Santiago Beltran v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 20, 2005
No. 04-13383 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Docket Nos. A95-898-546 and A95-899-673
SANTIAGO BELTRAN,
NORA JACQUELINE QUIROGA,
JUAN CAMILO BELTRAN QUIROGA,
FEDERICO BELTRAN QUIROGA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Appeal from a Decision of
the Board of Immigration Appeals
_________________________
(April 20, 2005)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Santiago Beltran, his wife, Nora Jacqueline Quiroga, and their children,
Juan Camilo Beltran Quiroga, and Federico Beltran Quiroga, petition this Court
pro se for review of the final order of the Board of Immigration Appeals (BIA)
that affirmed the order of removal by the Immigration Judge (IJ). The permanent
rules of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996), govern the petition for review.
See Al Najjar v. Ashcroft, 257 F.3d 1262, 1276 (11th Cir. 2001). For the reasons
explained below, we dismiss the petition in part for lack of jurisdiction and deny
the remainder of the petition.
I. BACKGROUND
On November 27, 1999, Beltran, a native and citizen of Columbia, his wife,
and their children, left Columbia and entered the United States as visitors, with
permission to remain until January 3, 2001. On July 29, 2002, Beltran filed an
application for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture (CAT) and alleged persecution on account of
his political opinion and membership in a particular social group. On September
18, 2002, the INS served Beltran and his family with notices to appear, charging
them with removability for remaining in the United States beyond the time
permitted, in violation of INA section 237(a)(1)(B). Beltran, through counsel,
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admitted the allegations of the notices to appear and conceded removability. He
again requested asylum, withholding of removal, and relief under CAT.
The IJ found Beltran ineligible for asylum based on untimeliness and denied
withholding of removal and relief under CAT. The BIA affirmed. The BIA
agreed that the application for asylum was untimely. The BIA also agreed that
Beltran failed to show a clear probability of persecution for withholding of
removal or that it was more likely than not that he would be tortured, because
Beltran’s brief detention and later death threats did not rise to the level of
persecution or torture and Beltran failed to submit corroborating evidence.
Accordingly, the BIA dismissed the appeal, and this petition for review followed.
II. DISCUSSION
Beltran makes three arguments: (1) that he is excused for the late filing of
his asylum application; (2) that his confrontation with FARC, a Colombian
guerilla group, in December 1997, and later death threats establish past
persecution, a well-founded fear of persecution, and a clear probability of future
persecution; and (3) that he is entitled to relief under CAT because FARC
continues to exhibit influence in Colombia and he established that he was more
likely than not to be tortured if he returned to Colombia. We address each
argument in turn.
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1. Asylum
We review subject matter jurisdiction de novo. See Brooks v. Ashcroft, 283
F.3d 1268, 1272 (11th Cir. 2002). It is undisputed that Beltran’s asylum
application was untimely. Although an untimely asylum application may be
considered if the alien demonstrates extraordinary circumstances relating to the
delay, see 8 U.S.C. § 1158(a)(2)(D), “[n]o court shall have jurisdiction to review
any determination [of timeliness or extraordinary circumstances].” 8 U.S.C. §
1158(a)(3). This Court, therefore, does not have jurisdiction to review a decision
regarding whether an alien complied with the one-year time limit or established
extraordinary circumstances that would excuse his untimely filing. See Mendoza
v. U.S. Attorney Gen., 327 F.3d 1283, 1286-87 (11th Cir. 2003); Fahim v. U.S.
Attorney Gen., 278 F.3d 1216, 1217-18 (11th Cir. 2002). Accordingly, we lack
jurisdiction to consider Beltran’s argument regarding the timeliness of his asylum
application.
