Cedeno Pinedo 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[DO NOT PUBLISH]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
No. 10-10097 SEPT 16, 2010
Non-Argument Calendar JOHN LEY
CLERK
________________________
Agency No. A089-215-653
DIANA ALEXANDRA CEDENO PINEDO,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 16, 2010)
Before BLACK, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Diana Alexandra Cedeno Pinedo (“Cedeno”), a citizen of Colombia,
petitions this Court for review of the Board of Immigration Appeals’ (“BIA”)
order reversing the immigration judge’s (“IJ”) finding that she was entitled to
asylum under the Immigration and Nationality Act (“INA”). Specifically, Cedeno
argues that the BIA committed several errors when analyzing her claim for asylum
based on the Revolutionary Armed Forces of Colombia’s (“FARC”) “pattern or
practice” of persecuting medical personnel who, like herself, oppose the FARC.1
After thorough review, we affirm the BIA’s order.
I.
On May 4, 2007, Cedeno entered the United States as a non-immigrant
visitor with authorization to remain until November 3, 2007. On November 23,
2007, Cedeno applied for asylum, asserting that if she returned to Colombia she
would be persecuted by the FARC, a guerilla organization, on account of her
1
Cedeno also asks us to remand the case to the BIA in light of not only a pending motion
before the BIA to reopen her case but also confusion regarding the basis for the IJ’s decision to
grant asylum, including whether the IJ may have implicitly granted asylum under 8 C.F.R.
§ 1208.13(b)(1)(iii)(B). This aspect of her appeal can be quickly resolved, as neither ground
provides a basis for remanding her case to the BIA. Our review on appeal is limited to only
considering issues and motions presented to and resolved by the BIA and contained in her
petition for review. See Fed. R. App. P. 15(a)(2); see also Stone v. INS, 514 U.S. 386, 405–06,
115 S. Ct. 1537, 1549 (1995) (stating that an alien may separately seek review of a subsequently
denied motion to reopen). In any event, any confusion over the IJ’s basis for granting asylum is
irrelevant. We only review the IJ’s decision to the extent that the BIA expressly adopts it.
Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304 (11th Cir. 2009). Here, the BIA rejected the
IJ’s findings on which the alleged confusion exists and issued its own ruling denying asylum.
2
political opinion and membership in a particular social group. Cedeno asserts that
FARC twice threatened to kill her after two FARC members were arrested when
Cedeno transported them, as part of her volunteer work, to a hospital for treatment
of their gunshot wounds.
On January 2, 2008, the Department of Homeland Security served Cedeno
with a notice to appear in immigration court, charging her with being subject to
removal under 8 U.S.C. § 237(a)(1)(B) for exceeding her authorized length of
stay. Cedeno conceded her removability and thereafter appeared before the IJ on
September 10, 2008, for a hearing on her application for refugee status.
At the hearing, she adduced the following evidence, which both the BIA
and IJ found credible: To satisfy a community participation requirement as a
medical student and to support the ultimately successful presidential campaign of
Dr. Alvaro Uribe, Cedeno became involved with Seed Foundation. The Seed
Foundation is a nonprofit organization supported by Radical Change and founded
by members of that political party for the purpose of undertaking social and
environmental projects in low income neighborhoods. As part of her volunteer
work, Cedeno educated groups and community leaders about Uribe’s proposals
and participated in “health brigades,” which provided medical assistance to at-risk
and impoverished communities.
3
While volunteering in a health brigade in April 2005, Cedeno transported
two men to the hospital because of the severity of their gunshot wounds. After she
did this, the threats to Cedeno’s life began. On June 2, 2005, two men riding a
motorcycle handed her an envelope with her name and student identification
number on it and immediately disappeared. Inside, a letter from the FARC
specifically declared her a military target and threatened her life for supporting the
government through Seed Foundation and for providing information to authorities
that allegedly led to the arrests of the two gunshot victims.2 The letter said that
Cedeno could avoid death if she provided certain quantities of medicines.
Because the letter was based on an incorrect assumption that she had provided the
authorities with information, Cedeno ignored the letter, but nonetheless avoided
public places and never went outside unescorted.
On August 8, 2005, while Cedeno was leaving school, two men, again
riding a motorcycle, asked if she was Diana Alexandra and threw an envelope at
her before she could respond. Inside, a letter from the FARC noted her
noncompliance with the prior letter and again threatened her life. This letter again
declared her a military target for her participation in Seed Foundation and for
2
The letter itself is not part of the administrative record, but Cedeno established that it had
been turned over to the Colombian Army for investigation.
