Document Info

DocketNumber: 11-11092

Citation Numbers: 455 F. App'x 893

Judges: Barkett, Marcus, Anderson

Filed Date: 1/9/2012

Status: Non-Precedential

Modified Date: 11/5/2024

  •                                                                               [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT           FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 11-11092                        JAN 9, 2012
    Non-Argument Calendar                    JOHN LEY
    ________________________                    CLERK
    Agency No. A096-270-763
    JOSE ANTONIO RUIZ FONSECA,
    llllllllllllllllllllllllllllllllllllllll                                                    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    llllllllllllllllllllllllllllllllllllllllRespondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    ________________________
    (January 9, 2012)
    Before BARKETT, MARCUS, and ANDERSON, Circuit Judges.
    PER CURIAM:
    Jose Antonio Ruiz Fonseca, a native and citizen of Colombia, appeals the
    Board of Immigration Appeals (“BIA”) decision affirming the Immigration
    Judge’s (“IJ”) order denying his application for asylum and withholding
    of removal under the Immigration and Nationality Act. 
    8 U.S.C. §§ 1158
    , 1231.1
    In support of his application, Fonseca claimed that the Revolutionary Armed
    Forces of Colombia (“FARC”) persecuted him for his work with the Colombian
    government. Specifically, he described hearing from members of indigenous
    communities that the FARC was uncomfortable with his work. He believed that
    the FARC had killed his dog, kidnapped his mother, and attempted to kidnap his
    sister’s children. However, he conceded at his hearing that he had no evidence
    corroborating his claim that the FARC was responsible. Both the IJ and the BIA
    denied Fonseca’s claim for asylum as untimely, and denied his claim for
    withholding of removal upon finding that the events which he described did not
    amount to past persecution or give rise to a clear probability of persecution if he
    returned to Colombia.
    Fonseca now argues the BIA erred in finding that he did not establish past
    1
    The IJ and BIA both appear to have construed Fonseca’s application to also
    request relief under the United Nations Convention Against Torture (“CAT”), 
    8 C.F.R. § 208.16
    (c), and denied his application in this respect. However, he has abandoned his request
    for CAT relief before this Court by failing to raise that issue in his initial brief. See Sepulveda v.
    U.S. Att’y Gen., 
    401 F.3d 1226
    , 1228 n.2 (11th Cir. 2005).
    2
    persecution or a reasonable probability of future persecution. He asserts that the
    BIA inappropriately weighed the FARC’s threats against him, the killing of his
    dog, his mother’s kidnapping, and the attempted kidnapping of his sister’s children
    because taken together, these incidents are at least as severe as harms which
    federal courts have found to constitute persecution.
    We deny Fonseca’s petition for the following reasons. First, as to his claim
    for asylum, he fails to appeal the BIA’s decision that his application was time-
    barred. Therefore, he has abandoned this claim. Amaya-Artunduaga v. U.S. Att’y
    Gen., 
    463 F.3d 1247
    , 1251 (11th Cir. 2006). Even if Fonseca preserved this issue,
    we would still lack jurisdiction to consider the BIA’s findings that he failed to put
    forth extraordinary and changed circumstances sufficient to excuse his untimely
    application. 
    8 U.S.C. § 1158
    (a)(3); Chacon-Botero v. U.S. Att’y Gen., 
    427 F.3d 954
    , 957 (11th Cir. 2005). Accordingly, we dismiss Fonseca’s petition for asylum.
    We also deny Fonseca’s petition for withholding of removal because he is
    unable to satisfy the “more stringent” standards governing this claim. Ruiz v.
    Gonzales, 
    479 F.3d 762
    , 766 n.1 (11th Cir. 2007). We review the BIA’s finding
    that an alien was not eligible for withholding of removal under the substantial
    evidence test, which requires that we affirm the BIA’s decision if it is “supported
    by reasonable, substantial, and probative evidence on the record considered as a
    3
    whole.” Imelda v. U.S. Att’y Gen., 
    611 F.3d 724
    , 727 (11th Cir. 2010). “We
    review only the BIA’s decision, except where it expressly adopts the IJ’s decision.
    To the extent that the BIA adopts the IJ’s reasoning, we review the IJ’s decision as
    well.” Mehmeti v. U.S. Att’y Gen., 
    572 F.3d 1196
    , 1199 (11th Cir. 2009) (citation
    omitted). Here, the BIA expressly stated its agreement with the IJ’s “decision that
    [Fonseca] did not demonstrate the requisite degree of harm for past persecution
    purposes and that a well-founded fear of persecution was not established.”
    To qualify for withholding of removal, an alien must demonstrate that, if
    removed, it is more likely than not that his life or freedom would be threatened on
    account of race, religion, nationality, membership in a particular social group, or
    political opinion. 
    8 U.S.C. § 1231
    (b)(3); Silva v. U.S. Att’y Gen., 
    448 F.3d 1229
    ,
    1243 (11th Cir. 2006). In order to qualify for asylum or withholding of removal,
    the applicant must establish either: (1) past persecution on account of a protected
    ground, or (2) a future threat to his life or freedom on a protected ground.
    Mehmeti, 
    572 F.3d at 1199
    . “Persecution” is not defined in the Immigration and
    Nationality Act, but this Court has indicated that it is “an extreme concept,
    requiring more than a few isolated incidents of verbal harassment or intimidation.”
    Sepulveda v. U.S. Att’y Gen., 
    401 F.3d 1226
    , 1231 (11th Cir. 2005) (quotations
    omitted). “Mere harassment does not amount to persecution,” nor do repeated
    4
    threats and menacing telephone calls, absent other forms of severe mistreatment.
    
