German Andres Morales Rodriguez 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[DO NOT PUBLISH]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
January 30, 2006
No. 05-10622 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A79-443-724
GERMAN ANDRES MORALES RODRIGUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(January 30, 2006)
Before ANDERSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Colombian native and citizen German Andres Morales Rodriguez petitions
for review of the Board of Immigration Appeals’ (BIA’s) affirmation of the
immigration judge’s (IJ’s) order of removal and denial of asylum and withholding
of removal under the Immigration and Nationality Act (INA) and the Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(CAT). Morales Rodriguez asserts neither the IJ, nor the Government, questioned
his credibility at his asylum hearing. He further asserts he is eligible for asylum
and withholding of removal because he was persecuted as a result of his
membership in the social group of business owners and his imputed political
opinion. Morales Rodriguez further contends he qualifies for CAT relief because
guerilla movements in Colombia, such as the Revolutionary Armed Forces of
Colombia (FARC), constitute the government there and because he demonstrated
fear under CAT. We deny Morales Rodriguez’s petition.
I. DISCUSSION
A. Asylum and Withholding of Removal
As an initial matter, 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) (citation omitted). We can review a final order of
removal only if “the alien has exhausted all administrative remedies available to
the alien as of right . . . .” 8 U.S.C. § 1252(d)(1). Accordingly, we lack
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jurisdiction to consider claims not raised before the BIA. See Fernandez-Bernal v.
Attorney Gen. of the U.S., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001).
When the BIA issues a decision, we review only that decision, “except to the
extent that it expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). Here, the BIA did not expressly adopt the decision of
the IJ. To the extent the BIA’s decision was based on a legal determination, review
is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247–48 (11th Cir. 2001).
The BIA’s factual determinations, however, are reviewed under the “highly
deferential substantial evidence test,” which requires us to “view the record in the
light most favorable to the [BIA]’s decision and draw all reasonable inferences in
favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir.
2004) (en banc), cert. denied, 125 S. Ct. 2245 (2005). We “must affirm the BIA’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 (11th Cir. 2001)
(citation omitted). With respect to corroborating evidence, the REAL ID Act of
2005 provides, “[n]o court shall reverse a determination made by a trier of fact
with respect to the availability of corroborating evidence . . . unless the court finds
. . . a reasonable trier of fact is compelled to conclude that such corroborating
evidence is unavailable.” REAL ID Act of 2005 § 101(e), Pub. L. No. 109-13, 119
Stat. 231, 305 (2005).
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In order to review a credibility determination, it must first be established the
IJ made an adverse credibility finding. See Yang v. U.S. Attorney Gen., 418 F.3d
1198, 1201 (11th Cir. 2005). “IJ’s must make ‘clean determinations of
credibility.’” Id. (citation omitted). Furthermore, in Yang, we held the IJ’s
reference to petitioner’s claim as a “ridiculous fabrication” and comment
petitioner’s testimony was “extremely inconsistent and made absolutely no sense
whatsoever” was not an explicit adverse credibility finding. Id. (alteration
omitted).
An alien who arrives in, or is present in, the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). The Secretary of Homeland Security and the
Attorney General have the discretion to grant asylum if the alien meets the INA’s
definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A “refugee” is defined as:
any person who is outside any country of such person’s nationality . . .
and who is unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion . . . .
8 U.S.C. § 1101(a)(42)(A). We have noted that, to establish a claim of persecution
on account of the protected ground of political opinion, the petitioner “must
establish that the [persecutors] persecuted her or will seek to persecute her in the
future because of her actual or imputed political opinion. It is not enough to show
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that she was or will be persecuted or tortured due to her refusal to cooperate with
the [persecutors].” Sanchez v. U.S. Attorney Gen., 392 F.3d 434, 438 (11th Cir.
2004) (internal citation omitted).
The asylum applicant carries the burden of proving statutory “refugee”
status. 8 C.F.R. § 208.13(a). To establish asylum eligibility, the alien must, with
specific and credible evidence, establish (1) past persecution on account of a
statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor
will cause future persecution. 8 C.F.R. § 208.13(b)(1), (2). To show he has a well-
founded fear of future persecution, an alien must demonstrate (1) he fears
persecution based a protected ground, (2) there is a reasonable possibility he will
suffer persecution if removed to his native country, and (3) he is unable or
unwilling to return to that country because of such fear. 8 C.F.R. § 208.13(b)(2).
Additionally, “an applicant must demonstrate that his . . . fear of persecution is
subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289.
