Luis A. Guevara v. U.S. Attorney General ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 24, 2005
No. 04-13712 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A95-551-315 & A95-551-316
LUIS A. GUEVARA,
JANETH ESCOBAR, et al.,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(May 24, 2005)
Before CARNES, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Luis A. Guevara (“Guevara”), Janeth Escobar, Maria C. Guevara, and Jose
L. Guevara, through counsel, petition for review of the BIA’s decisions adopting
and affirming the IJ’s order of removal and denial of their asylum and withholding
of removal claims.1 Guevara raises three issues on appeal: (1) the IJ acted unfairly
when he denied Guevara’s application for asylum as untimely; (2) the IJ erred by
denying him asylum and withholding relief because the evidence showed that he
had a well-founded fear of persecution; and (3) the one-year time bar for filing
asylum and the “internal resettlement” are unconstitutional. For the reasons
discussed more fully below, we deny Guevara’s petition in part and dismiss in part
for lack of jurisdiction.
The lead petitioner, Guevara, was admitted into the United States on or
about March 10, 1999, as a non-immigrant visitor with authorization to remain
until March 5, 2000. His wife, Janeth Escobar, and his two children were admitted
into the United States on or about January 1, 2000, also as non-immigrant visitors,
but with authorization to stay until July 1, 2000. Guevara filed an application for
asylum and withholding of removal, signed April 26, 2002. On July 17, 2002, all
of the petitioners were served with a notice to appear charging them with
removability for remaining in the United States for a longer time than permitted,
1
Petitioners do not challenge the IJ’s finding that they failed to show a likelihood or
possibility of torture under CAT. Therefore, the claim is deemed abandoned. See Sepulveda v.
U.S. Attorney General, 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). (AR at 547-48, 557-58, 568-69,
579-80).
Guevara’s application for asylum and withholding of removal claimed
membership in a particular social group, the Liberal Party. He did not claim relief
under the CAT. Guevara alleged the following: (1) he arrived in the United States
on September 6, 1999, escaping persecution from the FARC;2 (2) before coming to
the U.S., he administered a textile business in Palmira, Colombia; (3) in November
1998 he began receiving phone calls from the FARC demanding that he employ
several FARC members and requesting that he sell property and give them money
to prevent them from bothering him and his family; (4) as a result, Guevara began
to have psychological problems, and his psychologist recommended that he leave
Colombia until the situation resolved; (5) he continued to fear for his family
because the FARC threatened them and indicated that they would kidnap his oldest
son if their demands were not met; (6) he and his family then abandoned the
country and their property there; (7) his father-in-law had been subjected to similar
threats by the FARC; (8) his wife has no remaining family in Colombia; and (9)
the FARC kidnaped one of their trusted employees and demanded that the
employee tell them Guevara’s whereabouts; and (10) he fears that the FARC will
2
Revolutionary Armed Forces of Columbia. Guevara alleged that there was a brief
departure from the United States when he went to the Bahamas and then came back on the same
day on September 6, 1999.
3
kill him and his family if returned to Colombia because he is now a FARC enemy.
Prior to his removal hearing, Guevara submitted an addendum to his
application alleging the following additional facts: (1) his grandfather had instilled
in him loyalty to the Liberal Party since he was very young, and he was involved in
the political campaign, inviting peasants to political meetings and encouraging
them to vote for Liberal Party candidates; (2) several of his relatives had been
subjected to death threats by insurgent groups; (3) many businessmen in Palmira
were forced to pay paramilitary organizations to protect their businesses; (4) the
FARC called him and told him that he must have a lot of money because he was
supporting corrupt politicians and paramilitary groups and asked Guevara to hire
five to six FARC members; (5) he told the FARC that he would be putting himself
and his family at risk if he employed FARC members; (6) eventually he told the
FARC that he might be able to employ some of its members when business was
good, but only to evade their demands; (7) the FARC continued to call him, and
one day Guevara noticed two people on a motorcycle following him, which is the
common operating procedure for hitmen, prompting Guevara to get out of his car
and walk home.
Guevara secured counsel to represent him at his removal hearing, and he
conceded to the allegations and charge of removability contained in his notice to
appear. The IJ indicated to Guevara that, in order to excuse the late filing of his
4
asylum application, he would be required to show either a changed country
condition or an exceptional circumstance for its lateness.
