Jorge Alonso Sanchez Zapata v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 16, 2005
No. 05-11847
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A95-886-023
& A95-886-024
JORGE ALONSO SANCHEZ-ZAPATA,
BLANCA MARGARITA MEJIA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 16, 2005)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Jorge Alonso Sanchez-Zapata petitions for review of the Board of
Immigration Appeals’ order adopting and affirming the immigration judge’s
decision to deny him asylum, withholding of removal under the Immigration and
Nationality Act, and protection under the United Nations Convention Against
Torture (“CAT relief”).1 We dismiss the petition in part and deny in part.
Zapata, a native and citizen of Columbia, contends that he is entitled to
asylum, withholding of removal, and CAT relief because he has been persecuted in
Columbia by the National Liberation Army (ELN) as a result of his political
opinion and membership in a community action group. The government contends
that we lack jurisdiction to hear Zapata’s claims for asylum because the IJ
determined that his application was untimely and no extraordinary circumstances
justified the untimely filing. The government also contends that we lack
jurisdiction to hear Zapata’s CAT relief and withholding of removal claims
because Zapata failed to exhaust his administrative remedies.
I.
We review subject matter jurisdiction de novo. Gonzalez-Oropeza v. U.S.
Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). As we explained in Balogun v.
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Zapata’s wife, Blanca Margarita Mejia, was also ordered removed, but she is not
mentioned as a petitioner in Zapata’s initial brief. Nonetheless, because the government
concedes that her application for asylum is derivative of her husband’s, our discussion of and
ruling on Zapata’s claims also apply to his wife’s petition.
2
U. S. Attorney General, 425 F.3d 1356 (11th Cir. 2005), the REAL ID Act
broadened the jurisdiction of the courts of appeals when we review final orders of
removal that involve constitutional claims or questions of law. Id. at 1359–60; see
also Real ID Act § 106(a)(1)(A)(iii), codified at 8 U.S.C. § 1252(a)(2)(D). We have
also recognized, however, that “[t]he timeliness of an asylum application is not a
constitutional claim or question of law covered by the Real ID Act’s changes.”
Chacon-Botero v. U. S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005).
Because the BIA adopted the IJ’s decision, we review only the IJ’s decision.
Chacon-Botero, 427 F.3d at 956 (“When the BIA issues a decision, we review only
that decision, except to the extent that the BIA expressly adopts the IJ’s decision.”)
(quoting Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001)) (quotation
marks omitted). The IJ determined that Zapata’s asylum application was untimely,
and so we have no jurisdiction to review that decision. See id. at 957.
An alien has timely filed for asylum if he “demonstrates by clear and
convincing evidence that the application has been filed within 1 year after the date
of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). An
application filed after one year also may be considered despite its untimeliness “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
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an application within the period specified . . . .” Id. § 1158(a)(2)(D). Nevertheless,
section 1158(a)(3) provides, “No court shall have jurisdiction to review any
determination of the Attorney General under paragraph (2).” Id. § 1158(a)(3); see
also Chacon-Botero, 427 F.3d at 954; Fahim v. U.S. Att’y Gen., 278 F.3d 1216,
1217–18 (11th Cir. 2002).
The IJ made a factual determination that Zapata’s application was untimely
and determined that he had failed to establish changed or extraordinary
circumstances that excused the untimely application. These determinations did not
involve any constitutional claims or questions of law. Therefore, we have no
jurisdiction to hear Zapata’s asylum claim and dismiss his petition in this respect.
See Chacon-Botero, 427 F.3d at 954.
II.
We may review a final order of removal only if an alien has exhausted all
available administrative remedies. See 8 U.S.C. § 1252(d)(1); Sundar v. INS, 328
F.3d 1320, 1323 (11th Cir. 2003). “We have interpreted that requirement to be
jurisdictional, so we lack jurisdiction to consider claims that have not been raised
before the BIA.” Id. (citations omitted).
We conclude that we have no jurisdiction to hear Zapata’s CAT relief claim,
but we do have jurisdiction to consider his withholding of removal claim. Zapata
made no reference to CAT relief in his brief before the BIA. Therefore, he failed to
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exhaust his administrative remedies with respect to CAT relief. Accordingly, we
lack jurisdiction to hear his CAT relief claims on appeal, and dismiss his petition in
that regard. See Bayro v. Reno, 142 F.3d 1377, 1379 (11th Cir. 1998) (holding that
if the BIA summarily dismisses a petitioner’s appeal because he did not address the
disputed issue in his brief, then the petitioner has not perfected his appeal to the
BIA and has not exhausted his administrative remedies); see also Fenandez-Bernal
v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001) (stating that failure to
raise an issue before the BIA results in this Court’s lack of jurisdiction over that
issue); Asencio v. INS, 37 F.3d 614, 615–16 (11th Cir. 1994) (noting that if a claim
has not been first presented to the BIA, this Court lacks jurisdiction over that
claim).
