Lina Margarita Cuadrado Barrera v. U.S. Attorney General , 557 F. App'x 877 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10160
________________________
Agency No. A088-631-916
LINA MARGARITA CUADRADO BARRERA,
VICTOR JAVIER LOPEZ DAVILA,
HERNAN JAVIER LOPEZ CUADRADO,
STEFANY LOPEZ CUADRADO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 25, 2014)
Before MARCUS and DUBINA, Circuit Judges, and HODGES, * District Judge.
PER CURIAM:
*
Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of Florida,
sitting by designation.
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Lina Margarita Cuadrado Barrera, her husband, and their two children
petition for review of the Board of Immigration Appeals (“BIA”) decision
dismissing their appeal from the Immigration Judge’s denial of asylum and
withholding of removal under the Immigration and Nationality Act (“INA”). 1 The
BIA specifically found that Barrera could not show that she was targeted by the
Revolutionary Armed Forces of Colombia (“FARC”) on account of her alleged
political activity. Moreover, the BIA concluded that Barrera was statutorily
ineligible for asylum and withholding of removal because she provided material
support to a designated terrorist organization through her provision of dental
services to a FARC Commander. After thorough review, we hold that substantial
evidence supports the BIA’s determination that Barrera failed to establish the
required nexus between her actual or imputed political opinion and the FARC’s
alleged persecution. Accordingly, we deny Barrera’s petition on this basis without
reaching the material support issue.
I.
A.
On January 27, 2007, Barrera, a native and citizen of Colombia, entered the
United States with her husband, Victor Javier Lopez Davila, and their two children,
Hernan Javier Lopez Cuadrado and Stefany Lopez Cuadrado. All four were
1
For the sake of convenience, when we refer to Barrera in this opinion, we also include her
husband and children.
2
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admitted to the United States as non-immigrant B2 visitors with authorization to
remain in the country for a temporary period, not to exceed July 23, 2007. On July
16, 2007, Barrera filed an application for political asylum, withholding of removal
under the INA, and protection under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”). Barrera asserted that she would be persecuted by the FARC on account
of her political opinion if she returned to Colombia, and she included her husband
and children as derivative beneficiaries on the application.
In a statement attached to her application, Barrera explained that her father
was a well-known and active member of the Colombian Liberal Party and held
numerous public service positions. Her father had publicly denounced the FARC,
and, as a result, the guerrilla organization threatened him on numerous occasions
and even tried to kidnap him in 1996. Moreover, Barrera described her personal
encounters with the FARC. As a dentist, Barrera started her own dental clinic with
her husband, a dental technician, in her hometown of Chiquinquira, Colombia in
September 1999. Because the clinic had to accept any patient who could afford its
fees, Barrera began to receive “undesirable” patients, who had “bad manners” and
used “vulgar language,” which led to “unpleasant and dangerous situations.” In an
attempt to ameliorate this problem, Barrera increased the clinic’s fees and refused
bookings by pretending that all appointments were filled, but this brought about
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“threats and violent reaction” from these patients. At a subsequent immigration
hearing, Barrera clarified that she believed these individuals were FARC members.
In 2000, Barrera temporarily closed her clinic after the birth of her son. She
reopened the clinic at the end of 2001. In early 2003, the “same old unpleasant
men” began frequenting her clinic again. And, on January 15, 2004, the situation
escalated. Two members of the FARC came to Barrera’s clinic and instructed her
that they would return the next day to take her to their chief, Commander Buitrago,
in the town of Puente Nacional so that she could provide him with dental services.
True to their word, the two men returned the next day and transported Barrera to
their camp. The FARC Commander told her, “We ought to kill you for being the
daughter of that bastard father of yours but I suppose you can be of service as a
‘tooth puller.’” Barrera extracted two molars from Commander Buitrago and gave
him an antibiotic. Then the men drove her back to her office.
