Jaramillo v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 21 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
FERNANDO JARAMILLO;
CLAUDIA PALACIO; PAULA
JARAMILLO,
Petitioners, No. 03-9586
(Nos. A95-227-607, A95-227-613,
v. & A95-227-659)
(Petition for Review)
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
ORDER AND JUDGMENT *
Before HARTZ , and BALDOCK , Circuit Judges, and BRIMMER , ** District
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Clarence A. Brimmer, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Petitioners seek review of a decision by the Board of Immigration Appeals
(BIA) summarily dismissing their appeal and affirming the decision of the
immigration judge (IJ) that denied petitioners’ requests for asylum and restriction
on removal. 1
Our jurisdiction to review the denial of a request for asylum arises
under 8 U.S.C. § 1252(a)(2)(B)(ii). Tsevegmid v. Ashcroft , 336 F.3d 1231, 1234
(10th Cir. 2003). Title 8 U.S.C. § 1252(a) grants us jurisdiction to “review final
orders of removal, such as a denial of withholding of removal.” Id. at 1235.
When the BIA summarily affirms an IJ’s decision, we review the determination of
the IJ in disposing of the appeal. Id.We review the IJ’s factual findings for substantial evidence in the
record. The BIA’s findings of fact are conclusive unless the record
demonstrates that “any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We will not
reverse the agency’s decision unless the evidence compels the
conclusion that petitioners have a well-founded fear of persecution
because of one of the protected grounds.
1
“Restriction on removal was known as ‘withholding of removal’ prior to
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. See
Wiransane v. Ashcroft, 366 F.3d 889, 892 n. 1 (10th Cir.2004). We use the newer
terminology ‘restriction on removal’ throughout this opinion.” Elzour v. Ashcroft,
378 F.3d 1143, 1148 n.5 (10th Cir. 2004).
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Estrada-Escobar v. Ashcroft , 376 F.3d 1042, 1046 (10th Cir. 2004) (citations
omitted). We review legal questions de novo. Elzour v. Ashcroft , 378 F.3d 1143,
1150 (10th Cir. 2004).
Petitioners, a married couple and their young daughter, are natives and
citizens of Columbia. Petitioner Fernando Jaramillo had worked for several years
for the Columbian affiliate of Philip Morris, the American conglomerate.
Petitioners entered this country on April 17, 2001, on visitors’ visas and failed to
depart after their authorized visiting period ended.
In early January 2002, Mr. Jaramillo filed an application for asylum. The
other two petitioners based their applications for asylum on their relationship to
Mr. Jaramillo. After the Immigration and Naturalization Service (INS) 2
denied
petitioner’s request for asylum, all three petitioners appeared before an IJ,
renewing their requests for asylum. The IJ considered the applications for asylum
to also be applications for restriction on removal, under 8 U.S.C. § 1231(b)(3),
and to also be applications for relief under the United Nations Convention
Against Torture.
2
On March 1, 2003, the INS ceased to exist as an agency within the
Department of Justice. Its enforcement functions were transferred to the
Department of Homeland Security. See Homeland Security Act of 2002,
Pub. L. No. 107-296, 116 Stat. 2135 (2002). Because the majority of events
at issue here predate that reorganization, we continue to refer to the INS in this
opinion.
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In support of his application, Mr. Jaramillo asserted that he and his family
were targeted by the Revolutionary Armed Forces of Columbia (FARC) because
of his association with an American company. In an affidavit, petitioner testified
that he received two letters from FARC threatening him because of his political
opinions and because of his high position in Philip Morris and ordering him to
leave the country. Mr. Jaramillo and his wife, Claudia Palacio, both testified that
members of her family had been killed or kidnaped by FARC. Other evidence
described the political climate in Columbia and the state of human rights practices
there. Finally, petitioner presented the testimony of a psychiatrist who had
examined him and found him to be suffering from post-traumatic stress disorder
and depression.
Petitioners’ primary evidence was copies of the two threatening letters,
described above, that were allegedly received by Mr. Jaramillo from FARC
demanding the family’s departure from Columbia. Because the letters were not
originals and had not been authenticated, the IJ rejected them as proof that
Mr. Jaramillo had actually received them and that they had been sent by FARC.
He also concluded that the testimony about harm to Ms. Palacio’s family was not
significant support for the application because it was not mentioned in the
original asylum application, leading the IJ to doubt its authenticity.
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While acknowledging that the background material provided by petitioner
establishes the “very adverse security situation” in Columbia, AR at 39, the IJ,
citing In re Sanchez & Escobar , 19 I. & N. Dec. 286 (BIA 1985), concluded that
such situation represented the kind of general and widespread violence held to be
inadequate support for an asylum application. The IJ further concluded from the
background materials that, had petitioner attempted to enlist help from the
Columbian government, it would have been receptive to attempting to protect
him.
