Miguel Angel Franco Romero v. U.S. Atty. General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 20, 2007
No. 07-11916 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A97-632-750 & A97-632-751
MIGUEL ANGEL FRANCO ROMERO,
MARIA JOSE FRANCO ARISTIZABAL,
CLAUDIA PATRICIA JUVINAO DUQUE,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 20, 2007)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Miguel Angel Franco Romero,1 a native and citizen of Colombia, petitions
for review of the decision of the Board of Immigration Appeals affirming the
Immigration Judge’s order denying his application for asylum and withholding of
removal.2
Romero was admitted to the United States on or about May 14, 2000 as a
nonimmigrant visitor with authorization to remain in the country until November
1, 2000. In late 2003, more than one year after arriving in the United States,
Romero filed an application for asylum, withholding of removal, and CAT relief.
Romero’s application asserted that he feared that the Revolutionary Armed Forces
of Columbia (FARC) would kill him or his family upon their return to Columbia
on account of his political opinion and membership in a particular social group.
The IJ determined that Romero was statutorily ineligible for asylum based
on the untimely filing of his application. Before discussing the merits of the rest of
Romero’s claims, the IJ found that Romero was “not credible,” and then went on to
1
Although Romero’s wife, Claudia Patricia Juvinao Duque, also appeals the BIA’s
decision, her claims are derivative of Romero’s. Romero’s daughter, Maria Jose Franco
Aristizabal, has withdrawn from the application. Accordingly, we will collectively refer to the
petitioners as “Romero.”
2
Romero does not raise any argument regarding the denial of his application for relief
under the Convention Against Torture in his brief to this Court. Romero has, therefore,
abandoned that issue. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005) (per curiam) (“When an appellant fails to offer argument on an issue, that issue is
abandoned.”).
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conclude “that [Romero’s] application does not support a grant of asylum let alone
a higher standard of withholding of deportation.” Citing the fact that Romero had
“never been arrested, detained, tortured, [or] physically mistreated,” the IJ
determined that Romero failed to establish past persecution and denied
withholding of removal.
The BIA adopted and affirmed the IJ’s decision with some changes.
Specifically, the BIA affirmed the IJ’s untimeliness determination and found that
Romero had “not shown that an exception would apply to the 1 year filing
requirement” because his “assertion that his relatives have experienced recent
problems in Colombia is not an indication of changed circumstances, but reflects
the same situation upon which he based his claims.” The Board did, however,
reverse the IJ’s adverse credibility determination, but went on to find that even
assuming the truth of Romero’s account, “he experienced no more than threats; his
experiences did not rise to the level of persecution.” Without more, the Board
additionally concluded that Romero could not establish a well-founded fear of
persecution. According to the Board, Romero’s “political activity was not shown
to be linked to the FARC’s . . . interest in him” and he failed to offer any
persuasive evidence “that his relative’s problems with the FARC would be directly
3
connected with him, or that the FARC was attempting to persecute the family as a
particular social group.”
I.
Romero initially contends that the BIA erred by affirming the IJ’s denial of
his application for asylum based on his failure to establish extraordinary or
changed country circumstances so as to justify an exception to the standard one-
year filing deadline for asylum applications. The government responds by arguing
that we lack jurisdiction to review the BIA’s ruling. We review de novo questions
of subject matter jurisdiction. See Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th
Cir. 2002).
In order to apply for asylum, an alien must “demonstrate[] 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 untimely
application may be permitted, however, if the alien “demonstrates . . . 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.” Id. § 1158(a)(2)(D). Pursuant to 8 U.S.C. § 1158(a)(3), “No court
shall have jurisdiction to review any determination of the Attorney General”
regarding the timeliness of an asylum application. This Court has held that §
4
1158(a)(3) divests us “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 v. U.S. Att’y
Gen., 327 F.3d 1283, 1287 (11th Cir. 2003); see also Fahim v. U.S. Att’y Gen.,
278 F.3d 1216, 1217 (11th Cir. 2002) (per curiam) (“Pursuant to 8 U.S.C. §
1158(a)(3), the Attorney General’s decision regarding whether an alien complied
with the one-year time limit or established extraordinary circumstances, such that
the time limit should be waived, is not reviewable by any court.”).
