Gonzalez-Hernandez v. Ashcroft ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 25, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60435
Summary Calendar
LAURA ESTHER GONZALEZ-HERNANDEZ;
JULIAN MONCADA-GONZALEZ,
Petitioners,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78-129-987
BIA No. A78-129-988
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Laura Esther Gonzalez-Hernandez and her minor son,
Juliana Moncada, both natives of Colombia, have filed a petition
for review of the decision of the Board of Immigration Appeals
(BIA) affirming the Immigration Judge’s (IJ) denial of their
petition for asylum, withholding of removal, and relief under the
Convention Against Torture.
Gonzalez argues that the IJ employed the wrong legal standard
*
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that this opinion should not be published and is not precedent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.
and improperly weighed the evidence in determining that Gonzalez
was not subject to persecution by the Autodefensas Unidas de
Colombia (AUC) based on Gonzalez’s political opinion.
Gonzalez was required to show that the persecutor’s actions
were motivated by Gonzalez’s political opinion. Ontunez-Tursios v.
Ashcroft, 303 F.3d 341, 350-51 (5th Cir. 2002). Gonzalez has not
shown by direct or circumstantial evidence that the AUC possessed
information which indicated that Gonzalez held any particular
political opinion. The mere fact that the AUC believed that
Gonzalez called the police to arrest some of their members was not
sufficient evidence to show that the AUC believed that Gonzalez’s
call was politically motivated. Gonzalez did not provide any
evidence that she had made a political position known to the AUC
members at any time or other evidence to show that the AUC could
have imputed a political opinion to her. Cf. Briones v. INS,
175 F.3d 727, 729 (9th Cir. 1998) (en banc)(an adverse political
opinion was attributed by the army to the petitioner who was
actively involved in a fiercely ideological dispute between the
Philippine government and the army).
Gonzalez argues for the first time in her reply to the
Government’s motion for a summary dismissal that she was persecuted
because she was a member of a particular social group consisting of
all persons who oppose the AUC. This court will not consider
issues raised for the first time in a reply brief. Cavallini v.
State Farm Mut. Auto Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir.
2
1995). In any event, Gonzalez has not shown that she was a member
of a group of persons who shared a common characteristic that they
either cannot change or should not be required to change because it
is fundamental to their identities or consciences. Ontunez-
Tursios, 303 F.3d at 352-53.
Gonzalez’s remaining arguments concern the IJ’s erroneous
factfindings and misapplication of the correct standard of proof in
determining whether she had been persecuted and whether it was more
likely than not that she would suffer persecution if she returns to
Colombia. Because Gonzalez has failed to show that any such
persecution was the result of her political opinion or her
participation in a political group, she has not shown that she was
a refugee entitled to asylum. See 8 U.S.C. 1101(a)(42)(A). Thus,
it is unnecessary to determine whether the IJ’s determination that
there was not a reasonable possibility that Gonzalez would be
subject to persecution if she returns to Colombia was supported by
substantial evidence.
To receive withholding of deportation, “the alien must
demonstrate a clear probability of persecution on one of the
enumerated grounds.” Jukic v. INS, 40 F.3d 747, 749 (5th Cir.
1994). Since Gonzalez failed to show a clear probability of
persecution based on her political opinion or her participation in
a social group, she is not entitled to withholding of deportation.
Gonzalez has not argued in her brief that she is entitled
to relief under the CAT. Therefore, this issue is abandoned. See
3
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
The petition for review is DENIED. Respondent Ashcroft’s
motion to summarily deny the petition is DENIED as moot.
Respondent Ashcroft’s motion to waive the requirement to file a
brief is GRANTED, and his motion to for an extension of time to
file a brief is DENIED as unnecessary. Ashcroft’s motion to file
an out-of-time reply to the response is GRANTED.
4