Matilde Agudelo 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[DO NOT PUBLISH]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
June 7, 2005
No. 04-12613
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A95-255-655
MATILDE AGUDELO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 7, 2005)
Before ANDERSON, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Matilde Agudelo, a native and citizen of Colombia, petitions, through
counsel, this Court for review of the Board of Immigration Appeals’ (“BIA”) order
affirming without opinion the Immigration Judge’s (IJ) decision denying her
application for asylum and withholding of removal under the INA.1 Because
Agudelo’s removal proceedings commenced after April 1, 1997, the effective date
of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.
L. No. 104-208, 110 Stat. 3009 (1996) (“IIRIRA”), this case is governed by the
permanent provisions of the INA, as amended by IIRIRA. See Antipova v. United
States Att’y Gen., 392 F.3d 1259, 1264 (11th Cir. 2004); Gonzalez-Oropeza v.
United States Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). Agudelo argues
that the BIA erred in finding that she was ineligible for asylum and withholding of
removal because she suffered past persecution on account of her political opinion
and religious activities. Agudelo argues that she further established a well-founded
fear of persecution on the same bases.
We review the IJ’s decision in this case, not the BIA’s, because the BIA
affirmed the IJ’s decision without opinion, thereby making that the final agency
determination. See 8 C.F.R. § 1003.1(a)(7); Mendoza v. U.S. Attorney Gen., 327
F.3d 1283, 1284 n.1 (11th Cir. 2003). The IJ’s factual determinations are reviewed
under the substantial evidence test, and we “must affirm the [IJ’s] decision if it is
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The IJ also denied relief pursuant to the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment, but Agudelo is not raising that issue
on appeal.
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supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir.
2001) (quotation omitted). It is the fact trier’s duty to determine credibility, and
we may not substitute our judgment for that of the IJ with respect to credibility
findings. Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th Cir. 1977).2
Under this highly deferential standard of review, the IJ’s decision must be deferred
to as supported by substantial evidence, unless the evidence would compel a
reasonable fact finder to find otherwise. INS v. Elias-Zacarias, 502 U.S. 478, 481
n.1, 112 S.Ct. 812, 815 n.1, 117 L.Ed.2d 38 (1992); see also INA § 242(b)(4)(B), 8
U.S.C. § 1252(b)(4)(B) (“administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary”).
I. Asylum
Any alien who arrives in or is present in the United States may apply for
asylum, which the Attorney General (“AG”) has discretion to grant if the alien
meets the definition of a “refugee.” Al Najjar, 257 F.3d at 1284. 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
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this Court
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
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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 . . ..
Id. (emphasis added) (citing 8 U.S.C. § 1101(a)(42)(A)). The asylum applicant
carries the burden of proving statutory “refugee” status and thereby establishing
asylum eligibility. Id. (citing 8 C.F.R. § 208.13(a)). If she meets that burden, the
AG may exercise his discretion to grant asylum. Id. Here, because the IJ
determined that Agudelo failed to establish eligibility for asylum, he did not
address whether he would exercise his discretion. Accordingly, we need only
address whether substantial evidence supports the finding that Agudelo failed to
show statutory eligibility for asylum, i.e., past persecution or a well-founded fear
of future persecution on account of her religion or political opinion.
To establish asylum eligibility, the alien must establish, with specific,
detailed, and credible evidence (1) past persecution on account of her political
opinion, religious belief, or other statutorily listed factor, or (2) a “well-founded
fear” that her political opinion, religious belief, or other statutorily listed factor will
cause future persecution. Al Najjar, 257 F.3d at 1287; see also 8 C.F.R.
§ 208.13(a), (b). “[A]n applicant must demonstrate that his or her fear of
persecution is subjectively genuine and objectively reasonable.” Sepulveda, 378
F.3d at 1264 (quotation omitted). Establishing a nexus between the statutorily
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listed factor and the feared persecution “requires the alien to present specific,
detailed facts showing a good reason to fear that he or she will be singled out for
persecution on account of” the statutorily listed factor. D-Muhumed v. Att’y Gen.,
388 F.3d 814, 818 (11th Cir. 2004) (quotation omitted) (emphasis in original).
If the alien demonstrates past persecution, she is presumed to have a well-
founded fear of future persecution unless the government can rebut the
presumption. 8 C.F.R. § 208.13(b)(1). If, however, the alien does not establish
past persecution, she bears the burden of demonstrating a well-founded fear of
persecution by showing that (1) she fears persecution based on her religion,
political opinion, or other statutorily listed factor; (2) there is a reasonable
possibility she will suffer persecution if removed to her native country; and (3) she
could not avoid persecution by relocating to another part of her country, if under
all the circumstances it would be reasonable to expect relocation. See 8 C.F.R.
§ 208.13(b)(2), (3)(i).
Despite her claims to the contrary, Agudelo has not shown that she has been
persecuted, that such persecution was based on her political opinion or religious
beliefs, or that she has a well-founded fear of future persecution on those bases.
Her claim centers around her refusal to give members of a guerilla group
information about her employer. Substantial evidence supports the IJ’s conclusion
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that any problems Agudelo suffered arose out of her failure to cooperate with the
group, not out of her political opinion or religious beliefs. As to her fear of future
persecution, Agudelo has not established (1) that she fears persecution based on
her political opinion or religious beliefs, (2) that there is a reasonable possibility
that she will suffer persecution if removed to her native country, or (3) that she
could not avoid persecution by relocating to another part of Colombia.
Therefore, because Agudelo fails to establish that she suffered past
persecution or a “well-founded fear” of future persecution on account of her
political opinion or religious belief, her asylum claim fails.
II. Withholding of Removal
The IJ’s factual determination that an alien is not entitled to withholding of
removal must be upheld if it is supported by substantial evidence. See Al Najjar, 257
F.3d at 1283-84. An alien is entitled to withholding of removal under the INA if he
can show that his life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion. INA
§ 241(b)(3), 8 U.S.C. § 1231(b)(3). If “an applicant is unable to meet the ‘well-
founded fear’ standard for asylum, [s]he is generally precluded from qualifying for
either asylum or withholding of deportation.” Al Najjar, 257 F.3d at 1292-93
(quotation omitted).
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As discussed above, Agudelo failed to establish past persecution or a well-
founded fear of persecution on account of one of the five statutory factors
sufficient to support her asylum claim. She offers no argument to avoid the
general preclusion from withholding of removal in this situation. Accordingly,
substantial evidence supports the IJ’s rejection of Agudelo’s claim for withholding
of removal under the INA.
Conclusion
Based on a review of the record and the parties’ briefs, we deny Agudelo’s
petition for review.
PETITION DENIED.
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