Carmen Elvira Sanchez Bocanegra v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 12, 2006
No. 05-13030
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A78-344-352
CARMEN E. SANCHEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 12, 2006)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
Carmen Elvira Sanchez Bocanegra (Sanchez), a Colombian national,
petitions for review of the Board of Immigration Appeals’s (BIA) order, adopting
and affirming an Immigration Judge’s (IJ) order of removal and denial of her
asylum and withholding of removal claims. On appeal, she argues that the IJ’s
adverse credibility determination was not supported by substantial evidence, and
that substantial evidence supported her asylum and withholding of removal claims
that she was persecuted on account of her membership in the social group of
trained dentists and her political opinion. For the reasons set forth more fully
below, we dismiss the petition in part and deny in part.
In her asylum application, Sanchez stated that she was a dentist who, while
volunteering her services to the poor, was forcibly taken by guerillas into the
woods on more than one occasion to treat their wounded, and if she had refused,
she would have been killed. She indicated that she was a member of the political
and labor parties, as well as the doctors’ union, and had been threatened with rape
by both the police and the guerillas if she refused to help them. Sanchez was also
threatened for failing to vote for a member of the guerilla party. Sanchez feared
that she would be raped and killed if returned to Colombia.
On October 11, 2000, Sanchez signed a second or supplemental application
for asylum and withholding of removal, alleging persecution on account of her
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membership in a particular social group and political opinion. Sanchez feared that
she would be subjected to torture and would be kidnaped by the FARC if returned
to Colombia because she was a member of the Liberal party and a doctor, and the
FARC previously had forced her to treat their sick and wounded and made
threatening phone calls to her.
At a preliminary hearing, Sanchez admitted the allegations charged in the
notice to appear and conceded removability. Sanchez testified that she became a
Liberal party member in 1997 because she believed in the party’s principles of
equality, rights, education, and health. After graduating with her dentist’s license,
Sanchez was required to perform one year of social service, which she chose to do
in the town of Tavio, where she previously had participated in a variety of
activities as a Liberal party youth member. Sanchez participated in meetings in
rural areas located around a local hospital, the purpose of which was to inform the
local people of the advantages of being in the Liberal party.
From April 1997, when she joined the Liberal party, until June 1998,
Sanchez did mostly campaign-related work for the party. When she began her
social service work as a dentist, Sanchez performed the service under the
“umbrella” of the Liberal party as well. When asked what she would have done to
fulfill her social service requirement if not a party member, Sanchez testified that
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she could have done it through private channels, the government, or on her own,
and since she had contact with the party, she chose to do it that way.
As to the “health brigade,” Sanchez testified that it consisted of a doctor, a
nurse, a dentist, and a driver, and that they provided medical services to poor
people in Tavio. The local hospital would promote the brigade’s arrival, and upon
arriving, the brigade would gather with the community to discuss how the Liberal
party would improve their lives. The brigade went out roughly three times per
week, and at each meeting, political literature was disseminated.
Sanchez then testified that she came to the United States because, while
providing her social services, she was taken out of her hospital by the FARC. It
occurred three times, the first being on August 30, 1998, when four men in plain
clothes wielding machine guns directed her to grab her basic instruments and come
with them because they needed her services. While treating their wounded, the
FARC members requested that Sanchez and other members of the health brigade
bring the community people around to the FARC’s ideology. After two to three
days, the FARC returned Sanchez to the local hospital and warned her that they
would be watching to see if she and the brigade would do what they requested.
On December 7, 1998, a different group from the same FARC front arrived
at the hospital, and Sanchez knew that they had come to get her. She was again
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taken into the mountains, where the FARC made her do things that were against
her ethical principles, such as inducing abortions of female guerilla members.
Sanchez was in the mountains for two days, and the FARC requested that her
brigade remove the Liberal party logo from its pamphlets. When she returned to
the hospital, Sanchez was afraid to speak out because the FARC had been more
aggressive, mistreating her and deriding her for having money and education and
being different from them.
Sanchez testified that she could have decided to change her social service
location to the private sector, but did not because the FARC had a lot of
information on her. At this point, the IJ asked Sanchez why, if she was staying in a
location where she actively was defying the FARC’s requests to recruit people, she
was better off in Tavio as opposed to leaving for a new location. Sanchez stated
that she didn’t know what would happen if she left, and that she wasn’t going to
give them what they wanted.
