Gustavo Pelaez v. Eric H. Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0471n.06
No. 08-3542 FILED
Jul 08, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
GUSTAVO PELAEZ, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW OF A
) FINAL ORDER OF THE BOARD OF
ERIC H. HOLDER, JR., Attorney General of the ) IMMIGRATION APPEALS
United States, )
)
Respondent. )
)
)
Before: NORRIS, BATCHELDER, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Gustavo Pelaez petitions for review of the Immigration
Judge’s denial of his application for asylum and other relief. We deny the petition.
I.
Pelaez is a 58-year-old native and citizen of Colombia. His wife, Luz Gladys Arbelaez, lives
in Medellin, Colombia. Together they have two daughters: Isabel, 20, who lives in Colombia, and
Diana, 26, who lives in the United States. On November 13, 1997, Pelaez entered the United States
without authorization. On June 24, 2002, he filed an application for asylum and withholding of
removal with an asylum officer. On October 27, 2003, the officer commenced removal proceedings
against Pelaez by filing a Notice to Appear (NTA) with the immigration court, charging him with
entering the country without being admitted or paroled after inspection by an immigration officer,
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in violation of 8 U.S.C. § 1182(a)(6)(A)(i). Pelaez thereafter filed a written pleading with the
immigration court, in which he admitted the factual allegations in the NTA and conceded
removability. He also requested asylum, and withholding of removal under the Immigration and
Nationality Act (INA) and the Convention Against Torture (CAT), or in the alternative, voluntary
departure.
Pelaez provided only bare-bone allegations of harassment in his application for relief. In his
testimony before the Immigration Judge (IJ), however, Pelaez testified in greater detail about alleged
harassment in Colombia. That harassment arose, Pelaez said, from his high-level involvement in
trade unions from 1974 through 1980, from his role as a spokesman for the Allied Union Movement
of the Social Conservative Party of Colombia (in which he spoke out against guerilla violence), and
from his related work as a governmental ombudsman to farmer and community-action groups in
1986.
Pelaez testified that he and his family were attacked twice in Colombia. First, in 1979, as
Pelaez left a union meeting, a stranger stabbed him in the foot and shoved his head against a wall.
Pelaez “was not seriously injured” in that attack. Second, in 1996, as his daughter Diana left school,
a car “push[ed] her into the ground[,]” slightly injuring her legs. The car left the scene before anyone
could record its license-plate number. Later that day, Pelaez received a telephone call in which an
anonymous individual told him that what happened to Diana was “nothing” compared to what would
happen if Pelaez continued to be involved in politics.
Pelaez testified about other alleged harassment as well. He said that, in 1994, two strangers
followed him as he left his workplace in Medellin. He later quit his job and moved to Cartagena,
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leaving his family behind in Medellin. While in Cartagena, Pelaez learned that a stranger bearing an
accent from his hometown had asked for him by name. Because Pelaez had no acquaintances in
Cartagena, Pelaez thought his harassers had tracked him down. When Pelaez told his wife about the
stranger, she said “they” continued to call at Pelaez’s home, too. Pelaez was concerned for his
family’s safety, so he returned to Medellin and began working for the transportation department of
the local municipal government.
Pelaez testified that, by the end of 1994, he had received between 15 and 20 anonymous
telephone calls. The callers told Pelaez to stop denouncing “the participation of the revolutionaries,”
and to cease his own political activities, or “they would shut [his] mouth up.” The callers described
details of his daughter Isabel’s appearance, and of his wife and daughter’s schedules. The callers also
threatened to harm Isabel if Pelaez continued working for the municipal government. Those threats
caused Pelaez to quit his job in 1995.
Pelaez testified that he could not identify his harassers, but that he believed they belonged to
the Revolutionary Armed Forces of Colombia, the National Liberation Army, or other paramilitary
organizations operating in the department of Antioquia. He reported the harassment to his
governmental supervisors in Antioquia, but they said that it would be useless for him to complain to
the police. Pelaez also testified that he had intended to return from the United States to Colombia by
1998, but worsening conditions there prevented his return.
The IJ denied Pelaez’s claims for relief, notwithstanding the government’s stipulation that
Pelaez was credible. The IJ found that Pelaez’s asylum application was time-barred, because he had
not filed it within one year of his arrival in the United States. The IJ further determined that the
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physical attacks on Pelaez and Diana, and the threatening phone calls to Pelaez and his family, did
not rise to the level of past persecution. The IJ also found that Pelaez failed to establish that it was
more likely than not that he would face future persecution or torture in Colombia. Consequently, the
IJ found Pelaez ineligible for withholding of removal under the INA and the CAT. The Board of
Immigration Appeals (BIA) affirmed without opinion.
This petition for review followed.
II.