In summary, the IJ found that petitioners had failed to show that they would
be targeted for persecution if they returned to Columbia. The requests for
asylum, restriction on removal, and relief under the Convention Against Torture
were denied, and petitioners were ordered removed to Columbia.
On appeal, petitioners argue that they were denied due process at the
hearing, that the IJ used the wrong standard in assessing asylum claims based on
“membership in a particular social group” and on account of imputed “political
opinion,” 3 that the IJ erroneously concluded that the persecution suffered by them
3
Sections 1158(b)(1) and 1101(a)(42)(A) of Title 8 vest the Attorney
General with the authority to grant asylum if the Attorney General determines that
the alien is a refugee. A refugee is defined, inter alia , as an alien who is unable
or unwilling to return to his or her country of nationality 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.
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was not different and separate from that endured by the general population, and
that he erroneously discredited their reasons for failing to ask for help from the
Columbian government.
At the outset, we note that it was petitioners’ burden to establish that they
were refugees and thus eligible for asylum. 8 C.F.R. § 208.13. We also note that
an applicant’s testimony, “if credible, may be sufficient to sustain the burden of
proof without corroboration.” Id.Due Process
Petitioners complain that they were denied due process when the IJ
discounted the credibility of the two threatening letters purportedly sent by
FARC. As mentioned above, the IJ rejected this evidence because the letters
petitioner produced in court were not originals. Further, there was no
authentication to support the letters as having come from FARC. Mr. Jaramillo
testified that the letters had been authenticated by someone who worked for
another company, but that that person was unable to produce written certification
because such an act would have conflicted with his current employment. Because
of these evidentiary shortcomings, the IJ concluded that “there is nothing about
3
(...continued)
§ 1101(a)(42)(A).
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the letters which the Court can recognize as being authentic, and I simply cannot
find that the respondent on this record has established that he actually received
such communication from the FARC.” AR at 42.
Petitioners point out that there was no objection to the letters by opposing
counsel, that the judge had unconditionally admitted the letters into evidence, and
that, during the hearing, petitioners had offered to bring the originals to court via
courier. Under these circumstances, they argue, they were denied due process
when the IJ rejected their evidence. We disagree.
Despite petitioners’ offer to produce the original letters, there was no offer
by petitioners to provide authentication of those letters. It was not the court’s
responsibility to pursue authentication in a situation where petitioners bore the
burden of proving their eligibility for asylum. We find that the reasons advanced
by the IJ for discounting this evidence are specific and cogent. See Elzour, 378
F.3d at 1150. As for petitioners’ argument that the testimony of Mr. Jaramillo
alone is sufficient to establish the persecution claim, we note that Mr. Jaramillo,
while he could testify to receipt of the letters and their effect on him, was not
qualified to testify as to their authenticity. On this record, we are unable to hold
that any reasonable adjudicator would be compelled to reach a contrary
conclusion. See Tsevegmid , 336 F.3d at 1235.
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Petitioners argue that they should have been given more time during the
hearing to develop their evidence about the murders and kidnapping of members
of Ms. Palacio’s family. Although the IJ urged the participants to stay within a
two-hour time frame and assured them that he would not penalize petitioners for
being less than completely detailed, he noted in his decision that “[t]he testimony
about these episodes were [sic] fairly generalized.” AR at 37. Petitioners cite
this as another example of the denial of due process.
A full reading of the IJ’s decision, however, reveals that the generalized
nature of this testimony was not the main reason cited by the IJ for refusing to
give this evidence significant weight. The IJ primarily discounted the evidence of
the harm suffered by Ms. Palacio’s family because it had not been included in
Mr. Jaramillo’s asylum application. That fact led the IJ to conclude that “[t]he
application would seem to call for that type of information, and the fact that the
information does not appear on the asylum application causes the Court to have
some question as to the authenticity of those reports.” Id. Again, this is a
specific and cogent reason for discounting the evidence. See Elzour , 378 F.3d at
1150. In conclusion, we find that neither the treatment of the alleged FARC
letters nor the time allotted for the hearing denied petitioners due process.
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Standard for “imputed political opinion” and “membership in a particular social
group ”
Petitioners argue that the IJ used the wrong standard in assessing their
asylum claims based on Mr. Jaramillo’s “membership in a particular social group”
and on account of imputed “political opinion.” Petitioners state that this circuit
had not defined the contours of what constitutes “membership in a particular
social group” and has not considered whether an application for asylum may
establish persecution based on “imputed political opinion.” Since the date of
petitioners’ brief, however, we have published Estrada-Escobar, 376 F.3d 1042,
which sheds light on both of these issues.