An IJ may grant withholding of removal if the IJ decides, that if returned to
his country, the alien’s 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 burden of proof is on the alien to show his eligibility
for withholding of removal. 8 C.F.R. § 208.16(b). An alien is entitled to
withholding of removal if he can establish, with specific and credible evidence:
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(1) a past threat to life or freedom through proof of past persecution on account of
a protected ground, or (2) a future threat to life or freedom if it “is more likely than
not” the protected ground will cause future persecution. 8 C.F.R. § 208.16(b)(1),
(2). Because this standard is more stringent than the “well-founded fear” standard
for asylum, if an applicant is unable to meet the “well-founded fear” standard for
asylum, he is generally precluded from qualifying for either asylum or withholding
of removal. Al Najjar, 257 F.3d at 1292–93.
In this case, Morales Rodriguez did not present to the IJ or the BIA his claim
for asylum on account of his membership in a particular social group. Therefore,
he has failed to exhaust his administrative remedies with regard to this claim, and
we lack jurisdiction to consider it. See Fernandez-Bernal, 257 F.3d at 1317 n.13.
As a result, we will only consider Morales Rodriguez’s claim he was persecuted
and has a well-founded fear of persecution in Colombia based on his political
opinion.
Morales Rodriguez did not present any corroborating evidence to the IJ, and
applying the deferential standard of review from the REAL ID Act, we are not
compelled to conclude that any corroborating evidence in support of Morales
Rodriguez’s claim was unavailable at the time of his hearing. See REAL ID Act of
2005, Pub. L. No. 109-13, 119 Stat. at 305. In addition, neither the IJ nor the BIA
made an explicit credibility finding about Morales Rodriguez as described in Yang.
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Therefore, we do not reach the issue of whether the IJ or BIA erred in adversely
determining Morales Rodriguez’s credibility. See Yang, 418 F.3d at 1201.
Furthermore, substantial evidence supports the determination that Morales
Rodriguez failed to establish past persecution or a well-founded fear of future
persecution based on his political opinion. During his credible fear interview,
Morales Rodriguez stated the FARC threatened to kill him if he did not pay the
amount ordered. The FARC did not ask him for anything other than money, nor
did they ever discuss politics or whether he supported them. In his asylum
application, Morales Rodriguez stated the FARC contacted him to pay a “war tax”
used to support the FARC’s causes and about two weeks later, the FARC
investigated him and concluded he was a member of the Liberal Party. Likewise,
during his asylum hearing, Morales Rodriguez testified the FARC tried to extort
money from him, and only after he failed to pay them the full amount demanded
did they declare him a “military objective” who would be killed. Therefore,
substantial evidence supports the IJ’s conclusion Morales Rodriguez had not met
his burden of proving eligibility for asylum because he failed to show that he
suffered persecution, or had a well-founded fear of future persecution, on account
of his political opinion. See Sanchez, 392 F.3d at 438 (explaining although the
record contained evidence the FARC harassed a petitioner due to her refusal to
cooperate with them, such evidence did not qualify the petitioner for withholding
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of removal under the INA because she failed to show any nexus between her
political opinion and the FARC’s persecution).
Accordingly, Morales Rodriguez has failed to meet his burden of proof with
respect to his asylum claim. Because he has failed to demonstrate he is eligible for
asylum, Morales Rodriguez necessarily has failed to meet the higher burden of
proof required for withholding of removal. See Al Najjar, 257 F.3d at 1292–93.
Therefore, we deny Morales Rodriguez’s petition as to his asylum and withholding
of removal claims.
B. CAT Relief
In order to obtain relief under the CAT, the burden is on the applicant to
establish it is “more likely than not” he will be tortured in the country of removal.
8 C.F.R. § 208.16(c)(2). Torture is defined as
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
8 C.F.R. § 208.18(a)(1). In Sanchez, we held in order “[t]o demonstrate eligibility
for CAT protection, an applicant must show that it is more likely than not that she
will be tortured in her home country at the hands of her government or that her
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government will acquiesce in the torture,” and rejected the applicant’s application
because she presented no evidence on either point. 392 F.3d at 438. CAT relief
carries a higher legal standard than asylum, and thus is very difficult to meet. Al
Najjar, 257 F.3d at 1303.
There is nothing in the record to suggest, including any allegations by
Morales Rodriguez, that he was previously tortured by the FARC with the consent
or acquiescence of the Colombian government. Likewise, there is nothing in the
record to suggest he “more likely than not” would be tortured by the FARC with
the consent or acquiescence of the Colombian government upon his return to
Colombia. Consequently, because Morales Rodriguez did not present any
evidence that any alleged harm was “inflicted at the instigation of or with the
consent or acquiescence of a public official,” he has not established eligibility for
CAT relief. See Sanchez, 392 F.3d at 438.
II. CONCLUSION
Substantial evidence supports the BIA’s decision that Morales Rodriguez is
not entitled to asylum, withholding of removal, or CAT relief. We deny Morales
Rodriguez’s petition for review.
PETITION DENIED.
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