4
supporting Uribe’s government. If she wished to save her life, she had to provide
the FARC with certain quantities of medicines within ten days. If not, she would
turn up dead or missing like the others listed by name in the letter, including two
fellow medical students whom Cedeno personally knew to have been murdered.
The second death threat caused Cedeno to suspend her studies indefinitely,
fearing that the FARC could discover her whereabouts if she returned to the
university or enrolled at another. To avoid the FARC, she and her mother moved
far away to Palmira. While there, Cedeno cut ties with her contacts, did not work
or go to school, changed her phone number, and largely remained inside. But
during the holiday season in December 2005, she contacted her friends at the
university who informed her that unknown individuals had visited her former
university asking where she was. They also told her that Seed Foundation and her
old residence had received calls asking for her and inquiring about her
whereabouts. Based on the descriptions of the individuals and her friends’
accounts of the tone of the phone calls, Cedeno believed that FARC members
were still actively pursuing her.
Despite not receiving any direct threats since moving to Palmira, Cedeno
applied for a tourist visa in December 2006 and came to the United States on May
4, 2007. She intended to eventually return home once the FARC had forgotten
5
about her. While in the United States, however, Cedeno was informed that calls to
the Seed Foundation and her former residence became more aggressive. At that
point, she decided to remain in the United States and apply for refuge on the
grounds that if she returned to Colombia she would be persecuted on account of
her political opinion3 or membership in a particular social group.
In an oral decision, the IJ found that Cedeno failed to meet her burden of
establishing past persecution on account of her actual or imputed political opinion.
Instead, the IJ believed that the FARC targeted Cedeno not for her political
opinion but rather for her involvement in the arrest of the two FARC members
whom she transported to the hospital. Nevertheless, the IJ granted her asylum on
the ground that she had a well-founded fear of future persecution, finding it both
subjectively genuine and objectively reasonable that if Cedeno registered
anywhere in Colombia to complete her medical studies, the FARC would discover
her whereabouts and possibly take her life. In a conclusory footnote, the IJ stated
that Cedeno’s well-founded fear of persecution—based on her prior involvement
with the politically affiliated Seed Foundation, documentary evidence that the
3
In 2006, President Uribe was reelected to another four-year term, but was succeeded on
August 7, 2010, by Juan Manuel Santos, a former Minister of National Defense in Uribe’s
government, who has overseen efforts to eradicate the FARC, including a military raid that killed
a high-ranking FARC leader.
6
FARC has targeted medical personnel who do not comply with its requests, and
her involvement in the arrest of the two FARC members—was sufficiently linked
to one of the five statutory grounds on which a grant of asylum may be based. The
IJ, however, did not specify which ground.
The BIA reversed the IJ’s preliminary grant of asylum. The BIA agreed
with the IJ’s finding that Cedeno failed to establish past persecution on account of
actual or imputed political opinion and noted that her allegations of past harm in
that regard, namely threats, do not rise to the level of persecution. The BIA,
however, took issue with the IJ’s determination that Cedeno had established a
nexus between her well-founded fear of future persecution and at least one
statutory ground for asylum. The BIA stated that “the record does not indicate
enough evidence from which we could find that the FARC targeted [Cedeno] for
her political opinion, religion, membership in a particular social group, race, or
nationality.” In doing so, it cited to a BIA decision defining “social group” within
the meaning of the INA and pointed out that, as the IJ correctly found, the FARC’s
interest in Cedeno was limited to her involvement in the arrest of the two FARC
members. Lastly, the BIA found that relocation within Colombia to avoid harm
was not unreasonable given that Cedeno did not personally receive any threats
7
after she relocated and that her parents continue to live in Colombia without
incident.4
II.
When, as here, the BIA issues its own opinion, we review only the decision
of the BIA and those portions of the IJ’s decision expressly adopted therein.
Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304 (11th Cir. 2009). To the
extent that the BIA’s decision was based on a legal determination, our review is de
novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001). The BIA’s
factual determinations, however, are reviewed under the substantial evidence test,
which provides that the BIA’s decision “can be reversed only if the evidence
‘compels’ a reasonable fact finder to find otherwise.” Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1230 (11th Cir. 2005). In undertaking that test, “we view the
record evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004) (en banc).
