Ocampo-Montes v. Atty Gen USA , 112 F. App'x 248 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
11-15-2004
Ocampo-Montes v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4144
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4144
SARA OCAMPO-MONTES,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY
GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of a Final Order
of the Board of Immigration Appeals
(No. A79-101-929)
Submitted Under Third Circuit LAR 34.1(a)
October 28, 2004
Before: NYGAARD, AM BRO, and GARTH, Circuit Judges
(Opinion filed November 15, 2004)
OPINION
AM BRO, Circuit Judge
Petitioner Sara Ocampo-Montes (“Ocampo”) seeks review of an order of the
Board of Immigration Appeals (“BIA”). That order affirmed the decision of the
Immigration Judge (“IJ”) denying Ocampo’s applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252 and deny the Petition for Review.
I. Factual and Procedural History
Ocampo is a native and citizen of Colombia. She has two daughters who reside in
Norwalk, Connecticut, one of whom is a United States citizen. In March 2001, Ocampo
attempted to enter the United States without possessing valid entry documentation, and an
immigration inspector determined that Ocampo was inadmissible. She sought asylum
and, several days after her arrival, an asylum officer interviewed her. The asylum officer
determined that Ocampo had a credible fear of persecution.
In April 2001, the Immigration and Naturalization Service (“INS”) 1 charged
Ocampo with removability on the ground that she did not possess valid entry
documentation. In removal proceedings, Ocampo admitted the factual allegations of the
charges. Ocampo, however, requested asylum, withholding of removal, and protection
under CAT.
In April 2002, Ocampo appeared before the IJ for an individual hearing. Because
we write solely for the benefit of the parties, only a summary of Ocampo’s testimony
before the IJ is necessary. She testified that she fears returning to Colombia, as she
1
On March 1, 2003, the INS ceased to exist as an agency within the Department of
Justice and the INS’s functions were transferred to the Department of Homeland Security.
See Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451 & 471, 116 Stat.
2135.
2
believes she will again be targeted by guerrillas in retaliation for her political activities.
In 1997, Ocampo worked on the successful mayoral campaign of Ricardo Cobo in Cali,
the city in which Ocampo then resided. In 1999, she participated in demonstrations
against guerrillas and collected signatures for petitions urging the government not to
negotiate with guerrillas who had kidnapped large numbers of people. Following a
demonstration in June 1999, she expressed her opposition to guerrilla forces by hanging a
banner that read “No More” in front of her home.
After this followed events that caused Ocampo to believe she was being threatened
by guerrillas, specifically the National Liberation Army (or ELN), which is one of
Colombia’s significant guerilla groups known to have committed a host of human rights
violations. For example, dead birds and frogs were thrown around her home, her garden
and home were vandalized, her two cats died apparently from poisoning, and her daughter
was followed by a suspicious man. Additionally, beginning in 2000, Ocampo received
approximately ten telephone calls late at night or early in the morning from an
unidentified caller. During several of the telephone calls the caller referred to death or
killing. On two occasions, Ocampo sought police protection without avail.
Although Ocampo was at least initially uncertain about who instigated these
incidents, she began suspecting members of a guerrilla organization. This was
corroborated by Ocampo’s daughter, Claudia, who testified that Ocampo had been
politically active and that “strange things” began happening after Ocampo hung the “No
3
More” banner in front of the family home.
At the conclusion of the hearing, the IJ issued an oral decision denying the
applications for asylum, withholding of removal, and protection under CAT. Among
other things, the IJ found that Ocampo was not credible and that she had not established
eligibility for asylum.
In support of his finding that Ocampo was not credible, the IJ emphasized two
“major” inconsistencies. First, in her airport statement to the immigration inspector,
Ocampo stated that she had left Colombia as a result of telephone calls she received and
because a group of persons that she believed to belong to a guerilla organization had sent
her letters in support of their cause. At the hearing, however, the only note Ocampo
referred to was the one she found around the time her cats died, and she did not refer to
any other notes or writings from any guerilla groups. Thus, the reference in the airport
statement suggests Ocampo had left Colombia because guerrillas were soliciting her
support, rather than because they had threatened her and her daughters in retaliation for
their anti-guerrilla activities. Second, in testimony before the IJ, Ocampo stated that her
younger sister had been kidnapped by guerrillas. No mention of the kidnapping appears
in the airport statement, credible fear interview summary, or asylum application.
