Farid Alberto Calderon Salinas 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[DO NOT PUBLISH]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 21, 2005
No. 04-16087 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A79-478-270
& A79-478-271
FARID ALBERTO CALDERON SALINAS,
AURORA CALDERON, et al.,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 21, 2005)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Petitioners Farid Alberto Calderon Salinas, Aurora Calderon, and Juan
David Calderon Sarmiento petition this Court for review of the Board of
Immigration Appeals’ (BIA’s) decision denying their application for asylum and
withholding of removal. First, Petitioners argue due process allows Salinas to file
a new asylum application because he did not have effective assistance from an
attorney in filing his original, untimely application. Petitioners next assert the
one-year deadline for filing an asylum application is unconstitutional under the
Supremacy Clause because the United Nations Convention Related to the
Protection of Refugees (Protocol) does not list it as a reason to deny an alien’s
asylum claim. Finally, Petitioners contend it was unreasonable for the
immigration judge (“IJ”) to request corroborative evidence to sustain their
withholding of removal claim. We dismiss in part and deny in part their petition
for review.
I. DISCUSSION
A. Timeliness of asylum application
We are “obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir.
2004) (quotation omitted). An alien may apply for asylum if he “demonstrates by
clear and convincing evidence that the application has been filed within 1 year
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after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B).
If the application is filed late, however,
[a]n application for asylum of an alien may be considered . . . if the
alien demonstrates to the satisfaction of the Attorney General either
the existence of changed circumstances which materially affect the
applicant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application within the period
specified. . . .
8 U.S.C. § 1158(a)(2)(D). Nevertheless, we lack jurisdiction because “[n]o court
shall have jurisdiction to review any determination of the Attorney General under
[section 1158(a)(2)].” 8 U.S.C. § 1158(a)(3); Mendoza v. United States Attorney
Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). Consequently, we have held
§ 1158(a)(3) “divests our Court of 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.” Mendoza,
327 F.3d at 1287 (citing Fahim v. United States Attorney Gen., 278 F.3d 1216,
1217–18 (11th Cir. 2002)).
Salinas entered the United States in August 1999, but did not file his asylum
application until April 2001, more than one year later. Accordingly, because the
BIA found that Salinas did not timely file his application, this Court lacks
jurisdiction to consider his arguments pertaining to the BIA’s denial of asylum.
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As for Petitioners’ due process argument, “[d]ue process requires that aliens
be given notice and opportunity to be heard in their removal proceedings.”
Fernandez-Bernal v. Attorney Gen. of the United States, 257 F.3d 1304, 1311 n.8
(11th Cir. 2001). An alien, however, “has no constitutionally-protected right to
discretionary relief or to be eligible for discretionary relief.” Oguejiofor v.
Attorney Gen. of the United States, 277 F.3d 1305, 1309 (11th Cir. 2002); see also
Mohammed v. Ashcroft, 261 F.3d 1244, 1250 (11th Cir. 2001); Tefel v. Reno, 180
F.3d 1286, 1301–02 (11th Cir. 1999). The grant of asylum is a discretionary
decision left to the Attorney General. Sepulveda v. United States Attorney
General, 401 F.3d 1226, 1231 (11th Cir. 2005).
Petitioners’ due process argument is without merit because they have no
constitutionally-protected right to be eligible for asylum, which is discretionary
relief. They were given notice and opportunity to be heard in their removal
proceedings. Thus, their due process rights were not violated,1 and we dismiss the
petition for review concerning asylum.
1
Furthermore, we do not have jurisdiction where a constitutional claim has no merit.
Gonzalez-Oropeza v. United States Attorney Gen., 321 F.3d 1331, 1333 (11th Cir. 2003) (citing
Brooks v. Ashcroft, 283 F.3d 1268, 1273 (11th Cir. 2002)).
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B. Unconstitutionality of one-year asylum deadline
We review questions of constitutional law de novo. Loyd v. Ala. Dep’t of
Corr., 176 F.3d 1336, 1339 (11th Cir. 1999). If a treaty is not self-executing, it
provides no enforceable rights. Haitian Refugee Ctr., Inc. v. Baker, 949 F.2d
1109, 1110 (11th Cir. 1991). Neither Article 33 nor Article 34 of the Protocol are
self-executing. INS v. Stevic, 467 U.S. 407, 428, n.22, 104 S. Ct. 2489, 2500 n.22,
(1984) (Article 34 is not self-executing); Haitian Refugee Ctr., 949 F.2d at 1110
(Article 33 is not self-executing).
Because Articles 33 and 34 of the Protocol, concerning the expulsion of
refugees, are not self-executing, they provide no enforceable rights. The one-year
statutory deadline for filing an asylum application is therefore not in conflict with
the Protocol, and thus there can be no violation of the Supremacy Clause. We
deny the petition as to this claim.
