Gomez v. Gonzales , 163 F. App'x 268 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 6, 2006
Charles R. Fulbruge III
Clerk
No. 05-60048
Summary Calendar
CLAUDIA GOMEZ
Petitioner
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
No. A95 908 179
Before KING, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Petitioner Claudia Gomez petitions this court for review of
a final order of the Board of Immigration Appeals denying her
claims for asylum, withholding of removal, and protection under
the Convention Against Torture. In her petition for review, she
also claims that she was denied judicial review of her claims.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
-1-
For the following reasons, the petition for review is DENIED in
part and DISMISSED in part for lack of jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 11, 2001, Gomez, a native and citizen of Colombia,
entered the United States as a non-immigrant visitor with
authorization to remain until June 10, 2002.1 On June 7, 2002,
Gomez filed an asylum application with the Immigration and
Naturalization Service (“INS”),2 but she later had to re-file her
application because the INS found that her initial application
was incomplete. On March 11, 2003, the INS instituted removal
proceedings against Gomez under 8 U.S.C. § 1229(a).
On May 13, 2003, at her first appearance before the
Immigration Judge (“IJ”), Gomez acknowledged service of the
charging document and conceded removability. At the hearing, she
requested asylum under 8 U.S.C. § 1158(a), withholding of removal
under 8 U.S.C. § 1231(b)(3), and protection under the United
1
Gomez initially was authorized to remain in the United
States until December 10, 2001, but she applied for and received
an extension to stay until June 10, 2002.
2
As of March 1, 2003, the INS’s administrative, service,
and enforcement functions were transferred from the Department of
Justice to the new Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116
Stat. 2135 (2002). The Bureau of Immigration and Customs
Enforcement in the Department of Homeland Security assumed the
INS’s detention, removal, enforcement, and investigative
functions. See Peters v. Ashcroft, 383 F.3d 302, 304 n.1 (5th
Cir. 2004). Because the events in this case began before the
reorganization, we will continue to use INS throughout this
opinion to avoid confusion.
-2-
Nations Convention Against Torture (“CAT”),3 or in the
alternative, voluntary departure.
At her second hearing on July 13, 2003, Gomez testified
before the IJ in an attempt to prove her claims of asylum,
withholding of removal, and protection under the CAT. She
alleged that between April 2001 and June 2001 she was verbally
threatened by members of the National Liberation Army (“ELN”), a
terrorist organization in Colombia, on account of her political
opinion and membership in a particular social group. She further
testified that she was afraid that members of the ELN would
torture or kill her if she returned to Colombia. During the time
she was threatened, she was a member of the Independent Liberal
Alternative Political Movement (“MILAP”), a branch of the liberal
party, and a volunteer for Funides,4 an organization devoted to
assisting low income people in Colombia.
According to Gomez’s testimony, ELN members had approached
her on two occasions in an attempt to convince her to join their
organization. She claims that after she refused, she received
death threats. Specifically, she testified that one of the ELN
members who threatened her said that if she did not join ELN, she
3
The United Nations Convention Against Torture and Other
Forms of Cruel, Inhuman or Degrading Treatment or Punishment, as
enacted by Foreign Affairs Reform and Restructuring Act of 1998,
Pub. L. No. 105-277, Div. G, § 2242(b), 112 Stat. 2681 (1998).
4
The administrative transcript refers to “Unides,” but the
exhibits introduced at the hearing indicate that the group was
called “Funides.” A.R. at 149, 151.
-3-
could choose whether she wanted her family to find her with her
mouth full of insects or floating in the river. She testified
that since she left Colombia, her mother has received telephone
calls stating that the ELN will be waiting for Gomez upon her
return to Colombia. During her testimony, Gomez also claimed
that ELN members killed two of her MILAP colleagues, and two of
her other MILAP colleagues have disappeared.
At the conclusion of the hearing, the IJ denied Gomez’s
claims for asylum, withholding of removal, and protection under
the CAT and granted voluntary departure. The IJ concluded that
(1) Gomez’s testimony was not credible, and (2) Gomez had failed
to meet her burden of proof for the requested relief. On August
11, 2003, Gomez appealed the IJ’s decision to the Board of
Immigration Appeals (“BIA”).
On December 27, 2004, the BIA affirmed the IJ’s order in a
per curiam opinion. The BIA adopted the IJ’s finding that Gomez
had not satisfied her burden of proof for asylum, withholding of
removal, and relief under the CAT. Specifically, the BIA adopted
and affirmed “the decision of the Immigration Judge insofar as he
found that [Gomez] had not satisfied the burden of proof for the
requested forms of relief.” A.R. at 2. The BIA further
concluded that even if the IJ had found Gomez to be credible,
Gomez still failed to meet her burden of proving past persecution
or a well-founded fear of persecution. On January 24, 2005,
Gomez filed this timely petition for review of the BIA’s
-4-
decision.
