.16(b)(1)(iii) and (b)(2). Vargas argues that he was persecuted by the
Fuerzas Armadas Revolucionarias de Colombia (“FARC”) guerillas in Colombia
because they considered him disloyal to the revolution due to his work for his
father assisting poor people in buying homes and land. To support his claim of
persecution, Vargas states that his father was briefly kidnaped, his father’s business
partner was murdered, and Vargas received four threatening letters from the FARC
telling him that they considered him and his family “military objectives.”
On appeal, Vargas argues that individuals fleeing from persecution should
have more than one year to decide to file for asylum. In response, the government
argues that we do not have jurisdiction to review the Attorney General’s
discretionary decision that Vargas failed to demonstrate extraordinary
circumstances that would excuse his untimely filing.
“We review subject-matter jurisdiction de novo.” Ortega v. U.S. Atty. Gen.,
416 F.3d 1348, 1350 (11th Cir. 2005) (citing Brooks v. Ashcroft, 283 F.3d 1268,
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1272 (11th Cir. 2002)). An alien can apply for asylum 1 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). The Attorney General can accept an otherwise untimely
application if the alien demonstrates either 1) “the existence of changed
circumstances which materially affect the applicant’s eligibility for asylum,” or 2)
“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). This
decision is entirely up to the Attorney General, however, as “[n]o court shall have
jurisdiction to review any determination of the Attorney General [under section
208(a)(2)(D)].” INA § 208(a)(3), 8 U.S.C. § 1158(a)(3). We have held that this
provision “divests our Court of jurisdiction to review a decision regarding whether
an alien complied with the one-year time limit or established extraordinary
circumstances that would excuse his untimely filing.” Mendoza v. U.S. Atty. Gen.,
327 F.3d 1283, 1287 (11th Cir. 2003). Further, we recently held that the recently
enacted REAL ID Act does not change this conclusion. See Botero v. U.S. Atty.
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An alien may be granted asylum if he is a “refugee,” defined as “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 . . . .” INA § 101(a)(42)(A),
8 U.S.C. § 1101(a)(42)(A).
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Gen., No. 04-16422 at 7-8 (11th Cir. October 6, 2005) (holding that the REAL ID
Act, Pub. L. No. 109-13, 119 Stat. 231 (2005), did not change our existing
precedent on this point).
Vargas admitted that he filed his application for asylum late, and both the IJ
and the BIA determined that no special circumstances existed to except him from
that requirement. We lack jurisdiction to review this decision. Accordingly, we
dismiss for lack of jurisdiction that much of the petition that addresses the
timeliness of Vargas’s asylum petition or the circumstances that Vargas argues
excuses the untimely filing.
Vargas also argues that the BIA erred in finding that he failed to meet his
burden of establishing that it is more likely than not that he will be persecuted upon
return to Colombia. Vargas argues that, in addition to the three threatening letters
from the FARC that he received while still in Colombia, he received the final
threatening letter long after the triggering events, and yet it still indicated that he
was considered a military objective by the guerillas. In addition, Vargas argues
that the police complaint that he filed against the FARC makes him an even more
important target for them.
When the BIA issues a decision, we review only that decision, “except to the
extent that [the BIA] expressly adopts the IJ’s decision.” Nreka v. U.S. Atty. Gen.,
408 F.3d 1361, 1368 (11th Cir. 2005) (citing Al Najjar v. Ashcroft, 257 F.3d 1262,
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1284 (11th Cir. 2001)). In this case, the BIA both expressly adopted the IJ’s
decision and made its own additional observations, so we will review both. “To
the extent that the BIA’s decision was based on a legal determination, review is de
novo.” Id. (citing Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001)). We review the IJ and BIA’s factual determinations under the substantial
evidence test, and we must “‘affirm the [IJ and BIA’s] decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.’” Forgue v. U.S. Atty. Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quoting
Al Najjar, 257 F.3d at 1284 (citation omitted)). Furthermore, under this standard
we must “view the record evidence in the light most favorable to the agency’s
decision and draw all reasonable inferences in favor of that decision.” Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc), cert. denied, 125 S. Ct.
2245 (2005). To reverse the BIA’s decision, we must conclude that the record not
only supports such a conclusion, but compels it. Id.In a withholding of removal claim, an alien will not be removed to a country
if his “life or freedom would be threatened in that country because of his race,
religion, nationality, membership in a particular social group, or political opinion.”
INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). The alien has the burden to establish that
he would face persecution on account of one of the five enumerated grounds upon
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return to the proposed country of removal. Antipova v. U.S. Attorney Gen., 392
F.3d 1259, 1264 (11th Cir. 2004); 8 C.F.R. § 208.16(b).
A showing of past persecution creates a rebuttable presumption that an
alien’s “life or freedom” would again be threatened upon removal to the proposed
country. Antipova, 392 F.3d at 1264. Where the alien has not actually suffered
past persecution, he bears the burden of establishing that it is “more likely than
not” that he would suffer persecution upon removal. Id.; 8 C.F.R. §
208.16(b)(1)(iii) and (b)(2). “An alien cannot demonstrate that he more-likely-
than-not would be persecuted on a protected ground if the IJ finds that the alien
could avoid a future threat by relocating to another part of his country.” Mendoza,
327 F.3d at 1287; 8 C.F.R. § 208.16(b)(2).
“‘[P]ersecution’ is an ‘extreme concept,’ requiring ‘more than a few isolated
incidents of verbal harassment or intimidation,’ and . . . ‘[m]ere harassment does
not amount to persecution.’” Sepulveda v. U.S. Atty. Gen., 401 F.3d 1226, 1231
(11th Cir. 2005) (citations omitted). “Not all exceptional treatment is persecution.”
Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000). In addition, “[t]o qualify
for withholding of removal based on persecution by a guerilla group on account of
a political opinion, [Vargas] must establish that the guerillas persecuted [him] or
will seek to persecute [him] in the future because of [his] actual or imputed
political opinion. . . . It is not enough to show that [he] was or will be persecuted
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or tortured due to [his] refusal to cooperate with the guerillas.” Sanchez v. U.S.
Atty. Gen., 392 F.3d 434, 438 (11th Cir. 2004) (emphasis in the original). See INS
v. Elias-Zacarias, 502 U.S. 478, 483, 112 S. Ct. 812, 816, 117 L. Ed. 2d 38 (1992)
(holding that an asylum applicant may not show merely that he has a political
opinion, but must show that he was persecuted because of that opinion).
We note that the IJ did not specifically find Vargas credible or not credible
and that therefore we will presume that credibility was not a dispositive issue. See
Yang v. U.S. Atty. Gen., 418 F.3d 1198, 1201 (11th Cir. 2005) (lack of credibility
finding left the Court “in the dark”).
The record in this case does not show circumstances so “extreme” as to
compel a finding of past persecution. Vargas’s father was harassed and kidnaped,
and a business associate was harassed and murdered, but Vargas himself has only
received four threatening letters. Further, it is not even clear that Vargas actually
was being persecuted for his political opinion, rather than his family’s collective
refusal to cooperate with the FARC, which is insufficient to support the charge of
persecution.
In addition, there is nothing to compel us to overturn the IJ’s and BIA’s
determinations that Vargas has failed to demonstrate that he will more likely than
not face persecution if he returns. Vargas’s family has lived safely in Bogota since
1999. This is strong evidence that Vargas will be able to relocate and avoid the
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FARC. This makes it impossible for Vargas to claim that he will more likely than
not face persecution. Accordingly, we deny Vargas’s petition for withholding of
removal.
PETITION DISMISSED in part; DENIED in part.
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