Garcia, Fabio v. Keisler, Peter D. ( 2007 )


Menu:
  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 06-3275
    FABIO GARCIA and LUZ M. FRANCO,
    Petitioners,
    v.
    ALBERTO R. GONZALES,
    Respondent.
    ____________
    Petition for Review of an Order of
    the Board of Immigration Appeals.
    Nos. A97-102-247 & A97-102-248
    ____________
    ARGUED JULY 10, 2007—DECIDED AUGUST 31, 2007
    ____________
    Before BAUER, CUDAHY and RIPPLE, Circuit Judges.
    RIPPLE, Circuit Judge. Fabio Garcia, a native and citizen
    of Columbia, applied for asylum. He claimed that members
    of the Revolutionary Armed Forces of Columbia (“FARC”),
    an insurgent group, had threatened him because he was
    providing assistance to impoverished widows and or-
    phans. The immigration judge (“IJ”) denied Mr. Garcia’s
    application, which his wife, Luz Marina Franco, had
    joined. The IJ found Mr. Garcia to be credible, but con-
    cluded that the threats he described did not constitute
    persecution. The Board of Immigration Appeals (“BIA”)
    summarily affirmed the IJ’s decision, and Mr. Garcia
    2                                              No. 06-3275
    brought this petition for review. For the reasons set forth
    in this opinion, we deny the petition.
    I
    BACKGROUND
    Mr. Garcia entered the United States in November 2003
    on a visitor’s visa, which he overstayed. His wife had
    entered the United States in December 2000 and overstayed
    her visitor’s visa as well. During removal proceedings,
    Mr. Garcia conceded removability, but requested asylum
    and withholding of removal on the ground that he had
    received death threats from FARC and feared that, if he
    returned to Colombia, he would be killed. At his removal
    hearing, Mr. Garcia testified that he was an entrepreneur
    who bought products from the peasants and farmers in
    Ubalá and sold them to distributors in Bogotá. In addition
    to his business dealings in Ubalá, he began taking cloth-
    ing and toys to the widows and children living in Ubalá’s
    shanty towns. Soon thereafter, the Colombian Institute
    of Family Welfare, a government organization located in
    Bogotá, formally commissioned Mr. Garcia to continue his
    humanitarian work on its behalf. With the official support
    of the government, Mr. Garcia was able to increase the
    amount of aid he could provide to the peasants of Ubalá.
    He also began examining human rights violations by
    FARC.
    Mr. Garcia testified that his first encounter with FARC
    occurred in June 2001. He was on his way to the church in
    Ubalá when a peasant, who identified himself as a FARC
    helper, patted Mr. Garcia on the back and told him to “stop
    helping the women and the orphans and to stop engaging
    in politics.” A.R. at 110. Mr. Garcia said he considered
    No. 06-3275                                                  3
    reporting the incident, but the mayor of Ubalá convinced
    him not to file an official complaint. Instead, the mayor
    sent two police officers with Mr. Garcia to protect him
    while he carried out his official duties. Mr. Garcia testi-
    fied that he felt safe walking around with the officers.
    Mr. Garcia also recounted his second run-in with FARC,
    which occurred in December 2001 while he was campaign-
    ing for three candidates for elective office. During the
    campaign he received a call at his parents’ house in Bogotá
    from someone who identified himself as a member of
    FARC. The caller told him that FARC had him under
    surveillance and that he was going to die if he did not
    “stop his activities.” 
    Id. at 115.
    The next month Mr. Garcia
    received a letter telling him that, if he did not stop his
    humanitarian and political activities, FARC would “initiate
    a trial by the people.” 
    Id. at 116.
    Mr. Garcia interpreted this
    threat to mean that the group would kill him. Once again
    he consulted the mayor about filing a complaint but
    decided against it after he learned that the mayor also had
    been threatened. Instead, Mr. Garcia testified, he stopped
    all of his non-business activities.
    In April 2002, while Mr. Garcia was attending a dairy
    fair in Ubate, two men grabbed him by the arms and told
    him, “You thought you were going to get away and that
    you weren’t going to pay.” 
