Canma Liliana Arevalo Velasquez v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 25, 2007
No. 06-12741 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A95-264-665
CANMA LILIANA AREVALO VELASQUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 25, 2007)
Before BIRCH, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Canma Liliana Arevalo Velasquez, through counsel, seeks review of the
order by the Board of Immigration Appeals (“BIA”) that affirms denial of asylum
and withholding of removal by the immigration judge (“IJ”). We DENY her
petition.
I. BACKGROUND
On appeal, as in the immigration proceedings, Arevalo Velasquez argues
that she demonstrated past persecution and a well-founded fear of future
persecution because of her political opinion as imputed by the Revolutionary
Armed Forces of Colombia (“FARC”), a guerilla group. Specifically, she contends
that she received death threats because of her political opinion and membership in
a particular social group as a leader at her high school. She argues that her life will
be in danger if she is sent back to Colombia and requests that all the evidence be
examined because an erroneous decision could result in the loss of her life.
The IJ denied Arevalo Velasquez’s application for asylum, withholding of
removal, and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment, 8 U.S.C. §§ 1158,
1231; 8 C.F.R. § 208.16(c), and ordered her removed to Colombia. In his oral
decision, the IJ noted that Arevalo Velasquez’s testimony was unsupported by
documentation, other than general reference letters and a Colombian doctor’s note
that she suffered from stress. Administrative Record (“AR”) at 32. The IJ further
noted the coincidence that Arevalo Velasquez, despite testifying that she had no
intention of leaving Colombia, applied for a visa just one month before the meeting
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that led to her departure. Id. at 32-33. The IJ found that Arevalo Velasquez had
not established that she had ever been physically harmed or that she had a well-
founded fear of future persecution and noted that her mother had experienced no
problems in Colombia. Id. at 33. Even assuming Arevalo Velasquez’s testimony
was totally candid, the IJ found that she had not established a nexus between any
alleged future or past persecution and one of the protected statutory grounds,
because resistance to guerilla recruiting efforts did not fall within the statute’s
protection. Id. at 32-33. Additionally, since she failed to meet the burden of proof
required for asylum, the IJ found that she failed to meet the higher standard for
withholding of removal. Id. at 33-34.
Arevalo Velasquez filed a notice of appeal with the BIA and argued that the
IJ erred in not finding that Arevalo Velasquez had provided sufficient evidence to
support her eligibility for asylum and withholding of removal. Arevalo Velasquez
contended that she was in extreme danger because of her political opinion, as
imputed by the guerillas, and her refusal to collaborate with them. She further
alleged that her testimony demonstrated her open and public opposition to FARC
and that FARC had retaliated via threats, intimidation, and an attempt on her life.
According to Arevalo Velasquez, these incidents proved that she had demonstrated
a well-founded fear of persecution, because any reasonable person in her situation
would fear future persecution. The government did not respond. The BIA
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affirmed the IJ’s decision and adopted it. This petition followed.
II. DISCUSSION
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). In this case, the BIA adopted the IJ’s decision.
Consequently, we review the IJ’s decision. To the extent that the IJ’s decision was
based on a legal determination, our review is de novo. Nreka v. United States
Attorney Gen., 408 F.3d 1361, 1368 (11th Cir. 2005). The IJ’s factual
determinations are reviewed under the substantial-evidence test, and we must
affirm the IJ’s decision “if it is 'supported by reasonable, substantial, and probative
evidence on the record considered as a whole.'” Al Najjar, 257 F.3d at 1283-84
(citation omitted). The fact that evidence in the record may support a conclusion
contrary to the administrative findings is not enough to justify a reversal; instead,
reversal is appropriate “only when the record compels” it. Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004), cert. denied, 544 U.S. 1035, 125 S.Ct. 2245(2005).
An alien who arrives in or is present in the United States “may apply for
asylum.” Immigration & Nationality Act (“INA”) § 208(a)(1), 8 U.S.C. §
1158(a)(1). The Secretary of Homeland Security and the Attorney General have
the discretion to grant asylum if the alien meets the INA’s definition of “refugee.”
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INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is defined as:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country 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 . . . .
INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A). The asylum applicant has the
burden of proving statutory refugee status. Al Najjar, 257 F.3d at 1284. For
asylum eligibility, the alien, with specific and credible evidence, must establish:
(1) past persecution because of a statutorily listed factor; or (2) a “well-founded
fear” that the statutorily listed factor will cause future persecution. 8 C.F.R.
