Erika Tatiana Wong De Abanto v. U.S. Attorney Gene , 367 F. App'x 993 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 5, 2010
No. 09-13427 JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency Nos. A088-151-765
A088-151-766
ERIKA TATIANA WONG DE ABANTO,
DAVID GUSTAVO ABANTO LAMAS,
GUSTAVO ROBERTO ABANTO WONG,
DAVID ALFREDO ABANTO WONG,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 5, 2010)
Before BLACK, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Erika Tatiana Wong de Abanto, a citizen of Peru, petitions for review of the
Board of Immigration Appeals’s (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) order denying her application for asylum and withholding of
removal under the Immigration and Nationality Act (“INA”) and for relief under
the United Nations Convention Against Torture (“CAT”). After review, we
dismiss in part and deny in part the petition.
I. BACKGROUND
On May 10, 2005, Wong de Abanto and her family were admitted to the
United States on non-immigrant visitor visas and stayed past November 9, 2006,
the date their visas expired. On December 4, 2006, Wong de Abanto filed her
asylum application.1 Wong de Abanto claimed that she had been persecuted in
Peru by a rebel group called Shining Path2 because of her political opinion.3 The
1
Wong de Abanto’s husband, David Gustavo Abanto-Lamas, and their two sons, Gustavo
Roberto Abanto Wong and David Alfredo Abanto Wong, were included on her asylum
application as derivative beneficiaries. Although our opinion refers to Wong de Abanto, our
holding as to the asylum claim applies equally to her family. As to the withholding of removal
claim, “there are no derivative benefits associated with the grant of withholding of removal.”
Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir. 2007). Thus, we deny the petition as to
her family’s claim of withholding of removal on that basis.
2
The U.S. State Department’s 2007 Country Report on Human Rights Practices in Peru
states that Shining Path is a terrorist organization linked to narcotics trafficking. According to
the report, during 2007, Shining Path killed several police officers and sometimes established
roadblocks in certain regions of Peru. The report did not contain any incidents of politically
motivated violence, harassment or extortion by Shining Path.
3
In Wong de Abanto’s asylum application, the box for “membership in a particular social
group” persecution was also checked. However, Wong de Abanto never advanced this ground
before the IJ or the BIA and has not raised it in this Court.
2
Department of Homeland Security served Wong de Abanto with a Notice to
Appear (“NTA”), charging her with removability. Wong de Abanto admitted the
allegations in the NTA and conceded removability.
According to Wong de Abanto’s asylum application and hearing testimony,
Wong de Abanto began working for the Bank of Credit in Peru in 1994. She was
an active member of President Alberto Fujimori’s Cambio 90 New Majority Party
from 1995 until 2000. As such, Wong de Abanto participated in vaccination and
Christmas campaigns and eventually became the party’s Coordinator of Events and
Social Promotion. She indirectly participated in President Fujimori’s political
movement by collecting reports from rice farmers who were bank clients. Wong
de Abanto’s active involvement in the Cambio 90 New Majority Party ended in
2000, which was when President Fujimori’s administration ended.
In 2003, Wong de Abanto was promoted to branch manager and was
transferred to the bank’s office in Leguia, Peru. Shortly after, on October 6, 2003,
Wong de Abanto received a phone call from a member of Shining Path demanding
that she give the group information about the bank’s big agriculture and business
clients who had helped the government. When Wong de Abanto did not provide
the information, Shining Path began calling her at home, prompting her to move to
her mother’s house.
3
On November 4, 2003, three men kidnapped Wong de Abanto as she left
work in a taxi cab. The men held a gun at her neck and blindfolded her. The men
called her a “damn piece of shit Chinese,” and told her that she “was going to
cooperate now and that’s what happens to traitors” and that “[t]his is happening to
you for not collaborating with our cause and for not helping in the release of
President Gonzalo, fucking sold to the imperialism.” When they reached the
countryside, the men removed Wong de Abanto from the taxi and forced her into a
chair. The group’s leader identified himself as the chief of “Proseguir,” a faction
of Shining Path. The chief pulled Wong de Alberto’s hair, rubbed his hands
between her legs, and forced what she believed was a weapon into her mouth. The
chief spoke into her ear, telling her that if she did not give them the information
they demanded, they would abduct her son, take him into the jungle and
indoctrinate him with their Marxist ideology.
