Romero Castillo v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
APR 20, 2011
No. 10-12749 JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A099-920-479
DYANA ANDREA ROMERO CASTILLO,
JAVIER EDUARDO LOPEZ RUBIANO,
lllllllllllllllllllll Petitioners,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 20, 2011)
Before TJOFLAT, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Dyana Andrea Romero Castillo (“Romero”) and her husband Javier
Eduardo Lopez-Rubiano (“Lopez-Rubiano”) appeal the Board of Immigration
Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) order of removal
and denying their application for asylum.1 After review, we determine that (1)
because Romero failed to exhaust her administrative remedies by arguing on
appeal to the BIA that removal had not been conceded, we lack jurisdiction to
review her argument that neither she nor her husband had conceded their
removability and so their removability was unproven, and (2) because, assuming
as the BIA did that her testimony was credible, the record compels the conclusion
that Romero suffered past persecution. Thus, we grant Romero’s petition, vacate
the BIA’s decision, and remand for further proceedings.
I.
On appeal, Romero argues that the record does not clearly show that she or
Lopez-Rubiano either admitted to the factual allegations contained in the Notices
to Appear or conceded their removability, as the IJ found. The government
responds that the court lacks jurisdiction over this claim because Romero did no
raise it before the BIA.
We lack “jurisdiction to consider a claim raised in a petition for review
1
Romero is the lead petitioner in this case. Because the success of Lopez-Rubiano’s petition
depends on that of hers, we discuss only hers in the text of this opinion.
2
unless the petitioner has exhausted [her] administrative remedies with respect
thereto.” Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.
2006) (citing 8 U.S.C. § 1252(d)(1)). Thus, if an alien fails to raise a claim to the
BIA, we lack jurisdiction to consider that claim, even if the BIA addresses the
issue sua sponte. Id.2
Romero’s challenge to the IJ’s finding that she and Lopez-Rubiano
conceded their removability is that the record was unclear on certain details of her
alleged admission and that Lopez-Rubiano’s presence was not even documented.
Whatever the deficiencies in the record, their counsel at the subsequent merits
hearing raised no argument as to their removability, focusing instead on relief
from removal. The IJ noted that “[a]t the prior hearing the respondents admitted
the allegations and conceded the charge in the Notices to Appear, and were found
to be subject to removal from the United States.” The IJ also concluded by
ordering them “removed from the United States to Colombia on the charge
contained in the Notice to Appear.” Romero did not object in any way. Moreover,
Romero did not challeng this finding before the BIA.
Thus, Romero failed to exhaust her administrative remedies because she
2
We review our subject matter jurisdiction de novo. Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006).
3
did not contest or object to the IJ’s ruling that removal had been conceded, either
at the hearing, in a post-hearing motion, or in her appeal to the BIA. We therefore
lack jurisdiction to consider this argument and dismiss Romero’s petition as to this
claim.
II.
Romero also argues that the BIA erred in affirming the IJ’s denial of her
asylum application for three reasons. First, Romero contends that because the BIA
failed to review the IJ’s adverse credibility determination, we cannot affirm the
removal order. Second, she claims that the IJ found her uncredible based on a
minor inconsistency that was insignificant. Third, Romero argues that she
established past persecution and/or a well-founded fear of future persecution based
on incidents that included a paramilitary group attempting to murder her at her
home.
We review under the substantial evidence test3 the BIA’s factual
determination that an alien is ineligible for asylum. Sanchez Jimenez v. U.S. Att’y
Gen., 492 F.3d 1223, 1230 (11th Cir. 2007). Although we review IJ findings that
3
We view the record evidence in the light most favorable to the agency’s decision and may
reverse only when the record compels a reversal. Id. We will affirm if the BIA’s decision is
supported by reasonable, substantial, and probative evidence on the record considered as a whole.
Id.
4
the BIA expressly adopts, we do not review unadopted IJ findings. Lopez v. U.S.
Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007).
An alien may qualify for asylum by presenting credible evidence showing
either (1) past persecution on account of her political opinion or any other
protected ground, or (2) a well-founded fear that her political opinion or any other
protected ground will cause future persecution. Sanchez Jimenez, 492 F.3d at
1232. A showing of past persecution creates a rebuttable presumption of a well-
founded fear of future persecution. Id.
Here, although Romero contends that the IJ erred in finding that she was not
credible, we do not address this contention because the BIA did not adopt the IJ’s
adverse credibility determination. Lopez, 504 F.3d at 1344. Instead, the BIA
reasoned that even if she was deemed credible, Romero had failed to establish past
persecution or a well-founded fear of future persecution.
Assuming Romero’s testimony is credible, as the BIA did, the record
demonstrates that Romero suffered past persecution. She received threatening
phone calls at home, as well as a letter declaring her and her husband “military
objectives” of the paramilitary group United Auto Defense of Colombia (“AUC”).
After receiving the letter, Romero filed a criminal complaint against the AUC’s
leader, but this provided her no protection. On January 25, 2006, two men on a
5
motorcycle shot at her while she was standing outside of her house. The next day,
the AUC called Romero at her home, took responsibility for the shooting, and
threatened that the “the next time [she would] not be safe.”
On this record, Sanchez Jimenez compels the conclusion that Romero
suffered past persecution. As in Sanchez Jimenez, Romero received death threats,
had the paramilitary declare her a military objective, was shot at, and later
received confirmation that it was the paramilitary who had attempted to kill her.
See Sanchez Jimenez, 492 F.3d at 1233. Moreover, the threatening phone calls
and letter—demanding she break from a Columbian human rights group—show
that this persecution was based on Romero’s political opinion.
The BIA misapplied Sanchez Jimenez in determining that these facts did not
establish past persecution. Thus, Romero is entitled to a rebuttable presumption
that she has a well-founded fear of future persecution. Accordingly, we grant the
petition in part, vacate the BIA’s decision, and remand for further proceedings.4
GRANTED IN PART, DISMISSED IN PART.
4
Because Romero declares that we need not consider her withholding of removal or CAT
relief claims, we dismiss her petition as to those claims. Nor do we reach the question of relocation
because, contrary to the BIA’s ruling, Romero does not have the burden of proof on that issue if she
has established past persecution. 8 C.F.R. § 1208.13(b)(1)(i)(B) and (ii).
6