Blanca Hincapie-Cadavid 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[DO NOT PUBLISH]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
No. 04-15255 ELEVENTH CIRCUIT
Non-Argument Calendar June 28, 2005
________________________ THOMAS K. KAHN
CLERK
Agency Docket Nos. A79-098-152
A79-098-153
BLANCA L. HINCAPIE-CADAVID,
JUAN FERNANDO BENAVIDES HINCAPIE, et al.,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Petition for Review from a Final Order
of the Board of Immigration Appeals
_________________________
(June 28, 2005)
Before BIRCH, HULL and WILSON, Circuit Judges.
PER CURIAM:
Blanca Hincapie-Cadavid, Juan Fernando Benavides Hincapie, and
Sebastian Benavides Hincapie,1 Colombian citizens appearing pro se, petition for
review of the Board of Immigration Appeals’ (“BIA”) order affirming the
Immigration Judge’s (“IJ”) denial of asylum and withholding of removal under the
Immigration Nationality Act (“INA”) and the United Nations Convention Against
Torture and other Cruel, Inhumane, and Degrading Treatment or Punishment
(“CAT”).2 The IJ’s decision held that Hincapie-Cadavid was not entitled to
asylum because she failed to demonstrate that she was targeted by the guerillas on
account of her membership in a social group–i.e., convenience shop owners–as
opposed to being targeted because of monetary or economic reasons. We
AFFIRM.
1
Hincapie-Cadavid is the primary applicant. Her children are derivative applicants, and,
therefore, rely on Hincapie-Cadavid’s asylum application. Accordingly, this opinion will refer to
Hincapie-Cadavid and her claims for relief.
2
Because Hincapie-Cadavid’s removal proceedings commenced after 1 April 1997, the
permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.
L. 104-208, 110 Stat. 3009 (1996), apply.
2
I. BACKGROUND
On 19 March 2001, the Immigration and Naturalization Service (“INS”)3
served Hincapie-Cadavid with a notice to appear (“NTA”) that charged her with
(1) being an alien who, by fraud or willful misrepresentation of a material fact,
sought to procure a visa, other documentation, or admission into the United States4
in violation of INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), and (2) being
an immigrant who was not in possession of a valid entry document and a valid
passport when she applied for admission into the United States, in violation of
INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). Additionally, the INS
conducted a credible fear interview in which Hincapie-Cadavid indicated she had
been persecuted by a guerilla group she referred to as “criminal leftists” on the
basis of her political opinion. She indicated the guerillas stole from her,
threatened her family, and extorted money from her.
Hincapie-Cadavid subsequently applied for asylum and withholding of
removal based on her membership in a social group. On her application, she
3
On 25 November 2002, President Bush signed into law the Homeland Security Act of 2002
(“HSA”), Pub. L. No. 107-296, 116 Stat. 2125. The HSA created a new Department of Homeland
Security (“DHS”), abolished the INS, and transferred its functions to the new department. However,
because this case was initiated while the INS was still in existence, this opinion refers to the agency
as the INS.
4
The NTA alleged that Hincapie-Cadavid misrepresented that she was a passenger without
a visa enroute to Madrid, Spain, when her intentions were to remain in the United States.
3
claimed to be a small shopkeeper who was harassed by gangs of guerillas who
demanded money from her. She claimed that another similarly situated shopkeeper
who refused the demands of the gangs was killed in February of 2000 and that she
feared the same fate if she returned to Colombia.
At the asylum hearing, Hincapie-Cadavid testified that she and her husband
ran a small shop in Colombia for eight years. Further, she testified that they did
not participate in any political, social, or labor groups. About two years before
leaving Colombia, the guerillas began harassing her and her family by stealing her
husband’s motorcycle, extorting money from her, and robbing her store. During
one robbery, the guerillas appeared in her store with machine guns and took all the
money in the store. After this incident, she testified that she decided to leave
Colombia.
In addition to her testimony, the 2002 State Department Country Report for
Colombia was entered into the record at the asylum hearing. The report indicated
that guerillas continued to target business owners and that kidnapping was a major
source of revenue for the groups. Specifically, the Colombian Revolutionary
Armed Forces (“FARC”) had a policy to require persons with more than $1
million in assets to pay money to FARC or risk kidnapping.
4
After reviewing the evidence, the IJ concluded that Hincapie-Cadavid was
not entitled to asylum because she failed to demonstrate that she was targeted by
the guerillas on account of her status as a convenience shop owner, as opposed to
being targeted because of monetary or economic reasons. The BIA affirmed
without opinion.
II. DISCUSSION
On appeal, Hincapie-Cadavid asserts that the IJ erred in concluding that she
was not entitled to asylum on account of past persecution and a well-founded fear
of persecution because the guerillas came into her store on several occasions and
robbed her of her money, and had she not paid them, her children would have
suffered. She also contends that the IJ erred in denying her withholding of
removal claim.
