Terreros-Guarin v. Holder, Jr.

FILED
United States Court of Appeals
Tenth Circuit

Decem ber 2, 2009
U N ITED STA TES C O UR T O F A PPEA LS
Elisabeth A. Shumaker
Clerk of Court
FO R TH E TEN TH C IR C UIT

FRANCISCO ALBERTO
TERREROS-GUARIN; M ARIA
BEATRIZ AGUIRRE-SALAZAR,

Petitioners,

v. No. 09-9506
( Petition for Review )
ERIC H. HOLDER, JR.,
United States Attorney General,

Respondent.

O R D ER A N D JU D G M EN T *

Before O ’BR IEN , PO R FILIO , and TYM K O V IC H , Circuit Judges.

Francisco Alberto Terreros-Guarin and his wife, M aria Beatriz Aguirre-

Salazar, are natives and citizens of Colombia. They petition for review of a final

order of removal entered by the Board of Immigration Appeals (BIA) denying

their applications for asylum, restriction on removal, and protection under the

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Convention Against Torture (CAT).1 W e lack jurisdiction to review the BIA’s

determination that their asylum application was untimely filed and that no

changed or extraordinary circumstances excused its untimeliness. W e exercise

jurisdiction over the remainder of their claims under 8 U.S.C. § 1252(a)(1), and

deny the petition.

Background

Petitioners entered the United States on January 29, 2000, as holders of

B-1/B-2 tourist or business visas. They overstayed the six-month visa period.

On February 20, 2002, over two years after their arrival, M r. Terreros applied for

asylum and restriction of removal, identifying his wife as a derivative beneficiary

of his application. 2 He was subsequently served with a notice to appear in

removal proceedings, charging him with overstaying his visa. He conceded

removability on the grounds alleged in the notice to appear.

M r. Terreros subsequently received a hearing on his asylum application

before an immigration judge (IJ). He was the sole witness at the hearing. He

1
M r. Terreros’s application for asylum appears to have included a CAT
claim. But he did not raise any CAT issues before the BIA or this court. W e
therefore do not consider any issues relative to the IJ’s denial of CAT relief.
See Tulengkey v. Gonzales, 425 F.3d 1277, 1279 n.1 (10th Cir. 2005).
2
The record actually contains three separate asylum applications. But the IJ
found that the later two appeared to be copies of the original application, which
he had M r. Terreros update and sign under oath at the hearing.

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claimed to have been persecuted in Colombia on the basis of religion, political

opinion, and membership in a particular social group.

M r. Terreros testified that he was an early Colombian convert to the

M ormon church, having been baptized into that church in 1969. In Colombia, he

explained, the M ormon religion is associated with the United States, where it

originated. In 2000, several M ormon chapels in Colombia were bombed.

M r. Terreros was aware of these bombings when he lived in Colombia. He also

testified that he had received threats connected with his membership in the

M ormon church.

In a letter he prepared to supplement his asylum application, M r. Terreros

further detailed his involvement with the M ormon church and the reasons

M ormons are persecuted in Colombia. He stated he had been ordained as an

elder in the church and had been called to a mission in Peru. He served in

high-profile roles in the church as a Branch President and Stake Counselor.

M r. Terreros also stated that the church and its members have been persecuted by

Communist-oriented terrorist groups, who consider the church an American

organization that meddles in Colombian affairs. As further evidence of the

danger posed to religious groups in Colombia, he testified that some of his family

and friends were victimized by a terrorist attack on a Catholic church in Cali in

1999.

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 M r. Terreros also testified concerning the second ground for his asylum

claims, his political activities. He stated that he belongs to the Colombian Liberal

Party. This is a political party that promotes respect for human rights, freedom,

order, and justice.

As with his religion-based claim, M r. Terreros supplemented his asylum

application with a letter describing his political activities and the dangers posed

to persons of his political views in Colombia. He noted that he had held political

views affiliated with the Liberal Party since his days at college. At the time he

left Colombia, the opposing Conservative Party was in power. His party opposed

the incumbent government for its alleged weakness in the struggle against

terrorism and political assassination. Before leaving Colombia, he was threatened

by extreme leftist squadrons. He feared that if returned to Colombia, he would be

tortured and killed by leftists with guerilla connections.

