Blanca Cecilia Martinez Quintero v. US Attorney Ge

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 7, 2007
No. 07-10043 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A95-225-516
BLANCA CECILIA MARTINEZ QUINTERO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 7, 2007)
Before BIRCH, DUBINA, and CARNES, Circuit Judges.
PER CURIAM:
Petitioner Blanca Cecilia Martinez-Quintero 1 seeks review of the final
decision of the Board of Immigration Appeals (“BIA”), which affirmed, without
opinion, the Immigration Judge (“IJ”)’s order denying her application for asylum
and withholding of removal under the Immigration and Nationality Act (“INA”),
and relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”). On appeal, Martinez-
Quintero contends that the BIA erred in concluding that she failed to demonstrate
her eligibility for asylum under section 208 of the INA, 8 U.S.C. § 1158.2 Because
substantial evidence supports the BIA’s decision, we DENY Martinez-Quintero’s
petition.
I. BACKGROUND
Martinez-Quintero, a native and citizen of Colombia, was admitted to the
United States on 23 October 2000, as a non-immigrant B-2 visitor with
authorization to remain in the United States until 22 April 2001. Following
expiration of her visa, in May of 2001 Martinez-Quintero filed an application with
1
The petitioner is referred to in the BIA’s final decision, and in the caption of this appeal,
as “Martinez Quintero,” without a hyphen. However, a hyphen is included in other documents,
including in her petition for review. Accordingly, throughout this opinion we refer to the petitioner
as “Martinez-Quintero.”
2
Martinez-Quintero’s petition is limited to the issue of whether she was entitled to asylum
under the INA. That is, her petition does not raise a challenge to the denial of withholding of
removal or protection under CAT. Therefore, we do not address those claims. See Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam) (stating that “when an
appellant fails to offer an argument on an issue, that issue is abandoned”).
2
the former INS, seeking asylum and withholding of removal under the INA and
relief under CAT.
Martinez-Quintero’s application indicated that she was seeking asylum
because she had suffered persecution by the Revolutionary Armed Forces of
Colombia (“FARC”) on account of her political opinion. Her application stated:
I am seeking asylum in the United States due to the fact that I fear I
may be killed. My common law husband,3 whom I’ve lived with
since 1996, has been threaten[ed] along with his whole family. His
sisters were brutally murdered by the F.A.R.C. guerillas. Due to the
fact that he was actively involved with the police in the investigation
of his sister’s murder, his life was in constant danger as well as min[e]
since I was known in our community as his wife, he was constantly
being threaten[ed] and we received many threatening calls at our
residence in which the callers would identify themselves as members
of the F.A.R.C. guerillas. We are terrified for our lives, the guerillas
usually take ou[t] their vengeance on those that are close to their
target and kill them. My life is in just as much danger as my husband
due to all the threats and the persecution.
AR at 144.
In March 2002 the former INS served Martinez-Quintero with a Notice to
Appear, charging that she was removable pursuant to section 237(a)(1)(B) of the
INA, 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States for a longer time
than permitted. The IJ held a hearing on both Martinez-Quintero’s and Clavijo’s
3
Martinez-Quintero’s common-law husband, Santiago Bello Clavijo (“Clavijo”), applied
for relief separately from Martinez-Quintero. The IJ initially consolidated the two cases, but the
cases were later separated at the asylum hearing. Consequently, the IJ rendered a separate decision
for each asylum applicant. See Santiago Bello Clavijo v. U.S. Att’y Gen., No. 07-10042 (11th Cir.
Aug. 13, 2007) (per curiam) (unpublished) (addressing Clavijo’s petition separately).
3
applications on 14 July 2005. At the hearing, Martinez-Quintero conceded
removability.
Martinez-Quintero’s testimony at the hearing was consistent with her asylum
application, and the IJ found her testimony to be credible. She stated that, prior to
coming to the United States, she had lived in Colombia with her “companion,”
Clavijo. AR at 90. She testified that she and Clavijo had both belonged to the
Liberal Party in Colombia, although she had not been an “active” member in the
Party. Id. at 93.
