Sanchez-Melo, Oscar v. Gonzales, Alberto

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
(Submitted May 9, 2006)
Decided September 12, 2006
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-2249
OSCAR HUMBERTO SANCHEZ- Petition for Review
MELO, JOHANNA CAROLINA of a Decision of the
PENUELA-NOGERA, and BRANDON Board of Immigration Appeals
SANCHEZ-PENUELA,
Petitioners, Nos. A95-570-597, A95-570-598,
A95-570-599
v.
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Oscar Humberto Sanchez-Melo, a native and citizen of Colombia, petitioned for
asylum, withholding of removal, and protection under the Convention Against Torture
(CAT), claiming that the leftist guerilla group Fuerzas Armadas de Colombia (FARC)
had persecuted him because of his membership in the class of “wealthy land and
property owners” in Colombia. Sanchez-Melo’s wife and minor son brought derivative
claims. The immigration judge found the family ineligible for asylum, because they had
No. 05-2249 Page 2
filed their application more than a year after their arrival in the United States and
they had not shown any extraordinary circumstances that justified the delay. The IJ
also rejected their claims for withholding of removal and relief under the CAT, and the
BIA adopted his opinion with a brief additional statement. This petition for review, on
behalf of all three family members, followed. We find the IJ’s determinations with
respect to withholding and the CAT to be supported by substantial evidence, and we
thus deny the petition to that extent. We dismiss the petition insofar as it addresses
the asylum claims for lack of jurisdiction.
I
Sanchez-Melo and his family entered the United States at Miami in September
2000 with authorization to remain as visitors for pleasure until September 2001.
Sanchez-Melo testified that he intended to apply for asylum on arrival, and he brought
with him tapes of telephone calls and a letter from FARC to prove that he had been
targeted for extortion. He did nothing, however, until May 2002, when he finally
submitted an asylum application more than six months after the expiration of his
authorized stay. (He claimed that the delay was because he could not afford a lawyer
and had difficulty speaking English.) The immigration authorities promptly denied his
application, and in June 2002 he received a Notice to Appear initiating removal
proceedings against him (which included the derivative claims of his family members
– a point we will not mention further).
The IJ credited Sanchez-Melo’s account of his encounters with FARC. First,
Sanchez-Melo testified that his brother, who was a subcommander with the national
police in Algeciras Huila, Colombia, was killed in December 1998 when he attempted
to stop a group of FARC guerillas from robbing a bank. The murder followed a number
of death threats warning the brother that he would be killed if he did not accede to
FARC’s demands. At that time, Sanchez-Melo and the rest of his family were living in
Bogotá, Colombia. They did not then, or for some time thereafter, have any contact
with FARC. Although the hardware store that Sanchez-Melo owned jointly with his
father was robbed twice in 1999, Sanchez-Melo did not believe that FARC was behind
the robberies; instead, he assumed, they were just a part of the “common delinquency
in Colombia.”
In early 2000, things were looking good for the family. Sanchez-Melo purchased
land abutting the store property and began to build a new warehouse. He also began
to sell off his old machinery, with the idea of replacing it with “bigger and more modern
machines.” Sanchez-Melo’s parents received a grant of 200 million pesos (which in 2000
would have amounted to about $95,790.00, see http://www.worldpress.org/
profiles/Colombia.cfm) from the national government in compensation for his brother’s
death. His parents used part of the money to buy a farm in another area.
No. 05-2249 Page 3
Sanchez-Melo’s personal troubles with FARC began in July 2000, when
representatives of the group approached him and his family with a demand for money.
A letter addressed to Sanchez-Melo’s father was delivered to the hardware store,
warning him that FARC was aware of his “economic patrimony” and that it intended
to require a contribution to its cause. On the same day, a FARC guerilla telephoned
Sanchez-Melo’s father at the store to reinforce the message.