As a third ground for his asylum claims, M r. Terreros cited his membership

in a social group comprised of pro-American Colombians. He explained that he

had previously worked for the United States consulate in M edellin as an assistant

to the vice-consul. He left his employment there in the 1970s, when the State

Department decided to close down the consulate for safety reasons. He

subsequently obtained work with two American companies, Bechtel and

M orrison-Knudson. He last worked for an American company in 1986, when his

contract with M orrison-Knudson ended. M r. Terreros explained that his former

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association with American companies put him in danger in Colombia because

terrorists target American companies and their employees.

M r. Terreros testified to three attacks on him and his family that he

believed were based on his political and pro-American affiliations. All three

incidents occurred in 1999, the year before he came to the United States. During

this year, he stated, he and his family “received [many] threats [and] were

psychologically tortured.” Admin. R. at 363. On April 9, 1999, as they were

traveling en route from M edellin at about three o’clock in the afternoon, cars

stopped in front of his car and forced him to stop. Ten armed men got out of the

cars and began to mistreat him. They accused him of being a CIA agent, of

working for U.S. companies, and of “helping exploit some of the wealth of

Colombia.” Id. They threatened to kill him. His wife began crying, and begged

the men not to kill them. At the same time, other cars began approaching. The

terrorists decided to leave, got in their cars and drove away. Before departing,

however, they told him the next time he would not be so safe.

The second attack occurred in September 1999. M r. Terreros testified that

he and his wife left a political meeting at 11:00 p.m. and got in their car to go

home. Another car began following them. The passenger in the car behind them

pulled out a gun and began shooting at them. Fortunately, they were able to

evade the pursuers and return to their home. M r. Terreros believed that his

pursuers were left-wing terrorists who had targeted him because of his political

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activities. He testified that he reported this attack to the police but they did

nothing about it.

The third attack took place on November 20, 1999. M r. Terreros was in his

car with his wife and children, stopped at a traffic light. A motorcycle drove up

next to them, and the men on the motorcycle got out their guns. M r. Terreros’

wife, who was driving, took off at a high rate of speed and drove to a police

station. They entered the police station and told the police chief what had

happened to them. He told them to go home and that they would do the

investigation. But M r. Terreros testified that there was no investigation.

W ithin a few months after the third attack, petitioners sold their jewelry

business and their home and left Colombia for the United States.

A nalysis

A . BIA Decisions

The IJ announced his decision at the close of the hearing. W hile he found

M r. Terreros’s testimony generally credible, he denied asylum relief because he

found that M r. Terreros had not filed his application for asylum within one year

of his entry into the United States. The IJ further found that there were no

extraordinary circumstances or changes in conditions that would allow him to

consider the untimely application.

W ith respect to restriction on removal, the IJ found that M r. Terreros failed

to show that it was more likely than not that his life or liberty would be

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threatened in Colombia by the government or at the hands of a group that the

government was unable or unwilling to control. He noted that many people in

Colombia espouse the same political views as M r. Terreros and that his views are

well represented within the government of Colombia. There are also many

M ormons in Colombia and no evidence that he would be targeted there for his

religious beliefs. His former employment by the American consulate and

American companies did not make him a member of a particular social group for

purposes of asylum eligibility. Finally, lawlessness and general criminal

conditions do not constitute persecution on any of the statutory grounds.

In a single-member Board decision, the BIA dismissed petitioners’ appeal.

The BIA agreed with the IJ that the asylum application was time-barred and failed

to establish changed or extraordinary circumstances that would excuse the late

filing. It further determined that the IJ had properly considered the three 1999

incidents, and that they did not rise to the level of persecution. Petitioners had

failed to demonstrate that they would be harmed on account of their M ormon

beliefs and church activities, or that Colombians “who have a reputation as

pro-American sympathizers or who are affiliated with pro-American interests”

constitute a cognizable “social group” under the asylum statutes. Admin. R. at 3.

