Alejandro Patino 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[DO NOT PUBLISH]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 10, 2005
No. 04-12746
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A79-340-169
ALEJANDRO PATINO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 10, 2005)
Before BIRCH, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Alejandro Patino, a native and citizen of Colombia, petitions for review of
the final order of the Board of Immigration Appeals (“BIA”), which affirmed the
immigration judge’s (“IJ’s”) denial of asylum and withholding of removal under
the Immigration and Nationality Act (“INA”).1 In denying his asylum request, the
IJ found that Patino did not demonstrate past persecution or a well-founded fear of
future persecution by the Revolutionary Armed Forces of Colombia (“FARC”)
based on an imputed political opinion. On appeal, Patino argues he satisfied the
standard for asylum based on: (1) his membership in El Coraje, a conservative
political party; or (2) his involvement, at the Institute for the Development of
Antiogquia (“IDEA”), in an internal audit investigation which revealed IDEA, a
governmental agency, had provided funding to the FARC through a money
laundering scheme. Upon thorough review of the record, as well as careful
consideration of the parties’ briefs, we find no reversible error and affirm.2
1
We review only the denial of INA relief in the form of asylum. In his order, the IJ also
denied asylum and withholding of removal under the United Nations Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). To the extent that
Patino has not already abandoned his arguments on the CAT claims -- he primarily challenges the
denial of INA relief in his brief -- we lack jurisdiction to review the IJ’s denial of CAT relief
because Patino did not exhaust those claims by raising them before the BIA. See INA § 242(d)(1),
8 U.S.C. § 1252(d)(1) (“[a] court may review a final order of removal only if . . . the alien has
exhausted all administrative remedies available to the alien as of right.”). This exhaustion
requirement is jurisdictional, and precludes review of a claim that has not been presented to the IJ
or the BIA. See, e.g., Fernandez-Bernal v. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001).
Moreover, based on our conclusion that Patino did not establish a case for asylum, we need not, and
do not, consider whether he satisfied the higher standard for withholding of removal under the INA.
See Al Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir. 2001).
2
To the extent Patino’s brief also includes arguments challenging the BIA’s order deny-
ing his motion for reconsideration, in a December 3, 2004 Order, we dismissed his appeal as to that
2
When the BIA issues an affirmance without opinion, the IJ’s decision
becomes the final order subject to review. See Mendoza v. Att’y Gen., 327 F.3d
1283, 1284 n. 1 (11th Cir. 2003). As the fact-finder, it is the IJ’s duty to determine
credibility, and we will not substitute our judgment for that of the IJ. See Vasquez-
Mondragon v. INS, 560 F.2d 1225, 1226 (5th Cir. 1977) (citation omitted).3 The
IJ’s factual determination that an alien is not entitled to asylum must be upheld if it
is supported by substantial evidence. See Mazariegos v. Att’y Gen., 241 F.3d
1320, 1323 (11th Cir. 2001). Under this highly deferential standard of review, a
denial of asylum may be reversed only if the evidence would compel a reasonable
fact-finder to find that the requisite fear of persecution exists. See 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 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”).
Because Patino’s removal proceedings commenced after April 1, 1997, the
effective date of the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (1996), this case is
order for lack of prosecution. Accordingly, we will not address those arguments in this opinion.
3
The Eleventh Circuit has adopted as precedent all decisions of the former Fifth Circuit
rendered prior to October 1, 1981. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981).
3
governed by the permanent provisions of the Immigration and Nationality Act
(“INA”), as amended by IIRIRA. Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d
1331, 1332 (11th Cir. 2003); Balogun v. U.S. Att’y Gen., 304 F.3d 1303, 1309
(11th Cir. 2002). 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 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). A “refugee” is any person
who is unwilling to return to his home country or to avail himself of that country’s
protection “because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particulars 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 v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001); 8 C.F.R. §
208.13(a). The applicant satisfies this burden by showing, with specific and
credible evidence: (1) past persecution on account of a statutorily listed factor, or
(2) a “well-founded fear” that his or her statutorily listed factor will cause future
persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. “[P]ersecution
is an extreme concept, requiring more than a few isolated incidents of verbal
harassment or intimidation.” Sepulveda v. U.S. Att’y Gen., 378 F.3d 1260, 1264
4
(11th Cir. 2004) (citation and internal quotation marks omitted). Put another way,
“‘[m]ere harassment does not amount to persecution.’” Id. (alteration in original)
(quoting Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000)).