Although it was his father who received these first two messages, Sanchez-Melo
himself sought protection from the police; they assigned an officer to his case. The
officer asked Sanchez-Melo to send his wife and son to a safe place and then to help the
police catch the guerillas by playing FARC’s “game.” Sanchez-Melo agreed to cooperate,
and so the police installed recording equipment on his telephone and instructed him
to record any calls from FARC with their dates and times. Over the next few weeks,
he taped a number of calls; the transcripts of those calls are in the administrative
record.
In one of the first calls, the caller told Sanchez-Melo that his family had been
“assigned” a “quota” of 300 million pesos. When Sanchez-Melo protested that he did not
have that kind of money, the caller responded that he could pay off the debt in
installments. The caller also reminded Sanchez-Melo of the money that his parents had
received because of his brother’s death. The caller assured Sanchez-Melo that he would
not take it all, but that he wanted to “talk seriously” about it.
Sanchez-Melo made excuses for not getting the money together; at times he
attempted to prolong calls that were difficult to trace. The police eventually determined
that the FARC caller was using a cellphone and traveling around by car. Meanwhile,
the caller was losing patience with Sanchez-Melo’s evasiveness. On one occasion, he
warned Sanchez-Melo that he “should have been declared a military target” and that
he had been spared thus far only because of the “compassion” of the caller and his
companions. At the end of the conversation, the caller threatened to double the
assessment and “declare [Sanchez-Melo] a military target” if he did not come up with
some of the money by the next day. Sanchez-Melo did not comply, however, and the
calls continued. Shortly after this exchange, the police asked Sanchez-Melo to offer
FARC a small amount of money to be picked up in person so that they could capture
a few of those involved. He offered, but FARC refused to take the bait. The caller
ordered Sanchez-Melo to deposit the money in a certain bank account instead, and then
warned him that “[t]his is no longer about money, it’s personal.”
This was when Sanchez-Melo decided that it was too dangerous to stay in
Colombia. He closed the hardware store and two weeks later was in the United States
with his wife and son. His father, mother, and sister, remained in Colombia, but “in
hiding.” It appears that they have not been harmed, but at the time of the asylum
hearing Sanchez-Melo’s father was still receiving calls asking about his son and about
No. 05-2249 Page 4
why he had not produced the money.
The IJ denied Sanchez-Melo’s asylum claim for two reasons: first, he had failed
to apply for asylum within the normal one-year window, and second, he had not shown
the sort of extraordinary circumstances that would warrant relief from the one-year
rule. For good measure, the IJ added that he would have been ineligible for asylum in
any event, because the extortion efforts of FARC did not amount to persecution. FARC
had never mentioned political opinion, either actual or imputed, so that ground was
out. Nor did the IJ think that Sanchez-Melo merited relief as a member of the social
group of “wealthy property owners,” reasoning that neither wealth nor ownership of
property were immutable traits or characteristics fundamental to identity and
conscience. The IJ rejected the withholding of removal claim because Sanchez-Melo’s
failure to meet the more lenient burden on the merits for asylum meant necessarily
that he could not satisfy the withholding standard. Finally, the IJ rejected his CAT
claim because he never established that he had been, or was likely to be, subject to
“severe pain and suffering,” or that his suffering was sufficiently tied to the acts of a
public official. The BIA affirmed.
II
Because the BIA adopted the reasoning of the IJ, we review the IJ’s opinion
directly. See Hernandez-Baena v. Gonzales, 417 F.3d 720, 723 (7th Cir. 2005). This
court will uphold the IJ’s determination unless a contrary conclusion is compelled on
the record. See INS v. Elias-Zacharias, 502 U.S. 478, 483-84 (1992); Tapiero de
Orejuela v. Gonzales, 423 F.3d 666, 671 (7th Cir. 2005).
Sanchez-Melo’s principal argument is that the IJ applied inappropriate
standards when he evaluated the asylum claims. But this court cannot reach the
asylum issue on the merits if we lack jurisdiction over this part of the petition. The IJ
found Sanchez-Melo ineligible for asylum because he failed to file his application
within one year of his arrival in the United States, as required by 8 U.S.C.
