Oscar Saul Guerrero v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 18, 2007
No. 06-16171 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A95-246-682
OSCAR SAUL GUERRERO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 18, 2007)
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Oscar Saul Guerrero, proceeding pro se, petitions for review of a final order
of the Board of Immigration Appeals (the “BIA”), affirming the Immigration
Judge’s (the “IJ”) decision denying Guerrero’s application for asylum and claims
for withholding of removal under 8 U.S.C. §§ 1158 and 1231(b)(3)(A) and the
United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (“CAT”), 8 U.S.C. § 208.16. For the reasons
discussed below, we dismiss the petition in part, and deny the petition in part.
I. Background
Guerrero, a Colombian citizen, entered the United States on March 19, 2001,
on a visa permitting him to remain in the United States until June 18, 2001.
Guerrero remained in the United States beyond that date and ultimately filed an
application for asylum on March 10, 2003 claiming he had suffered persecution in
Colombia because of his political activities.
In September of 2003, the Department of Homeland Security began removal
proceedings charging that Guerrero was subject to removal under 8 U.S.C.
§ 1227(a)(1)(B) as a non-immigrant alien who remained in the U.S. beyond the
time permitted by his visa. Guerrero then added claims that he was eligible for
withholding of removal and CAT.
In his petition, Guerrero alleges that, while in Colombia, he worked with the
National Conservative Party and traveled to various parts of the countryside to help
individuals start small businesses in order to be self-sufficient and thereby resist
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recruiting activities by armed guerrilla groups. The Revolutionary Armed Forces
of Colombia (“FARC”) was such a guerrilla group, and Guerrero asserted that
FARC was upset by his activities. FARC began telephoning Guerrero in March
1999, threatening him, and requesting that he cease this work. Sometime later,
Guerrero was traveling in a car with an assistant to a Colombian senator who was a
regional leader and other co-workers when another vehicle drove up and began
firing at Guerrero’s car. The driver of Guerrero’s vehicle lost control, and the car
turned over. Guerrero received numerous injuries and was treated in a hospital
clinic. Guerrero continued on occasion to receive threatening phone calls from
FARC, although no further encounters occurred. At another time, a friend of
Guerrero’s in intelligence warned Guerrero that FARC intended to attack him on
another business trip; Guerrero altered his route and was not attacked. Guerrero
later decided to leave Colombia and was granted a U.S. visa on November 30,
1999. Guerrero finally left Colombia in 2001 after receiving a threatening phone
call from FARC saying that he had saved himself once, but wouldn’t be able to the
next time.
The IJ heard testimony from Guerrero and considered the documents
Guerrero proffered in support of his claims. The IJ denied his application for
asylum because he had failed to file the application within one year of his arrival in
the U.S. The IJ denied his claim for withholding of removal under § 1231(b)(3)
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because the IJ found that Guerrero was not credible and, even if credible, had
failed to establish that it was more likely than not he would be persecuted by
FARC should he return to Colombia. The IJ also denied Guerrero’s claim for CAT
relief because Guerrero had given no testimony nor produced no other evidence
indicating that the government of Colombia had ever in the past tortured him or
ever would torture him in the future.
Guerrero appealed to the BIA which affirmed the IJ without opinion.
Guerrero then filed the instant petition for review.
II. Jurisdiction
We must first evaluate whether we have subject matter jurisdiction to review
Guerrero’s petition.1 See Alim v. Gonzales, 446 F.3d 1239, 1246 (11th Cir. 2006).
The government contends that we lack subject matter jurisdiction over Guerrero’s
petition because (1) the IJ determined that Guerrero’s application for asylum was
untimely, and (2) Guerrero failed to exhaust his administrative remedies regarding
his withholding of removal claims.
1
In his brief to this court, Guerrero mentions the CAT only twice in passing and never
discusses the law in detail nor its applicability to his case. By failing to argue this issue on
appeal, Guerrero has waived it. See Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1228
(11th Cir. 2005); see also Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th
Cir. 1989). We, therefore, will not address whether we have jurisdiction over that issue nor the
merits of that claim.