    Id. at 1231
     (alteration omitted).
    An alien is required to establish persecution “with specific and credible
    evidence.” Mehmeti, 
    572 F.3d at 1199
    . Thus, when offering evidence of
    instances of persecution, an alien must be able to do more than speculate as to his
    persecutor’s identity. See, e.g., Mendoza v. U.S. Att’y Gen., 
    327 F.3d 1283
    , 1288
    (11th Cir. 2003) (holding that a Guatemalan applicant for withholding of removal
    could not establish persecution because his testimony that guerillas burned down
    his father’s house was conclusory, and he could only speculate as to who killed his
    uncle).
    If an alien establishes past persecution, “it is presumed that his life or
    freedom would be threatened upon return to his country.” 
    Id. at 1287
    . An alien
    may also qualify for withholding of removal if his fear of future persecution is
    both “subjectively genuine and objectively reasonable.” Mehmeti, 
    572 F.3d at 1200
    . “The subjective component is generally satisfied by the applicant’s credible
    testimony that he or she genuinely fears persecution.” 
    Id.
     “The objective prong
    can be fulfilled either by establishing past persecution or that he or she has a good
    reason to fear future persecution.” 
    Id.
     (alteration omitted).
    The threats that Fonseca described in his application did not rise to the level
    5
    of past persecution. Although he described the death of his dog, the disappearance
    of his mother, and the attempted kidnapping of his sister’s children as coercive
    products of the threats he received, he could do no more than speculate that the
    FARC was responsible for these incidents. He acknowledged that his mother
    suffered from memory loss and could have become disoriented and gotten lost;
    there was never a ransom demand. Fonseca’s sister, who obtained asylum in 2007,
    worked for the National Registrar Office, and thus Fonseca could do no more than
    “assume” that the attempted kidnapping of her children was related to his own
    situation, rather than his sister’s own political activity. Fonseca was never
    physically attacked, and his children have remained in Colombia without incident.
    We conclude that reasonable, substantial, and probative evidence supports the
    BIA’s decision.
    PETITION DISMISSED IN PART, DENIED IN PART.
    6