Gustavo Jaramillo Sarmiento v. U.S. Attorney Gen. , 223 F. App'x 860 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 27, 2007
No. 06-14332 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A95-220-232 & A95-220-233
GUSTAVO JARAMILLO SARMIENTO,
SOLEDAD GOMEZ CABRERA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_______________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 27, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Gustavo Jaramillo Sarmiento (“Sarmiento”) and his wife Soledad Gomez
Cabrera, citizens of Colombia, petition for review of a Board of Immigration
Appeals (“BIA”) decision adopting and affirming the order of an Immigration
Judge (“IJ”). The IJ denied their application for relief under the Immigration and
Nationality Act (“INA”), finding that their application for asylum was time-barred
and that they were ineligible for withholding of removal. We find that we lack
jurisdiction to review their asylum petition and that substantial evidence supports
the IJ’s decision. Accordingly, we dismiss the asylum appeal and affirm the IJ’s
decision as to withholding relief. 1
Background
Sarmiento, and derivatively, his wife, applied for asylum and withholding
relief in 2001. In a hearing before the IJ, he claimed that he was politically active
in the Liberal Party in Columbia and had participated in campaigns intended to
defend democracy and human rights. Additionally, he stated that he had worked for
the government and various multinational companies. He alleged that as a result,
the Revolutionary Armed Forces of Colombia (“FARC”) abducted him in 1999
and demanded a war tax from him. He claimed that they threatened to torture and
murder him if he did not comply with their demands, forcing him to flee Colombia.
1
Sarmiento also applied for relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”), 8 U.S.C. § 1231(b)(3), 8 C.F.R. § 208.16(c). Sarmiento makes no
arguments on appeal concerning the denial of his request for CAT relief.
Therefore, he has waived that issue. See Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005).
2
A portion of Sarmiento’s testimony with regard to his abduction and political
activity was not properly recorded.
The IJ found that Sarmiento’s asylum claim was time-barred since it was not
filed within one year of his arrival in the United States. Sarmiento testified that the
delay occurred because he was unaware that Colombians were eligible for such
relief. The IJ found that this explanation did not constitute an extraordinary
circumstance meriting waiver of the one-year requirement. Additionally, the IJ
found that Sarmiento was ineligible for withholding relief because any alleged
persecution was not based on an actual or imputed political opinion. The BIA
affirmed the IJ’s decision and this appeal ensued.
Jurisdiction and Standard of Review
Absent “the existence of changed circumstances which materially affect [an]
applicant’s eligibility for asylum or extraordinary circumstances relating to the
delay,” asylum applications must be filed within a year of an applicant’s arrival in
the United States. INA § 208(a)(2)(B) & (D), 8 U.S.C. § 1158(a)(2)(B) & (D).
Courts do not have the jurisdiction to review the Attorney General’s
determinations with regard to this requirement. INA § 208(a)(3), 8 U.S.C.
§ 1158(a)(3); Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
Consequently, we lack jurisdiction to review “a decision regarding whether an
applicant complied with the one-year time limit or established extraordinary
3
circumstances that would excuse his untimely filing.” Mendoza, 327 F.3d at 1287.
Jurisdictional provisions in the REAL ID Act of 2005, Pub. L. No. 109-13, 119
Stat. 231, 310 (2005), do not affect this jurisdictional rule. Chacon-Botero v. U.S.
Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005). Accordingly, we find that we may
not consider Sarmiento’s asylum claim.
However, we retain jurisdiction over Sarmiento’s withholding claim. In
evaluating this claim, we review the IJ’s legal determinations de novo. Mohammed
v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). Conversely, we review the
IJ’s factual determinations under the substantial evidence standard and “must
affirm the [IJ’s] decision if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d
1262, 1283-84 (11th Cir. 2001).
Discussion
To be eligible for withholding of removal under the INA, an applicant must
demonstrate that there is a clear probability of future persecution on account of
race, religion, ethnicity, political opinion or social group. 8 U.S.C. §
1231(b)(3)(A). Political persecution within the meaning of the INA may be based
on an imputed political opinion, whether correctly or incorrectly attributed. Al
Najjar, 257 F.3d at 1289. To prevail on an imputed political opinion theory, the
applicant must show that “the persecutor falsely attributed an opinion to [him], and
4
then persecuted [him] because of that mistaken belief about [his] views.” Id.
(internal quotations and citations omitted)(alterations in original). To show the
nexus between the imputed opinion and the persecution, the applicant must present
“specific, detailed facts showing a good reason to fear that he or she will be singled
out for persecution on account of such an opinion.” Sepulveda, 401 F.3d at 1231(emphasis in original). “It is not enough to show that [the applicant] was or will be
persecuted or tortured due to [the applicant’s] refusal to cooperate with the
guerillas.” Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004).
The IJ found that any harassment suffered by Sarmiento was motivated by
his economic and business interests. Sarmiento testified that he did contract work
for the government and that the guerilla group sought such government contracts to
fund their organization.2 FARC’s interest in Sarmiento appears to have been
limited to the payment of a war tax and the demand that he cease working on such
competing contracts. This evidence lends support to the IJ’s conclusion that
Sarmiento did not establish a nexus between the FARC’s alleged persecution and
his political opinion because any alleged persecution rested on financial rather than
2
The transcript of Sarmiento’s asylum hearing contains many notations of
“indiscernible” and “inaudible” in place of Sarmiento’s testimony, and Sarmiento argues that
this incomplete transcript prejudiced him. However, when rendering the oral decision, the IJ
restated the pertinent missing portions, so we are able to review the substance of Sarmiento’s
testimony. Sarmiento asserts that the IJ’s version was incomplete, but he does not point to any
specific inaccuracies or missing facts. Therefore, Sarmiento has not shown that the transcript
deficiencies resulted in prejudice, and we decline to afford him relief on this basis.
5
political grounds. Accordingly, we deny Sarmiento’s petition for review of his
withholding of removal claim.
PETITION DISMISSED IN PART, DENIED IN PART.
6