A. Asylum Claim
On appeal, Hincapie-Cadavid argues that the IJ erred in concluding that she
was not entitled to asylum because she failed to demonstrate that she was
persecuted on account of her membership in a social group. The BIA’s factual
determinations are reviewed 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.’” Sepulveda v. United
5
States Attorney Gen., 401 F.3d 1226, 1230 (11th Cir. 2005) (per curiam). We
review only the BIA’s decision, except when it adopts the IJ’s decision, such that a
review of that decision is warranted. Id. Under this highly deferential standard of
review, the IJ’s decision must be deferred to as supported by substantial evidence,
unless the evidence compels a reasonable fact finder to find otherwise. Id.An alien is eligible for asylum if she is a refugee within the meaning of INA
§ 101(a)(42)(A). INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” includes
any person who is unwilling to return to, and is unable or unwilling to avail herself
of the protection of, the country of her nationality or where she last habitually
resided, 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. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The burden of proof is
on the alien to establish that she is a refugee. 8 C.F.R. § 208.13(a). An alien may
establish eligibility for asylum if she shows that she has suffered past persecution
or has a well-founded fear of future persecution. § 208.13(b); Al Najjar v.
Ashcroft, 257 F.3d 1262, 1287 (11th Cir. 2001).
While the INA does not define persecution, courts have generally held that
persecution is “punishment or the infliction of harm for political, religious, or
other reasons that this country does not recognize as legitimate.” See, e.g. Tamas-
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Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000). “[P]ersecution encompasses
more than threats to life or freedom; non-life threatening violence and physical
abuse also fall within this category.” Id. We have stated that mere harassment is
not persecution, and persecution requires “‘more than a few isolated incidents of
verbal harassment or intimidation.’” Sepulveda, 401 F.3d at 1231; see also Nelson
v. INS, 232 F.3d 258, 263 (1st Cir. 2000) (stating that persecution “must rise
above unpleasantness, harassment, and even basic suffering”).
Past persecution includes persecution that occurred in the applicant’s
country in the past “on account of . . . political opinion,” and the applicant “is
unable or unwilling to return to, or avail . . . himself of the protection of, that
country owing to such persecution.” 8 C.F.R. § 208.13(b)(1), (b)(2). A “well-
founded fear” of persecution may be established by showing, (1) past persecution
that creates a presumption of a “well-founded fear” of future persecution, which
may be rebutted with proof that, inter alia, the alien could relocate and it would be
reasonable to expect the alien to do so, (2) a reasonable possibility of future
personal persecution that cannot be avoided by relocating within the subject
country, or (3) a pattern or practice in the subject country of persecuting members
of a statutorily defined group of which she is part. 8 C.F.R. § 208.13(b)(1) & (2).
The well-founded fear inquiry requires the alien to demonstrate that his or her fear
7
of persecution “‘is subjectively genuine and objectively reasonable.’” Sepulveda,
401 F.3d at 1231.
Further, the alien must establish a causal connection between the statutory
ground and the feared persecution by presenting “‘specific, detailed facts showing
a good reason to fear that he or she will be singled out for persecution on account
of [the statutory ground].’” Id. (emphasis in original). Finally, after establishing a
well-founded fear of persecution, the alien must demonstrate that he or she cannot
avoid the persecution by relocating within the country. Id.In the case at bar, substantial evidence exists to support the IJ’s decision
that Hincapie-Cadavid was not targeted because of her status as a convenience
shop owner but was targeted by the guerillas because of economic and monetary
reasons. First, Hincapie-Cadavid admitted in her credible fear interview that the
“criminal leftists” stole from her and made threatening phone calls demanding that
she pay them money as a tax or protection money. Further, she stated that she was
threatened by the guerillas who demanded money from her and threatened to
kidnap her children.
Second, Hincapie-Cadavid admitted that the two times her family had come
into contact with the guerillas, the guerillas either stole something or stole money
from her store. She also testified that these people continued to demand money
8
from her and her husband, and that they were being extorted by the guerillas
because their store made a lot of money. Although Hincapie-Cadavid stated that
this was happening to other store owners, she never provided any evidence that the
guerillas targeted her because she was a store owner, as opposed to targeting her
because they wanted to obtain large amounts of money from her. Therefore,
substantial evidence exists to support the IJ’s conclusion that Hincapie-Cadavid
was targeted for monetary or economic reasons, and not because she was a
member of a social group.
B. Withholding of Removal Claim
Hincapie-Cadavid further contends that the IJ erred in denying her
withholding of removal claim. In a withholding of removal claim, an alien will
not be removed to a country if her life or freedom would be threatened on account
of race, religion, nationality, membership in a particular social group, or political
opinion. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3)(A). The alien must show that it
is “‘more likely than not’ that she will be persecuted or tortured upon being
returned to her country.” Sepulveda, 401 F.3d at 1232. The withholding of
removal standard under the INA and the CAT is more stringent than the “well-
founded fear” standard for asylum; thus, if an applicant is unable to meet the
“well-founded fear” standard for asylum, she generally is unable to qualify for
9
withholding of removal. Id. at 1232-1233. A court may review a final order of
removal only if the alien has exhausted all administrative remedies available to her
as of right. See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); see, e.g., Boz v. United
States, 248 F.3d 1299, 1300-02 (11th Cir. 2001) (per curiam).
Hincapie-Cadavid’s claim that she was entitled to withholding of removal
under the INA and the CAT fails because she did not exhaust her administrative
remedies regarding this claim. Although Hincapie-Cadavid submitted this claim
to the IJ for review, she did not present her claim to the BIA for appellate review.
Therefore, because she has not exhausted her administrative remedies, we may not
review her claim.
III. CONCLUSION
Upon review of the record and the parties’ briefs, we discern no reversible
error. Accordingly, we AFFIRM the decision of the BIA and DENY the petition
for review.
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