II. STANDARD OF REVIEW
This court reviews the BIA’s factual findings to determine
if they are supported by substantial evidence. INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992); Mikhael v. INS, 115 F.3d 299,
302 (5th Cir. 1997). “Under substantial evidence review, we may
not reverse the BIA’s factual determinations unless we find not
only that the evidence supports a contrary conclusion, but that
the evidence compels it.” Chun v. INS, 40 F.3d 76, 78 (5th Cir.
1994). Thus, the petitioner must prove that the evidence she
presented was so compelling that no reasonable factfinder could
reach a different conclusion. 8 U.S.C. § 1252(b)(4)(B) (2000)
(“[T]he administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary . . . .”); Elias-Zacarias, 502 U.S. at 483-84; Chun, 40
F.3d at 78.
“We have authority to review only an order of the BIA, not
the IJ, unless the IJ’s decision has some impact on the BIA’s
decision.” Mikhael, 115 F.3d at 302; see also Chun, 40 F.3d at
78. Here, because the BIA adopted and affirmed the IJ’s decision
to the extent that the IJ found that Gomez had not satisfied her
burden of proof for the requested relief, we have authority to
review only this aspect of the IJ’s decision for substantial
evidence. See Mikhael, 115 F.3d at 302.
-5-
III. DISCUSSION
A. Adverse Credibility Finding
Gomez argues that the IJ’s adverse credibility finding is
not supported by substantial evidence in the record. According
to Gomez, a review of the record reveals that her testimony was
consistent with her written application and was consistent during
her hearing. She also contends that the IJ’s adverse credibility
finding is improperly based on testimony that does not go to the
heart of her claim. Citing a Ninth Circuit case, Gomez maintains
that minor inconsistencies in the record, such as discrepancies
about dates, are not an adequate basis for an adverse credibility
finding. See Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.
1988).
Although the BIA adopted and affirmed the IJ’s findings that
Gomez had not met her burden of proof for the requested relief,
it did not adopt the IJ’s adverse credibility finding. Rather,
in its per curiam order, the BIA stated that “[e]ven if credible,
we find that [Gomez] has failed on this record to establish past
persecution or a well-founded fear of persecution.” A.R. at 2.
Based on the BIA’s order, we will review the IJ’s decision only
to the extent that it denied Gomez’s claims for asylum,
withholding of removal, and protection under the CAT. See
Mikhael, 115 F.3d at 303 (concluding that credibility is not an
issue on appeal where the BIA stated that the IJ correctly
-6-
addressed all issues other than credibility, and reviewing the
IJ’s decision only to the extent that it denied the petitioner’s
claim for asylum). In other words, we do not have the authority
to review the IJ’s adverse credibility finding where, as here,
the BIA did not adopt or affirm that finding. See id. at 302.
B. Gomez’s Requested Relief
Gomez next argues that the IJ erred by finding that she did
not establish her burden of proof with respect to her claims for
asylum, withholding of removal, and protection under the CAT.
1. Asylum
To prevail on her claim for asylum, Gomez would have to
prove that she is a refugee, i.e., she is unable or unwilling to
return to Colombia “because of persecution or a well-founded fear
of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42)(A) (defining refugee). In order to prove
a well-founded fear of persecution, the petitioner must show that
her subjective fear of future persecution is objectively
reasonable. See Mikhael, 115 F.3d at 304. Gomez contends that
she established a well-founded fear of persecution on account of
her political opinion and membership in a particular social
group.5 As evidence of her well-founded fear of persecution,
5
Gomez does not specifically challenge the IJ’s finding
that she did not meet her burden of proof for past persecution.
Rather, she challenges only the IJ’s finding that she did not
establish a well-founded fear of persecution. See Pet’r Br. at
-7-
Gomez points to her testimony that she received death threats
from the ELN, the ELN killed two of her colleagues, and her
mother received death threats concerning Gomez’s eventual return
to Colombia.
The IJ determined that Gomez had failed to show that her
fear of persecution was objectively reasonable. See id. As an
example, the IJ noted that Gomez had failed to show that she
could not go to the Colombian authorities with her death threats
from members of the ELN. A.R. at 57-58. Based on the evidence,
the IJ concluded that Gomez had not established that she was a
refugee and denied her request for asylum. Id. at 59.
