Matiz Gaitan v. Keisler ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 8, 2007
No. 06-61039
Summary Calendar Charles R. Fulbruge III
Clerk
CLARA INES MATIZ GAITAN; JUAN ESTEBAN BEDOYA MATIZ; JULIAN
CAMILO BEDOYA MATIZ; CESAR ALEJANDRO BEDOYA MATIZ; TULIO
CESAR BEDOYA CASTRILLON
Petitioners
v.
PETER D KEISLER, ACTING U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A96 100 633, A97 634 291,
A96 100 630, A96 100 631, A96 100 632
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Clara Ines Matiz Gaitan (Matiz Gaitan), a native and citizen of Colombia,
petitions for review of the Board of Immigration Appeals’s (BIA) dismissal of her
appeal of the Immigration Judge’s order denying her application for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT).
*
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should not be published and is not precedent except under the limited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.
No. 06-61039
Matiz Gaitan’s husband and children, joint petitioners herein, are also natives
and citizens of Colombia and were derivative beneficiaries of her application.
Matiz Gaitan does not challenge the BIA’s determinations that she was
statutorily ineligible for asylum or relief under CAT. Rather, she argues that
the BIA erred by finding her ineligible for withholding of removal. Matiz Gaitan
argues that she suffered harm on account of her political opinions and that she
has demonstrated a clear probability that she will be persecuted upon her
return. She also asserts that the Immigration Judge violated her due process
rights by excluding her expert witness from testifying and disallowing her
requested continuance to correct her failure to submit a synopsis of her expert’s
proposed testimony. Finally, she argues that the Immigration Judge and the
BIA violated her substantive due process rights by failing to discuss in their
order and opinion the documentary evidence that she provided from the U.S.
State Department and the United Nations High Commissioner on Refugees.
She raises these due process claims for the first time on appeal.
We will uphold the factual finding that an alien is not eligible for
withholding if that finding is supported by substantial evidence. Zamora-Morel
v. INS, 905 F.2d 833, 838 (5th Cir. 1990). To be eligible for withholding of
removal, an alien “must demonstrate a ‘clear probability’ of persecution upon
return” to her native country. Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004)
(citing Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994)).
The BIA’s decision that Matiz Gaitan failed to demonstrate a clear
probability of persecution upon her return to Colombia – based on a failure to
demonstrate past persecution – is supported by substantial evidence. Matiz
Gaitan’s testimony established that she was threatened by guerillas on, at most,
six occasions. At no time was she, or any member of her family, physically
harmed despite the fact that she continually refused to comply with the demands
made on her by members of the Revolutionary Armed Forces of Colombia
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No. 06-61039
(FARC). Consequently, the harm she suffered did not rise to the level of past
persecution. Eduard v. Ashcroft, 379 F.3d 182, 187 n.4 (5th Cir. 2004).
Matiz Gaitan maintains that she did not cooperate with FARC based on
her political beliefs, that the guerrillas targeted her due to her loyalty to the
Conservative Party and its democratic ideals, and that the BIA’s holding to the
contrary – finding that Matiz Gaitan failed to establish persecution for political
beliefs and therefore failed to establish clear probability of harm – was “based
on erroneous findings of fact” and applied an improper legal standard.1 There
is substantial evidence that FARC, although aware of her loyalty to the party,
targeted her for reasons unrelated to her political beliefs. The evidence indicates
that it was her position as an assistant registrar that made her valuable to
FARC. FARC threatened her as a means of coercing her into using her position
as an assistant registrar to help them obtain fake identity cards. Matiz Gaitan
has not established that FARC will be likely to target her now that she is an ex-
assistant registrar and has been out of the country for five years. Moreover, the
fact that her cousin, the mayor of Nocaima and presumably a higher profile
member of the Conservative Party, remains in Nocaima without being disturbed
by FARC offers further support for the BIA’s determination that she would not
be subject to persecution upon her return to Colombia. Thus, Matiz Gaitan did
not establish a clear probability that she would be subject to persecution if
deported to Colombia. See Mikhael v. INS, 115 F.3d 299, 305 (5th Cir. 1997); 8
C.F.R. § 1208.16(b). Furthermore, the BIA applied a correct legal standard in
requiring a clear probability of persecution. See, e.g., Mikhael, 115 F.3d at 305(IJ may not require that the alien “prove that he would be subject to persecution
if deported”; nor that “‘it is more likely than not that he or she would be
1
Matiz Gaitan Br. at 4.
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No. 06-61039
persecuted in his or her home country”2; IJ must require “clear probability” of
persecution) (emphasis added; citations and quotations omitted).
Matiz Gaitan failed to exhaust her procedural due process claims because
she did not raise them before the BIA. Although we do not typically subject due
process claims to the exhaustion requirement, “procedural errors that are
correctable by the BIA” must be exhausted. See Roy, 115 F.3d 299 at 137. Matiz
Gaitan could have requested that the BIA remand the record to the IJ to require
that court to hear the excluded expert testimony, but she did not.3 Id. (citing In
re Exame, 18 I. & N. Dec. 303, 305 (BIA 1982)). Therefore, this court lacks
jurisdiction to hear her claim that the exclusion of the testimony violated her
due process rights. We also lack jurisdiction to hear Matiz Gaitan’s substantive
due process claims that the IJ and the BIA failed to consider documents from the
State Department and United Nations, as Matiz Gaitan failed to object to the
BIA’s lack of consideration of the evidence in a motion to reopen and therefore
failed to bring the issue in the first instance before the BIA. Wang v. Ashcroft,
250 F.3d 448, 452-53 (5th Cir. 2001) (citing Goonsuwan v. Ashcroft, 252 F.3d
383, 388-89 (5th Cir. 2001)). Accordingly, the joint petition for review is
DENIED.
2
The agency may follow this standard if “applicant’s fear of future threat
to life or freedom is unrelated to the past persecution . . . .” See 8 C.F.R. 1208.16
§ (B)(1)(iii).
3
In her brief to the BIA Matiz Gaitan stated in “Factual Background”:
“The court admitted into evidence the Respondent’s amended statement. The
Respondent’s attorney then made a request for a continuance in order to prepare
her expert witness. The judge denied this motion.” She did not further address
the issue. Record on Appeal at 14.
4