After hearing testimony from Guevara regarding his application for asylum
and withholding of removal, the IJ issued an oral decision.3 He first refused to
consider Guevara’s application for asylum, finding that Guevara was aware of the
one-year filing deadline, failed to submit his application within that deadline or
within a reasonable time after expiration of his non-immigrant status, and had
failed to establish ineffective assistance of counsel, making his application
untimely.4 The IJ then proceeded to deny Guevara’s withholding of removal and
CAT claims and ordered the petitioners be removed, finding that (1) general
conditions of upheaval are insufficient to demonstrate per se persecution; (2) the
FARC’s attempted extortion of money or substitution of employees in Guevara’s
business did not demonstrate imputed political opinion or any other statutory
ground for relief under the INA; (3) Guevara had failed to establish a fear,
subjective or otherwise, of countrywide persecution, as he had successfully
3
The resolution of the issues on appeal does not rely on any of the evidence or testimony
given at the removal hearing. As is discussed infra, we do not address the merits of Guevara’s
claims for asylum or withholding of removal because we lack jurisdiction over the asylum claim
and Guevara has waived or abandoned his withholding of removal claim.
4
Guevara’s testimony was that the woman who helped him fill out his application was a
notary and attorney, but not licensed to practice in the United States, and that he was aware of
the one-year filing deadline. (AR at 91). Pursuant to 8 C.F.R. § 208.4(a)(5)(iii)(A)-(C), an alien
can excuse an untimely application if the reason for the tardiness was ineffective assistance of
counsel.
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relocated his family prior to coming to the United States and had endured no
further problems after moving; and (4) therefore, Guevara had not met his burden
of proof under the CAT or for withholding of removal.
On appeal to the BIA, Guevara (through different counsel than had
represented him at his removal hearing) argued that the IJ had erred by rejecting
his application for asylum as untimely, and argued that the one-year deadline
violated the Supremacy Clause of the U.S. Constitution as well as due process
because it was contrary to the United Nations Convention on the Status of
Refugees, which he argued was of greater hierarchy than the statutory one-year
filing deadline. He also argued that he had “demonstrated a clear probability of
persecution on account of [his] political opinion,” without referring to any
evidence or facts to support his assertion. Guevara then filed a brief with the BIA
arguing that (1) the IJ should have ordered the filing of a new application for
asylum because Guevara received ineffective assistance of counsel; (2) the IJ was
biased, and denied Guevara’s application solely because of the one-year deadline;
(3) the one-year deadline was unconstitutional because it violated the Supremacy
Clause, which required the United States to give full force to the U.N. Convention
it had adopted by treaty; and (4) the facts of Guevara’s case required that the BIA
grant him asylum (emphasis supplied).
The BIA, in a written per curiam opinion, adopted and affirmed the decision
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of the IJ, stating that the IJ properly determined that Guevara’s application for
asylum was not timely filed and that he had failed to meet his burden of proof on
withholding of removal, and protection under the CAT. It concluded that Guevara
had “put forth no appellate arguments which would persuade us to disturb the
Immigration Judge’s findings and conclusions.”
Because Guevara’s removal proceedings commenced after April 1, 1997, the
effective date of IIRIRA, this case is governed by the permanent provisions of the
INA, as amended by IIRIRA. Gonzalez-Oropeza v. U.S. Attorney General, 321
F.3d 1331, 1332 (11th Cir. 2003). This Court will review only the BIA’s 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) (citation omitted) (transitional rules case).
Insofar as the BIA adopts the IJ’s reasoning, this Court will review the IJ’s
decision as well. Id. (citation omitted).
Guevara’s first argument on appeal is that the IJ acted unfairly when he
denied Guevara’s application for asylum as untimely. The government argues that
we lack jurisdiction to review the IJ’s decision regarding the timeliness of
Guevara’s application.
We review de novo questions of subject matter jurisdiction. Brooks v.
Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002). As amended by IIRIRA, INA
§ 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B), provides that an alien may not apply for
7
asylum unless he demonstrates by clear and convincing evidence that the
application was filed within one year of his arrival in the United States. A late
application for asylum may be considered if the alien demonstrates to the Attorney
General’s satisfaction the existence of either changed circumstances or
extraordinary circumstances relating to the delay in filing the application. See INA
§ 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). Pursuant to § 1158(a)(3), however,
“[n]o court shall have jurisdiction to review any determination of the Attorney
General under paragraph (2).” INA § 208)a)(3), 8 U.S.C. § 1158(a)(3).
We have held that “federal courts do not have jurisdiction to review the
Attorney General’s decision as to timeliness of [an asylum] request. Pursuant to 8
U.S.C. § 1158(a)(3), the Attorney General’s decision regarding whether an alien
complied with the one-year time limit or established extraordinary circumstances,
such that the time limit should be waived, is not reviewable by any court.” Fahim
v. United States Attorney General, 278 F.3d 1216, 1217 (11th Cir. 2002). Thus,
we are without jurisdiction to review the IJ’s and BIA’s finding that Guevara’s
asylum claim was untimely, and Guevara’s petition for review of that decision is
dismissed for lack of jurisdiction. We will, however, to the extent Guevara
properly raises the issues, review Guevara’s eligibility for withholding of removal
or relief under the CAT. See id. at 1217-18.
