Jimenez 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[DO NOT PUBLISH]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. 10-10847 FEB 25, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A099-036-943
CESAR JULIO ESLAVA JIMENEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 25, 2011)
Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:
Cesar Julio Eslava Jimenez, a native and citizen of Colombia, petitions for
review of the order by the Board of Immigration Appeals (“BIA”) affirming the
decision of the Immigration Judge (“IJ”). The IJ’s decision denied asylum and
withholding of removal.1 No reversible error has been shown; we deny the
petition.
We review the BIA’s decision in this case because the BIA did not
expressly adopt the IJ’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001) (noting that we review the BIA’s decision; but “[i]nsofar as the
[BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well”). We
review de novo legal determinations of the BIA. Id. Factual determinations are
reviewed under the “highly deferential” substantial evidence test; and we must
“affirm the . . . decision if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Forgue v. U.S. Attorney Gen., 401
F.3d 1282, 1286 (11th Cir. 2005) (citation omitted). To reverse a fact
determination, we must conclude “that the record not only supports reversal, but
compels it.” Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir.
2003).
An alien may obtain asylum if he is a “refugee,” that is, a person unable or
unwilling to return to his country of nationality “because of persecution or a well-
1
Jimenez raises no appellate challenge to the portion of IJ’s decision denying relief under
the Convention Against Torture; so that issue is abandoned. See Sepulveda v. U.S. Attorney
Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
founded fear of persecution on account of” a protected ground, including political
opinion. 8 U.S.C. §§ 1101(a)(42)(A); 1158(a)(1), (b)(1). The asylum applicant
bears the burden of proving statutory “refugee” status with specific and credible
evidence. Forgue, 401 F.3d at 1287. In part, the applicant must prove that the
alleged persecution or fear of persecution was “at least in part” motivated by a
protected ground. Sanchez Jimenez v. U.S. Attorney Gen., 492 F.3d 1223, 1233
(11th Cir. 2007).
Jimenez alleged that the Colombian Revolutionary Armed Forces (“FARC”)
persecuted him because of his political opinion, religion, and membership in a
particular social group. Jimenez had co-founded a Christian organization called
the Diamond Light and Love Foundation, which provided social services to poor
Colombians in rural areas. In November 1998, while meeting with a local leader,
Jimenez declared publicly that the Foundation opposed local guerilla groups.
Shortly thereafter, members of the FARC entered the Foundation’s compound and
threatened Jimenez and other Foundation members with death if the Foundation
did not support the guerillas and help spread the FARC’s message; Jimenez and
the other members refused to cooperate. After this incident, the police and the
army provided the Foundation with protection from the FARC.
3
The next month, members of the FARC fired shots into the Foundation’s
building and addressed the members by name, calling them “traitors” and
“snitches.” Jimenez described the incident as “a crossfire between the army and
the guerilla commando,” with the army intervening before the FARC was able to
enter the building. No Foundation member sustained physical harm during this
incident.
After this incident, the Foundation moved to a different town and changed
its name; but leaders in the organization (not Jimenez) were attacked and
threatened by the FARC. So, the Foundation then moved to Bogota and again
changed its name. And members continued to receive threatening phone calls
from the FARC. Jimenez never personally received a threatening phone call.
Jimenez helped to produce a weekly radio program. In 2005, people who
worked at the radio station told Jimenez that he had received, at the station, two
“pamphlets” from the FARC threatening him with death. Jimenez then moved to
the United States.
The BIA agreed with the IJ’s assessment that the events complained of by
Jimenez did not rise to the level of past persecution. The BIA also concluded that
Jimenez had not shown that the incidents alleged were motivated by a protected
ground but, instead, were motivated by the Foundation’s refusal to cooperate with
4
the FARC. And the BIA concluded that Jimenez showed no well-founded fear of
future persecution. On appeal, Jimenez argues that he established past persecution
and a fear of future persecution based on his political opinion.2
After review, we cannot say that the record compels the conclusion that
Jimenez suffered past persecution or has a well-founded fear of future persecution
because of his political opinion. Jimenez’s work with the Foundation centered on
providing social services to under-served Colombians. The Foundation was not
politically based and Jimenez provided no testimony about his political opinions
or political involvement. In addition, nothing indicates that the FARC even knew
the political leanings of Jimenez or the Foundation.3
Jimenez bases his argument that the FARC persecuted him because of his
political opinion on the public statement he made that the Foundation would
oppose guerilla groups and the FARC’s later threats to the Foundation that they
needed to change their philosophy to match the FARC’s. But the BIA reasonably
2
Jimenez also argues that we should review only the IJ’s decision because the BIA
summarily affirmed the IJ’s decision. But the BIA issued a separate opinion and did not
summarily affirm the IJ’s decision; so we review the BIA’s decision. See Al Najjar, 257 F.3d at
1284.
3
Jimenez indicated in his asylum application that he also sought relief based on his
religion and membership in a particular social group. But on appeal, he argues only that the
FARC persecuted him because of his political opinion. Thus, he abandons the other grounds for
relief. See Sepulveda, 401 F.3d at 1228 n.2.
5
concluded that the threats Jimenez received were because of his, and the
Foundation’s, refusal to cooperate with the guerillas and support their cause. And
refusal to cooperate with guerillas is insufficient to show a protected ground. See
Rodriguez Morales v. U.S. Attorney Gen., 488 F.3d 884, 891 (11th Cir. 2007)
(concluding that petitioner’s testimony that he told the FARC that he disagreed
with their cause could support an inference of persecution because of political
beliefs, but that the evidence equally supported an inference that he was threatened
simply because of his refusal to provide dental services); see also Ruiz v. U.S.
Attorney Gen., 440 F.3d 1247, 1258 (11th Cir. 2006) (evidence that is consistent
with the petitioner’s failure to cooperate with guerillas does not constitute
evidence of persecution based on a statutorily protected ground).4
Substantial evidence supports the BIA’s decision that Jimenez was
unentitled to asylum; and we are not compelled to reverse the BIA’s decision.
Jimenez’s failure to establish eligibility for asylum forecloses his eligibility for
withholding of removal. See Forgue, 401 F.3d at 1288 n.4. We deny the petition.
PETITION DENIED.
4
Because we conclude that the BIA reasonably determined that Jimenez showed no
protected ground, we need not address whether the incidents alleged rose to the level of past
persecution.
6