2. Withholding of Removal
We review factual determinations of the BIA under the substantial evidence
test. See Al Najjar, 257 F.3d at 1283-84. This Court “must affirm the BIA’s
decision if it is ‘supported by reasonable, substantial, and probative evidence on
the record considered as a whole.’” Id. (citation omitted). Under this highly
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deferential standard, we must defer to the decision of the BIA unless the evidence
“compels” a reasonable factfinder to find otherwise. INS v. Elias-Zacarias, 502
U.S. 478, 481 n.1, 112 S. Ct. 812, 815 n.1 (1992). We review only the decision of
the BIA, except to the extent that it expressly adopts the opinion of the IJ. See Al
Najjar, 257 F.3d at 1284. Insofar as the BIA adopts the reasoning of the IJ, we
also review the decision of the IJ. See Prado-Gonzalez v. INS, 75 F.3d 631, 632
(11th Cir. 1996).
An alien is entitled to withholding of removal 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)(A); 8 U.S.C. §
1231(b)(3)(A). A showing of past persecution creates a rebuttable presumption
that the “life or freedom” of an alien would again be threatened upon removal.
See Antipova v. U.S. Attorney Gen., 392 F.3d 1259, 1264 (11th Cir. 2004).
Where an alien has not suffered past persecution, the alien bears the burden of
showing that it is “more likely than not” that he would suffer persecution upon
removal. See id.Neither the INA or the regulations define persecution. “[W]e have
discussed other circuits’ holdings that ‘persecution’ is an ‘extreme concept,’
requiring ‘more than a few isolated incidents of verbal harassment or
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intimidation,’ and that ‘[m]ere harassment does not amount to persecution.’”
Sepulveda v. U.S. Attorney Gen., __ F.3d __, 2005 WL 477878, at *3 (11th Cir.
March 2, 2005) (citing Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000)
(quotation marks and citations omitted)). Although in Sepulveda we discussed
persecution in the asylum context, the definition of persecution also applies in the
withholding of removal context. See Borca v. INS, 77 F.3d 210, 215 (7th Cir.
1996).
The IJ did not make a specific finding on Beltran’s credibility. Rather, the
IJ found that Beltran failed to present corroborating evidence in support of his
claim. If Beltran’s testimony was credible, however, his testimony “may be
sufficient to sustain the burden of proof without corroboration.” Mendoza, 327
F.3d at 1287 (citation omitted).
Even if we assume that Beltran’s testimony was credible and ignore the lack
of corroborating evidence, substantial evidence supports the finding of the IJ that
Beltran’s life or freedom would not be threatened on account of any protected
ground if returned to Colombia. Beltran testified that, during his only face-to face
encounter with FARC, which lasted approximately three hours, Beltran was
insulted, pushed around, beaten up, and “pestered.” Although his testimony was
not specific as to the extent or severity of any beating or physical harm, that
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Beltran walked back to Acandi after he was released shows he was not
substantially harmed. Moreover, Beltran did not mention any beating or physical
harm in his application for asylum; he only mentioned that FARC seized his
political literature, insulted him, and threatened him. Beltran’s testimony also
evidenced that the death threats by FARC through notes and telephone calls were
sparse. We, therefore, conclude that substantial evidence supports the finding of
the BIA that Beltran failed to meet his burden to show that it was more likely than
not that he suffered past persecution. Substantial evidence also supports the
finding of the BIA that Beltran also failed to show that it was more likely than not
that he would suffer future persecution.
3. Relief under CAT
To obtain relief under CAT, the burden is on the applicant to establish that
it is “more likely than not” he will be tortured in the country of removal. 8 C.F.R.
§ 208.16(c)(2). During the only face-to-face encounter with FARC, Beltran was,
at the worst, beaten up during a three-hour detention. Such an encounter does not
rise to the level of torture. See 8 C.F.R. § 208.18(a)(1). Additionally, there is no
evidence in the record that any such torture would be inflicted by the Colombian
government or with its consent or acquiescence. Beltran, therefore, failed to
establish eligibility for CAT relief.
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III. CONCLUSION
Based on the foregoing, we dismiss Beltran’s petition as to his asylum claim
for lack of jurisdiction and deny the remainder of Beltran’s petition.
PETITION DISMISSED IN PART and DENIED IN PART.
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