Carlos Ariel Hernandez Sierra v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 5, 2005
No. 04-14954 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A95-226-084 & A95-226-085
CARLOS ARIEL HERNANDEZ SIERRA,
ANDREA LILIANA ZAMBRANO QUINTERO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(July 5, 2005)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Carlos Ariel Hernandez-Sierra and Andrea Liliana Zambrano Quintero,
Colombian nationals, petition for review from a final order of removal. The
Petitioners, who are husband and wife, contend that the Immigration Judge (IJ)
erred in denying their asylum applications as untimely. The Petitioners assert that
their failure to file timely for asylum is excusable, because they were defrauded by
a non-lawyer who promised but failed to assist them in applying for asylum. The
Petitioners also contend that 8 U.S.C. section 1158(a)(2)(B), which establishes a
one-year deadline to file an asylum application, violates the Supremacy Clause,
because it allegedly conflicts with the United Nations Convention on the Status of
Refugees. The Petitioners finally contend that the IJ erred in denying them asylum
and withholding of removal under the Immigration and Naturalization Act, because
they allegedly established a well-founded fear of persecution from the ELN and the
FARC, two Colombian paramilitary groups. We deny the petition.
We lack jurisdiction to consider the Petitioners’ argument regarding the
denial of their asylum claims as untimely. Under section 1158(a)(2)(B), an alien
may not apply for asylum unless the alien can prove that the application for asylum
was filed within one year of the alien’s arrival in the United States. Although a
late application for asylum can be considered if changed or extraordinary
circumstances exist, the evaluation of those circumstances is committed to the sole
discretion of the Attorney General. See 8 U.S.C. § 1158(a)(3). The decision of the
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Attorney General “is not reviewable by any court.” Fahim v. U.S. Att’y Gen., 278
F.3d 1216, 1217 (11th Cir. 2002) (per curiam). We dismiss the petition with
regard to this issue.
We reject the Petitioners’ Supremacy Clause challenge to section
1158(a)(2)(B). Article 33 of the Refugee Convention, which forbids the expulsion
or return of refugees under certain circumstances, is not self-executing, and it was
not implemented by Congress. Haitian Refugee Ctr. v. Baker, 949 F.2d 1109,
1110 (11th Cir. 1991); see also INS v. Stevic, 467 U.S. 407, 428 n.22, 104 S. Ct.
2489, 2500 n.22 (1984). Because the Refugee Convention “provides no
enforceable rights to [aliens],” Haitian Refugee Ctr., 949 F.2d at 1110, section
1158(a)(3) does not violate the Supremacy Clause.
Finally, the Petitioners cannot establish that the IJ erred by denying the
Petitioners’ request for withholding of removal. To qualify for withholding of
removal based on political persecution, an alien must establish that it is more likely
than not he will be persecuted upon return to his country. Sepulveda v. United
States Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (per curiam). This
standard is “more stringent” than for asylum. Id. An alien can prove eligibility for
withholding of removal by demonstrating either past persecution or a likelihood of
future persecution on account of the alien’s political opinion. Antipova v. United
States Att’y Gen., 392 F.3d 1259, 1264 (11th Cir. 2004). Persecution on the basis
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of mere refusal to cooperate with a guerilla group fails to demonstrate eligibility
for withholding of removal. Sanchez v. United States Att’y Gen., 392 F.3d 434,
438 (11th Cir. 2004) (per curiam).
The Petitioners contend they established a well-founded fear of persecution
on account of their political opinion, but we cannot reverse the factual findings of
the IJ unless the record compels it. Forgue v. U.S. Att’y Gen., 401 F.3d 1282,
1287 (11th Cir. 2005). The record in this case does not compel a contrary result.
Substantial evidence supports the findings of the IJ. See id.The evidence presented at the asylum hearing showed that the guerillas
harassed relatives of the Petitioners because they refused to cooperate with the
guerillas, not because of their political opinion. Hernandez-Sierra testified that the
ELN murdered his father and his uncle for refusing to cooperate, and that another
uncle was murdered for refusing to provide the ELN with land and cattle. What is
lacking is any evidence that those family members were persecuted on account of
Hernandez-Sierra’s political activities.
The evidence of persecution of the Petitioners is scant. Hernandez-Sierra
stated that when he was approached by the ELN and asked to pass out brochures,
he was told that “the same thing would happen to him that happened to other
members of his family” if he did not cooperate, and when Hernandez-Sierra later
refused to hand out brochures, he allegedly received several threatening phone
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calls stating that he would be killed if he did not cooperate. We have explained
before that “menacing telephone calls and threats . . . do not rise to the level of past
persecution.” Sepulveda, 401 F.3d at 1231.
Even the evidence of genuine persecution of a relative of the Petitioners is
equivocal. Although Hernandez-Sierra’s uncle was allegedly murdered by the
FARC after the uncle was elected mayor, Hernandez-Sierra’s cousin replaced the
uncle as mayor and was not harassed by either the FARC or the ELN. That
evidence supports the finding of the IJ that the Petitioners failed to establish past
persecution or a well-founded fear of future persecution. See INS v.
Elias-Zacarias, 502 U.S. 478, 482-83, 112 S. Ct. 812, 815-16 (1992); see also
Sanchez, 392 F.3d at 438. The IJ, therefore, did not err in denying withholding of
removal.
PETITION DISMISSED IN PART AND DENIED IN PART.
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