Jorge Ivan Zapata-Villa v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 15, 2006
No. 06-12990 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A78-908-918
JORGE IVAN ZAPATA-VILLA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 15, 2006)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Jorge Ivan Zapata-Villa petitions for review of the Board of Immigration
Appeals’ decision to deny his claims for asylum and withholding of removal.
Zapata-Villa, a Colombian citizen, entered the United States illegally on
September 16, 2002. After being served by immigration officials with a notice to
appear, Zapata-Villa conceded that he was removable from the country but claimed
that he was entitled to asylum, withholding of removal, and relief under the
Convention Against Torture.
At his asylum hearing, Zapata-Villa offered in support of his claims (1)
country reports showing that certain parts of Colombia were controlled by the
Colombian Armed Revolutionary Forces (FARC), (2) newspaper articles
recounting the violence by FARC against coordinators for the Certalinda youth
volunteer organization, (3) his testimony that he received death threats from FARC
because of his volunteer activities with Certalinda, and (4) a letter from the
Colombian prosecutor’s office stating that it was investigating Zapata-Villa’s
accusation that he and his family were threatened by FARC. The IJ found that
Zapata-Villa’s testimony was not credible because of inconsistencies regarding the
threats against him and other Certalinda volunteers. Having discounted Zapata-
Villa’s testimony, the IJ found that Zapata-Villa was not entitled to asylum because
he had failed to meet his burden to establish that he had suffered past persecution
or that he has a well-founded fear of future persecution.
As to the withholding of removal claim, the IJ found that since Zapata-Villa
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had not meet his burden of showing past persecution or a well-founded fear of
future persecution, he did not meet the higher burden for withholding of removal
of showing that it would be more likely than not that he would be persecuted if
returned to Colombia. Finally, the IJ found that Zapata-Villa had not met his
burden on his CAT claim because he had not shown that the Colombian
government had acquiesced to FARC control of certain parts of the country, which
is a necessary predicate for CAT relief.
The BIA affirmed and adopted the IJ’s decision, but offered two additional
reasons to reject Zapata-Villa’s asylum claim. First, the BIA held that even if
Zapata-Villa’s testimony was credible, he still would not be entitled to asylum
because the threats he described did not rise to the level of past persecution.
Second, the BIA held that Zapata-Villa could not have a well-founded fear of
persecution if he returned to Colombia since his family is currently residing there
safely with Zapata-Villa’s mother-in-law.
Zapata-Villa now petitions for review of the BIA’s decision denying his
asylum and withholding of removal claims.1 The order subject to our review is the
BIA’s, except to the extent that the BIA adopts the IJ’s decision, in which case we
review the findings and conclusions of the IJ. Al Najjar v. Ashcroft, 257 F.3d
1
Zapata-Villa has not sought review of the IJ’s decision to deny him relief under the
CAT. He has therefore abandoned that issue here. See Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005).
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1262, 1284 (11th Cir. 2001); Prado-Gonzalez v. Immigration & Naturalization
Serv., 75 F.3d 631, 632 (11th Cir. 1996). Those findings are reviewed under the
substantial evidence test, which means that we “must affirm the IJ’s decision if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Sepulveda, 401 F.3d at 1230. “[T]he IJ’s decision can be
reversed only if the evidence ‘compels’ a reasonable fact finder to find otherwise.”
Id.
Zapata-Villa presents no argument against the IJ’s finding that his testimony
was not credible. He recounts his testimony before the IJ but does not tell us why
the IJ’s credibility findings about that testimony are in error. This failure is fatal to
the argument he does make—that the evidence compels a finding that he suffered
past persecution and has a well-founded fear of future persecution. The evidence
does not compel such a finding. The only evidence in the record describing
Zapata-Villa’s persecution was his own testimony. Given the IJ found that his
testimony was not credible—a finding not specifically challenged here—we cannot
consider that testimony in reviewing the IJ’s decision. The problem for Zapata-
Villa is that without his testimony, there is nothing in the record to compel a
finding that he was persecuted or has a well-founded fear of being persecuted upon
his return to Colombia. We therefore must deny his petition for review of the
decision denying his asylum claim.
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Likewise, because there is no evidence compelling a finding that Zapata-
Villa has a well-founded fear of persecution, he cannot meet the higher burden for
withholding of removal by pointing to evidence compelling a finding that it is
more likely than not that he will be persecuted upon his return to Colombia. See
Al Najjar, 257 F.3d at 1292–93 (“[w]here an applicant is unable to meet the ‘well-
founded fear’ standard for asylum, he is generally precluded from qualifying for
either asylum or withholding of [removal]”). Accordingly, Zapata-Villa’s petition
to review the IJ’s decision denying his withholding of removal claim is also due to
be denied.
PETITION DENIED.
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