Jose Edgar Santa Piedrahita 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[DO NOT PUBLISH]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
No. 10-10793 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 4, 2011
________________________ JOHN LEY
CLERK
Agency No. A099-546-816
JOSE EDGAR SANTA PIEDRAHITA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 4, 2011)
Before TJOFLAT, EDMONDSON, and CARNES, Circuit Judges.
PER CURIAM:
Petitioner Jose Edgar Santa Piedrahita, a native and citizen of Colombia
proceeding pro se, petitions for review of the order by the Board of Immigration
Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”). The IJ’s
decision denied asylum and withholding of removal.1 No reversible error has been
shown; we dismiss the petition in part and deny it in part.
On appeal, Petitioner argues that he received ineffective assistance of
counsel during his asylum proceedings. But Petitioner never raised this claim
before the BIA and, therefore, we lack jurisdiction to consider it now. See
Amaya-Artunduaga v. U.S. Attorney Gen., 463 F.3d 1247, 1250-51 (11th Cir.
2006) (explaining an issue not raised before BIA is not properly exhausted and we
lack jurisdiction to consider it). We dismiss the petition on ineffective assistance
of counsel.
We review the IJ’s and BIA’s decisions in this case because the BIA agreed
with the IJ’s reasoning. See Kazemzadeh v. U.S. Attorney Gen., 577 F.3d 1341,
1350 (11th Cir. 2009) (explaining that when the BIA agrees with a finding of the
IJ, we review both decisions). We review legal determinations de novo. Id. And
we review fact determinations under the “highly deferential substantial evidence
test” whereby we “must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Adefemi
1
Petitioner raises no challenge to the portion of IJ’s decision denying relief under the
Convention Against Torture; so that issue is abandoned. See Sepulveda v. U.S. Attorney Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc) (citation and
internal quotation omitted). We “view the record evidence in the light most
favorable to the . . . decision and draw all reasonable inferences in favor of that
decision”; we may reverse fact determinations “only when the record compels a
reversal.” Id. at 1027.
An alien may obtain asylum if he is a “refugee,” that is, a person unable or
unwilling to return to his country of nationality “because of persecution or a well-
founded fear of persecution on account of” a protected ground, including political
opinion. 8 U.S.C. §§ 1101(a)(42)(A); 1158(a)(1), (b)(1). The applicant bears the
burden of proving statutory “refugee” status with specific and credible evidence.
Forgue v. U.S. Attorney Gen., 401 F.3d 1282, 1287 (11th Cir. 2005).
Petitioner alleged that the Colombian Revolutionary Armed Forces
(“FARC”) persecuted him and his family because of their political beliefs. After
he and his ex-wife2 began holding meetings in their home to support the
presidential campaign of Alvaro Uribe, he and his family began receiving
threatening phone calls from the FARC. The FARC told them that the family was
a “military objective.” In late 2001, the FARC kidnapped and attacked
2
Although Petitioner referred to his companion as his ex-wife, Petitioner clarified in his
hearing testimony that the two never were married.
3
Petitioner’s ex-wife; she received minor injuries. She fled to the United States in
early 2002.
In 2004, Petitioner’s son, a musician who often performed at political
events, also was accosted by the FARC after leaving a political meeting. The
FARC hit and kicked him and again told him that he and his parents were military
objectives. The FARC abandoned Petitoner’s son by the side of the road. Shortly
after this incident, the son fled to the United States.
Also in 2004, Petitioner, a lawyer practicing criminal law, was appointed to
defend a FARC commander known as “Hugo.” FARC members, on many
occasions, tried to bribe Petitioner into arranging for the commander’s release.
Petitioner refused; and eventually, Petitioner fled to the United States.
The IJ determined, in pertinent part, that the events Petitioner complained of
did not rise to the level of past persecution. The IJ also concluded that Petitioner
showed no objective well-founded fear of future persecution. The BIA agreed
with the IJ’s reasoning. On appeal, Petitioner repeats the allegations forming the
basis of his claim and argues that he showed past persecution and a well-founded
fear of future persecution based on his political beliefs.
After review, we conclude that substantial evidence supports the IJ’s and
BIA’s decisions that Petitioner did not demonstrate past persecution; and we are
4
not compelled to reverse the decision. We have explained that persecution is an
“extreme concept, requiring more than a few isolated incidents of verbal
harassment or intimidation, and that mere harassment does not amount to
persecution.” See Sepulveda, 401 F.3d at 1231 (citation and internal quotations
omitted).
The events Petitioner and his family experienced -- including threatening
phone calls, being briefly detained by the FARC, and minor physical harm -- are
insufficiently extreme to establish persecution. See Djonda v. U.S. Attorney Gen.,
514 F.3d 1168, 1174 (11th Cir. 2008) (death threats alone do not constitute
persecution nor do death threats coupled with minor physical harm). Petitioner
himself never was physically harmed or threatened in person by the FARC
because of his political activities for Uribe’s campaign. And his contact with the
FARC in defending the FARC commander did not amount to persecution because
Petitioner never alleged that he was threatened or that he physically was harmed
based on his appointment to represent the commander.3
To show a well-founded fear of future persecution, Petitioner had to
establish that his fear both was “subjectively genuine and objectively reasonable.”
3
Because we conclude that the events surrounding Petitioner’s appointment to defend the
commander do not constitute persecution, we need not consider whether this incident was based
on a protected ground.
5
Al Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir. 2001). “[T]he objective
prong can be fulfilled . . . by establishing . . . that he . . . has a good reason to fear
future persecution.” Id. (internal quotation omitted). Petitioner has shown no
such good reason.
As the IJ and BIA noted, Petitioner traveled to the United States and
returned to Colombia in 2003, after receiving death threats and after his ex-wife
had been abducted and beaten. See De Santamaria v. U.S. Attorney Gen., 525
F.3d 999, 1011 (11th Cir. 2008) (explaining that “[a]n asylum applicant’s
voluntary return to his or her home country is a relevant consideration in
determining whether the asylum applicant has a well-founded fear of future
persecution”). Petitioner also testified that he stopped receiving threatening phone
calls in 2002. And Petitioner has family members living in Colombia unharmed.
See Ruiz v. U.S. Attorney Gen., 440 F.3d 1247, 1259 (11th Cir. 2006) (an
applicant’s claimed fear of future persecution is undercut by his testimony that
family members have remained unharmed in the region). Petitioner’s refusal to
defend the FARC commander does not give rise to an objectively reasonable fear
of future persecution: another lawyer was appointed to the case after Petitioner
fled to the United States, significant time has passed since this incident, and
nothing indicates that the FARC still is interested in Petitioner.
6
Substantial evidence supports the IJ’s and BIA’s decisions that Petitioner
was unentitled to asylum; and we are not compelled to reverse the decisions.
Petitioner’s failure to establish eligibility for asylum forecloses his eligibility for
withholding of removal. See Forgue, 401 at 1288 n.4 (11th Cir. 2005).4
PETITION DISMISSED IN PART, DENIED IN PART.
4
On appeal, Petitioner supports his claims with evidence about a friend and colleague
who belonged to the same political movement as he did and who was kidnapped, tortured, and
killed by the FARC in 2009. But this evidence was not part of the administrative record below,
and we cannot consider it now. See 8 U.S.C. § 1252(a)(1) (in reviewing a final order of removal,
court may not order taking of additional evidence); Al Najjar, 257 F.3d at 1278 (as reviewing
court, we “cannot engage in fact-finding on appeal, nor may we weigh evidence that was not
previously considered below”).
7