Several months passed without incident, but on July 14, 1999, the FARC
again returned to the local hospital, and were more aggressive with her. Upset with
the FARC’s actions, Sanchez began arguing with a FARC member, demanding that
he stop intimidating the townspeople, or else she would not work with him or his
people. In response, the man pulled out a gun and pointed it at her head, causing
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her to be quiet and continue working. The man began touching her body,
including her chest. Sanchez was returned to the hospital the following day, but
the same man who had pulled a gun on her continued to tell her that he had let her
live.
When asked why she did not report these incidents, Sanchez testified that
only five policemen worked in the town, and they couldn’t defend her against
hundreds of FARC guerillas. She testified that she completed her social service in
June and returned to Bogota two weeks after the last incident. She lived with her
parents in Bogota, and the FARC began making phone calls to her parents’ home
there three or four weeks later. The first caller told her that they needed her to help
them recruit people, although the caller was not the same person as the one who
had spoken to her in the mountains. At that time, Sanchez was not working as a
dentist, but returned to school for a post-graduate degree in performing root canals.
Sanchez testified that, between her mother and herself, she received approximately
seven or eight phone calls from the FARC, all of which were threatening in nature
and indicated that they knew where Sanchez lived and was studying. Sanchez said
that the FARC was interested in her for her influence over the people where she
worked.
On November 11, 1999, Sanchez reported the phone calls to police in order
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to show the government the type of psychological pressure she was under, as well
as to obtain protection. The police were unable to provide her any protection.
Sanchez then testified that, had she stayed in Colombia, the FARC could “take her”
at anytime. Because Sanchez had no safety or protection anywhere, she did not try
to relocate within Colombia.
On cross-examination, Sanchez explained that she did not leave Tavio after
the first FARC encounter because she did not think their interference was sufficient
reason to leave behind the objective that she wanted to accomplish there. After the
second time, Sanchez felt the same way, and despite the risks, did not want to stop
pursuing her objectives.
The IJ rendered an oral decision, first finding that Sanchez was not credible
because her actions following the FARC’s intrusions into her social work were not
consistent with a well-founded fear of persecution, and that no evidence
demonstrated the great rapport that she claimed to have had with the community in
Tavio or a list of the team members who joined Sanchez there. The IJ further took
issue with the fact that Sanchez had deliberately declined to comply with the
FARC’s requests, but the FARC did not do anything between August 30 and
December 7, 1998. The IJ also noted the inconsistency between being physically
detained while in the mountains and doing nothing about it, and receiving a few
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phone calls while in Bogota and promptly leaving the country.
After comparing some of the inconsistencies between the first and second
applications, the IJ found that, assuming the guerillas made contact with Sanchez
in the mountains, she did not show her fear by leaving, but instead stayed around to
complete her objectives. The IJ gave her the benefit of the doubt on the first
incident, but after the more aggressive second incident, the three phone calls in
Bogota sparking her fear seemed inconsistent. Next, the IJ found that, at most,
what the FARC did amounted to extortion for services and had nothing to do with
Sanchez’s politics.
Sanchez appealed to the BIA, arguing that the IJ had used the wrong burden
of proof and had reached an arbitrary and capricious decision. In her brief to the
BIA, Sanchez argued that the IJ had erred by (1) failing to support his adverse
credibility finding; (2) failing to consider the doctrine of imputed political opinion;
and (3) finding that Sanchez had failed to meet her burden of proving a well-
founded fear of persecution.
The BIA issued a per curiam opinion adopting and affirming the IJ’s
decision. Upon review of the record, the BIA found that Sanchez had failed to
meet her burden of proof. It found that Sanchez, as a dentist, was coerced into
providing medical services and was threatened and harassed as a penalty for non-
8
cooperation. “Even assuming that the respondent was credible,” the BIA could not
find that the actions taken against her rose to the level of persecution. The BIA
further found that there was no indication that Sanchez was targeted to punish her
on the basis of a statutorily enumerated ground and that a guerilla organization’s
attempt to coerce a person into performing a service did not, without more,
constitute persecution on the basis of political opinion. Because Sanchez had
failed to meet her burden of proof, the BIA found it unnecessary to determine
whether her testimony had correctly been determined incredible. Accordingly, her
appeal was dismissed.
We will review only the Board’s decision, except to the extent that it
expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001) (citation omitted). Insofar as the Board adopts the IJ’s reasoning,
we will review the IJ’s decision as well. Id. (citation omitted).
As a preliminary matter, while Sanchez challenges the IJ’s adverse
credibility finding, the BIA in this case did not adopt the IJ’s adverse credibility
determination and, in fact, expressly found that it was unnecessary to address the
issue of Sanchez’s credibility. Accordingly, the IJ’s adverse credibility
determination is not before us, and, therefore, we decline to address Sanchez’s
argument. Al Najjar, 257 F.3d at 1284
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Secondly, Sanchez argues that she was entitled to asylum and withholding of
removal because she was persecuted on account of her membership in the social
group of trained dentists. The government argues that Sanchez failed to exhaust
her administrative remedies with respect to this argument.
