Orozco, Omar A. v. Gonales, Alberto

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 15, 2006
Decided November 22, 2006
Before
Hon. WILLIAM J. BAUER , Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-4386
OMAR A. OROZCO, et al., Petition for Review of an Order of
Petitioners, the Board of Immigration Appeals
v. Nos. A95 592 040 - A95 592 044
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Omar Orozco, with his wife and three daughters, petition for review of the
Board of Immigration Appeals’ decision to deny his application for asylum,
withholding of removal, and protection under the Convention Against Torture.
Because the IJ’s findings that Orozco was incredible and that the incidents he
recounted did not rise to the level of persecution are supported by substantial
evidence, we deny the petition.
Orozco, a Colombian national, entered the United States on a six-month visa
in May 2001. His wife, Josephina Onate, and their three daughters entered the
United States also on six-month visas in December 2001. The family remained in
the United States past their visas’ expirations. In May 2002, Orozco sought
No. 05-4386 Page 2
asylum, withholding of removal, and relief under CAT with his wife and daughters
as riders on his application. Orozco contends that he was persecuted and will likely
face future persecution from the Revolutionary Armed Forces of Colombia (FARC,
the “Fuerzas Armadas de Colombia”), a left-wing guerilla group, that targets right-
wing groups, politicians, professionals, and landowners. He believes he was
targeted on account of both his status as a veterinarian who assists wealthy cattle
ranchers in the rural state of Cesar (his wife also owns Santa Rita, one of the
largest ranches in Cesar) and his membership in the Liberal Party (one of the two
ruling parties in the Colombian government). Since the 1990s, he has attended
Liberal Party meetings, hosted one in his home, and often discussed Liberal Party
politics with ranchers, encouraging them to vote for Liberal Party candidates.
Orozco testified that he had several threatening encounters with FARC. He
testified that: (1) in the 1990s he was stopped a couple of times a year and asked to
show his identity papers at illegal FARC checkpoints (roadblocks manned by FARC
guerillas) when making his veterinary rounds in Cesar; (2) in 2000 FARC guerillas
entered a farm where he was working, would not allow anyone on the farm to leave
for several hours, questioned him about his work as a veterinarian, and told him his
life would be in danger if he returned to the farm; (3) in February 2001 an unknown
man (purportedly a FARC guerilla) approached him at Santa Rita and told him that
another unknown person wanted to speak to him; and (4) in May 2001, he received
two threatening phone calls (also purportedly from FARC). In the first of the two
calls, an unidentified man said, “Be careful sapo* because we are going to kill you.”
And two days later, the same male voice called and warned, “Watch it son of a bitch
because we are going to kill you.” He reported the calls to the police, went to
Bogota3 for two weeks, and then fled to the United States.
Orozco’s wife also testified. She stated that in August of 2001, a worker at
Santa Rita told her that several FARC guerillas entered the ranch in the afternoon,
asked for Orozco, and then stole hundreds of heads of cattle. Her family sold the
ranch out of fear in 2004.
The Immigration Judge denied Orozco’s petition for asylum. He found
Orozco’s claim unconvincing and not credible due to several “material”
discrepancies between his affidavit and his oral testimony. For example, the IJ
noted Orozco’s explanation in his affidavit that, “I often had my Liberal Party card
in my wallet and, when [FARC guerillas] saw it, I had to listen to their lectures
about why the Liberal Party’s ideologies were wrong.” But at his removal hearing,
Orozco twice denied carrying a Liberal Party card while in Colombia, and admitted
*
“Sapo” is a pejorative term that literally means frog but is used to describe a
collaborator or a snitch.
No. 05-4386 Page 3
that the statement in his affidavit was a “confusion.” The IJ found that this
inconsistency discredited Orozco’s assertion that he was persecuted on account of
his political opinion. The IJ then found that regardless of Orozco’s credibility, the
threats and incidences he described were not severe enough to amount to past
persecution or support a well-founded fear of future persecution. Nor did Orozco
establish, the IJ added, that the threats he received were on account of his
membership in a “social group.” The IJ concluded that “veterinarians who assist
wealthy cattle ranchers” do not qualify as a social group under the Immigration and
Nationality Act because they do not share immutable characteristics or
characteristics fundamental to their identities.
The BIA issued a short opinion in which it explained that it “affirm[s] the
decision of the immigration judge with the exception of her [sic, the IJ Robert
Vinikoor, is a “him”] statement regarding the burden of proof.” The BIA concluded
that the IJ’s adverse credibility finding was not clearly erroneous, and that even
had Orozco been credible, the unfulfilled threats he recounted failed to constitute
past persecution or support a well-founded fear of future persecution.
On appeal, Orozco challenges only the IJ’s denial of his petition for asylum;
therefore we need not consider whether the IJ properly found him ineligible for
withholding of removal or for relief under CAT. See Wang v. Gonzales, 445 F.3d
993, 997 (7th Cir. 2006). We review an asylum claim under the deferential
“substantial evidence” standard, which means that after considering the record as a
whole, if we find “reasonable, substantial, and probative evidence” supporting the
IJ’s decision, we must affirm. Feto v. Gonzales, 433 F.3d 907, 911 (7th Cir. 2006).