Petitioners were ineligible for restriction on removal because they failed to

demonstrate that the Colombian government would be unable or unwilling to

protect them from harm, and because there is no evidence that, ten years after the

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three alleged incidents, the unknown assailants are still active and interested in

pursuing respondents.

B. Lack of Jurisdiction

To be considered for asylum, an alien is required to demonstrate by clear

and convincing evidence that his application has been filed within one year after

his arrival in United States. See 8 U.S.C. § 1158(a)(2)(B). This court lacks

jurisdiction to review the BIA’s determination denying an asylum claim as

untimely unless petitioners present a constitutional claim or a question of law.

See Ferry v. Gonzales, 457 F.3d 1117, 1129-30 (10th Cir. 2006).

Petitioners contend that an exception to the one-year deadline applied in

their case. They argue that the BIA erred in determining that changed country

conditions in Colombia did not constitute “changed circumstances which

materially affect the applicant’s eligibility for asylum,” such that their failure to

file within the one-year deadline should be excused. 8 U.S.C. § 1158(a)(2)(D).

But we also lack jurisdiction to review this challenge, which attacks the agency’s

factual determination underlying its discretionary, non-reviewable decision

concerning changed country conditions. Ferry, 457 F.3d at 1130 (stating alien’s

“argument that his pending adjustment of status application qualified as either a

changed or extraordinary circumstance to excuse his untimely asylum application

is a challenge to an exercise of discretion that remains outside our scope of

review.”).

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 Petitioners’ arguments concerning the merits of their asylum claims, and

purported errors in considering those claims, also cannot succeed. 3 All of these

arguments have been mooted by the BIA’s unreviewable determination that their

asylum application was untimely and therefore could not be considered on the

merits.

C . R estriction on R em oval C laim s 4

W e turn now to M r. Terreros’ claim for restriction on removal. 5 In

3
Confusingly, petitioners have not only provided a separate section of their
brief specifically concerning restriction of removal, see Aplt. Opening Br. at
27-29, but they also appear to have included arguments targeting both asylum and
restriction of removal within the “asylum” section of their brief, see id. at 12-25.
Out of an abundance of caution, we will address the arguments contained in the
“asylum” section as restriction-on-removal arguments, to the extent we find
indication that particular arguments were intended as an attack on both the BIA’s
asylum and restriction-on-removal determinations.
4
The parties refer to this claim as one for “withholding of removal.”
Amendments to the Immigration & Naturalization Act made by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
however, changed the terminology to “restriction on removal.” See 8 U.S.C.
§ 1231(b)(3); Yong Ting Yan v. Gonzales, 438 F.3d 1249, 1251 n.1 (10th Cir.
2006). Since this case arose after the effective date of the IIRIRA, we refer to
this claim as one for “restriction on removal.”
5
The circuits that have considered the issue hold that unlike asylum,
restriction on removal does not allow for derivative beneficiaries such as
M r. Terreros’s wife. See Arif v. M ukasey, 509 F.3d 677, 681 (5th Cir. 2007)
(collecting cases). And compare 8 U.S.C. § 1158(b)(3)(A) (asylum statute
expressly permitting derivative beneficiaries) with id. § 1231(b)(3) (restriction on
removal statute, silent as to derivative beneficiaries). Since M r. Terreros’
challenges to denial of restriction on removal fail on the merits, we need not
resolve whether his wife could derivatively benefit from the application. But for
clarity’s sake, we do refer to the claim as being that of M r. Terreros, rather than
(continued...)

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addressing this claim, “we review the BIA’s findings of fact under the substantial

evidence standard, and its legal determinations de novo.” Hayrapetyan v.

M ukasey, 534 F.3d 1330, 1335 (10th Cir. 2008). “Agency findings of fact are

conclusive unless . . . any reasonable adjudicator would be compelled to conclude

to the contrary.” Sarr v. Gonzales, 474 F.3d 783, 788-89 (10th Cir. 2007)

(quotation marks omitted). W here, as here, the BIA issues a decision by a single

board member, the BIA’s decision constitutes the final order of removal, although

“we may consult the IJ’s opinion to the extent that the BIA relied upon or

incorporated it.” Id. at 790.