We review subject matter jurisdiction de novo. Ortega v. U.S. Att’y Gen.,
416 F.3d 1348, 1350 (11th Cir. 2005). “When our review is limited by statutory
conditions, we only ‘retain jurisdiction to determine the underlying jurisdictional
facts at issue.’” Id. (citation omitted). Pursuant to INA § 242(d)(1), 8 U.S.C.
§ 1252(d)(1), we may only review a final order of removal if “the alien has
exhausted all administrative remedies available to the alien as of right.” Thus, we
have held that the failure to raise a claim with the BIA prevents us from exercising
jurisdiction over it. See Fernandez-Bernal v. Att’y Gen. of the U.S., 257 F.3d
1304, 1317 n.13 (11th Cir. 2001).
Sanchez, in her brief to the BIA, argued that the IJ had erred by (1) failing to
support his adverse credibility finding; (2) failing to consider the doctrine of
imputed political opinion; and (3) finding that Sanchez had failed to meet her
burden of proving a well-founded fear of persecution. Nowhere, in either her brief
or her original notice of appeal to the BIA, did Sanchez argue that her membership
in the social group of “trained dentists” entitled her to asylum because of
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persecution on account of that membership. Accordingly, Sanchez failed to
exhaust her administrative remedies on this claim, and we dismiss it for lack of
jurisdiction.
Finally, Sanchez argues that substantial evidence supports her eligibility for
asylum and withholding of removal because she was persecuted and has a well-
founded fear of future persecution based on, inter alia, her imputed political
opinion. Specifically, she argues that the FARC targeted her because of her
specialized dental training and her affiliation with the Liberal party, a group to
which the FARC objects, causing Sanchez to be kidnaped multiple times and
threatened with sexual assault and death. Sanchez further argues that the BIA
erred by failing to find a “nexus” between her persecution and her membership in a
social group and imputed political opinion.
To the extent that the BIA’s decision was based on a legal determination,
review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001). The BIA’s factual determinations are reviewed under the substantial
evidence test, and 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, 257 F.3d at 1283-84 (citation omitted). Thus, factual
determinations “may be reversed by this court only when the record compels a
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reversal; the mere fact that the record may support a contrary conclusion is not
enough to justify a reversal of the administrative findings.” Adefemi v. Ashcroft,
386 F.3d 1022, 1026 (11th Cir. 2004).
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 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.” See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1).1
A “refugee” is:
[A]ny person who is outside any country of such person’s nationality
or, in the case of a person having no nationality, is outside any
country in which such person last habitually resided, and 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, membership in a particular social group, or
political opinion. . . .
8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving
statutory “refugee” status. See Al Najjar, 257 F.3d at 1284. To establish asylum
eligibility, the alien must, with specific and credible evidence, establish (1) past
persecution on account of a statutorily listed factor, or (2) a “well-founded fear”
1
Pursuant to the REAL ID Act of 2005, INA § 208(b)(1), 8 U.S.C. § 1158(b)(1), was
amended to add “The Secretary of Homeland Security or the Attorney General” as if enacted on
March 1, 2003. See Pub. L. 109-13, 119 Stat 231 (May 11, 2005), Division B, Sec. 101, 8
U.S.C. § 1158(b)(1) and note (1).
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that the statutorily listed factor, in this case political opinion, will cause such future
persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. The INA
does not expressly define “persecution” for purposes of qualifying as a “refugee.”
See INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). However, we have discussed other
circuits’ holdings that “persecution” is an “extreme concept,” requiring more than
“a few isolated incidents of verbal harassment or intimidation,” or “[m]ere
harassment.” Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1231 (11th Cir.
2005).
A showing of past persecution creates a presumption of a “well-founded
fear,” subject to rebuttal by the INS. 8 C.F.R § 208.13(b)(1). A “well-founded
fear” of persecution may also be established by showing a reasonable possibility of
personal persecution that cannot be avoided by relocating within the subject
country. 8 C.F.R. § 208.13(b)(2)(i) & (ii). It is “well-established” that the well-
founded fear inquiry contains both an objective and subjective component, i.e., the
petitioner must be genuinely afraid and that fear must be objectively reasonable.
Al Najjar, 257 F.3d at 1289. Furthermore, it is the petitioner’s burden to present
“specific, detailed facts showing a good reason to fear that he or she will be singled
out for persecution.” Id. at 1287 (quotation and citation omitted).