Martinez-Quintero testified that Clavijo’s three sisters had been killed in
1998 because they had received a large monetary inheritance and had refused to
pay money to FARC guerillas operating in the area. She explained that such
extortionary practices are frequently employed by FARC operatives, stating that
“the people who have some wealth, who have some money, the [FARC] guerillas
look for them because, well, the guerillas live from that.” Id. at 95.
Martinez-Quintero testified that, after the murder of Clavijo’s sisters, Clavijo
had “work[ed] to find out who th[e]se people were” who committed the killings,
and, because he had assisted with the government’s investigation, FARC
operatives had “[begun] to threaten him and . . . call him at home.” Id. She also
stated that FARC operatives had “[begun] to persecute [her] because [she] was his
wife.” Id. at 94. In addition to threats to Clavijo and herself, Martinez-Quintero
4
testified that her daughter had been threatened. She testified that she was fearful of
returning to Colombia, because some of the individuals who had been suspected of
committing the murders remained free in Colombia, and, therefore, Clavijo and his
family remained in danger.
In response, the government argued that Martinez-Quintero’s case had no
“nexus” to any of the five statutorily enumerated grounds for establishing
eligibility for asylum. Specifically, the government contended that “even though
it’s very sad [that] the three sisters . . . were assassinated,” and even though the
threats from FARC were “directly linked to her common-law husband’s attempt to
investigate who or why the sisters were killed,” id. at 100-101, Martinez-Quintero
had not shown that the persecution she and Clavijo had suffered in Colombia was
“on account of race, religion, nationality, membership in a particular social group,
or political opinion.” See INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).
The IJ rendered an oral decision, denying Martinez-Quintero’s application
for asylum, withholding of removal, and CAT relief. The IJ found Martinez-
Quintero’s testimony to be credible, but found that her claimed persecution at the
hands of FARC had not been on account of a statutorily protected ground. Put
simply, the IJ stated that there was “no evidence that the FARC guerilla members
were interested in the respondent or the common-law husband because of his
political opinion or membership in a particular social group, or any of the other
5
grounds.” AR at 60. Rather, the IJ found that the threats at the hands of FARC
had occurred because Clavijo had attempted to find out who killed his sisters.
While the IJ indicated that Martinez-Quintero’s case was unfortunate, the IJ stated
that she had “failed to establish a basis for asylum in the sense that there was no
nexus between anything that happened to the common-law husband’s sisters or
family [and] any of the protected grounds, and also the threats that she received
were not linked to any protected ground.” Id. at 60-61.4
Martinez-Quintero appealed the IJ’s decision to the BIA in September 2005.
In her appeal, she argued that the IJ had erred in denying her application for
asylum, because the evidence showed that she had established persecution, both on
account of her political opinion and her membership in a social group. As to the
former, Martinez-Quintero defined her political opinion as being a general
disagreement with the FARC guerillas. As to the latter, she argued that she had
established that she was a member of a particular social group --- which she
defined as being those groups of the population who opposed the FARC and
refused to collaborate with them --- and, accordingly, that the IJ had erred in
4
The IJ also concluded that, since Martinez-Quintero had failed to satisfy the lower threshold
for establishing eligibility for asylum, she had not satisfied the higher evidentiary threshold for
withholding of removal under the INA. Nor, according to the IJ, had Martinez-Quintero
demonstrated that it was “more likely than not that [] she would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 208.16(c)(2). Accordingly, the IJ concluded that she had
failed to establish her eligibility for protection under CAT. As noted previously, neither of these
conclusions is before us on appeal, and, therefore, we do not address them.
6
finding that there was no nexus between her persecution and a statutorily protected
ground.
The BIA affirmed the IJ’s decision, without further opinion. This petition
for review followed.
II. DISCUSSION
A. Standard of Review
“The appropriate standard of review is well-settled.” Mazariegos v. Office
of U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001). We review legal issues
de novo, Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001) (citation
omitted), and “administrative fact findings under the highly deferential substantial
evidence test,” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en
banc) (citations omitted), cert. denied, 544 U.S. 1035, 125 S. Ct. 2245 (2005).
