Juan Bolivar Soler v. U.S. Attorney General ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 10, 2007
No. 07-11906 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A79-497-268
JUAN BOLIVAR SOLER,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 10, 2007)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Juan Bolivar Soler seeks review of the Board of Immigration Appeals’
(“BIA”) order affirming the Immigration Judge’s (“IJ”) order of removal and
denial of his application for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”) and relief under the Convention Against
Torture (“CAT”), 8 U.S.C. § 1231(b)(3), 8 C.F.R. § 208.16(c).
Bolivar Soler, a native and citizen of Colombia, was admitted to the United
States on or about August 29, 2000, as a nonimmigrant with authorization to
remain in the United States until February 28, 2001. The Department of Homeland
Security (“DHS”) issued Bolivar Soler a Notice to Appear (“NTA”), charging that
he was subject to removal under INA § 237(a)(1), 8 U.S.C. § 1227(a)(1), as an
alien who remained in the United States for a time longer than permitted.
Bolivar Soler subsequently filed an application for asylum, withholding of
removal, and relief under CAT. In his application, Bolivar Soler indicated that he
was a member of the Colombian Liberal Party and was “under death threats by [the
Revolutionary Armed Forces of Colombia (“FARC”)] in Colombia.” According to
Bolivar Soler, the FARC declared him “a military objective because of [his]
political activity and for [his] participation in a particular social group.” As
corroboration, Bolivar Soler included in his asylum application letters from three
Liberal party members stating that his political campaigning was suspended
because he began to receive death threats from the FARC, as well as several
articles regarding country conditions in Colombia.
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At the asylum hearing, Bolivar Soler testified that in May 2000, the FARC
called him and told him to stop his work with the Liberal party and to stay out of
the neighborhoods in which he had been campaigning for an upcoming election.
Altogether, Bolivar Soler received 35 to 45 calls from the FARC. On August 10,
2000, Bolivar Soler’s secretary gave him a message that the FARC had declared
him a “military objective.” On August 14, 2000, Bolivar Soler found his car with
the tires punctured and a sign on the hood that said “death to the traitor of the
people.” The next day, a vehicle attempted to run over Bolivar Soler as he was
crossing the street. Although Bolivar Soler initially believed that it was a drunk
driver, he received a call later that evening from a member of the FARC who told
him: “[Y]ou saved yourself this time, but before October, we’re going to blow you
to pieces.” Soon after these incidents, on August 29, 2000, Bolivar Soler left
Colombia. Bolivar Soler stated that if he and his family were to return to
Colombia, the FARC would kill them. Bolivar Soler testified that he did not report
any of the incidents to the police because police protection was offered only to
those “persons that are representatives in the fighting, candidates, governors,
mayors,” and “[d]oing that would be much more, would cost me more
(indiscernible) due to the fact that many members of the guer[r]illas are, were
infiltrated in the military ranks (indiscernible).”
The IJ denied Bolivar Soler’s application for asylum, withholding of
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removal, and CAT relief. In his oral decision, the IJ found Bolivar Soler’s
testimony consistent with his written application but found that the acts Bolivar
Soler complained of were not so extreme as to rise to the level of persecution.
The BIA subsequently affirmed the IJ and dismissed Bolivar Soler’s appeal,
finding that the threats and other incidents related by Bolivar Soler did not rise to
the level of past persecution, and, therefore, that he was not entitled to a
presumption of a well-founded fear of persecution. Thus, the BIA determined that
Bolivar Soler did not show he was entitled to asylum, withholding of removal, or
CAT relief.
I. Jurisdiction
On appeal, Bolivar Soler makes three arguments over which the government
contends that this Court lacks jurisdiction. First, Bolivar Soler argues that the IJ
erred by: (1) failing to acknowledge the supporting letters and country reports he
submitted; and (2) determining that he did not suffer past persecution. Second,
Bolivar Soler argues that the IJ erred by denying him CAT relief. Third, Bolivar
Soler argues that the IJ erred by failing to rule on his request for a voluntary
departure.
Bolivar Soler did not present to the BIA the arguments that (1) the IJ erred
by failing to rule on his request for a voluntary departure, or (2) the IJ erred by
denying him CAT relief. Therefore, he did not exhaust his administrative remedies
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with regard to those issues, and we therefore have no jurisdiction to consider them.
However, Bolivar Soler argued before the BIA that the IJ erred by failing to
acknowledge the letters he submitted to the court in support of his position. In
addition, Bolivar Soler raised the claim that he was unable to avail himself of the
protection of his home country when he stated in his brief that “[C]ountry
condition reports show that the Government of Colombia is unable to protect its
citizens from the FARC.” Finally, by repeatedly asserting that he established that
he suffered past persecution, based, in part, on the letters and other supporting
documentation, Bolivar Soler exhausted the issue of past persecution before the
BIA. Since, Bolivar Soler raised these arguments before the BIA, we have
jurisdiction to consider them.