In his brief, Guevara lists, among his statement of issues, that the BIA and IJ
8
erred by denying him asylum and withholding relief because the evidence showed
that he had a well-founded fear of persecution, there was no argument against his
credibility, and the one-year filing requirement for asylum claims mechanically
excludes legitimate asylum claims. However, throughout the substantive portion
of Guevara’s brief, no argument is made as to the BIA’s and IJ’s determination that
Guevara did not qualify for withholding of removal. Instead, Guevara argues that
his asylum application was not given adequate consideration because it was
dismissed as untimely and, therefore, the BIA and IJ ignored the evidence Guevara
presented showing that the FARC did more than merely extort him. Nowhere in
the brief is an argument found regarding the burden of proof or standards for
withholding of removal, nor is any case law cited to support his arguments.
Significantly, Guevara did not argue any error in the denial of withholding of
removal or CAT claims to the BIA either, instead focusing on asylum and the
constitutionality of the one-year filing requirement. In sum, the only arguments
Guevara makes (or mentions) regarding withholding of removal are found in two
conclusory statements, one in the “statement of issues,” the other in the
“conclusion.”
Pursuant to Fed.R.App.P. 28(a)(9), an appellant’s brief must contain his “(A)
contentions and the reasons for them, with citations to the authorities and parts of
the record on which the appellant relies; and (B) for each issue, a concise statement
9
of the applicable standard of review.” Fed.R.App.P. 28(a)(9)(A)-(B). We have
held that the failure to elaborate or provide any citation of authority in support of
an argument on appeal acts as a waiver of the argument for appellate purposes.
Flanigan’s Enterprises, Inc. of Georgia v. Fulton County, Georgia, 242 F.3d 976,
987 n.16 (11th Cir. 2001). Furthermore, failure to offer argument on an issue
abandons it. Sepulveda, 401 F.3d at 1228 n.2. Finally, and most fatal to Guevara’s
claim, is that passing references to issues are insufficient to raise the claim on
appeal. Id.Here, Guevara’s brief, despite being counseled, notably does not include a
standard of review, let alone the standard of review of the BIA’s decision denying
withholding of removal. It mentions the words “withholding of removal” twice on
page nine in the “statement of issues,” and then fails to describe what is needed to
be proven to the IJ to qualify for withholding of removal. Instead, Guevara argues
that the IJ improperly denied him asylum and challenges the constitutionality of
the one-year filing deadline applied by the IJ to deny him his asylum claims. Thus,
the failure of Guevara to identify citations, authority, or arguments regarding the
denial of his withholding of removal claim is fatal to his appeal of that issue, and
we find that his argument is abandoned and/or waived. See also I.N.S. v. Cardoza-
Fonseca, 480 U.S. 421, 429 n.6, 107 S.Ct. 1207, 1212 n.6, 94 L.Ed.2d 434 (1987)
(explaining that “[a]sylum and withholding of deportation are two distinct forms of
10
relief” and distinguishing between the two).
Guevara’s final argument is that the one-year time bar for filing asylum
applications violates the United Nations Convention of the Status of Refugees by
adding a reason for which an asylum can be denied contained in that Convention.
He argues that because the U.S. Senate has ratified the U.N. Convention, the
United States is bound to follow the Convention, and the Supremacy Clause of the
United States Constitution requires that the treaty trump the federally enacted INA
§ 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B). He also argues that the requirement that
an alien not have a reasonable resettlement alternative in his own country before an
asylum claim will be granted violates the United States Constitution and was
improperly applied in the present case.
We review questions of constitutional law de novo. See Loyd v. Alabama
Dep’t of Corrections, 176 F.3d 1336, 1339 (11th Cir. 1999). The Supremacy
Clause provides as follows:
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding
U.S. Const. Art. VI, cl. 2. With respect to the Supremacy Clause, the Supreme
Court explained the relationship between a treaty and a federal statute as follows:
11
A treaty is primarily a contract between two or more independent
nations, and is so regarded by writers on public law . . .When the
stipulations are not self-executing, they can only be enforced pursuant
to legislation to carry them into effect . . . If the treaty contains
stipulations which are self-executing, that is, require no legislation to
make them operative, to that extent they have the force and effect of a
legislative enactment . . . By the constitution, a treaty is placed on the
same footing, and made of like obligation, with an act of legislation.