On March 12, 2004, two members of the FARC shot and killed one of
Barrera’s patients, Vincent Castellanos, as he was exiting the clinic. Barrera shut
down the clinic, and she and her husband purchased a used ambulance and began
to offer mobile dental services. Barrera believed that this would be much less risky
than running a dental practice at a fixed location, but things didn’t work out as she
expected. On May 25, 2006, approximately twelve FARC guerrillas stopped the
ambulance and demanded that Barrera treat one of their men who had an injured
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shoulder and arm. After explaining to the men that she was not a medical doctor
but a dentist, Barrera administered first aid. The guerrillas then stole the
ambulance, which Barrera was never able to recover. As a result, Barrera and her
husband decided to leave Colombia and migrate to the United States.
At a hearing on June 6, 2011 before an Immigration Judge (“IJ”), Barrera
testified on behalf of her application for asylum. For the first time since she filed
her application, she asserted that she had belonged to the Liberal Party in
Colombia for her entire life and worked as a Community Campaign Leader for
three political candidates.
Barrera also reiterated the following statements from her asylum application:
(1) her father received various threats from the FARC organization, who
threatened “to attack his family, wife, [and] children”; (2) in 2004, the FARC
forced her to go to their camp to provide dental services to a Commander, who told
her, “we should have killed you actually for being the daughter of the Prosecutor
Cuadrado but I think you will be better served as a . . . molar extractor”; (3) a
patient of hers -- who turned out to be a member of the FARC -- was killed by the
FARC outside her clinic; and (4) in 2006, she purchased and operated an
ambulance, which was subsequently stolen by twelve FARC guerrillas after they
made her treat one of their member’s bullet wounds. Moreover, Barrera elaborated
that the two FARC members who took her to the camp in 2004 threatened to kill
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her family if she refused to accompany them. She did not call the police to report
this incident because she “feared for [her] life.” Barrera further testified that her
mother received calls asking about Barrera’s location after she left Colombia.
Because of this, Barrera’s mother eventually had to cut her telephone line.
In addition to Barrera’s application, asylum interview, and hearing
testimony, the administrative record before the IJ included the 2010 U.S.
Department of State Human Rights Report for Colombia; various affidavits and
letters from family, friends, and Colombian public officials; articles; a
memorandum of law concerning the material support bar to immigration relief; and
a Congressional Research Services report on foreign terrorist organizations.
B.
After considering these materials, the IJ denied Barrera’s applications for
asylum, withholding of removal, and CAT relief in a written decision and order
issued on November 9, 2011. First, the IJ found that Barrera furnished material
support to a terrorist organization when she provided dental and medical assistance
to members of the FARC. Therefore, Barrera was statutorily barred from obtaining
asylum and withholding of removal under both the INA and the CAT. See INA §
212(a)(3)(B)(iv); 8 C.F.R. § 1208.16(d)(2). The IJ noted that only the Attorney
General and the Secretaries of State and Homeland Security could grant a
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discretionary duress exemption to the material support bar since Congress did not
delegate such powers to the IJ or BIA.
Second, the IJ found that Barrera was not credible. Specifically, the IJ
explained that the “omissions, inconsistencies, and vagueness” in the record
reflected adversely on Barrera’s credibility. Most significantly, Barrera failed to
mention her political involvement as a member of the Liberal Party and
Community Campaign Leader in her asylum application and asylum interview. She
merely described her parents’ and her husband’s participation in politics at the
interview, leaving out the critical fact that she was personally involved in political
activism. The IJ also determined that in light of Barrera’s lack of credibility, her
claim was insufficiently corroborated by the supporting evidence.
Third, the IJ concluded that, even assuming Barrera’s testimony was
credible, the evidence was insufficient to support a finding of past persecution or a
well-founded fear of future persecution. Specifically, the IJ determined that
Barrera’s encounters with the FARC did not rise to the level of past persecution
since, although “she may have been intimidated on several occasions, she was
never physically harmed.” And, even if Barrera had established that she endured
past persecution, she failed to demonstrate that the FARC persecuted her on
account of one of the statutorily protected grounds under INA § 101(a)(42)(A).
Barrera also did not establish a well-founded fear of future persecution in
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Colombia since she provided “no evidence containing specific and direct facts”
indicating that she had an objective fear of future persecution.