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A. Application for Asylum
An application for asylum must be filed within one year of the applicant’s
arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The statute allows for two
exceptions to this one-year limit; an application filed beyond one-year is not
untimely if the applicant demonstrates “either the existence of changed
circumstances which materially affect the applicant’s eligibility for asylum or
extraordinary circumstances relating to the delay in filing.” 8 U.S.C.
§ 1158(a)(2)(D). We, however, are precluded from reviewing the Attorney
General’s determination of the timeliness of the application or the applicability of
these exceptions. 8 U.S.C. § 1158(a)(3); see Fahim v. U.S. Attorney Gen., 278
F.3d 1216, 1218 (11th Cir. 2006).
In this case, the IJ determined that Guerrero’s application was not filed
within one year of his arrival and that neither exception applied to him.
Accordingly, we lack subject matter jurisdiction to review this determination, and
Guerrero’s petition for review of the denial of his application for asylum is
therefore dismissed.
B. Withholding of Removal
We may review a final order of removal only if the alien has exhausted all
available administrative remedies. 8 U.S.C. § 1252(d)(1). “This requirement is
jurisdictional, ‘so we lack jurisdiction over claims that have not been raised before
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the BIA.’” Alim, 446 at 1253 (quoting Sundar v. INS, 328 F.3d 1320, 1323 (11th
Cir. 2003)).
The government faults Guerrero for not submitting a brief or “further
statement” to the BIA in support of his appeal. The government asserts that his
“non-specific challenge” to the IJ’s adverse credibility finding and Guerrero’s
“general arguments” objecting to the IJ’s adjudication of his withholding of
removal claim were insufficient to adequately raise these issues to the BIA. We
disagree.
In the attachment to his notice of appeal, Guerrero stated:
The IJ erred by making an adverse credibility assessment by failing to
properly articulate the basis and reasoning for that ruling. An
applicant’s credible testimony, standing alone, may be sufficient to
establish a claim of persecution. An IJ must demonstrate a legitimate
articulable basis to question the petitioner’s credibility, and must offer
a specific cogent reason for any stated disbelief . . . Generally minor
inconsistencies and minor omissions relating to unimportant facts will
not support an adverse credibility finding.
(internal quotations and citations omitted). This statement clearly notifies the BIA
that Guerrero wishes to appeal the IJ’s adverse credibility finding and provides that
the basis for this appeal is Guerrero’s belief the IJ was insufficiently particular in
that finding and that discrepancies and omissions relied on by the IJ were minor.2
2
Because Guerrero was proceeding pro se, the court must liberally construe his
pleadings. Haines v. Kerner, 404 U.S. 519, 520 (1972); see Code v. Montgomery, 725 F.2d
1316, 1318 n.2 (11th Cir. 1984). In this light, Guerrero’s notice of appeal more than adequately
illustrates the basis of his appeal.
6
Guerrero did not neglect to mention his withholding of removal claim in his
appeal to the BIA. Instead, he stated that the IJ erred in denying the petition for
withholding fo removal and specifically challenged the IJ’s adverse credibility
determination in the attachment to the notice of appeal. We, therefore, conclude
that Guerrero raised these issues to the BIA and thus exhausted his administrative
remedies. See Alim, 446 F.3d at 1253-54. We now proceed to the merits of
Guerrero’s claim for withholding of removal.
III. Merits
“When the BIA summarily affirms the IJ’s decision without an opinion, the
IJ’s decision becomes the final removal order.” Sepulveda v. U.S. Attorney Gen.,
401 F.3d 1226, 1230 (11th Cir. 2005). We, therefore, review the IJ’s decision as if
it was the decision of the BIA. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001).