Both are declared by that instrument to be the supreme law of the
land, and no superior efficacy is given to either over the other. When
the two relate to the same subject, the courts will always endeavor to
construe them so as to give effect to both, if that can be done without
violating the language of either; but, if the two are inconsistent, the
one last in date will control the other: provided, always, the stipulation
of the treaty on the subject is self-executing.
Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 458, 31 L.Ed. 386 (1888).
Guevara cites to Chapter I, Art 1, Sub. F of the U.N. Convention 5 in his
brief, which reads:
The provisions of this Convention shall not apply to any person with
respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a
crime against humanity, as defined in the international
instruments drawn up to make provision in respect of such
crimes;
(b) he has committed a serious non-political crime outside the
country of refuge prior to his admission to that country as a
refugee;
(c) he has been guilty of acts contrary to the purposes and
principles of the United Nations.
5
The United States is not a signatory to the U.N. Convention itself, but rather to the
Protocol, which bound all signatories to comply with the substantive provisions of Articles 2-34.
See I.N.S. v. Stevic, 467 U.S. 407, 416, n.9, 104 S.Ct. 2489, 2494, n.9, 81 L.Ed.2d 321 (1984).
12
Protocol Relating to the Status of Refugees, Nov. 1, 1968, Ch. I., Art. 1, Sub. F, 19
U.S.T. 6223. Guevara states that this provision is the only limitation to granting an
alien political asylum.
Notwithstanding the numerous other provisions of the treaty establishing
limitations on its applicability to certain aliens (see, e.g, Art I. Ch. 1, Subs. C-E),
Guevara ignores two other important provisions of the convention and protocol, as
well as the manner in which the United States has chosen to comply. The first is
Chapter III, Art. 34, which reads:
The Contracting States shall as far as possible facilitate the
assimilation and naturalization of refugees. They shall in particular
make every effort to expedite naturalization proceedings and to reduce
as far as possible the charges and costs of such proceedings.
Protocol Relating to the Status of Refugees, Nov. 1, 1968, Ch. III., Art. 34, Sub. F,
19 U.S.T. 6223.
The United States Supreme Court has explained that the United States has
met its obligation to comply with this Article by establishing discretionary relief in
the form of asylum for those aliens who qualify as refugees under the INA. See
Cardoza-Fonseca, 480 U.S. at 441, 107 S.Ct. at 1218.
The second is Chapter III, Art. 33, which states:
(1) No Contracting State shall expel or return ("refouler") a refugee in
any manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
13
opinion.
(2) The benefit of the present provision may not, however, be claimed
by a refugee whom there are reasonable grounds for regarding as a
danger to the security of the country in which he is, or who, having
been convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community of that country.
Protocol Relating to the Status of Refugees, Nov. 1, 1968, Ch. III., Art. 33, Sub. F,
19 U.S.T. 6223.
The Supreme Court has noted that neither Article 33 nor Article 34 of the
Protocol are self-executing or precatory. See I.N.S. v. Chevic, 467 U.S. 407, 426,
n.22, 104 S.Ct. 2489, 2500 n.22, 81 L.Ed.2d 321 (1984) (stating that Article 34 is
not self-executing); Cardoza-Fonseca, 480 U.S. at 441, 107 S.Ct. at 1218(describing Article 33 as precatory); see also Haitian Refugee Center, Inc. v.
Baker, 949 F.2d 1109, 1110 (11th Cir. 1992) (holding that Article 33 is not self-
executing). Thus, because the Protocol is not self-executing, we conclude that the
one-year time bar does not violate the Supremacy Clause.
Lastly, to the extent that Guevara argues that the “internal resettlement” rule
is unconstitutional, we find the contention is without merit. We have held that:
[I]t is not unreasonable to require a refugee who has an internal
resettlement alternative in his own country to pursue that option
before seeking permanent resettlement in the United States, or at least
to establish that such an option is unavailable. As a matter of
immigration policy, a government may expect that an asylum seeker
be unable to obtain protection anywhere in his own country before he
seeks the protection of another country. We therefore uphold the
14
BIA's imposition of a country-wide requirement in this case.
Mazariegos v. Office of the United States Attorney General, 241 F.3d 1320, 1327
(11th Cir. 2001). Thus we conclude that the “internal relocation” rule is not
unconstitutional as applied. Moreover, as discussed above, we will not review the
IJ’s determination that internal resettlement was likely a viable option for Guevara.
For the foregoing reasons, we conclude that (1) Guevara waived or
abandoned any argument regarding the BIA’s and IJ’s decisions regarding his
withholding of removal and CAT relief, (2) we lack jurisdiction to review his
asylum claim, and (3) Guevara’s constitutional arguments lack merit.
Accordingly, Guevara’s petition is denied in part and dismissed in part for lack of
jurisdiction.
PETITION DENIED IN PART, DISMISSED IN PART.
15