Because Barrera failed to establish her eligibility for asylum, the IJ denied
her application for withholding of removal, which requires meeting the heavier
burden of establishing a “clear probability” of persecution. Finally, the IJ denied
Barrera’s application for relief under the CAT since Barrera did not satisfy her
burden of proving that she will “more likely than not” be tortured in Colombia
with the acquiescence of the government. 8 C.F.R. § 1208.16(c)(2). Accordingly,
the IJ ordered that Barrera be removed to Colombia.
Barrera appealed the IJ’s decision to the BIA on the ground that she
demonstrated eligibility for asylum and withholding of removal. She specifically
claimed that the IJ erred by finding that (1) she was not persecuted on account of
her political opinion, and (2) she was barred from obtaining relief because she
provided material support to a terrorist organization. The BIA disagreed,
dismissing Barrera’s appeal on December 13, 2012. The BIA determined that
Barrera’s “provision of dental services to a FARC commander constitutes material
support of terrorism, rendering her statutorily ineligible for asylum and
withholding of removal under the [INA].” The BIA also dismissed the appeal on
an alternative ground. It held that Barrera waived the issue of the IJ’s adverse
credibility finding by not challenging this on appeal, and the adverse credibility
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determination “undermine[d] Barrera’s claimed nexus between [her] alleged
political activity and being targeted by the FARC.” Lastly, the BIA noted that
Barrera did not challenge the IJ’s denial of CAT relief.
Barrera timely requested review of the BIA’s decision by this Court.
II.
“The appropriate standard of review is well-settled.” Mazariegos v. U.S.
Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001). We must uphold the BIA’s
factual determination that an alien is ineligible for asylum or withholding of
removal if it is supported by substantial evidence in the record. See Najjar v.
Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001). The substantial evidence test is
“deferential,” requiring us to “view the record evidence in the light most favorable
to the agency’s decision and draw all reasonable inferences in favor of that
decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
Thus, a denial of asylum or withholding may be reversed only when the record
evidence compels a conclusion to the contrary. Mendoza v. U.S. Att’y Gen., 327
F.3d 1283, 1287 (11th Cir. 2003). Insofar as an asylum decision is based on a
particular interpretation of the INA, the BIA’s legal interpretation is subject to de
novo review. Mazariegos, 241 F.3d at 1324. Finally, we review only the BIA’s
decision, unless the BIA expressly adopts the IJ’s opinion or reasoning. Najjar, 257
F.3d at 1284.
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III.
A.
As an initial matter, the government argues that this Court should dismiss
Barrera’s petition as moot because she did not preserve her challenge to the IJ’s
adverse credibility finding before the BIA or this Court, and the adverse credibility
finding is dispositive of this appeal. “[A] case is moot when the issues presented
are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”
Powell v. McCormack, 395 U.S. 486, 496 (1969). Put another way, “[a] case is
moot when it no longer presents a live controversy with respect to which the court
can give meaningful relief.” Ethredge v. Hail, 996 F.2d 1173, 1175 (11th Cir.
1993).
In contrast to cases in which we have dismissed a petitioner’s appeal as
moot, see, e.g., Soliman v. U.S. ex rel. INS, 296 F.3d 1237, 1242-43 (11th Cir.
2002) (per curiam), here an active case still exists since Barrera continues to seek
asylum in the United States based on the purported persecution she faced -- and
allegedly will continue to face if removed -- at the hands of the FARC in
Colombia. No event has occurred subsequent to the filing of this appeal that
deprives this Court of the ability to give Barrera meaningful relief. This petition
cannot be dismissed as moot.
B.
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Turning now to the merits, the overarching issue on appeal is whether the
BIA erred by denying Barrera’s requests for asylum and withholding of removal.