4
In addition, the BIA sua sponte addressed and rejected Cedeno’s applications for
withholding of removal under the INA and relief under the Convention Against Torture.
However, we do not address those aspects of the BIA’s ruling. Cedeno withdrew those
applications immediately upon the IJ granting her asylum and has not presented any arguments
on appeal regarding those alternative grounds for refuge.
8
An alien who is present in the United States may apply for asylum pursuant
to 8 U.S.C. § 1158(a)(1). The Secretary of Homeland Security or the Attorney
General has discretion to grant asylum if the alien meets the INA’s definition of a
“refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is defined as an individual who is
unwilling or unable to return to her country of residence “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.” 8 U.S.C.
§ 1101(a)(42). Persecution on account of one of those five protected grounds may
be at the hands of the alien’s government or at the hands of “non-governmental
groups that [the alien’s] government cannot control, such as the FARC.” Ruiz v.
U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006). In either case, “[t]he
asylum applicant carries the burden of proving statutory ‘refugee’ status.” D-
Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004); see also 8
C.F.R. § 208.13(a).
To establish a well-founded fear of future persecution, an alien must
establish a fear of persecution on account of at least one of the five protected
grounds. See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1352 (11th Cir.
2009) (citing 8 C.F.R. § 208.13(b)(2)(i)). The alien can do so by either (1)
presenting “‘specific, detailed facts showing a good reason to fear that he or she
9
will be singled out for persecution on account of’” such a ground, Sepulveda, 401
F.3d at 1231 (quoting Najjar v. Ashcroft, 257 F.3d 1262, 1287 (11th Cir. 2001)),
or (2) that a “pattern or practice” exists in the country of persecuting a group of
persons similarly situated to her on account of a protected ground, 8 C.F.R.
§ 208.13(b)(2)(iii). Once this nexus has been established, the alien must also
show that it would be unreasonable for her to relocate within the country to avoid
the feared persecution. See 8 C.F.R. § 208.13(b)(2)(ii).
On appeal, Cedeno’s challenge to the BIA’s order is limited. She does not
challenge the BIA’s findings regarding lack of past persecution or that she failed
to establish a well-founded fear of persecution on account of political opinion.
Rather, Cedeno only argues (as she did before the BIA) that she has a well-
founded fear of persecution on account of the FARC’s pattern or practice of
harming medical personnel who, like herself, oppose the FARC. Because she
believes that the BIA either failed to adequately address this claim or committed
several errors when doing so, she asks us to remand her case to the BIA.
Remand, however, is not necessary. Whether Cedeno should be granted
asylum hinges in part on whether a group of medical personnel who oppose the
FARC qualifies as a “social group” within the meaning of the INA. In evaulating
the BIA’s order, Cedeno assumes that her group meets this definition and in the
10
process overlooks a reference made by the BIA in a footnote appended to the
phase “particular social group.” That footnote refers to the BIA’s opinion in
Acosta, 19 I. & N. Dec. 211, 234 (1985), in which an alien sought asylum based
on membership in a group with characteristics similar to the group Cedeno
attempts to define. After giving meaning to the statutory phrase “particular social
group,” the BIA found that the group did not constitute a “social group” within the
meaning of the INA:
Applying the doctrine of ejusdem generis, we interpret the phrase
‘persecution on account of membership in a particular social group’ to
mean persecution that is directed toward an individual who is a member
of a group of persons all of whom share a common, immutable
characteristic. The shared characteristic might be an innate one such as
sex, color, or kinship ties, or in some circumstances it might be a shared
past experience such as former military leadership or land ownership.
The particular kind of group characteristic that will qualify under this
construction remains to be determined on a case-by-case basis.
However, whatever the common characteristic that defines the group, it
must be one that the members of the group either cannot change, or
should not be required to change because it is fundamental to their
individual identities or consciences. Only when this is the case does the
mere fact of group membership become something comparable to the
other four grounds of persecution under the Act, namely, something that
either is beyond the power of an individual to change or that is so
fundamental to his identity or conscience that it ought not be required
to be changed. By construing ‘persecution on account of membership
in a particular social group’ in this manner, we preserve the concept that
refuge is restricted to individuals who are either unable by their own
actions, or as a matter of conscience should not be required, to avoid
persecution.