§ 1158(a)(2)(B). The IJ also found that Sanchez-Melo failed to establish that he fell
within the exception for extraordinary circumstances recognized in 8 U.S.C.
§ 1158(a)(2)(D). As the government points out, the statute explicitly says that “[n]o
court shall have jurisdiction to review any determination of the Attorney General
under paragraph (2).” See 8 U.S.C. § 1158(a)(3); Vasile v. Gonzales, 417 F.3d 766, 768-
69 (7th Cir. 2005). As we explained in Vasile, determinations about compliance with
the one-year time period or reasons for extending it fall within the bar of § 1158(a)(3),
notwithstanding the REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a)(1)(ii)
(permitting judicial review of constitutional questions and questions of law). Thus, we
dismiss this petition insofar as it challenges Sanchez-Melo’s asylum claim.
This leaves before us his arguments for withholding of removal and relief under
No. 05-2249 Page 5
the CAT, which are not subject to the one-year rule. In order to obtain withholding of
removal under 8 U.S.C. § 1231(b)(3), the alien must show a clear probability that he
will face persecution in the country to which he will be removed. INS v. Stevic, 467 U.S.
407, 430 (1984). The withholding standard is more stringent than the one required for
asylum, under which the alien must show only a well-founded fear of persecution and
need not “prove that it is more likely than not that he or she will be persecuted in his
or her home country.” See INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987). If, on the
merits, the alien cannot meet the standard of proof required for asylum, logic compels
rejection of his asylum claim also. For this limited purpose, we therefore turn to the
merits of Sanchez-Melo’s case.
He first argues that the IJ erred in concluding that he was not persecuted on
account of his political opinion. In his view, FARC’s use of the term “military target”
indicated that he was “fair game for political assassination.” But this is sheer
speculation: there is nothing in this record to explain what FARC meant here (or
typically) when it used that term, other than to designate who was on its hit list.
Second, Sanchez-Melo tries to tie his refusal to pay FARC to political opposition. We
have, however, already rejected similar arguments that refusal to cooperate with
FARC must be understood as an expression of political opinion, in the absence of other
evidence of political activity. See Tapiero de Orejuela, 423 F.3d at 673-74; Hernandez-
Baena, 417 F.3d at 723-24. Third, Sanchez-Melo argues that he is entitled to the
“benefit of the doubt,” because FARC may have had mixed motives for its actions.
Without evidence that political opinion played any part in FARC’s heavy-handed
tactics, however, the IJ was certainly not compelled to view the record this way.
Sanchez-Melo next argues that the IJ should have found him eligible for asylum
as a member of a “cognizable social group of wealthy land and property owners.” In
Tapiero de Orejuela, we did recognize the existence of a distinct Colombia social group
defined as “the educated, landowning class of cattle farmers targeted by FARC.” 423
F.3d at 672. But wealth was not the only distinguishing characteristic. We looked to
a number of “distinguishing markers,” such as education, manner of speech, social
position, and profession, “that are not easily changed or hidden.” Id. The agency has
considerable discretion in defining the boundaries of social groups, and we cannot say
here that the IJ’s decision rejecting wealth alone was impermissible. We add that the
only group with which FARC appears to have identified Sanchez-Melo is “the rich”: in
one telephone conversation, the caller asks rhetorically “why do the rich cry so much?”
Although Sanchez-Melo pressed a claim under the CAT before the IJ and the
BIA, he did not develop any argument on this point in his brief before this court. He
has therefore waived the point. See Asere v. Gonzales, 439 F.3d 378, 381 (7th Cir.
2006).
III
No. 05-2249 Page 6
For these reasons, we DENY the petition of Sanchez-Melo, Johanna Carolina
Penuela Nogera, and Brandon Sanchez-Penuela for review of the decision rejecting
their claims for withholding of removal and relief under the CAT, and we DISMISS the
petition insofar as it challenges the denial of asylum.