Regarding Ocampo’s failure to meet her burden of proof, the IJ explained that
Ocampo had not shown, among other things, that the guerrillas were responsible for the
vandalism or threats. The link between the vandalism and Ocampo’s political
4
involvement, the IJ found, was attenuated at best. Moreover, the IJ was troubled by the
lack of corroborating evidence (other than the testimony of Ocampo’s daughter) that
showed Ocampo was an activist. The IJ also questioned, among other things, whether the
alleged threats even rose to the level of persecution, as opposed to mere harassment.
Finally, the IJ concluded that Ocampo could relocate to another part of Colombia to avoid
persecution.
II. Discussion
Where, as here, the BIA affirms the IJ’s decision without opinion, the opinion of
the IJ constitutes the final agency determination for purposes of our review. 8 C.F.R. §
1003.1(e)(4) (2003); Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir. 2003) (en banc).
Whether an asylum applicant has demonstrated past persecution or a well-founded fear of
future persecution is a factual determination reviewed under the substantial evidence
standard. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Under this standard, the
decision of the BIA may be reversed “only if the evidence presented by [the applicant]
was such that a reasonable factfinder would have to conclude that the requisite fear of
persecution existed.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). In other words,
“the BIA’s finding must be upheld unless the evidence not only supports a contrary
conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
The Attorney General may grant asylum to an alien who demonstrates that she is
unable or unwilling to return to her native land because of a “well-founded fear” of
5
persecution. Abdille, 242 F.3d at 482. A “well-founded fear” must be both subjectively
genuine and objectively reasonable. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.
2003).
Ocampo argues that the IJ’s adverse credibility finding was unwarranted, primarily
because he relied too heavily on the airport statement. Ocampo correctly points out that
we have cautioned against placing too much emphasis on an airport statement,
particularly where that statement may not be reliable. See Balasubramanrim v. INS, 143
F.3d 157, 162-64 (3d. Cir. 1998). Her argument is misplaced, however, because the IJ
did not rely solely on the airport statement in making his adverse credibility
determination. See id. at 164 (explaining that some inconsistencies between the airport
statement and a petitioner’s testimony before the immigration judge are “not sufficient,
standing alone,” to support an adverse credibility finding). Here, the IJ’s credibility
determination also rested on Ocampo’s failure to mention that her sister had been
kidnapped, despite the fact that the asylum application included a question that directed
Ocampo to identify mistreatment of family members. In view of the inconsistencies
between the airport statement and the failure even to mention her sister’s kidnapping, we
cannot say that no reasonable factfinder could fail to find Ocampo credible. Elias-
Zacarias, 502 U.S. at 483-84. For these reasons, substantial evidence supports the IJ’s
adverse credibility finding.
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III. Conclusion
We conclude, after reviewing the record as a whole, that it does not compel a
contrary conclusion to that of the IJ. Withholding of removal was also properly denied.
See Lukwago, 329 F.3d at 182 (“If [a petitioner] is unable to satisfy the standard for
asylum, he necessarily fails to meet the standard for withholding of removal under [the
INA].”) In this context, we need not consider whether the IJ erred in alternatively finding
that Ocampo’s relocation elsewhere in Colombia would be reasonable.2
Accordingly, we will deny the Petition for Review.
2
On appeal, Ocampo does not challenge the IJ’s denial of relief under CAT. In any
event, under the relevant regulations, “torture” means “severe pain or suffering” inflicted
“at the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.” 8 C.F.R. 208.18(a)(1). Ocampo does not allege
that the Colombian government, public official, or other person acting in an official
capacity has acquiesced to the guerrillas.
7