    Id. at 119.
    Mr. Garcia testified
    that he started shouting for help, and the men escaped into
    the crowd. Frightened, Mr. Garcia immediately left for
    Bogotá. Despite moving, Mr. Garcia explained, he con-
    tinued to receive threatening phone calls at his parents’
    house in Bogotá and also received threatening calls on
    his cell phone.
    Mr. Garcia’s final encounter with FARC occurred in
    November 2002. He testified that he had traveled back to
    4                                             No. 06-3275
    Ubalá with the town’s mayor to celebrate the political
    victories of the three candidates he had helped to elect.
    He and the mayor traveled with police officers and did
    not let anyone know that they were planning to attend
    the celebration. Nothing happened to Mr. Garcia while
    he was in Ubalá, but, on the way back to Bogotá, he was
    stopped at a FARC roadblock and asked for identification.
    Mr. Garcia testified that one of the men at the roadblock
    was one of the assailants who had grabbed him at the
    dairy fair in Ubate. The man pulled Mr. Garcia from the
    car and hit him on the head with the butt of his gun.
    Shortly thereafter, the Colombian air force arrived and
    fired shots from a helicopter, freeing the 244 people who
    had been stopped at the roadblock. As the man from Ubate
    ran off, he told Mr. Garcia that they would meet again.
    When Mr. Garcia returned to his parents’ home, he learned
    that a caller from FARC had warned that Mr. Garcia
    would be killed the next time someone from FARC saw
    him. Mr. Garcia testified that he fled to the United States
    later that month and that he feared he would be killed if
    he returned to Colombia.
    The IJ found Mr. Garcia credible, but nevertheless denied
    his asylum application. The IJ ruled that Mr. Garcia had
    not demonstrated past persecution because FARC never
    acted on any of its threats and because Mr. Garcia did not
    demonstrate that the Colombian government was unable
    or unwilling to protect him. The IJ further ruled that,
    although Mr. Garcia has a genuine subjective fear of
    returning to Colombia, he had failed to establish that his
    fear was objectively reasonable. Again, the IJ noted that,
    during the time FARC was threatening him, Mr. Garcia
    never was harmed seriously, nor did Mr. Garcia offer any
    evidence that FARC carried out any of the threats it made
    No. 06-3275                                                 5
    against the mayor of Ubalá. The IJ denied all forms of
    relief, and the BIA affirmed without opinion.
    II
    DISCUSSION
    Mr. Garcia contends that the BIA erred in its conclusion
    that he did not qualify for asylum on the ground that
    he had failed to establish past persecution or a well-
    founded fear of future persecution. Where, as here, the
    BIA summarily affirms the decision of the IJ, we review
    the IJ’s decision as the final agency determination. Tapiero
    de Orejuela v. Gonzales, 
    423 F.3d 666
    , 671 (7th Cir. 2005). We
    review the IJ’s denial of an asylum claim under the sub-
    stantial evidence standard. Feto v. Gonzales, 
    433 F.3d 907
    ,
    910-11 (7th Cir. 2006). We shall affirm if we find that the
    IJ’s decision is supported by “reasonable, substantial, and
    probative evidence.” 
    Id. at 911
    (citing Ahmed v. Ashcroft,
    
    348 F.3d 611
    , 615 (7th Cir. 2003)). Under this deferential
    standard, we shall not reverse the IJ’s determination
    “simply because we would have decided the case differ-
    ently.” Margos v. Gonzales, 
    443 F.3d 593
    , 597 (7th Cir. 2006)
    (citing Jamal-Daoud v. Gonzales, 
    403 F.3d 918
    , 922 (7th Cir.
    2005)).
