Henry Alberto Alvarado Montoya v. U.S. Atty. Gen. ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 17, 2007
No. 07-11622 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A95-908-393
HENRY ALBERTO ALVARADO MONTOYA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 17, 2007)
Before BIRCH, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Henry Alberto Alvarado Montoya (“Alvarado”), petitions for review of the
Board of Immigration Appeals’ (“BIA”) decision affirming the immigration
judge’s (“IJ”) order denying his application for asylum, withholding of removal
and relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”). After review, we
dismiss in part and deny in part Alvarado’s petition.
I. BACKGROUND
Alvarado, a native and citizen of Colombia, arrived in the United States on
February 11, 1999. On July 5, 2002, Alvarado filed an application for asylum,
withholding of removal and CAT relief. In his application, Alvarado claimed that
he was persecuted by the Colombian Revolutionary Armed Forces (“FARC”) in
Colombia on account of his religion. On February 10, 2005, the Immigration and
Naturalization Service (“INS”) issued a notice to appear, charging Alvarado with
removability under the Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8
U.S.C. § 1227(a)(1)(B), for remaining in the United States longer than permitted.
At his initial hearing, Alvarado admitted the charges and conceded removability.
According to Alvarado’s application and hearing testimony, Alvarado
worked as a missionary with the Cumberland Presbyterian Church (“CPC”), a
church that operates in both Colombia and the United States. Six times a year
Alvarado would go on a mission to work with Colombia’s Indians in remote areas
2
of the country. During one of these trips in September 1998, Alvarado was
speaking to a group of young people when he was approached by the FARC. The
FARC guerillas verbally harassed him and accused him of being a spy for the
“gringos” and using the CPC as his front. One of the guerillas hit Alvarado in the
head with his gun, leaving Alvarado unconscious. During this same month,
Alvarado received a threatening telephone call from a FARC member who accused
Alvarado of being a spy disguised as a missionary and warned Alvarado not to go
on any more missions.
In November 1998, Alvarado traveled as part of a group of missionaries to a
remote Indian village. FARC guerillas detained the missionary group. The FARC
let the other members of the missionary group go after two days, but held Alvarado
captive for another four days. During that time, the FARC kept Alvarado locked
up, threatened him with their weapons and interrogated him continuously and
accused him of being a spy. The FARC finally let Alvarado go and told him to
carry a message to the CPC that the FARC would not allow any more missions into
the area.
After Alvarado was released, he received more threatening telephone calls
from FARC members and was told he was a “military objective.” Alvarado left for
the United States after he received another threatening call in January 1999.
3
Alvarado testified that, if he returned to Colombia, his life would be in
danger because the FARC has designated him to be a military objective. Alvarado
stated that the FARC believe that his “true mission” was to conduct intelligence
tests in the region where his missions took place and that, even if he ceased his
missionary work, the FARC would still come after him because they consider him
to be a spy who was gathering information.
Alvarado submitted as evidence the 2004 Country Report for Colombia,
which stated, inter alia, that among the FARC’s primary targets are religious
leaders, but that although it sometimes killed, threatened or harassed religious
leaders and activists, this was usually done for political rather than religious
reasons.
The IJ denied Alvarado all relief. The IJ found that Alvarado’s asylum
application was untimely. As to the withholding claim, the IJ found that Alvarado
had failed to show that it was more likely than not that Alvarado was persecuted or
would be persecuted on account of his religion given that the FARC targeted
Alvarado because it thought he was a spy. The IJ also denied CAT relief because
Alvarado had failed to show that it was more likely than not that a government
official or someone acting under an official would consent to Alvarado’s torture if
he returned to Colombia.
4
Alvarado appealed to the BIA, challenging only the IJ’s asylum and
withholding of removal rulings. The BIA dismissed Alvarado’s appeal, finding,
inter alia, (1) that the incidents Alvarado described did not rise to the level of
persecution; and (2) that Alvarado had not shown that any alleged persecution was
on account of one of the five protected grounds because the FARC’s interest in
Alvarado was based on its perception that Alvarado was a spy and not a true
evangelist. The BIA agreed with the IJ’s finding that Alvarado did not face a
“clear probability of persecution” if returned to Colombia, and therefore he did not
merit withholding of removal. The BIA noted that Alvarado’s wife remained
“apparently unharmed” in Colombia. Finally, although Alvarado had not
challenged the IJ’s denial of CAT relief, the BIA affirmed the IJ’s conclusion that
Alvarado failed to demonstrate that he more likely than not would be tortured in
Colombia. Alvarado filed this petition for review.