Nonetheless, Romero argues that some timeliness determinations are
“questions of law” that are properly reviewable under the REAL ID Act. He
contends that his appeal qualifies as a reviewable question of law because instead
of questioning the BIA’s findings of fact, he is challenging the legal conclusion
that those facts do not constitute changed or extraordinary circumstances.3
3
Romero additionally argues that we have jurisdiction because the IJ’s decision raises a
constitutional issue of due process by ignoring the agency’s own law relating to the exceptions to
the one-year filing requirement. Because he failed to specify what law the IJ allegedly ignored
and only attacked the IJ’s factual determination regarding changed circumstances, however,
Romero abandoned that issue on appeal. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d
1570, 1573 n.6 (noting that passing references to an issue are insufficient to raise an issue for
appeal, and that such issues are deemed abandoned).
5
The REAL ID Act was enacted in 2005, and instructs that ‘[n]othing in any
other provision of this Act which limits or eliminates judicial review, shall be
construed as precluding review of constitutional claims or questions of law” raised
in a petition for review. REAL ID Act of 2005, Pub. L. No. 109-13, §106(a), 119
Stat. 231, 310. Since that time, however, this Court has confirmed that the changes
implemented by the Real ID Act did not alter the effect of § 1158(a)(3) as it relates
to the timeliness issue. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th
Cir. 2005). In Chacon-Botero, we held that § 1158(a)(3) still divests this Court of
jurisdiction to review an untimeliness ruling because the “timeliness of an asylum
application is not a constitutional claim or question of law covered by the Real ID
Act’s changes.” Id.
The BIA determined that Romero filed his asylum application more than one
year after his arrival in the United States and further concluded that Romero failed
to prove changed or extraordinary circumstances justifying that untimely filing.
Because we lack jurisdiction to review the BIA’s decision that the application was
untimely or that changed circumstances did not exist, we dismiss the petition to the
extent that it asks us to review the asylum claim.
II.
Romero additionally argues that the BIA erred by finding that he failed to
6
establish eligibility for withholding of removal on account of his political opinion
and membership in a particular social group. The government contends that
Romero is precluded from raising these claims because he failed to exhaust
available administrative remedies by not contesting the issue of his eligibility for
withholding of removal before the BIA. Alternatively, the government argues that
the Board’s denial of Romero’s request for withholding of removal is supported by
substantial evidence in the record.
Under 8 U.S.C. § 1252(d)(1), “A court may review a final order of removal
only if . . . the alien has exhausted all administrative remedies available to the alien
as of right.” We view this exhaustion requirement as jurisdictional and, therefore,
“lack jurisdiction to consider claims that have not been raised before the BIA.”
Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003); see also Fernandez-Bernal v.
Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001) (determining that where an
alien failed to raise an issue before the BIA, we did not have jurisdiction to
consider that issue); Asencio v. INS, 37 F.3d 614, 615–16 (11th Cir. 1994) (“[A]
court lacks jurisdiction to consider a claim which has not first been presented to the
Board.”). The purpose of the requirement is to ensure that “the agency has had a
full opportunity to consider a petitioner’s claims and to allow the BIA to complete
a record which is adequate for judicial review.” Amaya-Artunduaga v. U.S. Att’y
7
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (internal quotation marks and citations
omitted).
In Alim v. Gonzales, 446 F.3d 1239 (11th Cir. 2006), we considered what is
required of a petitioner in order to properly raise a claim before the BIA and
thereby exhaust available administrative remedies. We held in Alim that the
petitioner failed to exhaust his administrative remedies with regards to his
application for cancellation of removal, but properly raised the issue of his
withholding of removal claim under 8 U.S.C. § 1231(b)(3) and the CAT. Id. at
1253–54. In determining that the petitioner did not exhaust administrative
remedies relating to the denial of his application for cancellation of removal, we
noted that in his brief to the Board, “Mr. Alim never discussed the merits of his
application . . . let alone the IJ’s basis for denying it.” Id. at 1253. We also found
it significant that “[n]either his procedural summary of the proceedings before the
IJ, nor his prayer for relief, mentioned his application for cancellation of removal.”