II. Past Persecution
Bolivar Soler argues that the IJ erred by finding that he did not suffer past
persecution because, after a series of escalating events, the FARC attempted to kill
him by running him over with a car. Bolivar Soler contends that his testimony was
entitled to great weight because the IJ found that he was credible and that his
testimony was consistent with his application. Moreover, Bolivar Soler asserts that
he presented extensive documentation that supported his position, including
several letters that explicitly referred to the FARC by name and published reports
from respected organizations. Thus, because he established that he suffered past
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persecution, Bolivar Soler contends that he was entitled to a rebuttable
presumption of a well-founded fear of future persecution.
We have indicated that “persecution is an extreme concept, requiring more
than a few isolated incidents of verbal harassment or intimidation, and that mere
harassment does not amount to persecution.” Sepulveda v. U.S. Attorney Gen.,
401 F.3d 1226, 1231 (11th Cir. 2005) (quotations omitted). Nonetheless, we have
also held that “attempted murder is persecution.” Sanchez-Jimenez, 492 F.3d at
1233; see also Mejia v. U.S. Attorney Gen., 498 F.3d 1253, 1258–59 (11th Cir.
2007) (applying Sanchez-Jimenez to the use of other projectiles as weapons, in that
case, a rock). Moreover, “[i]n assessing past persecution we are required to
consider the cumulative impact of the mistreatment the petitioner[] suffered.”
Mejia, 498 F.3d at 1258 (emphasis in original).
Based on the undisputed record, we have no difficulty finding that Bolivar
Soler suffered past persecution. In addition to numerous threatening telephone
calls, Bolivar Soler received a call from the FARC specifically indicating that he
had been declared a “military objective.” Just days later, Bolivar Soler found his
tires punctured and a sign on the hood that said “death to the traitor of the people.”
The following day, a member of the FARC attempted to run over and kill Bolivar
Soler with a car. After Bolivar Soler narrowly escaped, he received a phone call
later that evening from a member of the FARC who confirmed the murder attempt,
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telling him: “[Y]ou saved yourself this time, but before October, we’re going to
blow you to pieces.” In considering the cumulative effects of the escalating
threats, and because there was credible evidence that the FARC attempted to kill
Bolivar Soler when it tried to run him over with a car, the record compels the
conclusion that he suffered past persecution.1
Based upon the foregoing discussion and our review of the record and the
parties’ briefs, we dismiss the petition as to Bolivar Soler’s claims that (1) the IJ
erred by failing to rule on his request for a voluntary departure, and (2) the IJ erred
by denying him CAT relief, both for lack of jurisdiction. However, because we
find past persecution, we grant Bolivar Soler’s asylum petition in part and remand
to the BIA to allow the government an opportunity to rebut the presumption of
well-founded fear of future persecution by showing “by a preponderance of the
evidence either that conditions in the country have changed or that the applicant
could avoid future persecution by relocating within the county, if, ‘under all the
circumstances, it would be reasonable to expect the applicant to do so.’” Sanchez-
1
The BIA found that Bolivar Soler’s “claim to a well-founded fear of persecution is
undermined by his failure to report the threats he received from the FARC or their attempts to
injure him, and his failure to seek protection or assistance from authorities and his political
party.” However, Bolivar Soler testified that police protection was offered only to officials, not
to average citizens. He also explained that FARC members had infiltrated the military ranks,
making appeal to these sources futile. Based on his credible testimony and what we know of the
situation in Colombia, this explanation sufficiently demonstrates that the government was
unwilling and/or unable to protect him.
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Jiminez, 492 F.3d at 1232.2
PETITION GRANTED IN PART, DISMISSED IN PART, AND
REMANDED.
2
In order to make this showing, we note that it is not enough for the government to show
simply that the political activities for which Bolivar Soler was made a target were related to his
political activities surrounding the 2000 election. The passing of an election does not necessarily
change the political climate such that it would clear Bolivar Soler from the FARC’s radar. See
Delgado v. U.S. Attorney Gen., 487 F.3d 855, 861 n.4 (11th Cir. 2007) (noting that, even though
the election was over, there were at least a dozen politically motivated killings since).
Moreover, the BIA should consider that, to the extent that Bolivar Soler’s political opinion has
not changed, upon his return, he might well seek to participate in other political activity that
would bring him in conflict with the FARC. Simply put, it is not the election itself, but rather
Bolivar Soler’s political beliefs that made him a target of the FARC’s persecution.
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