Del Moya v. Gonzales ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 8, 2006
Charles R. Fulbruge III
Clerk
No. 05-60351
Summary Calendar
MARIA MARGARITA DEL MOYA,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95-886-270
Before HIGGINBOTHAM, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
Maria Margarita Del Moya, a native and citizen of Colombia,
petitions for review of an order by the BIA denying her
application for asylum. Moya argues that she suffered past
persecution and fears future persecution on account of her
political opinion and that the BIA erred in finding to the
contrary.
We will uphold the BIA’s factual finding that an alien is
not eligible for asylum if supported by substantial evidence.1
*
Pursuant to the 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1
Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).
Under this substantial evidence standard, we cannot reverse the
BIA’s factual determinations unless we decide “not only that the
evidence supports a contrary conclusion, but also that the
evidence compels it.”2
Moya’s credited testimony relating to threats she received
does not compel us to conclude either that she suffered past
persecution or that she has established a well-founded fear of
future persecution upon repatriation based on political opinion.3
The threats stem from Moya’s statements advising displaced youth
at her place of work, a social program to provide food and other
assistance to displaced individuals, to resist recruitment into
FARC, a guerilla movement, because they were too young to be
involved in “weapons and drugs.” The IJ found that the FARC’s
interest in Petitioner did not stem from any immutable
characteristic, such as membership in a specific group.4 Though
the “Liberal Party” sponsored her place of employment, no record
evidence demonstrates that Moya was a member of the party or that
her statements were motivated by the group’s political views.
Relying on Elias-Zacarias, we have held that persecution because
of refusal to fight with a particular group is not persecution on
2
Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005) (internal quotation
marks and citations omitted).
3
See INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992); Faddoul v. INS, 37
F.3d 185, 188 (5th Cir. 1994).
4
When the BIA adopts without opinion an IJ’s decision, we review the IJ’s
decision. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).
2
account of political opinion.5 “Even a person who supports a
guerilla movement might resist recruitment for a variety of
reasons” besides political opinion.6 The IJ further found that
her intention, if returned to Colombia, to continue to counsel
displaced persons from joining FARC belied the reasonableness of
her purported fear.7
Because the BIA’s decision rests on substantial evidence,
the petition for review is DENIED.
5
Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994).
6
Elias-Zacarias, 502 U.S. at 482.
7
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001) (“To show a
well-founded fear of persecution, an alien must have a subjective fear of
persecution, and that fear must be objectively reasonable.”).
3