Under the deferential standard of review we accord to the
BIA’s, and here, IJ’s decision, we cannot conclude that Gomez
established that she was a refugee entitled to the discretionary
relief of asylum. Although persecution generally refers to
malfeasance by government authorities, this court has recognized
that persecution can occur at the hands of private persons when
the government is wholly unable or unwilling to intervene.
Adebisi v. INS, 952 F.2d 910, 913-14 (5th Cir. 1992) (noting that
“the BIA extends the qualifying range of persecution fear to
include acts by groups the government is unable or unwilling to
control”) (internal quotation marks omitted). Gomez has failed
23-24. Accordingly, her claim for asylum based on past
persecution is waived. See Cinel v. Connick, 15 F.3d 1338, 1345
(5th Cir. 1994) (“An appellant abandons all issues not raised and
argued in its initial brief on appeal.”).
-8-
to show, however, that she could not go to the Colombian
authorities or that the Colombian authorities were unable or
unwilling to intervene. See id. The record shows--and in fact,
the IJ found--that the Colombian government is actively opposing
guerilla organizations, such as the ELN. See, e.g., A.R. at 54,
176, 183, 200-01. Having reviewed the record and the parties’
briefs, we conclude that Gomez has failed to “show that the
evidence [s]he presented was so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution.”
Elias-Zacarias, 502 U.S. at 483-84. Accordingly, the petition
for review is DENIED with respect to Gomez’s claim for asylum.
2. Withholding of Removal and Protection Under the CAT
Gomez spends very little time in her brief--if any--
discussing her withholding of removal and CAT claims. She sets
out the legal standard for withholding of removal and then, in a
short and cursory fashion, recognizes that the standard for
withholding of removal “is a more rigorous standard than the one
required for asylum.” See Pet’r Br. at 25. Gomez fails to
explain, however, how the IJ erred in denying her claims for
withholding of removal and relief under the CAT. In fact, she
completely fails to mention her CAT claim in her brief. By
failing to brief any argument concerning the IJ’s denial of her
withholding of removal and CAT claims, Gomez has abandoned these
-9-
claims on appeal.6 See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th
Cir. 2004) (noting that the petitioner waived her CAT claim by
failing to raise it in her petition for review); Rodriguez v.
INS, 9 F.3d 408, 414 n.15 (5th Cir. 1993) (“[G]rounds for
reversal not set forth in a petitioner’s (or appellant’s) opening
brief in this Court are normally waived.”); see also Calderon-
Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986) (noting
that this court does not consider issues that the party failed to
brief).
Because Gomez waived her withholding of removal and CAT
claims by failing to brief them on appeal, the petition for
review is DENIED with respect to these claims.
C. Due Process Violation
Finally, Gomez argues that she did not receive a full and
fair hearing before the IJ. Although Gomez does not refer to a
violation of her due process rights anywhere in her brief, she
contends that the IJ “created a hostile environment that
inhibited [her] testimony and rendered [her] hearing
fundamentally unfair because of [the IJ’s] bias.” See Pet’r Br.
6
Even if Gomez had sufficiently raised her claim for
withholding of removal, this claim would fail because she cannot
meet the less stringent burden of proof required for a claim of
asylum. See Adebisi, 952 F.2d at 914 (noting that an alien who
cannot establish eligibility for the discretionary grant of
asylum is necessarily precluded from establishing the more
stringent requirement of withholding of deportation); see also
Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002) (“Withholding
of removal is a higher standard than asylum.”).
-10-
at 34. According to Gomez, the manner in which the IJ conducted
the hearing “completely eliminated judicial review.” See id. at
35.
Our review of the record reveals that Gomez did not raise
this “due process” issue before the BIA. Although she argued in
her brief before the BIA that the IJ created an unnecessarily
hostile environment, she never referred to a violation of her due
process rights or alluded to the hearing being fundamentally
unfair or precluding judicial review. See A.R. at 23-24.
Because Gomez failed to raise her due process challenge in her
BIA appeal, we lack jurisdiction to consider this issue. See
Rodriguez, 9 F.3d at 414 (“Because [the petitioner] failed to
raise this issue before the BIA, he has not exhausted his
administrative remedies, and we have no jurisdiction to consider
these grounds.”); see also Goonsuwan v. Ashcroft, 252 F.3d 383,
389 (5th Cir. 2001) (noting that the BIA should be given the
first opportunity to correct any procedural errors committed
during the petitioner’s hearing). Accordingly, with regard to
Gomez’s due process claim, the petition for review is DISMISSED
for lack of jurisdiction.
IV. CONCLUSION
For the foregoing reasons, Gomez’s petition for review is
DENIED in part and DISMISSED in part for lack of jurisdiction.
-11-
-12-