Because the BIA affirmed the IJ’s decision without opinion, we review the IJ’s decision
directly. Denko v. INS, 351 F.3d 717, 730 (6th Cir. 2003). We review the IJ’s legal findings de novo,
see Ramirez-Canales v. Mukasey, 517 F.3d 904, 907 (6th Cir. 2008), and factual findings for
substantial evidence. Hassan v. Gonzales, 403 F.3d 429, 434 (6th Cir. 2005). Under the substantial-
evidence standard, we uphold the IJ’s findings “unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (quoting
8 U.S.C. § 1252(b)(4)(B)).
A.
An applicant must qualify as a “refugee” to be eligible for asylum. Ouda v. INS, 324 F.3d
445, 451 (6th Cir. 2003). A refugee is someone who “is unable or unwilling to return to . . . [his]
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).
The applicant bears the burden of proving refugee status, and his testimony, “if credible, may be
sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 208.13(a).
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Pelaez challenges the IJ’s determination that his asylum application was untimely. An alien
must demonstrate by clear and convincing evidence that he filed his asylum application within one
year of his arrival in the United States, see 8 U.S.C. § 1158(a)(2)(B), unless “the alien demonstrates
to the satisfaction of the Attorney General 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” within the required one-year period. Id. § 1158(a)(2)(D). “No court
shall have jurisdiction to review any [such] determination of the Attorney General[.]” Id.
§ 1158(a)(3).
Here, Pelaez did not file his asylum claim “within [one year] after the date of [his] arrival in
the United States.” Id. § 1158(a)(2)(B). Pelaez contends the IJ did not made any determination as
to whether there were extraordinary or changed circumstances in Colombia in 2002 that excused the
untimeliness of his application. But the IJ considered, and specifically rejected, Pelaez’s argument
that “worsening country conditions prevented him from returning safely.” See J.A. 26. As that
argument included consideration of 2002 conditions in Columbia, so too did the rejection. Thus the
IJ did determine that Pelaez had not shown the changed circumstances necessary to excuse the
untimeliness of his asylum application; and we in turn lack jurisdiction to review that determination.
8 U.S.C. § 1158(a)(3).
B.
Pelaez also seeks withholding of removal under the INA and the CAT. When reviewing the
denial of withholding of removal, we uphold the IJ’s determination unless it is “manifestly contrary
to the law.” Ali v. Reno, 237 F.3d 591, 596 (6th Cir. 2001). “To prevail on a petition for withholding
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of removal under the INA, or on a petition for withholding of removal under the CAT, an alien must
show that there is a ‘clear probability’ that [he] would be subject to persecution, for the INA, or to
torture, for the CAT, on the basis of one of the five statutorily protected grounds were [he] removed
from this country.” Kouljinski v. Keisler, 505 F.3d 534, 544 (6th Cir. 2007). The “clear probability”
standard requires that “[a]n applicant who has not suffered past persecution . . . establish that it is
more likely than not” that he would be persecuted or tortured on the basis of one of the protected
grounds upon his return. 8 C.F.R. § 1208.16(b)(2).
Pelaez argues that substantial evidence did not support the IJ’s denial of withholding of
removal under the INA. Pelaez contends that the harassment to which he and his family were
subjected did, in fact, rise to the level of past persecution. “[A]ctions that might cross the line from
harassment to persecution include: detention, arrest, interrogation, prosecution, imprisonment, illegal
searches, confiscation of property, surveillance, beatings, or torture.” Gilaj v. Gonzales, 408 F.3d
275, 285 (6th Cir. 2005). Here, neither of the alleged attacks resulted in serious injury, and the
telephone threats never materialized into physical violence. In addition, Pelaez’s four-year delay in
applying for asylum, based upon events that for the most part had occurred years before, undermines
his allegation that those events amounted to persecution. Considered in light of our deferential
substantial-evidence standard, therefore, the record does not compel the conclusion that Pelaez
suffered past persecution.
Pelaez next contends that he has proven a likelihood of future persecution in Colombia. But
the IJ’s finding to the contrary is again supported by substantial evidence. No member of Pelaez’s
family has been harmed since he left Colombia; and, as the IJ noted, Pelaez has not “seriously
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attempted” internal relocation of his family within Colombia as a means of avoiding future
harassment. Moreover, many of the incidents upon which Pelaez relies to show a likelihood of future
harassment occurred decades ago, with one incident dating back to 1979. The record thus does not
compel the conclusion that Pelaez is “more likely than not” to face future persecution. Fang Huang
v. Mukasey, 523 F.3d 640, 651 (6th Cir. 2008).
Pelaez’s challenge to the IJ’s denial of withholding of removal under the CAT likewise fails.
Pelaez’s burden was to show that he would “more likely than not” face torture upon his return to
Colombia. 8 C.F.R. § 1208.16(b)(2). But Pelaez neither claims that he had been tortured in the past,
nor provides any evidence that the Colombian government would acquiesce to his torture in the
future. The record therefore does not support, much less compel, a conclusion that Pelaez is “more
likely than not” to face torture if removed to Colombia. Id.III.
Pelaez’s claims, in summary, are not frivolous. But they ultimately founder on the deferential
standard of review that we are required to apply to them. We therefore deny the petition.
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