To reverse, the evidence must compel a different conclusion, see Prela v. Ashcroft,
394 F.3d 515, 518 (7th Cir. 2005); a simple difference of opinion will not suffice.
Capric v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir. 2004).
Orozco argues that the inconsistencies in his testimony that the IJ identified
were too minor and immaterial to support an adverse credibility finding. Orozco
contends that since the record was replete with evidence of his political activity, the
IJ should not have discredited his claim that he was being targeted on account of
his political opinion merely because of the “misunderstanding” over the Liberal
Party card.
An IJ must support credibility findings with “specific, cogent reasons” that
have a “legitimate nexus to the finding.” Giday v. Gonzales, 434 F.3d 543, 550 (7th
Cir. 2006). Minor inconsistencies are not a proper basis for an adverse credibility
finding, Uwase v. Ashcroft, 349 F.3d 1039, 1043 (7th Cir. 2003); rather, the
discrepancies must go to the heart of an applicant’s claim. Giday, 434 F.3d at 550.
No. 05-4386 Page 4
Here the IJ cogently supported his conclusion that the inconsistencies in
Orozco’s testimony were material to his claims. As the IJ explained, the heart of
Orozco’s claim hinges on FARC’s knowledge of his affiliation with the Liberal Party.
But Orozco has not pointed to anything in the record other than his discredited
statement regarding his Liberal Party card to show that FARC was even aware of
his political opinions. His political activities over the last 15 years were fairly
minor; they consisted mostly of informally speaking with farmers to encourage
them to vote for the Liberal Party.
Orozco next argues that even if the IJ found this aspect of his testimony not
to be credible, other evidence in the record still established that he was persecuted
in the past or had a well-founded fear of future persecution. Without elaboration,
he insists that the unfulfilled threats he described receiving, coupled with the
evidence he submitted demonstrating FARC’s sophistication, should have compelled
the IJ to conclude that he had been persecuted.
An applicant for asylum bears the burden to establish that he has been
persecuted in the past or has a well-founded fear of future persecution on account of
race, religion, nationality, membership in a social group, or political opinion. 8
U.S.C. § 1101(a)(42)(A); Sosnovskaia v. Gonzales, 421 F.3d 589, 593 (7th Cir. 2005).
We have repeatedly explained that persecution “must rise above the level of
harassment.” Pela v. Ashcroft, 394 F.3d 515, 518 (7th Cir. 2005); Nakibuka v.
Gonzales, 421 F.3d 473, 476 (7th Cir. 2005). Although we have not foreclosed the
possibility that extraordinary threats—those “of a most immediate and menacing
nature”—might in themselves amount to persecution, “in general, unfulfilled
threats do not.” Hernandez-Baena v. Gonzales, 417 F.3d 720, 723 (7th Cir. 2005).
The IJ properly concluded that the unfulfilled threats Orozco received were
not severe enough to amount to persecution. The threats were few in number,
spread out over several years, involved no physical contact, and were never acted
upon. In fact, the facts of this case strikingly resemble those in Hernandez-Baena,
where we recently concluded that verbal “death warrants” from FARC did not
amount to persecution. Hernandez-Baena, 417 F.2d at 723. Even much more
severe conduct has been held not to compel a finding of persecution. See, e.g.,
Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003) (detention for three days
without food and beatings that caused facial swelling); Prela, 394 F.3d at 518(multiple interrogations by police, detention for twenty-four hours, harassment for
money, and beating that injured hands).
And in support of his claim that he established a well-founded fear of future
persecution, Orozco offers nothing more than his bare assertion that FARC will
continue targeting him if he returns to Colombia. But past conduct that does not
constitute persecution cannot form the basis for a well-founded fear of future
persecution. Ciorba v. Ashcroft, 323 F.3d 539, 545-46 (7th Cir. 2003).
No. 05-4386 Page 5
Orozco finally contends that the IJ and the BIA incorrectly concluded that he
was not (or will not be) targeted on account of his membership in a “social group.”
Specifically, he argues that the BIA failed to consider his circumstances in light of
Tapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005), where we held that
“educated, landowning cattle farmers” constituted a social group being persecuted
by FARC. See id. at 672. But Orozco failed to establish that the threats he received
amounted to persecution or support a well-founded fear of future
persecution—regardless of whatever enumerated class he considers himself a part
of—and thus we need not consider this argument further. Moreover, Tapiero de
Orejuela is distinguishable because Orozco himself insisted that he was not
targeted on account of his family’s status. He stated in his affidavit that “being
associated with [his wife’s family] was not enough to warrant FARC attention, for
none of [her] family ever experienced FARC threats personally.”
Orozco’s other arguments have been considered but do not require discussion.
The petition for review is DENIED.