Under that standard, we “must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (citation and
internal quotations omitted). “To reverse a factual finding by the BIA, this Court
must find not only that the evidence supports a contrary conclusion, but that it
compels one.” Farquharson v. U.S. Att’y Gen., 246 F.3d 1317, 1320 (11th Cir.
2001) (citation omitted). Indeed, “the mere fact that the record may support a
contrary conclusion is not enough to justify a reversal of the administrative
7
findings.” Adefemi, 386 F.3d at 1027 (citation omitted). Instead, we will reverse a
BIA’s denial of asylum “only if the evidence presented by the applicant is so
powerful that a reasonable fact finder would have to conclude” otherwise.
Mazariegos, 241 F.3d at 1323-24 (citations omitted).
In reviewing the record on appeal, “[w]e review only the [BIA’s] decision,
except to the extent that it expressly adopts the IJ’s opinion.” Al Najjar, 257 F.3d
at 1284 (citation omitted). “Insofar as the [BIA] adopts the IJ’s reasoning, we will
review the IJ’s decision as well.” Id. (citation omitted). In Martinez-Quintero’s
case, the BIA expressly adopted the reasoning of the IJ’s decision, without further
comment. Therefore, we review the IJ’s decision as if it were the BIA’s. See id.
B. Martinez-Quintero’s Eligibility For Asylum
Section 208 of the INA provides that “[a]ny alien who is physically present
in the United States . . . irrespective of such alien’s status, may apply for asylum.”
INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General, in his discretion,
may grant asylum to an alien if he “determines that such alien is a refugee within
the meaning of section 101(a)(42)(A) [of the INA].” INA § 208(b)(1), 8 U.S.C. §
1158(b)(1). A “refugee” is defined in section 101 as one
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,
8
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 bears the
burden of proving statutory “refugee” status. 8 C.F.R. § 208.13(a). To prove
refugee status, “the alien must establish a ‘well-founded fear’ that his or her
[statutorily listed ground] will cause harm or suffering that rises to the level of
‘persecution.’” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir.
2004) (citation and quotation omitted). Such a well-founded fear of persecution
may be established by showing either: (1) past persecution; or (2) a ‘well-founded
fear’ of future persecution. Sepulveda, 402 F.3d at 1230-31 (citing 8 C.F.R. §
208.13(a),(b)).
Although the INA does not define “persecution,” we have indicated that
“persecution is an extreme concept, requiring more than a few isolated incidents of
verbal harassment or intimidation.” Id. at 1231 (quotation marks, citation, and
alteration omitted). “Not all exceptional treatment is persecution.” Gonzalez v.
Reno, 212 F.3d 1338, 1355 (11th Cir. 2000). For example, we have made clear
that threatening phone calls constitute mere harassment and intimidation, and that
they fail to rise to the level of persecution. Silva v. U.S. Att’y Gen., 448 F.3d
1229, 1237 (11th Cir. 2006); see also Sepulveda, 401 F.3d at 1231 (stating that
9
“menacing telephone calls and threats . . . do not rise to the level of past
persecution that would compel reversal of the IJ’s decision”) (citation omitted).
In this case, following the police investigation of the murder of Clavijo’s
sisters, Martinez-Quintero and Clavijo received “many threatening calls at [their]
residence” from people identifying themselves as FARC operatives. AR at 144;
see also id. at 95 (stating that FARC operatives “began to call [] at home”).
Martinez-Quintero’s application and testimony do not mention any physical
encounters with FARC guerillas; rather, her asylum application is limited to the
threatening phone calls that she received prior to fleeing Colombia. Such
evidence, standing alone, is insufficient to rise to the level of “persecution” as our
case law has construed that term. See Sepulveda, 401 F.3d at 1231; see also Bello
Clavijo v. U.S. Att’y Gen., No. 07-10042 (11th Cir. Aug. 13, 2007) (per curiam)
(unpublished) (finding that the threatening phone calls complained of by Martinez-
Quintero’s companion, Clavijo, failed to rise to the level of past persecution under
our case law). Because Martinez-Quintero failed to demonstrate that she suffered
“persecution” under the INA, INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A), we
discern no error in the decision to deny Martinez-Quintero’s petition for asylum.