In his brief before the BIA, however, Zapata did argue that the IJ erred in
finding that Zapata failed to meet his burden of proof regarding persecution. His
brief before the BIA also set forth the relevant law with respect to withholding of
removal and noted that withholding of removal requires a higher burden of proof
than asylum. We conclude that Zapata exhausted his administrative remedies with
respect to the withholding of removal issue, and so we have jurisdiction to consider
this aspect of his petition for review.
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III.
To the extent that the IJ’s decision not to withhold Zapata’s removal was
based on a legal determination, our review is de novo. Mohammed v. Ashcroft, 261
F.3d 1244, 1247–48 (11th Cir. 2001). The IJ’s factual determinations are reviewed
under the substantial evidence test, and we “must affirm the [IJ’s] decision if it is
‘supported by reasonable, substantial, and probative evidence on the record
considered as a whole.’” Al Najjar, 257 F.3d at 1284 (citation omitted). The
substantial evidence test is “deferential” and does not allow us to “re-weigh the
evidence from scratch.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th
Cir. 2001) (quotation marks omitted). “To reverse the IJ’s fact findings, we must
find that the record not only supports reversal, but compels it.” Mendoza v. U.S.
Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003) (citation omitted).
“An alien seeking withholding of removal under the INA must show that his
life or freedom would be threatened on account of race, religion, nationality,
membership in a particular social group, or political opinion.” Mendoza, 327 F.3d
at 1287 (citing 8 U.S.C. § 1231(b)(3)(A)). “An alien bears the burden of
demonstrating that he more-likely-than-not would be persecuted or tortured upon
his return to the country in question.” Id.; see also 8 U.S.C. § 1231(b)(3)(A); 8
C.F.R. § 208.16(b). Although neither the INA nor the regulations define
“persecution,” we have recognized other circuits’ holdings that “persecution is an
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extreme concept, requiring more than a few isolated incidents of verbal harassment
or intimidation, and that mere harassment does not amount to persecution.”
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (internal
quotations omitted); Gonzales v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000).
An alien’s testimony, if credible, may be sufficient without corroboration to
sustain the burden of proof for withholding of removal. 8 C.F.R. § 208.16(b). In an
adverse credibility determination, however, when the IJ enumerates an applicant’s
inconsistencies and the record supports these findings, we will not substitute our
judgment for the IJ’s credibility findings. D-Muhumed v. U.S. Att’y Gen., 388
F.3d 814, 819 (11th Cir. 2004). Substantial evidence in the present case supports
the IJ’s adverse credibility determinations and the subsequent decision that Zapata
was not entitled to withholding of removal under the INA.
The IJ noted inconsistencies in Zapata’s testimony. For example, Zapata
testified that he was a member of the Community Action Board (CAB) of Barbosa.
After Zapata described the CAB’s function and structure, the IJ asked Zapata to
explain his involvement with the CAB, and Zapata replied that he was not actually a
member of the CAB but was a member of a community action group.
Zapata also testified that in February 1998 while he and his wife were
working at the store they owned, they heard loud noises that sounded like gunshots,
and they dropped to the floor, fearing for their lives. Later, a neighbor told Zapata
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that two people had come by on a motorcycle and had shot at the store. Zapata
reported this incident to the authorities, but the persons responsible were never
apprehended. Zapata testified that he moved around from place to place in
Colombia after the incident at his store occurred, but his asylum application
indicates that he lived at the same address in Medellin, Columbia from 1989 to
1999.
Zapata had only one face-to-face encounter with ELN at a community
meeting in La Chorrera in February 1998, and he was not harmed during his
encounter. He did not report this incident to the authorities. Although he testified
that he received threatening phone calls from ELN, Zapata provided sparse details
concerning these calls. The IJ concluded that, overall, Zapata’s testimony was
vague, general, and lacking in specific details.
The incidents Zapata testified about are best characterized as harassment and
intimidation, and do not rise to the level of persecution. See Sepulveda , 401 F.3d
at 1231. Moreover, his testimony and the evidence do not show that the assault on
his store occurred because of political opinion. See Elias-Zacarias, 502 U.S. at 483,
112 S. Ct. at 816 (requiring a petitioner to show that he was persecuted because of
his political opinion). Although the record demonstrates that Zapata was active in
political campaigns, it does not establish that he was persecuted because of his
political opinion.
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In denying Zapata’s request for withholding of removal, the IJ provided
specific, cogent reasons for his adverse credibility determination, and the record
supports the IJ’s findings. Zapata has failed to demonstrate that it is “more-likely-
than-not [that he] would be persecuted or tortured” if returned to Columbia.
Mendoza, 327 F.3d at 1287. Therefore, we affirm the IJ’s denial of Zapata’s
petition with respect to withholding of removal.
PETITION DISMISSED IN PART AND DENIED IN PART.
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