C. Withholding of removal under the INA
We review the BIA’s legal determinations de novo. Mohammed v. Ashcroft,
261 F.3d 1244, 1247 (11th Cir. 2001). Factual determinations by the BIA that an
alien is not entitled to withholding of removal must be upheld if it is supported by
substantial evidence, and we “must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
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whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283–84 (11th Cir. 2001) (citations
and quotation omitted); cf. 8 U.S.C. § 1252(b)(4)(B) (providing “administrative
findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary”).
“Uncorroborated but credible testimony from the applicant may be
sufficient alone to sustain the burden of proof for . . . withholding of removal.”
D-Muhumed v. United States Attorney Gen., 388 F.3d 814, 818–19 (11th Cir.
2004). “However, the weaker the alien’s testimony, the greater the need for
corroborative evidence.” In re Y-B, 21 I. & N. Dec. 1136, 1139 (BIA 1998)
(holding “the general and vague nature of the respondent’s testimony was not
remedied by a showing of specific and detailed corroborative evidence of the
respondent’s claim”).
An alien is entitled to withholding of removal if he can show his life or
freedom would be threatened on account of race, religion, nationality, membership
in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3). The alien
bears the burden of demonstrating it is “more likely than not” he will be
persecuted or tortured upon being returned to his country. Fahim v. United States
Attorney Gen., 278 F.3d 1216, 1218 (11th Cir. 2002). This standard is more
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stringent than the “well-founded fear” standard for asylum. Al Najjar, 257 F.3d at
1292–93.
Neither the Immigration and Nationality Act nor its regulations define
“persecution,” but this Court has noted “persecution is an extreme concept,
requiring more than few isolated incidents of verbal harassment or intimidation,
and . . . mere harassment does not amount to persecution.” Sepulveda, 401 F.3d at
1231 (quotations omitted). Other circuits indicate that, to be an act of persecution,
the behavior must threaten death, punishment, or the infliction of substantial harm
or suffering. Sharif v. INS, 87 F.3d 932, 935 (7th Cir. 1996). “Threats alone
generally do not constitute actual persecution; only rarely, when they are so
immediate and menacing as to cause significant suffering or harm in themselves,
do threats per se qualify as persecution.” Vatulev v. Ashcroft, 354 F.3d 1207, 1210
(10th Cir. 2003). “To qualify as persecution, a person’s experience must rise
above unpleasantness, harassment, and even basic suffering.” Nelson v. INS, 232
F.3d 258, 263 (1st Cir. 2000).
Establishing a nexus between the § 1251(b)(3) factors 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
§ 1251(b)(3) factor. D-Muhumed, 388 F.3d at 818 (quoting Al Najjar, 257 F.3d at
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1287)). “The statute protects against persecution not only by government forces
but also by nongovernmental groups that the government cannot control.”
Sanchez v. United States Attorney Gen., 392 F.3d 434, 437 (11th Cir. 2004)
(quotation omitted).
If the alien demonstrates past persecution, he is presumed to have a
well-founded fear of future persecution unless the government can rebut the
presumption. 8 C.F.R § 208.16(b)(1)(i). If the alien does not establish past
persecution, however, then he bears the burden of showing a well-founded fear of
persecution by showing (1) he fears persecution based on his membership in a
particular social group, political opinion, or another statutorily listed factor,
(2) there is a reasonable possibility he will suffer persecution if he returns to his
country, and (3) he could not avoid persecution by relocating to another part of his
country, if under all the circumstances it would be reasonable to expect relocation.
See 8 C.F.R. § 208.16(b)(2); see also Mendoza, 327 F.3d at 1287 (“An alien who
has not shown past persecution, though, may still be entitled to withholding of
removal if he can demonstrate a future threat to his life or freedom on a protected
ground in his country”).
Here, Petitioners did not establish they would more likely than not be
persecuted if they returned to Colombia. Although Salinas testified he received
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numerous threatening telephone calls, mostly while he was at work, mere
harassment does not constitute persecution. See Sepulveda, 401 F.3d at 1231.
Further, despite these threats, Salinas was never physically harmed, and he did not
report them to the police. Therefore, the petitioners failed to show they were
subject to past persecution.
Salinas’ testimony also was insufficient to prove it was more likely than not
he would be persecuted if he returned to Colombia. Salinas testified that he left
Colombia because of telephonic threats “in the name of Captain Truillo,” but did
not explain why he would be singled out and why the government of Colombia
would be unwilling or unable to protect him if he and his family returned to
Colombia. Petitioners’ claim that it was unreasonable for the IJ to request more
objective and corroborative evidence is without merit; it was appropriate for the IJ
to seek the corroboration because Salinas’ testimony was vague as to why he felt
he would be persecuted if he returned to Colombia. Accordingly, we deny the
petition as to this claim.
II. CONCLUSION
We lack jurisdiction to consider Petitioners’ arguments pertaining to the
BIA’s denial of asylum, and Petitioners’ due process rights were not violated. The
one-year statutory deadline for filing an asylum application does not violate the
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Supremacy Clause. Finally, it was not unreasonable for the IJ to request
Petitioners to provide corroborative evidence on their withholding of removal
claim.
PETITION DISMISSED IN PART, PETITION DENIED IN PART.
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