The petitioner’s well-founded fear of persecution must be on account of, or
because of, one of the statutorily listed factors, such as his political opinion. See
Elias-Zacarias, 502 U.S. at 483, 112 S. Ct. at 816. The petitioner must establish
this causal connection by “presenting specific, detailed facts showing a good
reason to fear that he or she will be singled out for persecution on account of such
an opinion.” Sepulveda, 401 F.3d at 1231 (quotation omitted). We have approved
of a “country-wide requirement” in which a refugee must first pursue an “internal
resettlement alternative” in his own country, or establish that this is not possible,
before seeking asylum here. Mazariegos, 241 F.3d at 1326-27 (11th Cir. 2001).
“‘[A]n imputed political opinion, whether correctly or incorrectly
attributed,’ may constitute a ground for a ‘well-founded fear’ of political
persecution within the meaning of the INA.” Al Najjar, 257 F.3d at 1289 (quoting
Morales v. INS, 208 F.3d 323, 331 (1st Cir. 2000)). To prevail on a theory of
imputed political opinion the asylum applicant must show that the “[p]ersecutor
falsely attribute[d] an opinion to [him], and then persecute[d][him] because of that
mistaken belief about [his] views.” Id. (alterations in original) (internal quotation
5
marks and citations omitted). Even if the asylum applicant establishes that the
persecutor imputed a political opinion to him, he would still have to demonstrate
that he has a well-founded fear of persecution because of that imputed opinion. Id.Here, substantial evidence supports the BIA’s decision that Patino was not
entitled to asylum, based on either past persecution or a well-founded fear of future
persecution, on account of a political opinion. The only evidence of Patino’s
alleged past persecution attributable, with any degree of specificity, to the FARC
consisted of some threatening phone calls and an incident during which some
people wearing FARC armbands intercepted Patino’s car on the road, physically
assaulted him, and ordered him to retract certain parts of his IDEA audit report.
The IJ found that, while Patino may have held a political opinion and “even gone
so far as being a member of a political organization [El Coraje],” there was
no evidence “that the FARC had any interest whatsoever in his membership . . . nor
is there even any indication that the FARC had any interest in his political opinion
at all.”
As for Patino’s participation in the audit of IDEA, and the FARC’s threats
and the incident of physical violence against Patino, the IJ determined that the
FARC had acted not based on Patino’s political opinion, but simply to stop him
from conducting the audit and revealing the money laundering scheme through
6
which the FARC was receiving some of its funds. The IJ found the FARC’s
alleged conduct was insufficient to demonstrate past persecution, and nothing in
the record compels us to reverse that finding. See Adefemi, 386 F.3d at 1027. In
fact, these alleged acts appear to be merely “a few isolated incidents of verbal
harassment or intimidation,” which is insufficient to establish past persecution.
See Sepulveda, 401 F.3d at 1231 (quotation omitted). Threats or harassment,
alone, do not constitute persecution on account of a statutorily protected ground.
See Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003); Mikhailevitch v.
INS, 146 F.3d 384, 390 (6th Cir. 1998).
As for a well-founded fear of future persecution, because Patino did not
present “specific, detailed facts showing a good reason to fear that he . . . will be
singled out for persecution,” id. at 1231 (quotation omitted), we are not compelled
to conclude that Patino has established a case for asylum on that basis. Notably,
after Patino’s attempts to sanitize his audit report were unsuccessful, he left his job
at IDEA. Although he obtained a visa for travel to the United States within the
same month as leaving IDEA, he did not leave Colombia for approximately three
months, during which he lived incident-free, with no subsequent interaction with
the FARC. Moreover, the record contains no evidence that Patino abandoned his
political beliefs or affiliation with El Coraje during that same time.
7
Quite simply, nothing in the record indicates that the FARC persecuted
Patino on account of his political opinions, or his affiliation with El Coraje, or that
the FARC, imputing a political opinion to Patino, perceived Patino’s involvement
in the IDEA audit as a political statement against the FARC. We are satisfied that
substantial evidence supports the IJ’s conclusion that Patino failed to meet his
significant burden of proving either past persecution or a well-founded fear of
future persecution on the basis of his political opinion. And, we cannot say the
record evidence would compel a reasonable fact-finder to reach a contrary
conclusion on this petition for asylum. See Elias-Zacharias, 502 U.S. at 481 n.1,
112 S.Ct. At 815 n. 1; 8 U.S.C. § 1252(b)(4)(B). Accordingly, we deny the
petition for review.
PETITION DENIED.
8