§ 208.13(a), (b); Al Najjar, 257 F.3d at 1287. If an alien does not establish past
persecution, he or she bears the burden of showing a well-founded fear of future
persecution by showing that: (1) he or she fears persecution based on membership
in a protected group; (2) there is a reasonable possibility that he or she will suffer
persecution if removed to his or her native country; and (3) he or she is unwilling
or unable to avail himself or herself of the protection of that country because of
such fear. 8 C.F.R. § 208.13(b)(2)(i)(A)-(C). Although neither the INA nor the
regulations define “persecution,” we have recognized holdings of other circuits that
define “'persecution' [a]s an 'extreme concept,' requiring 'more than a few isolated
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incidents of verbal harassment or intimidation,' and that '[m]ere harassment does
not amount to persecution.'” Sepulveda v. U.S. Attorney General, 401 F.3d 1226,
1231 (11th Cir. 2005) (per curiam) (citation omitted) (second alteration in
original).
When claiming persecution based on a political opinion, an alien may
receive relief based on an imputed political opinion not actually held by the alien.
Sanchez v. U.S. Attorney Gen., 392 F.3d 434, 438 (11th Cir. 2004) (per curiam).
The alien must establish a connection between the persecution and a statutory
ground by providing “'detailed facts showing a good reason to fear that he or she
will be singled out for persecution'” on that ground. Al Najjar, 257 F.3d at 1287
(citation omitted). “It is not enough to show that she was or will be persecuted or
tortured due to her refusal to cooperate with the guerillas.” Sanchez, 392 F.3d at
438.
In addition to seeking asylum, the alien also may seek withholding of
removal. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). One significant difference
between proving asylum eligibility and withholding of removal eligibility is that,
to merit the latter, the alien must prove that future persecution would occur more
likely than not. Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir.
2003). Because the more-likely-than-not standard that applies to withholding of
removal is more stringent than the well-founded-fear standard that applies to
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asylum, ineligibility for asylum generally precludes withholding of removal
eligibility. Al Najjar, 257 F.3d at 1292-93.
Substantial evidence supports the IJ’s decision that Arevalo Velasquez was
not entitled to asylum or withholding of removal under the INA. An examination
of the record does not demonstrate any specific, detailed evidence regarding any
past persecution or a well-founded fear of future persecution that would compel
reversal. Arevalo Velasquez’s alleged past persecution occurred when a FARC
recruiter made telephone calls to her, and two people came to her school to look for
her three months after she had refused to join FARC. AR at 74-75. Arevalo
Velasquez was never harmed, and the telephone calls, even if menacing, would not
compel the reversal of the IJ’s decision. See Sepulveda, 401 F.3d at 1231.
Nor does Arevalo Velasquez offer any compelling evidence of a well-
founded fear of future persecution. She alleges that the guerillas will kill her if she
returns, but Arevalo Velasquez’s mother, who reported the names of individuals
recruiting students to the army and police, remains unharmed in Colombia. AR at
76; see Ruiz v. U.S. Attorney Gen., 440 F.3d 1247, 1259 (11th Cir. 2006) (per
curiam) (recognizing that a petitioner’s well-founded fear claim is contradicted
where petitioner has family living unharmed in the alleged dangerous area).
Furthermore, even assuming that the guerillas were harassing Arevalo Velasquez,
there is little evidence that it was based on a statutorily protected ground. Arevalo
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Velasquez argues that her persecution was based on her political beliefs and her
membership in a high-school-leaders group. She testified, however, that she feared
for her life because she could identify guerilla members and their urban infiltration
plan as outlined at the recruiting meeting. AR at 76. Having too much knowledge
about guerilla plans does not constitute a political opinion. See Sanchez, 392 F.3d
at 438 (citing persuasive authority that private acts of violence do not constitute
evidence of persecution on the basis of a statutorily protected ground).
Because Arevalo Velasquez failed to establish either past persecution or a
well-founded fear of future persecution, she is ineligible for asylum. Since
eligibility for asylum carries a lower burden of proof than for withholding of
removal, that claim also fails. Al Najjar, 257 F.3d at 1293. Accordingly, we deny
Arevalo Velasquez's petition seeking review of the BIA order affirming the IJ's
denial of asylum and withholding of removal.
III. CONCLUSION
Arevalo Velasquez has sought our review of the BIA’s order affirming the
IJ’s denial of asylum and withholding of removal. Substantial evidence supports
the IJ’s decision that Arevalo Velasquez was not entitled to asylum. An
examination of the record does not demonstrate any specific, detailed evidence
regarding any past persecution or a well-founded fear of future persecution that
would require reversal. Because Arevalo Velasquez’s asylum claim fails, so does
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her claim for withholding of removal. Accordingly, we deny Arevalo Velasquez's
petition for review.
PETITION DENIED.
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