11
In the respondent’s case, the facts demonstrate that the guerrillas sought
to harm the members of COTAXI, along with members of other taxi
cooperatives in the city of San Salvador, because they refused to
participate in work stoppages in that city. The characteristics defining
the group of which the respondent was a member and subjecting that
group to punishment were being a taxi driver in San Salvador and
refusing to participate in guerrilla-sponsored work stoppages. Neither of
these characteristics is immutable because the members of the group
could avoid the threats of the guerrillas either by changing jobs or by
cooperating in work stoppages. It may be unfortunate that the respondent
either would have had to change his means of earning a living or
cooperate with the guerrillas in order to avoid their threats. However, the
internationally accepted concept of a refugee simply does not guarantee
an individual a right to work in the job of his choice. Therefore, because
the respondent’s membership in the group of taxi drivers was something
he had the power to change, so that he was able by his own actions to
avoid the persecution of the guerrillas, he has not shown that the conduct
he feared was ‘persecution on account of membership in a particular
social group’ within our construction of the Act.
In re Acosta, 19 I. & N. Dec. 211, 233–34 (1985) (citation omitted),
overruled in part as stated in Mogharrabi, 19 I. & N. Dec. 439, 446–47
(1987).
Thus, the BIA relied on the reasoning in Acosta to summarily dispose of
Cedeno’s claim for asylum based on the FARC’s alleged pattern or practice of
persecuting medical personnel who either oppose the FARC or refuse to comply
with its demands. This was the extent of the BIA’s discussion and thus the errors
Cedeno assigns to the analysis of that claim reflect a misunderstanding of the BIA’s
order. We therefore affirm the BIA’s denial of asylum, as Cedeno has presented no
12
argument in opposition to Acosta’s rationale and thus fails to explain why the group
she defines is a social group within the meaning of the INA.
Even assuming that Cedeno had preserved the issue on appeal, the BIA did
not err in finding that her claim was not cognizable under the INA. We have
previously stated that “[i]n restricting the grounds for asylum . . . based on
persecution to five enumerated grounds, Congress could not have intended that all
individuals seeking this relief would qualify in some form by defining their own
‘particular social group.’” See Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190,
1198 (11th Cir. 2006). We have therefore approved of Acosta’s definition of social
group as requiring a “‘common, immutable characteristic . . . [that] is fundamental
to [its members’] individual identities or consciences,’ which is consonant with the
purposes that underlie the other four grounds for refugee status or withholding of
deportation under the INA.” Id. at 1196–97 (quoting Acosta, 19 I. & N. Dec. at
233–34) (alterations in original). This formulation, we said, “strikes an acceptable
balance between (1) rendering ‘particular social group’ a catch-all for all groups
who might claim persecution, which would render the other four categories [for
granting asylum] meaningless, and (2) rendering ‘particular social group’ a nullity
by making its requirements too stringent.” Id. at 1197.
13
The group in which Cedeno claims membership does not meet this required
definition. She defines her group as medical workers engaged in outward
manifestations of opposition to the FARC. Neither of these characteristics is
immutable. Cedeno may cease being a member of this group by choosing not to re-
enroll in medical school and forgoing her involvement in the Seed Foundation’s
health brigades. Her ability to avoid future persecution therefore remains
fundamentally within her control and does not involve the FARC’s targeting of
either an immutable characteristic shared by the group or a shared characteristic that
is so fundamental to the members’ individual identities or consciences that it ought
not be required to be changed.5 Although Cedeno certainly has a compelling story,
we cannot say that the BIA erred in determining that the social group she defines
fails to provide a basis on which asylum may be bestowed. See Acosta, 19 I. & N.
Dec. at 234 (noting that the “concept of a refugee simply does not guarantee an
individual a right to work in the job of his choice”).6
5
To the extent that Cedeno seeks asylum on account of membership in a social group
defined as medical personnel who have failed to comply with the FARC, we likewise find this to
be an insufficient basis for granting her asylum. Medical personnel who have failed to comply
with the FARC undeniably share immutable characteristics in that their noncompliance and their
then-status as medical personnel are historical facts that cannot be undone. But the record does
not contain sufficient evidence to establish that the FARC persecutes members of such a group.
Rather, the record suggests that the FARC’s interest is limited only to those medical workers
who are actively engaged in opposing the FARC through activities such as health brigades.
6
Because Cedeno has failed to establish a well-founded fear of persecution on account of
a protected ground, we need not resolve whether it would be unreasonable for her to relocate to
14
For the forgoing reasons, we AFFIRM the BIA’s denial of Cedeno’s
application for asylum.
avoid that persecution. See 8 C.F.R. § 208.13(b)(2)(ii).
15