II. DISCUSSION
On appeal, Alvarado challenges the denial of withholding of removal and
CAT relief.1 We lack jurisdiction to review the merits of Alvarado’s CAT claim
because he failed to raise it before the BIA. See Sundar v. INS, 328 F.3d 1320,
1323 (11th Cir. 2003) (concluding that the exhaustion requirement in 8 U.S.C. §
1
Alvarado does not challenge the IJ and the BIA’s determinations that his asylum claim
was untimely. Therefore, we do not address this claim further. See Mendoza v. U.S. Att’y Gen.,
327 F.3d 1283, 1286 n.3 (11th Cir. 2003).
5
1252(d) is jurisdictional and bars review of claims not raised before the BIA);
Amaya-Artunduaga v. U.S. Att’y Gen. 463 F.3d 1247, 1250 (11th Cir. 2006)
(concluding that when a petitioner fails to raise an argument in either his notice of
appeal or brief before the BIA, the petitioner has failed to exhaust his
administrative remedies even if the BIA addressed the issue sua sponte); see also
INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). Thus, we address the merits of only
Alvarado’s withholding of removal claim.2
An alien is entitled to withholding of removal if he can show that his life or
freedom would be threatened on account of his race, religion, nationality,
membership in a particular social group or political opinion. Mendoza v. U.S.
Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003); see also INA § 241(b)(3)(A), 8
U.S.C. § 1231(b)(3)(A). To qualify for withholding of removal, an alien must
show that it is more likely than not that he will be persecuted or tortured upon his
return to the country in question. INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107
S. Ct. 1207, 1212 (1987); Mendoza, 327 F.3d at 1287. The alien can meet this
burden by showing either: (1) “past persecution in his country based on a protected
2
Because the BIA issued its own decision and did not expressly adopt the IJ’s decision as
to Alvarado’s claim of withholding of removal, we review only the BIA’s decision. See Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review legal determinations de
novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). We review the BIA’s
factual determinations under the substantial evidence test. Adefemi v. Ashcroft, 386 F.3d 1022,
1026-27 (11th Cir. 2004) (en banc). Under this highly deferential test, to reverse the BIA’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).
6
ground,” in which case a rebuttable presumption is created that his life or freedom
would be threatened if he returned to his country; or (2) “a future threat to his life
or freedom on a protected ground in his country.” Mendoza, 327 F.3d at 1287; see
also 8 C.F.R. § 208.16(b)(1), (2).
Here, the BIA concluded that Alvarado failed to establish that any past
persecution or feared future persecution was “on account of” his religion.3 After
review, we conclude that the record does not compel a finding to the contrary.4
It is undisputed that the FARC singled out Alvarado while he was doing
missionary work with the Indians in Colombia because it believed Alvarado was a
spy working for the United States, and not because of Alvarado’s religious beliefs.
3
For the first time on appeal before this Court, Alvarado contends that he was also
persecuted “on account of” his membership in a particular social group. We agree with the
government that Alvarado did not properly exhaust this claim for several reasons. First,
Alvarado’s application for asylum and withholding of removal indicated that he was claiming
persecution based solely on his religion, and Alvarado did not argue to the IJ that he was
persecuted on account of his membership in a particular social group.
Second, Alvarado’s brief before the BIA stated in a one-sentence conclusion that
Alvarado had a well-founded fear of “persecution based on membership in a protected class.”
However, Alvarado’s BIA brief did not contain any substantive argument or discussion as to
persecution on account of his membership in a particular social group and did not identify any
particular social group of which he was a member. Alvarado’s conclusory reference to being a
member of a “protected class” was insufficient to raise a claim that he was persecuted on
account of his membership in a particular social group. Because Alvarado did not raise his
social group claim before either the IJ or the BIA, we lack jurisdiction to review this claim. See
Sundar, 328 F.3d at 1323.
4
Because we conclude that substantial evidence supports the BIA’s finding that Alvarado
failed to show that any alleged past persecution was, or any feared future persecution would be,
“on account of” his religion, we do not address whether the FARC’s actions rise to the level of
persecution.
7
In fact, Alvarado testified that the FARC disbelieved that Alvarado was a
missionary and thought that Alvarado was using his missionary work as a cover to
conduct intelligence tests in the region. Furthermore, Alvarado testified that if he
returned to Colombia, even if he ceased his missionary work, he would continue to
be persecuted because of the FARC’s belief that he is a spy.5 Accordingly,
substantial evidence supports the BIA’s findings that Alvarado failed to establish a
sufficient nexus between the FARC’s targeting of him and his religion and that
Alvarado is statutorily ineligible for withholding of removal.
PETITION DISMISSED IN PART, DENIED IN PART.
5
Alvarado does not now and never has argued that the FARC’s belief that he was a spy
constituted an imputed political opinion.
8