Jose Julian Astaiza Lopez v. U.S. Atty. General , 217 F. App'x 923 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 15, 2007
No. 06-11786 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A97-660-676
JOSE JULIAN ASTAIZA LOPEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 15, 2007)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Jose Julian Astaiza Lopez seeks review of the BIA’s decision affirming
without opinion the IJ’s order finding him removable and denying his application
for asylum, withholding of removal, and Convention Against Torture (“CAT”)
relief.
When the BIA adopts the IJ’s decision, we review the IJ’s decision. Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We “must affirm the
[IJ’s] decision if it is supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” Id. (quotation omitted). In order to reverse
the IJ’s decision, we “must find that the record not only supports reversal, but
compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
An alien may be granted asylum if he proves that he is a “refugee.” INA
§ 208(a)(1), (b)(1), 8 U.S.C. § 1158(a)(1), (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). To prove refugee status, the
alien must establish (1) his past persecution on account of a protected ground, or
(2) his “well-founded fear” of future persecution on account of a protected ground.
8 C.F.R. § 208.13(a), (b); see Al Najjar, 257 F.3d at 1287.
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If the alien provides credible evidence of past persecution, the IJ must
specify whether the evidence presented constitutes past persecution. Antipova v.
U.S. Att’y Gen., 392 F.3d 1259, 1265 (11th Cir. 2004) (considering withholding of
removal claim). If the IJ finds that the alien established past persecution, a
presumption of persecution arises, which the government can rebut by showing
that the country’s conditions have changed or that internal relocation is reasonably
possible. 8 C.F.R. § 208.13(b). If the IJ finds that the alien has not established
past persecution, the alien must show a well-founded, or “subjectively genuine and
objectively reasonable,” fear of future persecution. 8 C.F.R. § 208.13(b)(2); Al
Najjar, 257 F.3d at 1289.
The alien may also seek withholding of removal and CAT relief if he can
prove that future persecution or torture would occur “more likely than not.” See
INA § 241, 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 208.16(c); Mendoza, 327 F.3d at
1287; Al Najjar, 257 F.3d at 1303. However, ineligibility for asylum generally
precludes eligibility for withholding of removal or CAT relief, as the standard for
the former is easier to meet than the standard for the latter. Al Najjar, 257 F.3d at
1292-93, 1303-04.
The IJ rejected Astaiza Lopez’s scant claim that it was his job with the
ministry of environment that caused FARC’s threats, finding instead that it was
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Astaiza Lopez’s father’s position that caused the threats.1 Because a job is not one
of the protected grounds for asylum, the IJ did not err when it determined that
Astaiza Lopez failed to show past persecution. Substantial evidence also supports
the conclusion that Astaiza Lopez failed to show a well-founded fear of future
persecution. As we have discussed, the past acts of the FARC against him did not
constitute persecution. In addition, Astaiza Lopez’s family members who remain in
Colombia–including his father, mother, and siblings–have not been harmed by the
FARC. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006) (noting
that an alien did not establish a well-founded fear of future persecution when his
family continued to live unharmed in his country of removal). Therefore, the
evidence does not compel the conclusion that Astaiza Lopez is eligible for asylum.
Because he has failed to demonstrate that he is eligible for asylum, he also has
failed to meet the higher burden of proof required for withholding of removal. See
Al Najjar, 257 F.3d at 1292-93.
AFFIRMED
1
On appeal, Astaiza Lopez argues that it was his imputed political opinion by the FARC
that caused the threats because of his involvement with the People’s Movement and claim that
his friend Phillipe was kidnaped and killed. Because we cannot consider evidence that is
outside of the administrative record, we do not consider Astaiza Lopez’s new argument. See 8
U.S.C. § 1252(b)(4)(A) (explaining that we may decide petition “only on the administrative
record on which the order of removal is based”).
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