Orrego-Quiroz v. Ashcroft

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2395
CLAUDIA ELENA ORREGO-QUIROZ,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Stahl, Senior Circuit Judge.
William P. Joyce, with whom Joyce & Zerola, P.C. was on brief,
for petitioner.
Annemarie E. Roll, Attorney, Office of Immigration Litigation,
Civil Division, with whom Peter D. Keisler, Assistant Attorney
General, Civil Division, and Linda S. Wernery, Senior Litigation
Counsel, Office of Immigration Litigation, were on brief, for
respondent.
June 30, 2005
Per Curiam. Petitioner Claudia Elena Orrego-Quiroz
("Petitioner") seeks review of a final order of removal issued by
the Board of Immigration Appeals ("BIA"), which affirmed, without
opinion, the decision of the Immigration Judge ("IJ") denying
Petitioner's applications for asylum, withholding of removal, and
protection under the Convention Against Torture ("CAT").1
I. BACKGROUND
Petitioner, a native and citizen of Columbia, entered the
United States illegally on June 26, 2002. The Immigration and
Naturalization Service (INS)2 issued a Notice to Appear on June 28,
2002, charging her with removability pursuant to 8 U.S.C. §
1182(a)(6)(A)(i) as an alien present in the United States without
being admitted or paroled. Petitioner conceded removability, but
sought relief from removal in the form of asylum, withholding of
removal, and withholding of removal under the CAT, on the ground
that she feared persecution on the basis of imputed political
affiliation and membership in a particular social group.
1
The United Nations Convention Against Torture and Other Forms
of Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, 1465 U.N.T.S. 85, was implemented in the United States by the
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.
105-277, § 2242, 112 Stat. 2681-822 (codified at 8 U.S.C. § 1231).
2
The Homeland Security Act of 2002, Pub. L. No. 107-296, §
471, 116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. §
291(a)), abolished the INS and transferred its duties to the
Department of Homeland Security.
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Petitioner testified at her hearing before the IJ that
she had fled Colombia because she had suffered persecution, and
feared future persecution, resulting from her affiliation with a
youth organization called Urban Central Communal Action ("Communal
Action Group"), a group that provides poor communities with food,
household items, and educational programs. Petitioner testified
that in order to carry out their mission, the Communal Action Group
had to "pay the politicians for their help" and that their
activities were financed by politicians. She further testified
that although she and the Communal Action Group did not work for
the government, a terrorist group called the Revolutionary Armed
Forces of Colombia ("FARC") believes the Communal Action Members
are helping the Colombian government, and thus targets them for
persecution on the basis of imputed political affiliation.
The incidents of alleged persecution against Petitioner
in Colombia consist of threatening phone calls and letters, and
three discrete additional incidents. The first incident involved
FARC members shooting at the Communal Action Group while they were
attempting to carry out one of their charity missions. During this
attack, members of FARC shot at Petitioner and her group and
wounded the father of her son and two others. The second attack
occurred when she and other members of her group were traveling to
a town when FARC members ordered them out of their cars at
gunpoint, and proceeded to burn their vehicles with ignited
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gasoline. In the last incident, Petitioner claims that a man
threatened her and demanded that she contribute a million pesos to
FARC. Petitioner left Colombia soon thereafter. After Petitioner
left Colombia, the owners of the taxi she used to drive were
attacked, with one of the two being killed. Petitioner claims it
is likely that she was the target of this attack.
The IJ found that Petitioner did not establish past
persecution, or a well-founded fear of future persecution, because
she was not a credible witness, and, even if Petitioner were
credible, that she had failed to establish a nexus between the
persecution and a protected ground. The IJ then went on to
conclude that Petitioner also had failed to satisfy her burden for
withholding of removal and protection under the CAT. Finding that
the IJ's credibility determinations are supported by substantial
evidence, we deny Petitioner's petition for review.3
II. DISCUSSION
While this case involves judicial review of a decision by
the BIA, when the BIA summarily affirms the opinion of the IJ, we
review the IJ's analysis. Diab v. Ashcroft, 397 F.3d 35, 39 (1st
Cir. 2005). The BIA's decision will be upheld if it is "supported
by reasonable, substantial and probative evidence on the record
3
We need not decide, and thus express no opinion on, the issue
of whether there is a nexus between the alleged acts of persecution
against Petitioner on one of the five protected grounds that serve
as a basis for asylum.
