Edinson Sierra-Espita 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[DO NOT PUBLISH]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
NOV 30, 2006
No. 06-11699 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A96-270-299
EDINSON SIERRA-ESPITA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 30, 2006)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
Edinson Sierra-Espitia (Sierra), a native and citizen of Colombia, petitions
this Court for review of the Board of Immigration Appeals’ (BIA’s) order
affirming, without opinion, the immigration judge’s (IJ’s) final order of removal
and denial of asylum, withholding of removal, and relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (CAT). After review, we deny Sierra’s petition.
I. DISCUSSION
A. BIA’s Summary Affirmance
On review, Sierra first argues the BIA erred by affirming, without opinion,
the IJ’s decision. Specifically, Sierra contends the BIA’s order does not show
whether the BIA actually considered his claims and deprives him of the chance to
challenge the BIA’s reasoning.
We review constitutional challenges de novo. Lonyem v. U.S. Att’y Gen.,
352 F.3d 1338, 1341 (11th Cir. 2003). Aliens present in the United States are
entitled to due process under the Fifth Amendment. Bernal v. Att’y Gen., 257 F.3d
1304, 1311 (11th Cir. 2001). To establish a due process violation, an alien must
show he was deprived of liberty without due process of law and the asserted error
caused him substantial prejudice. Lonyem, 352 F.3d at 1341–42.
Under 8 C.F.R. § 1003.1(e)(4), a single member of the BIA may affirm,
without opinion, the decision of the IJ. We have previously rejected the argument
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that the BIA’s summary affirmance procedures deprive aliens of due process.
Lonyem, 352 F.3d at 1342; Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1288 (11th
Cir. 2003). We have noted “no entitlement to a full opinion by the BIA exists,”
and the fact “a single BIA member issued an affirmance without opinion (AWO)
does not demonstrate that he did not review the facts” of the case. Lonyem, 352
F.3d at 1342. We have also explained “meaningful review of the INS’s
removability determination is not precluded by the brevity of the BIA’s summary
affirmance decision because an appellate court ‘will continue to have the IJ’s
decision and the record upon which it is based available for review.’” Mendoza,
327 F.3d at 1289 (citing Albathani v. INS, 318 F.3d 365, 377 (1st Cir. 2003)).
Accordingly, we conclude the BIA did not violate Sierra’s due process rights
by summarily affirming the IJ’s decision.
B. Denial of Asylum, Withholding of Removal, and Relief Under CAT
Sierra also argues the IJ erred in finding he did not present sufficient
evidence to establish eligibility for the relief sought. He contends that, because the
IJ found Sierra’s testimony credible, the IJ contradicted herself when she found
Sierra failed to show past persecution. Sierra further argues the IJ made an
“unjustified inference” when she suggested Sierra might have been shot at by
“criminals or anybody else.” Sierra also points to cases from other circuits in
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which death threats by anonymous callers were considered sufficient evidence of
persecution. Additionally, Sierra contends the status of an appellant’s family is
irrelevant to the question of whether the fear of prosecution is valid, and therefore,
the IJ improperly based her conclusion on the fact that Sierra’s wife and daughter
had not been harmed. Sierra also maintains the IJ’s “obsessive insistence” on
corroboration was improper because there are cases in which such evidence is not
necessary or available, and the IJ gave no explanation regarding why it was
necessary in this case. Also, Sierra claims he showed he had at least a ten percent
chance of persecution if he returned to Colombia, which is all that is required to
meet the statutory requirements. Lastly, Sierra points to other circuits that have
held a petitioner can prove a well-founded fear of persecution by pointing to the
treatment of other similarly situated people, and, therefore, the IJ erred in requiring
Sierra to show he would be individually targeted.
Where, as here, the BIA summarily affirms the IJ’s decision without an
opinion under 8 C.F.R. § 1003.1(e)(4), the IJ’s decision becomes the final agency
determination subject to review. See Mendoza, 327 F.3d at 1284 n.1. To the
extent the IJ’s decision was based on a legal determination, we review the decision
de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). 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
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probative evidence on the record considered as a whole.” Al Najjar v. Ashcroft,
257 F.3d 1262, 1283–84 (11th Cir. 2001) (internal quotations omitted). We will
reverse a finding of fact “only when the record compels a reversal; the mere fact
that the record may support a contrary conclusion is not enough to justify a
reversal . . . .” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004).
1. Asylum
An alien who arrives in or is present in the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). The Attorney General and the Secretary of
Homeland Security have discretion to grant asylum if the alien meets the INA’s
definition of a “refugee.” 8 U.S.C. § 1158(b)(1).