Barrera first argues that the evidence compels a conclusion contrary to the BIA’s
finding that the alleged persecution she faced was not “on account of” one of the
statutory enumerated grounds. She also asserts that the BIA improperly held that
she provided material support to a terrorist organization and is therefore statutorily
ineligible for asylum and withholding of removal. Because substantial evidence
supports the BIA’s conclusion that the IJ’s adverse credibility determination
“undermines [Barrera’s] claimed nexus between [her] alleged political activity and
being targeted by the FARC,” we affirm the decision on that basis.2 [AR at 4.] We
need not, and do not, address the BIA’s alternative finding that Barrera’s provision
of material support renders her statutorily ineligible for asylum and withholding of
removal. See Mazariegos, 241 F.3d at 1324.
2
Counsel for both parties acknowledged during oral argument that the undermining of Barrera’s
claimed nexus constitutes an independent ground on which the BIA rested its dismissal of the
appeal. Moreover, this is consistent with the language in the decision, which reads this way:
The lead respondent’s provision of material support renders the respondents
statutorily ineligible for asylum . . . . Additionally, because the respondents did
not raise any allegation of error on appeal regarding the Immigration Judge’s
adverse credibility finding, they are deemed to have waived this issue. The
adverse credibility finding undermines the respondents’ claimed nexus between
the lead respondent’s alleged political activity and being targeted by the FARC. . .
. For these reasons, the appeal will be dismissed.
[AR at 4 (emphasis added).] The BIA’s use of the plural, “reasons,” as well as its inclusion of
the word “additionally” before discussing this separate argument, suggests that the adverse
credibility determination, coupled with the resultant failure to satisfy the nexus requirement,
furnishes an additional ground for dismissal of the appeal.
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The asylum applicant carries the burden of proving statutory “refugee”
status. 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 208.13(a). To satisfy this burden, an
applicant basing her claim on the fact that she was persecuted on account of her
political opinion must show, with specific and credible evidence, past persecution
or a well-founded fear of future persecution, and that she has a political opinion,
whether actual or imputed. 8 U.S.C. § 1101(a)(42)(A); see INS v. Elias-Zacarias,
502 U.S. 478, 483 (1992); Najjar, 257 F.3d at 1287; 8 C.F.R. § 208.13(a), (b). An
applicant must also establish that such persecution is “on account of” the political
opinion. 8 U.S.C. § 1101(a)(42)(A). To reverse the BIA’s finding that an alien has
failed to demonstrate the requisite causal connection, we must be compelled to find
that the alien will be persecuted “because of” her political opinion. See Elias-
Zacarias, 502 U.S. at 483; Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884,
890-91 (11th Cir. 2007) (per curiam). In other words, the applicant must “present
specific, detailed facts showing a good reason to fear that . . . she will be singled
out for persecution” on account of a political opinion. Najjar, 257 F.3d at 1287
(quoting Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994)).
Here, the IJ’s adverse credibility determination, coupled with Barrera’s lack
of sufficient corroborating evidence, doomed Barrera’s asylum claim. In its
decision, the BIA determined that Barrera waived the issue of the IJ’s adverse
credibility finding by not raising any allegation of error on appeal. If, like Barrera,
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an alien fails to challenge an adverse credibility determination in her appeal to the
BIA, we lack subject matter jurisdiction to review such an argument in her petition
for review. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.
2006) (per curiam). Even if Barrera had raised this issue on appeal before the BIA,
she does not challenge the IJ’s adverse credibility finding adopted by the BIA in
her brief to this Court. Either way, she has abandoned the issue. See Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam) (noting
that if an appellant fails to raise an issue in her initial brief, that issue is considered
abandoned); Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th
Cir. 1989) (asserting that a party waives an issue by failing to make any arguments
with respect to that issue). 3
“An IJ’s denial of asylum relief . . . can be supported solely by an adverse
credibility determination.” Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th
Cir. 2006) (per curiam). But if an applicant produces evidence beyond her own
testimony, “it is not sufficient for the IJ to rely solely on an adverse credibility
determination in those instances.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255
(11th Cir. 2006) (per curiam) (quoting Forgue v. U.S. Att’y Gen., 401 F.3d 1282,
3
Moreover, even if Barrera had not waived an attack on the adverse credibility determination,
substantial evidence supports the IJ’s conclusion that Barrera was not credible when she claimed
that she had suffered persecution in Colombia on account of her political activities. The court
offered specific, cogent reasons for its adverse credibility finding. See Kueviakoe v. U.S. Att’y
Gen., 567 F.3d 1301, 1305 (11th Cir. 2009) (per curiam); Forgue v. U.S. Att’y Gen., 401 F.3d
1282, 1287 (11th Cir. 2005). Barrera, on the other hand, failed to satisfy her burden of showing
that the IJ’s finding was not based on substantial evidence.