The record in this case does not compel a reversal. Sanchez’s testimony
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established that, on three different occasions, separated by intervals of three
months and five months respectively, FARC guerrillas forcibly removed her from
her post at a hospital in Tavio and coerced her into performing medical services on
its members. While Sanchez testified that the guerillas had also expressed an
interest in her ability to recruit, and were aware of her Liberal party affiliation, the
evidence does not compel a reversal of the Board’s finding that their interest in her
was “on account of” her ability to provide medical services, and not her political
opinion. Each time the guerillas confronted her in Tavio, it was to coerce her to
perform medical services and, despite having had the ability to change her service
post, Sanchez elected not to do so and actively defied the FARC’s requests to help
with recruitment. Despite her defiance, the FARC did not retaliate against her
based on that refusal, and the one time that Sanchez was threatened with a weapon
followed her refusal to continue providing medical treatment. To the extent that
the FARC coerced her into performing medical services, that is insufficient,
standing alone, to rise to the level of persecution. Cf. I.N.S. v. Elias-Zacarias, 502
U.S. 478, 482-83, 112 S.Ct. 812, 816, 117 L.Ed.2d 38 (1992) (holding that forced
recruitment is insufficient to prove persecution “on account of” political opinion).
Furthermore, after Sanchez departed Tavio, she was never again personally
confronted by FARC guerillas. Her testimony was that she and her parents
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received seven or eight phone calls of a threatening nature from the FARC, who
requested that she assist in their recruitment efforts due to her influence over the
people in the rural village where she had worked the previous year. First, it is
noted that persuasive authority from other circuits indicates that “[t]hreats alone
generally do not constitute actual persecution; only rarely, when they are so
immediate and menacing as to cause significant suffering or harm in themselves,
do threats per se qualify as persecution.” Vatulev v. Ashcroft, 354 F.3d 1207,
1210 (10th Cir. 2003); see also Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869
n.6 (9th Cir. 2003); Boykov v. I.N.S., 109 F.3d 413, 416 (7th Cir. 1997). The
threats in this case do not fall within the nature of the threats described in the
persuasive authorities. More importantly, however, the threats were not related to
Sanchez’s political opinion, but rather her ability to exert influence over the
villagers with whom she had worked. While the FARC’s actions are deplorable,
the BIA’s finding that they were not targeting Sanchez on account of a statutorily
protected ground does not compel a reversal.
As to a well-founded fear of future persecution, Sanchez hedges her case on
a finding that her past persecution entitles her to a presumption of a well-founded
fear. As noted above, the BIA’s finding that she did not suffer past persecution
does not compel a reversal, and, therefore, Sanchez is not entitled to the
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presumption of a well-founded fear of future persecution. She offered little
testimony on this point, although her application for asylum indicated that she was
afraid of returning to Colombia because the guerillas knew her to be a member of
the Liberal party and would kidnap her and force her to treat their sick and
wounded because she is a doctor. It seems unlikely that now, more than five years
later, the FARC would still remain interested in Sanchez, especially in light of the
FARC’s reduced membership, which at the time of the 2003 State Department
report, was numbered at 13,500.
Sanchez also argues that she is entitled to relief because of her imputed
political opinion, which resulted from her association with the Liberal party. Even
assuming an opinion had been imputed to her because of her Liberal party
affiliation, Sanchez would have to show that the persecutors both falsely attributed
an opinion to her and then persecuted her on the basis of that mistaken belief. Al
Najjar, 257 F.3d at 1289. Moreover, she would still have to show a well-founded
fear of persecution because of that imputed opinion which, as discussed above,
Sanchez has failed to do. Id. Accordingly, the theory of imputed political opinion
is of no help to Sanchez.
Lastly, an alien seeking withholding of removal under the INA must show
that her life or freedom would “more likely than not” be threatened upon return to
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his country because of, among other things, his political opinion or membership in
a particular social group. See Mendoza v. U.S. Attorney Gen., 327 F.3d 1283,1287
(11th Cir. 2003); INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). This standard is more
stringent than the “well-founded fear” standard for asylum; thus, because Sanchez
was unable to meet the well-founded fear standard for asylum, she is unable to
qualify for withholding of removal.
Based on the foregoing, we conclude that the record does not compel a
reversal of the BIA’s order affirming the IJ’s order of removal and denial of
asylum and withholding of removal. We, therefore, deny Sanchez’s petition for
review in part, and dismiss in part for lack of jurisdiction.
PETITION DISMISSED IN PART, DENIED IN PART.
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