Moreover, substantial evidence supports the decision to deny Martinez-
Quintero’s petition because she failed to establish a nexus between her claimed
persecution and a statutorily protected ground. As the IJ noted, in order to be
10
eligible for asylum, the asylum applicant must --- in addition to demonstrating
persecution --- establish that such persecution is “on account of” one of the
enumerated statutory grounds. 8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. §
1158(B)(i) (“To establish that the applicant is a refugee . . . the applicant must
establish that race, religion, nationality, membership in a particular social group, or
political opinion was or will be at least one central reason for persecuting the
applicant”); Mazariegos, 241 F.3d at 1323 (stating that the asylum applicant must
provide evidence that “he was mistreated because of his political opinion, or one of
the other grounds, rather than for some other reason.”) (internal quotations
omitted).
Here, the IJ concluded that Martinez-Quintero had not established a nexus
between her claimed persecution (past or future) and any of the five grounds
necessary to establish asylum eligibility. Specifically, the IJ found “no evidence
that the FARC guerilla members were interested in the respondent . . . because of
[her common-law husband’s] political opinion or membership in a particular social
group or any of the other grounds specified for a grant of asylum.” AR at 60. On
appeal, Martinez-Quintero argues that this conclusion was in error. She contends
that the record compels the opposite conclusion --- namely, that she suffered
persecution on account of both her political opinion and her membership in a social
group. We address each of these contentions in turn.
11
1. Political Opinion
Persecution on account of political opinion requires that the claimed
persecution be based upon the political opinion of the victim, not that of the
persecutor. See Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437-38 (11th Cir. 2004)
(per curiam) (citation omitted). The applicant must establish that his political
opinion “will cause harm or suffering that rises to the level of ‘persecution.’” D-
Muhumed, 388 F.3d at 818 (citation omitted). In contrast, “[e]vidence that either
is consistent with acts of private violence or the petitioner’s failure to cooperate
with guerillas, or that merely shows that a person has been the victim of criminal
activity, does not constitute evidence of persecution based on a statutorily
protected ground.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006)
(per curiam) (citation omitted); see also Sanchez, 392 F.3d at 438 (upholding
denial of asylum because there was no “nexus between [the petitioner]’s political
opinion and the FARC’s alleged persecution,” but, rather, “the evidence was
consistent with a finding that the FARC harassed [the petitioner] due to her refusal
to cooperate with them”).
Here, the evidence suggests that the FARC threats against Martinez-
Quintero and Clavijo were motivated by a desire to thwart the police investigation
into the murders of Clavijo’s sisters, rather any actual or imputed political opinion.
The record demonstrates that FARC’s threats against Martinez-Quintero were
12
“consistent with acts of private violence” or “the petitioner’s failure to cooperate
with the guerillas,” rather than being based on a political opinion that Martinez-
Quintero held or that may have been imputed to her. See id. In similar cases,
where there was no evidence of a political motive and the record revealed only
private, extortion-type threats by FARC guerillas, we have declined to find a nexus
between the claimed persecution and a statutorily protected ground. For example,
in Rivera v. United States Attorney General, an asylum petitioners’ family
members were murdered because they refused to pay a “war tax” to the FARC. 487
F.3d 815, 818 (11th Cir. 2007). After the murders, the petitioners received threats
and demands that the war tax be paid. Id. at 819. We concluded that substantial
evidence supported the IJ’s finding that the FARC’s motive for persecuting the
petitioners’ family was to raise funds for its guerilla war against the Colombian
government, rather than the petitioners’ actual or imputed political opinion. Id. at
822-823.
