Miryam D.S. Giraldo Velez v. U.S. Atty. General ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 7, 2008
No. 07-15977 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A97-852-030
A97-852-031
MIRYAM DEL SOCORRO GIRALDO VELEZ,
DANIEL SANTIAGO VILLAMIL GIRALDO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 7, 2008)
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
PER CURIAM:
Miryam Del Socorro Giraldo Velez and her son, Daniel Santiago Villamil
Giraldo, both natives and citizens of Colombia, through counsel, seek review of the
decision of the Board of Immigration Appeals (BIA) affirming the Immigration
Judge’s (“IJ”) order dismissing Velez’s application for asylum, withholding of
removal under the Immigration and Nationality Act (“INA”), and relief under the
United Nations Convention on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c).1
On appeal, Velez argues that the BIA misconstrued the evidence by
considering her gunpoint encounter with FARC guerillas to be an isolated incident
while failing to consider the cumulative effect of her family’s encounters with the
FARC. Additionally, she argues that the BIA failed to explain why her encounter
with the FARC was not based, at least in part, on her membership in a social
group, here, her family, or an imputed political opinion.
When the BIA issues a decision, we review only that decision, “except to the
extent that the BIA expressly adopts the IJ’s decision.” Rodriguez Morales v. U.S.
Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007) (citation omitted). In this case, the
BIA issued its own decision, so we review only that.
To the extent that the BIA’s decision was based on a legal determination, our
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Velez notes in her brief that she is not challenging the BIA’s determination that she was
not entitled to asylum. In addition, Velez does not raise any challenge in her brief to the denial
of CAT relief, and therefore abandoned the issue. See Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005). We thus limit our discussion to the withholding of removal
claim under the INA.
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review is de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir.
2004). The BIA’s factual determinations are reviewed under the substantial
evidence test, under which we “must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1230 (11th Cir. 2007)
(quotation and citation omitted). The substantial evidence test is “highly
deferential” and does not allow “re-weigh[ing] the evidence from scratch.” Silva v.
U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (quotation and citation
omitted). “To reverse the [BIA’s] fact findings, 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) (quotation and citation omitted) (considering
withholding of removal claim).
In a withholding of removal claim, an alien shall not be removed to a
country if her life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion. Id.; see
also INA § 241(b)(3), 8 U.S.C. § 1231(b)(3)(A). The alien must show that it is
“more likely than not that she will be persecuted or tortured upon being returned to
her country.” Sepulveda, 401 F.3d at 1232 (quotation and citation omitted). This
standard is more stringent than the “well-founded fear” standard for asylum. Id.
The applicant must show that her fear of persecution is subjectively genuine and
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objectively reasonable. Id. at 1231 (quotation and citation omitted) (asylum
context).
The applicant can meet this burden by showing either (1) “past persecution
in h[er] country based on a protected ground,” in which case a rebuttable
presumption is created that her life or freedom would be threatened if she returned
to her country; or (2) “a future threat to h[er] life or freedom on a protected ground
in h[er] country.” Mendoza, 327 F.3d at 1287.
In assessing persecution we consider all the evidence of mistreatment as a
whole. “[W]e are required to consider the cumulative impact of the mistreatment
the petitioner[ ] suffered.” Mejia v. U.S. Atty. Gen., 498 F.3d 1253, 1258 (11th Cir.
2007) (emphasis in original). While the INA does not define persecution, this
Court has held that persecution is an “extreme” concept, requiring “more than a
few isolated incidents of verbal harassment or intimidation.” Sepulveda, 401 F.3d
at 1231 (quotation and citation omitted). Mere harassment is not persecution. Id.
For example, in Sepulveda, we held that menacing telephone calls and threats to
the alien, her family members, and her colleagues, did not rise to the level of
persecution. Id. Similarly, in Silva, we found no persecution where an alien
received death threats in writing and by telephone. Silva, 448 F.3d at 1237.
Isolated threats and harassment do not rise to the level of persecution.
In order for mistreatment to rise to the level of persecution, there must have
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been more than just instances of threats and harassment. See Ruiz v. Gonzales, 479
F.3d 762, 766 (11th Cir. 2007). For example, in Ruiz we held that when the FARC
beat an alien on two occasions, threatened him by telephone, and held him against
his will for 18 days, there was persecution. Id. Because the alien was not only
threatened, but was also subjected to multiple beatings and kidnaped, we found that
the record compelled the conclusion “that these events cumulatively amount[ed] to
past persecution.” Id. Similarly, in Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861-
62 (11th Cir. 2007), we held that the alien experienced persecution where he was
threatened with unloaded weapons and then attacked and severely beaten two
months later. Finally, in Mejia, we found that the alien experienced persecution
where he was threatened on several occasions and physically attacked twice, once
when a large rock was thrown at him and once when the FARC pointed a gun at
him and broke his nose with the butt of a rifle. Mejia, 498 F.3d at 1257-58. In
sum, something more is required than isolated threatening and harassing instances.
Here, substantial evidence supports the BIA’s determination that Velez did
not establish that it is more likely than not that she will be persecuted or tortured
upon being returned Colombia. First, Velez has not presented compelling evidence
that she suffered past persecution in Colombia. Velez personally had only one
encounter with FARC members, when she was threatened at gunpoint to reveal her
sister’s whereabouts and her van was stolen. Just as death threats were not
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sufficient for a finding of past persecution in Silva, the gunpoint threat against
Velez, while certainly traumatic, does not compel the conclusion that she suffered
past persecution. See Silva, 448 F.3d at 1237.
Velez has argued that the BIA erred in not considering the cumulative effect
of her family’s suffering. The evidence shows that Velez’s sister was kidnaped by
FARC members in 1994. Other members of Velez’s family experienced violence,
threats, and kidnaping attempts, but Velez was not certain that the FARC was
involved in them. While the BIA was required to consider the cumulative impact
of the mistreatment that Velez suffered, Mejia, 498 F.3d at 1258, she failed to
produce compelling evidence that the mistreatment of her family members was
indeed by the FARC. Therefore, substantial evidence supports the BIA’s
determination that Velez did not suffer past persecution.
Velez also has not established a future threat to her life if she returned to
Colombia. Velez testified that she was threatened at gunpoint before she left
Colombia, and that threats have been left for her since she came to the United
States. However, the record does not reveal that Velez was ever threatened or
contacted by the FARC for anything beyond information about her sister, who is
now in the United States. In addition, the fact that Velez has four siblings who still
reside in Medellin further indicates that Velez does not have an objectively
reasonable fear of future persecution. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,
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1259 (11th Cir. 2006) (holding that evidence of family members living unharmed
in the home country diminishes a well-founded fear of future persecution claim).
Furthermore, Velez’s family no longer participates in political groups or unions
opposed by the FARC, so there is less reason to fear that such political opinion will
be imputed to Velez. Finally, Velez did not know that the FARC was actually
behind the threats and violence experienced by other members of her family.
Thus, the record does not compel the conclusion that it is more likely than not that
Velez will be persecuted if she returns to Colombia.
Velez has argued that the BIA failed to explain why her encounter with the
FARC was not based, at least in part, on her membership in a social group or an
imputed political opinion. A determination of whether Velez can meet the
standard for a protected ground is unnecessary because substantial evidence
supports the BIA’s determination that Velez did not establish that it is more likely
than not that she will be persecuted or tortured upon being returned to Colombia.
Accordingly, Velez’s petition for review is denied.
DENIED.
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