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considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). We will overturn a decision of the BIA "only when the
record evidence would compel a reasonable factfinder to make a
contrary determination." Aguilar-Solis v. INS, 168 F.3d 565, 569
(1st Cir. 1999) (citing Elias-Zacarias, 502 U.S. at 481 & n.1).
A. Asylum
In order to establish eligibility for asylum, Petitioner
bears the burden to show that she is a "refugee" under 8 U.S.C. §
1158(b)(1), meaning that 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). Petitioner can "meet this burden in one of two
ways: (1) by demonstrating a well-founded fear of persecution on
account of one of the statutory grounds, or (2) by establishing
past persecution on one of the statutory grounds so as to be
entitled to a presumption of a well-founded fear of persecution."
Mukamusoni v. Ashcroft, 390 F.3d 110, 119 (1st Cir. 2004).
Here, Petitioner relies primarily upon her affidavit and
her testimony to support her claim for asylum.4 Although an asylum
4
Petitioner also provided the IJ with a copy of her brother's
death certificate from 1988 (to corroborate her story that her
brother had been murdered, and that his murder inspired her to join
the Community Action Group, following in her brother's footsteps of
doing something for the greater good), a letter from the Assembly
of Urban Central Communal Action stating, without evidence or
example, that Petitioner had received multiple threats from armed
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applicant's testimony "may be sufficient to sustain the burden of
proof without corroboration," such testimony must be credible.
Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004) (quoting 8
C.F.R. 1208.13(a)) (internal quotation marks omitted). The IJ
found Petitioner not to be a credible witness, stating that
Petitioner was "evasive and wholly lacking in credibility in
certain crucial parts of her testimony." The IJ also found that
her testimony was internally inconsistent and contradicted parts of
the affidavit she submitted in support of her asylum application.
The IJ identified three particular inconsistencies: (1)
discrepancies about her places of residence in Colombia; (2)
inconsistency between her affidavit which states that she last
saw/heard from the father of her child in the hospital after he was
injured in the FARC attack, and her hearing testimony, which stated
that after he was released from the hospital their "relationship
began to deteriorate;" and (3) inconsistency between her affidavit
which says that both the husband and wife taxi owners were
"brutally massacred" and her testimony, which states that only the
husband was killed, and the wife was merely injured. And, even
though the Petitioner attempts to explain away each inconsistency,
looking at all of the inconsistencies as a whole, coupled with the
rebel groups, and several pieces of evidence irrelevant to this
appeal. The record also includes a U.S. Department of Justice
country condition report for Colombia dated March 31, 2003, which
provides some background information on the guerilla activities of
the FARC.
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IJ's determination that Petitioner was evasive in her responses,
the IJ's determination that Petitioner has failed to establish her
eligibility for asylum is well-supported. Further, the limited
documentary evidence provided by Petitioner does not compel that we
disregard the adverse credibility findings of the IJ. Petitioner
has failed to meet her burden to establish eligibility for asylum.
B. Withholding of Removal
To establish eligibility for withholding of removal,
Petitioner has to prove that, "upon deportation, [s]he [was] more
likely than not to face persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion." Salazar v. Ashcroft, 359 F.3d 45, 52 (1st Cir. 2004)
(emphasis in original). As this is a more stringent standard than
that required to establish eligibility for asylum, a burden
Petitioner has failed to meet, Petitioner necessarily fails to meet
her burden to establish eligibility for withholding of removal.
C. CAT
Lastly, Petitioner seeks protection under the CAT. To
seek relief under the CAT, an applicant must "establish that it is
more likely than not that he or she would be tortured if removed to
[Colombia]." 8 C.F.R. § 208.16(c)(2) (emphasis added). "For an
act to constitute torture it must be: (1) an act causing severe
physical or mental pain or suffering; (2) intentionally inflicted;
(3) for a proscribed purpose; (4) by or at the instigation of or
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with the consent or acquiescence of a public official who has
custody or physical control of the victim; and (5) not arising from
lawful sanctions." Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir.
2004) (quotation omitted). Petitioner makes no argument to this
Court that she is more like than not to be tortured upon her return
to Colombia, and, fails to even address the requirement that to be
protected under the CAT, any alleged torture must be "with the
consent or acquiescence of a public official who has custody or
physical control of the victim." Id.; see, e.g., Smilow v.
Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 43 (1st Cir.
2003) ("Issues raised on appeal in a perfunctory manner (or not at
all) are waived.").
III. CONCLUSION
For the above-mentioned reasons, the petition for review
is DENIED.
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