Id.With regards to his withholding of removal claim, however, we concluded
that the petitioner in Alim had exhausted his administrative remedies because his
“procedural summary of the case expressly stated that the issues decided by the IJ
‘concerned his applications for relief from withholding of removal under [INA]
8
section 241(b)(3)(A) . . . and protection under the Convention Against Torture.’”
Id. at 1254. Disagreeing with the government’s characterization of the petitioner’s
brief as making only passing references to the claim, we noted that his brief “also
recounts the IJ’s factual findings and legal conclusions” and made an argument that
could only have been relevant to the merits of his withholding of removal claim.
Id. Finally, we identified that the petitioner’s brief also “formally requests that the
BIA withhold removal under the INS and/or CAT, with specific references to the
applicable federal statutes.” Id.After reviewing Romero’s brief to the BIA, we conclude that he adequately
alerted the Board to the issue of his eligibility for withholding of removal on
account of membership in a particular social group, but not on account of his
political opinion. The “Case Summary” portion of Romero’s brief stated that the IJ
denied his application for asylum, withholding of removal and relief under the
CAT, although the brief did not discuss the IJ’s specific factual findings and legal
basis for denying that relief. In the prayer for relief, moreover, Romero requested
that the BIA “review the evidence in [the] case and grant the respondent political
asylum, or, in the alternative, withholding of removal to Colombia.” The argument
portion of the brief, however, solely concerned a due process argument made by
9
Romero in which he alleged that the IJ lacked impartiality and subjected him to “a
vicious and malevolent cross examination.”
Because Romero’s brief exclusively recounted his family’s troubles with the
FARC and only mentioned threats that he received in relation to his family’s
problems, we find that he failed to properly raise the denial of his withholding of
removal claim on account of his political opinion before the BIA. Although
Romero’s application for asylum stated that he was a sympathizer of and active
participant in the Liberal Party, nowhere in his brief to the BIA did Romero even
mention his political beliefs. The closest that Romero comes to discussing any of
his political connections was when he described his great uncle’s involvement in
promoting the PLANTE program, which encourages local farmers to cease
cultivating illegal crops in Colombia. But nothing in the brief connects his great
uncle’s conduct as the mayor of a local town to Romero’s own political activities.
Because he failed to properly raise the issue before the BIA, we lack jurisdiction to
review Romero’s withholding of removal claim on account of his political opinion
even though the BIA did end up reviewing that claim. See Amaya-Artunduaga,
463 F.3d at 1250–51 (holding that because the objectives of the exhaustion
doctrine would be frustrated, we lack jurisdiction “over a claim when an alien,
10
without excuse or exception, fails to exhaust that claim, but the BIA nonetheless
considers the underlying issue sua sponte”).
However, we do find that Romero’s brief adequately notified the BIA that
Romero wished to challenge the denial of his withholding of removal claim on
account of membership in a particular social group despite the notable absence of
any discussion of the merits of the claim. Like the petitioner in Alim, Romero
expressly stated in his procedural summary that the IJ denied his petition for
withholding of removal, although Romero did not recount the IJ’s specific factual
findings or legal conclusions on the merits of that claim. Romero’s prayer for
relief did, however, formally request that the Board grant him asylum or, in the
alternative, withholding of removal. Moreover, the “Case Summary” portion of
Romero’s brief recounted the problems that his family had encountered in
Colombia with the FARC, summarized the basis of his mother’s asylum
application, and stated that he had testified that he and his family received
telephone, mail, and personal threats. These references were relevant to the merits
of the denial of his petition for withholding of removal on account of his
membership in a particular social group. We therefore conclude that Romero’s
brief put the BIA on notice that he intended to challenge the denial of his
withholding of removal claim on account of his membership in a particular social
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group. Romero adequately exhausted his administrative remedies with respect to
that claim.
III.
Because we have jurisdiction to review Romero’s withholding of removal
claim on account of membership in a particular social group, we must determine
whether substantial evidence supports the BIA’s denial of that claim. When the
BIA issues a decision, we review only that decision, “except to the extent the BIA
expressly adopts the IJ’s decision.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001) (citation omitted). “Insofar as the [BIA] adopts the IJ’s reasoning,
we will review the IJ’s decision as well.” Id. (citation omitted).