According to Wong de Abanto, the men knew that she had worked with the
Cambio 90 New Majority Party and “that because of [her] position in the Bank,
[she] had clear access to the personal and commercial information of the clients.”
The men wanted Wong de Abanto to give them names, addresses and bank
statements of important clients who had been supported by the government. The
men returned Wong de Abanto to the taxi and, during the ride back, told her they
would be watching her and warned her not to go to the police.
4
Over the next several months, Wong de Abanto moved and transferred bank
offices twice, but still received threatening phone calls at work and at home.
Beginning in early 2005, the harassment intensified. Someone would knock on the
door of the family home in the middle of the night and leave before it was
answered. On February 16, 2005, Wong de Abanto’s husband answered the door
and found a dead dog with a rope tied around its neck. On another occasion in
March 2005, Wong de Abanto found her door painted red with a sickle and
hammer, the symbol of Shining Path. On April 24, 2005, Wong de Abanto
received a phone call and was told she was going to end up like the dog and that
this was how traitors, imperialists and “people who are with . . . Fujimori” end up.
This last phone call precipitated the family’s decision to leave Peru. Since leaving,
Wong de Abanto’s mother in Peru has received threatening phone calls indicating
that “they” know Wong de Abanto is with the “gringos” and that when she returns
to Peru they will give her a “warm welcome.”
Although the IJ credited Wong de Abanto’s testimony, the IJ denied all
relief. The IJ concluded that Wong de Abanto was statutorily ineligible for asylum
or withholding of removal because she had not shown a nexus between Shining
Path’s mistreatment of her and any of the five protected grounds. The IJ concluded
that “this is a case of extortion” and that Shining Path’s interest in Wong de
Abanto was because of the information she could obtain through her position at the
5
bank and not because of her political activity. The IJ denied CAT relief because
Shining Path was a terrorist group not connected to the government.
The BIA agreed that Wong de Abanto had failed to show the required nexus
and dismissed her appeal. The BIA concluded that Wong de Abanto had not
shown that the harm she suffered from Shining Path “was other than criminal in
nature . . . .” The BIA agreed with the IJ that the record showed Shining Path’s
interest in Wong de Abanto “was due to her position at the bank and her access to
account information” and that the harm she suffered was because she had not
cooperated with Shining Path’s demand for information, rather than because of her
political opinion. The BIA further concluded that Shining Path’s references to
traitors and to her past support of President Fujimori were “‘incidental’ or
‘tangential’ in nature and insufficient to relate her experiences to a statutorily
protected ground.” The BIA stated that “any fear of the Shining Path upon return
to Peru is similarly lacking the required nexus to a statutorily protected ground.”
Wong de Abanto filed this petition for review.4
II. DISCUSSION
4
On appeal to this Court, Wong de Abanto does not challenge the denial of her CAT
claim. Thus, we do not address this claim. See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1352 (11th Cir. 2009) (deeming abandoned petitioner’s CAT claim to which petitioner’s brief
made only a passing reference).
6
To establish eligibility for asylum, an applicant must show either past
persecution or a well-founded fear of future persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.
INA § 101(a)(42); 8 U.S.C. § 1101(a)(42)(A); Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1230-31 (11th Cir. 2005); 8 C.F.R. § 208.13(a), (b).5 Under the REAL
ID Act of 2005, an asylum applicant must demonstrate that one of the protected
grounds “was or will be at least one central reason” for the persecution. INA §
208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added); see Pub. L. No.
109-13, § 101(a)(3), 119 Stat. 231, 202 (2005) (amending 8 U.S.C. § 1158).6
An applicant who claims persecution on account of her political opinion
must show that she was or will be persecuted because of her own actual or imputed
political opinion, not because of her persecutor’s political motives. I.N.S. v. Elias-
Zacarias, 502 U.S. 478, 482, 112 S. Ct. 812, 816 (1992); Sanchez v. U.S. Att’y
Gen., 392 F.3d 434, 437-38 (11th Cir. 2004). Consequently, to establish
5
Similarly, an alien seeking withholding of removal must show that it is more likely than
not that she will be persecuted on account of race, religion, nationality, membership in a
particular social group, or political opinion upon being returned her country. INA § 241(b)(3), 8
U.S.C. § 1231(b)(3); Sepulveda, 401 F.3d at 1232. Because this standard is more stringent than
the standard for asylum, an alien who fails to establish asylum eligibility generally cannot satisfy
the higher burden for withholding of removal. Id. at 1232-33.
