Jose Julian Hoyos v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10354 AUGUST 14, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA No. A96-093-919
JOSE JULIAN HOYOS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 14, 2006)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Jose Julian Hoyos, a citizen of Colombia, petitions through counsel for
review of the Board of Immigration Appeals’s (“BIA”) decision adopting and
affirming the Immigration Judge’s (“IJ”) order denying his application for asylum
and withholding of removal. Hoyos argues on appeal that he demonstrated,
through testimonial and documentary evidence, past persecution and a well-
founded fear of persecution. Specifically, Hoyos contends that the Armed
Revolutionary Forces of Colombia (“FARC”) persecuted him by means of
telephonic threats and a physical confrontation. Hoyos claims he was targeted
because the radio station for which he worked (1) “advocated for alternative forms
of crops, instead of the FARC-supported cultivation of illicit crops”; (2) “overtly
supported the campaign of Alvaro Uribe-Velez, an outspoken enemy of the
FARC”; and (3) refused to support the FARC with contributions.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). Here, the BIA expressly adopted the IJ’s decision “to
the extent the [IJ] determined the respondent did not meet the burden of proof for
asylum, withholding of removal, or protection under the Convention Against
Torture.” Accordingly, we review the IJ’s decision. Insofar as the IJ’s decision
was based upon a legal determination, our review is de novo. See 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
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decision “if it is supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Najjar, 257 F.3d at 1284 (internal quotes and
citation omitted); Antipova v. U.S. Att’y Gen., 392 F.3d 1259, 1261 (11th Cir.
2004) (quotation 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) (considering withholding of removal claim).
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 has discretion to grant
asylum if the alien meets the Immigration and Nationality Act’s (“INA”) definition
of “refugee.” Id. § 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 . . . .
Id. § 1101(a)(42)(A). The burden of proof is on the alien to establish that he is a
refugee by offering “credible, direct, and specific evidence in the record.” Forgue
v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (internal quotes and
citation omitted).
Initially, we note that “IJ[s] must make clean determinations of credibility.”
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Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005) (internal quotes
omitted). Here the IJ found, based upon the whole of the evidence, that Hoyos’s
credibility was “somewhat diminished.” Although the government contends that
this amounted to an adverse credibility finding, the IJ also stated that he “did not
find [Hoyos] to be incredible.” In any event, the thrust of the IJ’s analysis focused
on the insufficiency of evidence to support eligibility for asylum or withholding of
removal, not credibility issues. See id. We therefore assume that the IJ’s
credibility determinations were not dispositive of Hoyos’s case, and will focus on
the merits of his claim. See id.To establish asylum eligibility, an 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 such future
persecution. 8 C.F.R. § 208.13(a), (b); Najjar, 257 F.3d at 1287. If the alien
establishes past persecution, it is presumed that his life or freedom would be
threatened upon a return to that country unless the government shows by a
preponderance of the evidence that the country’s conditions have changed such
that the applicant’s life or freedom would no longer be threatened upon his
removal or that the alien could relocate within the country and it would be
reasonable to expect him to do so. 8 C.F.R. § 208.13(b). An alien who has not
shown past persecution may still be entitled to asylum if he can demonstrate a
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future threat to his life or freedom on a protected ground in his country. Id. §§
208.13(b)(2), 208.16(b)(2). To establish a “well-founded fear,” “an applicant must
demonstrate that his or her fear of persecution is subjectively genuine and
objectively reasonable.” Najjar, 257 F.3d at 1289.
A request for withholding of removal requires an alien to show that his life
or freedom would more likely than not be threatened in his country of origin on
account of race, religion, nationality, membership in a particular social group, or
political opinion. 8 U.S.C. § 1231(b)(3); Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1232 (11th Cir. 2005) (per curiam). “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.” Mendoza, 327 F.3d at 1287. Where a
claimant fails to establish eligibility for asylum, which carries a lower burden of
proof than for the withholding of removal, he likewise fails to establish eligibility
for withholding of removal. See Najjar, 257 F.3d at 1293.
“The statutes governing asylum and withholding of removal protect not only
against persecution by government forces, but also against persecution by
non-governmental groups that the government cannot control, such as the FARC.”
Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (per curiam). Hoyos
contends that the FARC persecuted him because, at the radio station where he
worked: (1) he participated in programs advocating the growth of medicinal and
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aromatic plants instead of coffee or illicit drugs; (2) he helped the radio station
promote Colombian Liberal Party candidate Alvaro Uribe-Velez for the
presidency, because that candidate strongly opposed guerillas; and (3) the radio
station refused to pay the FARC a “war tax.” Evidence that “merely shows that a
person has been a victim of criminal activity,” such as extortion, “does not
constitute evidence of persecution based on a statutorily protected ground.” Id. at
1258. However, “[a]n imputed political opinion, whether correctly or incorrectly
attributed, may constitute a ground for a ‘well founded fear’ of political
persecution within the meaning of the INA.” Najjar, 257 F.3d at 1289 (citations
omitted). “Demonstrating such a connection 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 such an opinion.” Id. at 1287 (internal quotes omitted).
An asylum applicant may not show merely that he has a political opinion, but must
show that he was persecuted because of that opinion. INS v. Elias-Zacaris, 502
U.S. 478, 482, 112 S. Ct. 812, 816, 117 L. Ed. 2d 38 (1992). “It is not enough to
show that [he] was or will be persecuted or tortured due to [his] refusal to
cooperate with the guerillas.” Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th
Cir. 2004) (per curiam).
The only complaint Hoyos presents that arguably involves a protected
ground is that the FARC threatened him based on his involvement in radio
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broadcasts supporting the campaign of Alvaro Uribe-Velez. Even so, his receipt
by telephone of six or seven threats against his life and the lives of family
members, the issuance of a bomb threat against the radio station, and one
encounter with a man identifying himself as part of the FARC do not rise to the
level of persecution, or establish a well-founded fear of future persecution.
“[P]ersecution is an extreme concept, requiring more than a few isolated instances
of verbal harassment or intimidation . . . .” Sepulveda, 401 F.3d at 1231 (internal
quotes and citation omitted). There is no indication that the FARC ever attempted
to carry out any of the threats Hoyos received, and neither he nor his family were
physically harmed. See id. In fact, Hoyos’s wife and two daughters remain in
Colombia, and he testified that he did not think they were in danger of being
harmed by the FARC when he left the country on business. See Ruiz, 440 F.3d at
1259. Furthermore, his sisters who live in Colombia have continued to collaborate
with the Liberal Party. Thus, substantial evidence supports the IJ’s decision that
Hoyos was not entitled to asylum, and Hoyos has not shown that the record
compels the opposite conclusion. Because eligibility for asylum carries a lower
burden of proof than for withholding of removal, the latter claim must also fail.
See Najjar, 257 F.3d at 1293.1
1
Hoyos does not argue on appeal that he was entitled to relief under the Convention
Against Torture (“CAT”). Even if he did, his failure to establish an asylum claim on the merits
indicates that a CAT claim would likewise fail. See Forgue, 401 F.3d at 1288 n.4.
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PETITION DENIED.
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