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1287 (11th Cir. 2005)). Indeed, the IJ must consider all evidence presented by the
applicant, whatever form it may take. Forgue, 401 F.3d at 1287.
Our examination of the record in this case reveals no credible or reliable
evidence establishing Barrera’s actual political opinion, much less any nexus
between Barrera’s political opinion and the FARC’s alleged persecution. See
Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004). Since the IJ
determined that Barrera’s testimony at her immigration hearing lacked credibility,
Barrera cannot rely on this testimony to prove that she engaged in political
activities or had the requisite nexus. Nor do the letters and affidavits submitted by
Barrera demonstrate that she was targeted by the FARC on account of her political
opinion. As the IJ noted, only one of Barrera’s supporting documents even
specifically references her political affiliation. In this letter, the municipal mayor of
Tinjacá, Omar Malagon Espitia, merely states that Barrera was “a political activist
who collaborated a lot for the campaign to the presidency of Dr. Alvaro Uribe
Vélez, the current president of the Republic of Colombia.” The IJ found that this
letter was unreliable because it was inconsistent with Barrera’s testimony. Barrera
never testified that she worked on President Uribe’s campaign; instead, she
discussed three other campaigns she worked on, and asserted that her father
worked on President Uribe’s campaign. This letter alone cannot compel reversal of
the BIA’s determination that Barrera did not meet the nexus requirement.
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In her brief and again at oral argument, Barrera urged that the IJ failed to
consider that she was persecuted because of her imputed political opinion. “An
imputed political opinion, whether correctly or incorrectly attributed, may
constitute a ground for a well-founded fear of political persecution within the
meaning of the INA.” Najjar, 257 F.3d at 1289 (internal quotation marks and
citations omitted). But to succeed on a theory of imputed political opinion, an alien
must show that the “persecutor falsely attributed an opinion to [her], and then
persecuted [her] because of that mistaken belief about [her] views.” Id. (quoting
Chanchavac v. INS, 707 F.3d 584, 591 (9th Cir. 2000)). Barrera fails to make this
showing. The record instead reveals that in the two instances in which Barrera
alleges that the FARC threatened her, the guerrilla members targeted her not for an
imputed political opinion, but for her dental and medical expertise. In the first
instance, the FARC members approached her for the purpose of extracting molars
from their Commander. In the second, the FARC sought her out so that she could
provide medical treatment to a wounded guerrilla. Based on this, it seems clear that
Barrera was targeted by the FARC because the group sought dental and medical
assistance -- not because the guerrillas “imputed” a political opinion to her. See
Rodriguez Morales, 488 F.3d at 891. Because the evidence is insufficient to
compel a finding that Barrera was threatened on account of her political opinion, it
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cannot compel a conclusion that she has a well-founded fear of future persecution
if returned to Colombia, and in particular, an objectively reasonable fear.
Finally, Barrera claims that she is eligible for withholding of removal under
the INA. To succeed on a withholding of removal claim, an alien must show that
“it is ‘more likely than not’ that she will be persecuted or tortured upon being
returned to her country” on account of race, religion, nationality, membership in a
particular social group, or political opinion. Sepulveda, 401 F.3d at 1232 (quoting
Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002)). It is by now
axiomatic that where, as here, an applicant fails to meet the lower burden of proof
for asylum, she cannot meet the more stringent burden for withholding of removal.
Amaya-Artunduaga, 463 F.3d at 1249, n.3. Thus, Barrera’s withholding of removal
claim fails too. 4
PETITION DENIED.
4
Barrera does not appeal the denial of CAT relief. Accordingly, we need not discuss this issue.
See Amaya-Artunduaga, 463 F.3d at 1249, n.2.
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