The IJ’s findings of fact 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. Under this highly deferential standard of review, we will reverse the IJ
only if the evidence would compel us to find otherwise. INS v. Elias-Zacarias 502
U.S. 478, 481 n.1 (1992). Additionally, under the substantial evidence test, “we
review the record evidence in the light most favorable to the agency’s decision and
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draw all inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022,
1027 (11th Cir. 2004) (en banc).
Eligibility for asylum requires the petitioner to establish a well-founded fear
that he will be subject to harm or suffering that rises to the level of persecution on
account of his political opinion.3 Forgue v. U.S. Attorney Gen., 401 F.3d 1282,
1286 (11th Cir. 2005). To be eligible for withholding of removal, the petitioner
must demonstrate that it is more likely than not that he will be persecuted or
tortured upon return to his country. Alim, 446 F.3d at 1255. Because the standard
for withholding of removal is more stringent than that for asylum, a petitioner who
is ineligible for asylum necessarily does not satisfy the withholding of removal
standard. D-Muhumed v. U.S. Attorney Gen., 388 F.3d 814, 819 (11th Cir. 2004).
The IJ found that Guerrero had failed to establish a well-founded fear of
persecution because the IJ determined that Guerrero was not credible regarding his
experiences of alleged past persecution in Colombia. An adverse credibility
finding is a finding of fact reviewed under the substantial evidence test.
D-Muhumed, 388 F.3d at 818. IJ must offer specific, cogent reasons for an
adverse credibility finding. Id. at 819.
3
There are other statutorily protected grounds upon which an application for asylum may
be based. See 8 U.S.C. § 1101(a)(42)(A). Guerrero’s claim, however, rests solely on political
opinion and therefore that is the claim we focus on here.
8
Here, the IJ cited Guerrero’s repeated misstatements and equivocations
regarding the date of the alleged attack by FARC and resulting car accident.
Guerrero’s application for asylum stated that the attack happened in May 1999.
Guerrero, however, testified to the IJ that it was in May 2000, and then changed it
to May 1999 after being questioned. The IJ concluded that Guerrero’s inconsistent
testimony regarding the most significant instance of persecution was a material
discrepancy.
Furthermore, when Guerrero’s car was attacked by the FARC, there were
others in the vehicle—including an assistant to a Colombian senator—who may
have been the actual target of the attack instead of Guerrero. The IJ also pointed
out that Guerrero received his U.S. visa in November 1999 but did not flee the
country until March 2001 and that Guerrero’s decision to remain in Colombia
during this period and continue his political activity belied Guerrero’s claims that
his life was in imminent danger there. Finally, the IJ noted that Guerrero never felt
sufficiently afraid of FARC to have moved or changed his telephone number while
living in Colombia.
Because the IJ provided these specific, cogent reasons for determining that
Guerrero was not credible, and substantial evidence in the record supports this
conclusion, we are not compelled to reverse the IJ’s adverse credibility
determination.
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The IJ also evaluated all other evidence before him, and determined that no
other evidence demonstrated that Guerrero had a well-founded fear of persecution.
See Forgue, 401 F.3d at 1287 (noting that following an adverse credibility
determination an IJ still has a duty to consider the other evidence produced by the
petitioner to deduce whether the petitioner meets the standard for asylum). The
incorrect date—in both month and year—in the physician’s letter regarding
treatment following Guerrero’s accident led the IJ to give very little probative
value to that document in terms of its corroboration of the attack on Guerrero. The
IJ went through the remaining documents produced by Guerrero in support of his
petition, and noted in detail why each would not be given full weight. Again,
substantial evidence supports the IJ’s findings as to this additional evidence and
does not compel us to reverse the IJ.
Because Guerrero was found to be incredible regarding his past persecution
and the likelihood of persecution should he return to Colombia, the IJ found that he
had failed to establish eligibility for asylum and, therefore, also for withholding of
removal.
IV. Conclusion
For the foregoing reasons, Guerrero’s petition is DISMISSED in part, and
DENIED in part.
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