A “refugee” is:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, 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). The asylum applicant carries the burden of proving
statutory “refugee” status. See Al Najjar, 257 F.3d at 1284.
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An alien is entitled to asylum if he can establish, with specific and credible
evidence, (1) past persecution on account of political opinion or other statutorily
listed factor, or (2) a well-founded fear that his political opinion or other statutorily
listed factor will cause future persecution. 8 C.F.R. § 208.13(b); Al Najjar, 257
F.3d at 1287. If a petitioner demonstrates past persecution, he is presumed to have
a well-founded fear of future persecution unless the government can rebut this
presumption by showing a fundamental change in circumstances in the country or
the ability to avoid future persecution by relocating within the country. 8 C.F.R.
§ 208.13(b)(1).
If a petitioner cannot show past persecution, he must demonstrate a well-
founded fear of future persecution that is both subjectively genuine and objectively
reasonable. See Al Najjar, 257 F.3d at 1289. The subjective component can be
proved “by the applicant’s credible testimony that he or she genuinely fears
persecution,” while the objective component “can be fulfilled either by establishing
past persecution or that he or she has a good reason to fear future persecution.” Id.(internal quotations omitted). After establishing a well-founded fear of
persecution, a petitioner must also establish the persecution cannot be avoided by
relocating within the country. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231
(11th Cir. 2005). A petitioner’s claim that he cannot safely relocate in his home
country to avoid future persecution is undermined by evidence that his family
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remained without incident in the same region where the petitioner had allegedly
been threatened. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir.
2006).
Although the INA does not expressly define “persecution” for purposes of
qualifying as a “refugee,” see 8 U.S.C. § 1101(a)(42), we have stated that
“persecution is an extreme concept, requiring more than a few isolated incidents of
verbal harassment or intimidation.” Sepulveda, 401 F.3d at 1231 (internal
quotations omitted).
Substantial evidence supports the IJ’s finding that Sierra did not show past
persecution. Although Sierra testified he had received threatening phone calls
from members of the Revolutionary Armed Forces of Colombia (FARC) informing
him that he and his family would be killed if he did not cease his political activity,
we have held menacing phone calls and threats do not rise to the level of past
persecution. Id. Likewise, Sierra’s testimony that two FARC members threatened
him once in person is not sufficient evidence of persecution. Sierra also points to
an incident in which he was shot at by two men on a motorbike. Sierra concluded
that the men must have been FARC members because he did not have any other
enemies. Although the timing of the incident permits an inference that the shooters
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were FARC members targeting Sierra for his political beliefs, the record does not
compel this conclusion.
Substantial evidence also supports the IJ’s finding that Sierra did not show a
well-founded fear of future persecution. While Sierra may subjectively fear future
prosecution, the evidence in the record does not demonstrate that his fear is
objectively reasonable. The FARC began targeting Sierra in early 2002, when
Sierra began holding meetings at his restaurant in support of the presidential
campaign of Alvaro Uribe, a liberal party candidate who is now the president of
Colombia. In mid 2002, however, Sierra sold his restaurant and left Colombia.
Sierra testified that, prior to campaigning for Uribe, he did not receive any threats
from the FARC. Additionally, although Sierra testified that his wife received
menacing phone calls after he left the country, he also admitted that the phone calls
ceased in 2003 and his wife and daughter remain unharmed in Colombia. Further,
Sierra produced no evidence that he would again be involved in politics if he
returned to Colombia. Because the evidence in the record does not compel the
conclusion that Sierra’s fear is objectively reasonable, the IJ’s decision to deny
asylum is supported by substantial evidence.
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2. Withholding of Removal
An alien is entitled to withholding of removal under the INA 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. Mendoza, 327 F.3d
at 1287; 8 U.S.C. § 1231(b)(3)(A). As a general rule, however, 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 deportation.” Al
Najjar, 257 F.3d at 1292–93 (internal quotations omitted). Because Sierra failed to
establish a well-founded fear of persecution sufficient to support his asylum claim,
he also failed to satisfy his burden for withholding of removal.
3. Relief Under CAT
To obtain relief under the 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). 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.
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Id. § 208.18(a)(1). Because the standard for relief under CAT relief is higher than
the standard for asylum, a petitioner who fails to establish eligibility for asylum is
usually unable to carry his burden for relief under CAT. See Al Najjar, 257 F.3d at1303–04. Because Sierra failed to establish his eligibility for asylum, his claim for
relief under CAT also fails.
II. CONCLUSION
The BIA did not violate Sierra’s due process rights by summarily affirming
the IJ’s decision. Additionally, substantial evidence supports the IJ’s finding that
Sierra is not entitled to asylum, withholding of removal, or relief under CAT.
PETITION DENIED.
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