“To the extent that the BIA’s [or IJ’s] decision was based on a legal
determination, [our] review is de novo.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d
814, 817 (11th Cir. 2004). However, we review any factual determinations under
the substantial evidence test, and we must “affirm the BIA’s decision if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.
2005) (internal quotation marks and citations omitted). The substantial evidence
test is “highly deferential” and does not permit us to “re-weigh the evidence from
scratch.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (quoting
12
Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001)). To reverse
a finding of fact, we must determine that “the record compels a reversal; the mere
fact that the record may support a contrary conclusion is not enough to justify
reversal.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
When an alien makes a withholding of removal claim, he cannot be removed
to a country if his life or freedom would be threatened in that country on account
of his race, religion, nationality, membership in a particular social group, or
political opinion. 8 U.S.C. § 1231(b)(3). To succeed on a withholding of removal
claim, the alien must establish that it is “more likely than not that [he] will be
persecuted or tortured upon being returned to [his] country.” Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (per curiam). This standard is
more stringent than the “well-founded fear” standard used to review applications
for asylum. Id. The petitioner must establish a nexus between the persecution and
the statutorily-listed factor. See Forgue, 401 F.3d at 1286 (holding that an alien
must show that he will be singled out for persecution on account of” a protected
ground in the asylum context).
Once an alien establishes past persecution on account of a protected ground,
“it is presumed that his life or freedom would be threatened upon return to his
country,” subject to rebuttal by the INS. Mendoza, 327 F.3d at 1287. If an alien
13
has not shown past persecution, however, he “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.” Id.While the INA does not define persecution, we have recognized that it “is an
‘extreme concept,’ requiring ‘more than a few isolated incidents of verbal
harassment or intimidation,’ and that ‘[m]ere harassment does not amount to
persecution.’” Sepulveda, 401 F.3d at 1231 (citation omitted). In Sepulveda, we
held that menacing telephone calls and threats to the alien, her family members,
and her colleagues did not rise to the level of past persecution. Id. We further
determined in Sepulveda that a bombing at the restaurant where the alien worked
did not compel a conclusion that the bombing was directed at the petitioner on
account of her political activity. Id. Similarly, in Silva, we found no persecution
where an alien received death threats in writing and by telephone and had the back
window of her car shot out by two men on a motorcycle. Silva, 448 F.3d at 1237.
By contrast, in Ruiz v. Gonzales, 479 F.3d 762 (11th Cir. 2006), we held
that an alien was persecuted where “the FARC beat him on two occasions,
telephoned threats to him, and held him against his will for 18 days.” Id. at 766.
Because the petitioner in Ruiz was not only threatened, but was also subjected to
14
multiple beatings and kidnaped, we found that the record compelled the conclusion
“that these events cumulatively amount[ed] to past persecution.” Id.In this case, substantial evidence supports the BIA’s conclusion that Romero
did not suffer past persecution, and nothing in the record compels a conclusion to
the contrary. Romero testified that the FARC activity that was specifically
directed towards him were threatening telephone calls, written notes, and
occasionally in-person verbal encounters. Romero admitted that he was never
physically harmed in any way. The verbal threats alone are insufficient to rise to
the level of persecution. See Silva, 448 F.3d at 1237; Sepulveda, 401 F.3d at 1231.
Nor do the threats compel the conclusion that it is more likely than not that, if he
returns to Colombia, Romero will be persecuted. See Sepulveda, 401 F.3d at 1232(determining that the evidence did not compel a conclusion that the petitioner had a
well-founded fear of future persecution based on menacing telephone calls and
threats because her “fear is not objectively reasonable”). Accordingly, we deny
Romero’s petition for review as to his withholding of removal claim on account of
membership in a particular social group.
IV.
In conclusion, we lack jurisdiction to review the petition for review as to
15
both the asylum claim and the withholding of removal claim on account of political
opinion and therefore DISMISS the petition insofar as it concerns those claims.
We DENY the petition for review insofar as it involves the withholding of removal
claim on account of membership in a particular social group.
DISMISSED IN PART AND DENIED IN PART.
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