6
The REAL ID Act applies to all applications filed after May 11, 2005, the date the
REAL ID Act was enacted. See Pub. L. No. 109-13, § 101(h)(2), 119 Stat. at 305-06. Because
Wong de Abanto’s application was filed on December 4, 2006, the REAL ID Act’s provisions
apply to her case.
7
persecution by a guerilla group on account of political opinion, it is not enough to
show that the applicant has been or will be targeted “due to her refusal to cooperate
with the guerillas.” Sanchez, 392 F.3d at 438 (involving counselor who worked to
rehabilitate young gang members and delinquents who refused to meet and
cooperate with the FARC); see also Rodriguez Morales v. U.S. Att’y Gen., 488
F.3d 884, 891 (11th Cir. 2007) (involving dentist who refused to provide dental
services to the FARC).
Further, evidence of acts of private violence or criminal activity do not
demonstrate persecution on a protected ground. Ruiz v. U.S. Att’y Gen., 440 F.3d
1247, 1258 (11th Cir. 2006). Thus, being targeted by a guerilla group for
extortionate purposes is not persecution on account of political opinion. See
Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821-22 (11th Cir. 2007) (involving
politically active business owner’s refusal to pay the FARC’s “war tax”). Finally,
under the substantial evidence standard of review, we will reverse the finding that
the applicant failed to demonstrate the required nexus only if the record compels a
finding to the contrary. See Rodriguez Morales, 488 F.3d at 890.
Here, substantial evidence supports the IJ’s and the BIA’s findings that
Wong de Abanto was a victim of extortion and that the abuse she suffered at the
hands of Shining Path was a result of her refusal to give in to their extortionate
8
demands and not because of her actual or imputed political opinion.7 Wong de
Abanto argues that she presented evidence of a mixed motive. She contends that
Shining Path’s central or primary motive was political, but that it was “infused by
elements of criminality.” However, the record supports the opposite conclusion –
that Shining Path was primarily interested in Wong de Abanto because as bank
manager she had access to information it wanted and that any political motive was
not a central reason for targeting her. See INA § 208(b)(1)(B)(i), 8 U.S.C.
§ 1158(b)(1)(B)(i) (requiring applicant to show that a protected ground “was or
will be at least one central reason for persecuting the applicant”).
For example, Wong de Abanto repeatedly indicated both at the hearing and
in her asylum application statement that Shining Path’s purpose in calling and
kidnapping her was either to demand the bank account information or threaten her
if she continued to refuse to comply. Wong de Abanto admitted that, apart from
the demand for bank account information, Shining Path made no other demands of
her. Although Shining Path appears to have been somewhat aware of Wong de
Abanto’s political views, there is no evidence that Shining Path demanded that
Wong de Abanto cease any political activity. Indeed, Wong de Abanto testified
that she voluntarily had stopped her political activity in 2000, three years before
7
Because the BIA issued its own decision, but agreed with the IJ’s reasoning that Wong
de Abanto failed to establish a nexus to a statutorily protected ground, we review the decisions
of both the IJ and the BIA as to that issue. See Kazemzadeh, 577 F.3d at 1350.
9
Shining Path showed any interest in her. In short, there is no evidence that Shining
Path would have threatened her had she not had access to the bank account
information it sought.
Wong de Abanto points to the stray derogatory remarks Shining Path
members made about her political allegiance to President Fujimori and expressing
displeasure that she had not helped in the release of President Gonzalo. We agree
that these remarks, like the remark about Wong de Abanto’s Chinese heritage,
were just that – stray remarks – and, in light of the record as a whole, do not
compel a conclusion that one of Shining Path’s central reasons for targeting Wong
de Abanto was her political opinion.
In sum, we cannot say that the evidence compels a finding that Wong de
Abanto’s actual or imputed political opinion “was or will be at least one central
reason” for Shining Path’s persecution. See INA § 208(b)(1)(B)(i); 8 U.S.C.
§ 1158(b)(1)(B)(i). Because Wong de Abanto failed to carry her lower burden of
proof with regard to asylum, she is also ineligible for withholding of removal.
Accordingly, we deny her petition as to her claims of asylum and withholding of
removal and dismiss her petition to the extent she challenges the denial of CAT
relief.
PETITION DISMISSED IN PART AND DENIED IN PART.
10