In Estrada-Escobar , the primary petitioner was a former high-ranking
Peruvian police official who had supervised the security for judges presiding over
prosecutions of suspected terrorists. Petitioner and his family received phone
calls purported to be from the terrorist group, Shining Path, threatening all of
them with death. The IJ, relying on In re Fuentes , 19 I. & N. Dec. 658, 1988 WL
235456 (BIA 1988), denied the asylum petition, inter alia , because petitioner
claimed persecution on account of his status as a former police officer and not
because of his political opinion. In rejecting petitioners’ attempts to distinguish
Fuentes , this court explained that “the key is not the type of threat encountered,
but whether the threat was encountered because of one’s employment rather than
because of one’s political opinion.” Estrada-Escobar , 376 F.3d at 1047.
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Paralleling Estrada-Escobar , petitioner here is attempting to establish his
well-founded fear of persecution because of his former status as a high-ranking
employee of Philip Morris rather than because of any distinct political opinion
held by him personally. There is no evidence in the record that petitioner ever
spoke out against the aims of FARC or associated himself with any cause that
explicitly opposed FARC’s objectives. As in Estrada-Escobar , if an applicant’s
status as a former police officer, without more, is insufficient to establish
membership in a particular social group, the same holds true for petitioner’s
status as a former Philip Morris executive.
Estrada-Escobar also affirmed the IJ’s implicit rejection of the petitioner’s
argument that he faced persecution because of imputed political opinion. The
court stated, “[t]here is no compelling evidence that suggests the Shining Path
persecuted Estrada on account of an imputed political opinion. In fact, he fails to
link his persecution to anything other than his status as a police officer.” Id. at
1047. Similarly, here, there is no evidence in the record, other than the
unauthenticated letters, that FARC imputed any political opinion to petitioner.
While petitioner is correct that this court has not explicitly defined the
components of an asylum claim based on imputed political opinion, we are
confident that the circumstances presented here would not suffice. In Ustyan v.
Ashcroft , 367 F.3d 1215 (10th Cir. 2004), we considered a claim for asylum by an
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ethnic Armenian and citizen of Georgia who argued that the Abkhazians imputed
to him a pro-Georgian political opinion because of his resistance to Abkhazian
recruitment efforts . Id. at 1217.
In analyzing this claim, this court first noted the principle announced in INS
v. Elias-Zacarias , 502 U.S. 478 (1992), that the refusal to take sides in a civil war
could not be the basis for an asylum claim. We then went on to observe that,
“[w]hile it may generally be true, as some circuits have held, ‘that imputed
political opinion is still a valid basis for relief after Elias-Zacarias ,’” 4 accepting
Mr. Ustyan’s argument for asylum based on the type of imputed political opinion
he espoused would “elevate the refusal to fight into an actionable basis for
asylum.” Ustyan , 367 F.3d . at 1218 (quotation omitted). Similarly, here,
accepting petitioner’s argument based on imputed political opinion would elevate
employment in a foreign multi-national corporation to an actionable basis for
4
The petitioner in Elias-Zacharias had maintained that he feared persecution
on account of political opinion because he resisted being recruited into the
military forces of a guerrilla organization. In rejecting this theory, the Court
explained that “‘persecution on account of . . . political opinion’ in [8 U.S.C.
§ 1101(a)(42)] is persecution on account of the victim’s political opinion, not the
persecutor’s. . . . Thus, the mere existence of a generalized ‘political’ motive
underlying the guerrillas’ forced recruitment is inadequate to establish (and,
indeed, goes far to refute) the proposition that Elias-Zacarias fears persecution on
account of political opinion, as [§ 1101](a)(42) requires.” Elias-Zacarias , 502
U.S. at 482.
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asylum. As in Ustyan , we see no caselaw undermining Elias-Zacharias , nor are
we persuaded that such a step is appropriate. See Ustyan , 367 F.3d at 1218.
Because we agree with the IJ that petitioner has failed to establish a well-
founded fear of persecution on account of either membership in a particular social
group or because of political opinion, imputed or otherwise, he is unable to
establish his status as a refugee, and is therefore ineligible for asylum. Since
petitioner has failed “to meet the standard for asylum, [he] also [has] failed to
establish the higher and more difficult standard for withholding of deportation,
which requires that [he] establish ‘a clear probability of persecution on one of the
specified grounds.’” Estrada-Escobar, 376 F.3d at 1048 (quoting Krastev v. INS,
292 F.3d 1268, 1271 (10th Cir. 2002)).
Moreover, because of our holding on the asylum issue, we need not consider
petitioner’s challenges to the other grounds for the IJ’s decision, including his
findings concerning petitioners’ situation as distinguished from the status of the
general Columbian population and his determination about petitioner’s failure to
ask for help from the Columbian government. See id.The petition for review is DENIED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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