In Martinez-Quintero’s case, we conclude that substantial evidence supports
the IJ’s determination that she failed to establish a nexus between her claimed
persecution and an actual or imputed political opinion. As the IJ observed, the
evidence makes clear that the FARC threatened her because her common-law
husband was participating in the investigation of his sisters’ murders and refused to
cooperate with them by withdrawing from the investigation, not because of any
13
political opinion that she held or that was imputed to her. In fact, Martinez-
Quintero acknowledged that she and her common-law husband were not active in
the Liberal Party; and she presented no evidence that the threatening telephone
calls ever mentioned her political opinion or targeted her because of her political
opinion. See, e.g., id. at 822 (“The FARC never demanded that [the petitioner]
cease any political activities, never accused [the petitioner] of being a government
operative, and never demanded that his family cease involvement in the Liberal
Party.”); Sanchez, 392 F.3d at 438 (upholding denial of asylum because there was
“no evidence establishing [the petitioner]’s actual or imputed political opinion,
much less any nexus between [the petitioner]’s political opinion and the FARC’s
alleged persecution”). Here, the evidence does not compel the conclusion that
Martinez-Quintero suffered past persecution, or has a well-founded fear of future
persecution, on account of an actual or imputed political opinion.
2. Membership in a Social Group
Alternatively, Martinez-Quintero argues that she is a member of a “special”
group, namely, those who have cooperated with the Colombian government’s
investigations against the FARC and who “oppose” the FARC. AR at 18.
Consequently, she claims that her case satisfies the threshold for persecution based
upon “membership in a social group.” See INA § 101(a)(42)(A), 8 U.S.C. §
1101(a)(42)(A) (stating that asylum may be granted if the alien can demonstrate
14
“persecution or a well-founded fear of persecution on account of . . . membership
in a particular social group”).
We have stated that INA’s “particular social group” category “should not be
a ‘catch all’ for all persons alleging persecution who do not fit elsewhere.”
Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1198 (11th Cir. 2006). Rather,
we have adhered to the BIA’s interpretation that the “particular social group”
category “refers to persons who share a common, immutable characteristic,” such
as “sex, color, or kinship ties, or in some circumstances a shared past experience
such as former military leadership or land ownership.” Id. at 1193 (citations,
alterations, and internal quotations omitted). In assessing whether an asylum
petitioner belongs to a particular social group, the BIA has focused on two things:
(1) immutability; and (2) social visibility. See id. at 1194 (citation omitted).
In this case, Martinez-Quintero seeks to construe her social group as being
those who “the guerillas [have] targeted within the society” for opposing them,
including “local officials, civic leaders, business owners, cattlemen, farmers, and
teachers.” AR at 18. Elsewhere, Martinez-Quintero broadly describes her putative
social group as being “anyone engaged in any kind of activity, especially in
collaboration with the government.” Br. of Pet’r at 16. Were we to accept
Martinez-Quintero’s broad formulation of her social group as encompassing all of
the people who “the guerillas [have] targeted within the society,” AR at 18, the
15
result would be to create a “catch-all” category “for all persons alleging
persecution who do not fit elsewhere.”5 See Castillo-Arias, 446 F.3d at 1198. This
we decline to do. Accordingly, the evidence does not compel the conclusion that
she suffered persecution, or has a well-founded fear of persecution, “on account
of” her “membership in a particular social group,” as that term has been construed
by the BIA and in our case law. See INA § 101(a)(42)(A), 8 U.S.C. §
1101(a)(42)(A).
III. CONCLUSION
In summary, Martinez-Quintero has petitioned this court for review of the
BIA’s decision on her asylum application, which adopted, in full, the reasoning of
the IJ. Upon review, we find that substantial evidence supports the determination
that Martinez-Quintero failed to demonstrate past persecution or a well-founded
fear of future persecution “on account of” a statutorily protected ground. INA §
101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (emphasis added). Because the BIA’s
decision is supported by substantial evidence, we affirm the BIA’s decision
denying Martinez-Quintero’s application for asylum. PETITION DISMISSED.
5
Moreover, we cannot find that Martinez-Quintero’s purported social group shares common,
immutable characteristics, other than the shared risk that they will be persecuted in the future by
FARC. See AR at 18 (describing the social group as “local officials, civic leaders, business owners,
cattlemen, farmers, and teachers,” as well as other groups that oppose FARC). We have made clear
that “[t]he risk of persecution alone does not create a particular social group within the meaning of
the INA, as virtually the entire population of Colombia is a potential subject of persecution.” See
Castillo-Arias, 446 F.3d at 1198 (citation omitted).
16