    A. Past Persecution
    Mr. Garcia contends that his testimony that members of
    FARC repeatedly had threatened to kill him if he did not
    stop his government-affiliated humanitarian activities
    demonstrated that he was persecuted on account of an
    imputed political opinion. To demonstrate past persecu-
    tion, however, it is not enough simply to demonstrate some
    6                                               No. 06-3275
    harm on account of a political opinion. To show past
    persecution, when the harm alleged was inflicted at the
    hands of private parties, a petitioner must demonstrate
    that the government was either unwilling or unable to
    protect him against the private parties. See 8 U.S.C.
    § 1101(a)(42)(A); Tarraf v. Gonzales, No. 06-2835, 
    2007 WL 2164157
    , slip op. at 2-3 n.2 (7th Cir. Jul. 30, 2007); Hor v.
    Gonzales, 
    421 F.3d 497
    , 501 (7th Cir. 2005).
    Here, the IJ found that members of FARC are not gov-
    ernmental actors and that Mr. Garcia had failed to demon-
    strate that the Colombian government either condoned
    their behavior or was unwilling or unable to protect
    Mr. Garcia from it. Mr. Garcia himself admitted during
    his removal hearing that the mayor of Ubalá assigned
    two Colombian police officers to escort him as he carried
    out his humanitarian missions and that their presence
    made him feel safe. He later testified that he was again
    saved by the Colombian government when air force
    helicopters rescued him after he and 243 others were
    stopped at a FARC roadblock. Far from demonstrating
    an unwillingness or inability to protect him, Mr. Garcia’s
    own testimony demonstrates that the government of
    Columbia was both willing and able to protect him from
    FARC. Cf. Hernandez-Baena v. Gonzales, 
    417 F.3d 720
    , 724
    (7th Cir. 2005) (upholding the IJ’s conclusion that the
    petitioner did not demonstrate that the government of
    Columbia was unwilling or unable to protect him from
    FARC where the record indicated that police responded
    immediately to his report that FARC members threat-
    ened to kill him and that no further threats had been
    made).
    No. 06-3275                                                  7
    B. Future Persecution
    Mr. Garcia next contends that the IJ erroneously con-
    cluded that he did not establish a well-founded fear of
    future persecution. Mr. Garcia submits that his life would
    be in danger if he returned to Colombia because of the
    threats he received in the past and because “FARC is still
    active.” Petitioner’s Br. at 20. To establish a well-founded
    fear of future persecution, Mr. Garcia must demonstrate
    that the fear is both subjectively genuine and objectively
    reasonable in light of the credible evidence. See Chakir
    v. Gonzales, 
    466 F.3d 563
    , 569 (7th Cir. 2006).
    The IJ found that, although Mr. Garcia’s fear of returning
    to Colombia was subjectively genuine, his fear was not
    objectively reasonable because the Colombian govern-
    ment had protected Mr. Garcia from FARC’s attempts to
    harm him in the past, and there was no indication that they
    would not or could not do so in the future. To the extent
    that Mr. Garcia’s fear is based on the general civil strife
    resulting from the continued conflict between the gov-
    ernment of Columbia and FARC, such fear does not
    constitute an objectively reasonable fear of future persecu-
    tion. See, e.g., Ahmed v. Gonzales, 
    467 F.3d 669
    , 673 (7th Cir.
    2006) (noting that general conditions of hardship affecting
    entire populations are not persecution); Selimi v. Ashcroft,
    
    360 F.3d 736
    , 740-41 (7th Cir. 2004) (explaining that political
    turmoil and civil strife that makes life unpleasant for
    ethnic minorities, some of whose members were engag-
    ing in an insurgency, does not render automatically each
    member of the minority subject to persecution). Therefore,
    we hold that the IJ’s determination that Mr. Garcia had
    not established a well-founded fear of future persecution
    is supported by substantial evidence in the record.
    8                                             No. 06-3275
    Conclusion
    The IJ’s conclusion that Mr. Garcia did not demonstrate
    past persecution or a well-founded fear of future persecu-
    tion is supported by substantial evidence in the record.
    Accordingly, we deny the petition for review and affirm
    the BIA’s decision.
    PETITION DENIED
    DECISION AFFIRMED
    A true Copy:
    Teste:
    _____________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—8-31-07