Raul Eduardo Cabrera v. U.S. Attorney General , 154 F. App'x 889 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 23, 2005
No. 05-11022 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Agency Nos. A95-898-600 & A95-896-094
RAUL EDUARDO CABRERA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 23, 2005)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Raul Eduardo Cabrera, a native and citizen of Colombia, through counsel,
petitions for review of the Board of Immigration Appeals’ (“BIA”) decision
affirming without opinion the Immigration Judge’s (“IJ”) removal order and denial
of his claims for asylum under the Immigration and Nationality Act (“INA”) and
for protection under the United Nations Convention on Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (“CAT”).1
I. Asylum relief
Cabrera argues that the IJ erred in denying his claim for asylum because he
presented substantial evidence demonstrating a well-founded fear of persecution
from the Revolutionary Armed Forces of Colombia (“FARC”) on account of his
membership in a particular social group and his political opinion.
As an initial matter, we are “obligated to inquire into subject-matter
jurisdiction sua sponte whenever it may be lacking.” Cadet v. Bulger, 377 F.3d
1173, 1179 (11th Cir. 2004) (quotation omitted). We can review a final order of
removal only if “the alien has exhausted all administrative remedies available to
the alien as of right . . . .” INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). Accordingly,
we have held that we lack jurisdiction to consider claims that were not raised
before the BIA. Fernandez-Bernal v. United States Att’y Gen., 257 F.3d 1304,
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Cabrera abandoned his claim for withholding of removal under the INA by failing to
raise any argument on this claim in his petition for review. Sepulveda v. United States Att’y
Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
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1317 n.13 (11th Cir. 2001); Galindo-Del Valle v. Attorney Gen., 213 F.3d 594,
599 (11th Cir. 2000).
In this case, Cabrera did not present to the IJ or the BIA his claim for asylum
on account of his membership in a particular social group. Therefore, Cabrera has
failed to exhaust his administrative remedies with regard to this claim, and we lack
jurisdiction to consider it.
When the BIA summarily affirmed the IJ’s decision without an opinion, the
IJ’s decision became the final removal order subject to review. Mendoza v. United
States Att’y Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003). “To the extent that
the [IJ]’s decision was based on a legal determination, this court’s review is de
novo.” D-Muhumed v. United States Att’y Gen., 388 F.3d 814, 817 (11th Cir.
2004). The IJ’s factual determinations are reviewed under the substantial evidence
test, and we “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) (quotation omitted).
“[W]e cannot engage in fact-finding on appeal, nor may we weigh evidence that
was not previously considered below.” Id. at 1278. Therefore, a finding of fact
will be reversed “only when the record compels a reversal; the mere fact that the
record may support a contrary conclusion is not enough to justify a reversal . . . .”
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004), cert. denied, 125 S.Ct.
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2245 (2005); see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of
fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary . . . .”).
An alien who arrives in, or is present in, the United States may apply for
asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of Homeland
Security or the Attorney General has discretion to grant asylum if the alien meets
the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A
“refugee” is 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). “The asylum applicant carries
the burden of proving statutory ‘refugee’ status.” D-Muhumed, 388 F.3d at 818.
To establish asylum eligibility, the petitioner must, with specific and
credible evidence, demonstrate (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); Al Najjar, 257 F.3d at 1287. If the
petitioner demonstrates past persecution, there is a rebuttable presumption that he
has a well-founded fear of future persecution. 8 C.F.R § 208.13(b)(1). If he
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cannot show past persecution, then the petitioner must demonstrate a well-founded
fear of future persecution that is both subjectively genuine and objectively
reasonable. Al Najjar, 257 F.3d at 1289. The subjective component can be
proved “by the applicant’s credible testimony that he or she genuinely fears
persecution,” while the objective component “can be fulfilled either by establishing
past persecution or that he or she has a good reason to fear future persecution.” Id.
(quotation omitted).
Neither the INA nor the regulations define “persecution.” We have stated,
however, that “persecution is an extreme concept, requiring more than few isolated
incidents of verbal harassment or intimidation, and . . . mere harassment does not
amount to persecution.” Sepulveda, 401 F.3d at 1231 (quotations omitted).
The petitioner’s well-founded fear of persecution must be on account of, or
because of, one of the statutorily listed factors, such as his political opinion. INS
v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 816, 117 L.Ed.2d 38 (1992).
The petitioner must establish this causal connection by “presenting specific,
detailed facts showing a good reason to fear that he or she will be singled out for
persecution” on account the statutory factor. Sepulveda, 401 F.3d at 1231(quotation omitted)(emphasis in original). We have noted that to establish a claim
of persecution by a guerrilla group on account of a political opinion, the petitioner
“must establish that the guerrillas persecuted [him] or will seek to persecute [him]
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in the future because of [his] actual or imputed political opinion. It is not enough
to show that [he] was or will be persecuted or tortured due to [his] refusal to
cooperate with the guerrillas.” Sanchez v. United States Att’y Gen., 392 F.3d 434,
438 (11th Cir. 2004) (citation omitted)(emphasis in original). Finally, we have
approved of a “country-wide requirement” in which a refugee must first pursue an
“internal resettlement alternative” in his own country, or establish that this is not
possible, before seeking asylum here. Mazariegos v. United States Att’y Gen., 241
F.3d 1320, 1326-27 (11th Cir. 2001).
In this case, we conclude that substantial evidence supports the IJ’s
conclusion that Cabrera failed to demonstrate either past persecution or a well-
founded fear of future persecution on account of his political opinion. Thus, he
was not eligible for asylum, and the record does not compel a reversal of this
determination. Cabrera did not suffer past persecution because he was never
physically harmed by the FARC, and at most, he only received occasional verbal
threats, which Cabrera testified always came through other sources such as the
temporary employees of his company. Persecution is an extreme concept, and this
evidence is insufficient to compel a reversal of the IJ’s finding that Cabrera did not
suffer past persecution.
Substantial evidence also supports the IJ’s conclusion that Cabrera did not
have a well-founded fear of future persecution on account of his political opinion
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because the threats he had received stemmed from his company’s refusal to pay
“war taxes” to the FARC when operating within the dangerous “red zones” in
Colombia. Thus, Cabrera cannot establish a well-founded fear of persecution on
account of his political opinion because of this refusal to cooperate with the
FARC’s demands. Finally, there is no showing why Cabrera could not seek
internal resettlement in Colombia, or refuse to perform contracts in certain known
dangerous areas, in order to avoid future persecution from the FARC.
Accordingly, we deny Cabrera’s petition for review as to his request for asylum.
II. Protection under the CAT
Cabrera also argues that the IJ erred in denying his claim for protection
under the CAT, contending that he presented evidence that it was more likely than
not that he would be tortured by the FARC if he returned to Colombia.
In order to obtain relief under the CAT, the burden is on the applicant to
establish that it is “more likely than not” he will be tortured in the country of
removal. 8 C.F.R. § 208.16(c)(2). Torture is defined as
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity
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8 C.F.R. § 208.18(a)(1). In Sanchez, we held that in order “[t]o demonstrate
eligibility for CAT protection, an applicant must show that it is more likely than
not that [he] will be tortured in [his] home country at the hands of the government
or that the government will acquiesce in the torture,” and rejected the applicant’s
claim because she presented no evidence on either point. 392 F.3d at 438.
In this case, like Sanchez, Cabrera presented no evidence that the
government would torture him upon his return to Colombia or that the government
would acquiesce to his torture at the hands of the FARC. Because Cabrera cannot
demonstrate his eligibility for protection under the CAT, we deny his petition for
review as to this issue.
PETITION DENIED.
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