Restriction on removal blocks an alien’s removal “to a particular country if

he or she can establish a clear probability of persecution in that country on the

basis of race, religion, nationality, membership in a particular social group, or

political opinion.” Elzour v. Ashcroft, 378 F.3d 1143, 1149 (10th Cir. 2004). The

alien can satisfy this standard by showing that he experienced “past persecution”

on enumerated grounds or that “it is more likely than not” that he would be

persecuted in the future. 8 C.F.R. § 1208.16(b)(1), (2). “Persecution is the

infliction of suffering or harm upon those who differ (in race, religion, or political

opinion) in a way regarded as offensive, and requires more than just restrictions

or threats to life and liberty.” Tulengkey v. Gonzales, 425 F.3d 1277, 1280

5
(...continued)
that of both petitioners.

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(10th Cir. 2005) (quotation omitted). The persecution “may be inflicted by the

government itself, or by a non-governmental group that the government is

unwilling or unable to control.” Hayrapetyan, 534 F.3d at 1337 (quotation

omitted).

M r. Terreros first argues that the BIA erred by failing to address his

argument that the IJ failed to analyze his claim of political persecution. W hile we

may remand to the BIA to address an overlooked argument, we will do so only

where the ground appears to have substance. See id. at 1335. That is not the case

here, for several reasons.

The IJ made the following findings concerning petitioners’ allegations of

political persecution:

The Court further believes that [petitioner] was a member of the
Liberal Party. However, the Government has established through
testimony of [petitioner] and the world reports of the State
Department that there are many in the government of Colombia who
espouse the same political view as the [petitioner] and the
[petitioner] is well-represented in his political views within the
government of Colombia.

Admin. R. at 127-28.

Notwithstanding the IJ’s findings on this issue, M r. Terreros argued to the

BIA that “the IJ failed to even consider M r. Terreros’ political opinion as a

discrete basis for his asylum claim.” Admin. R. at 44-45 (BIA brief at 21-22)

(emphasis added). But as the quoted language shows, the IJ did consider the

claim.

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 M oreover, it is not clear that M r. Terreros even presented this argument to

the BIA as a restriction-on-removal argument rather than an asylum argument.

Finally, and most importantly, we believe the BIA did give the argument

adequate consideration. W hile the BIA did not explicitly refer to political

persecution, it rejected M r. Terreros’ claim that he had been persecuted in the

past or would be persecuted in the future on any statutory ground. It found that

the violent incidents M r. Terreros described did not rise to the level of

persecution; that the Colombian government had taken steps to control the

individuals who confronted him; that he had failed to show that the government

was unable or unwilling to protect him from harm; and that there was no objective

evidence to suggest that the unknown assailants were still active and interested in

pursuing him. This reasoning adequately addressed his assertions of political

persecution.

M r. Terreros next argues that the BIA erred in rejecting his assertions that

he was persecuted in Colombia on account of his religious beliefs and his

membership in a particular social group. The BIA stated that it agreed with

the IJ’s conclusion that petitioner “failed to demonstrate that the harm

[from alleged persecution] was or would be on account of their M ormon

beliefs and church activities.” Id. at 3. M r. Terreros contends that the

evidence does not support this conclusion. In order to grant him relief

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on this claim, however, we would have to find that the evidence compelled a

conclusion contrary to that of the BIA. See Tulengkey, 425 F.3d at 1280.

Upon consideration, M r. Terreros has failed to meet this demanding

standard. W hile the evidence does tend to demonstrate that he occupied a

significant position within the M ormon Church, and was active in church

activities, the BIA’s conclusion that he failed to demonstrate prior persecution

or the likelihood of future persecution based on his religious activities is

supported by substantial evidence and must be upheld.

M r. Terreros also attacks the BIA’s findings that “the particular social

group of Colombians who have a reputation as pro-American sympathizers or who

are affiliated with pro-American interests” is “too loosely defined to meet the

requirement” of a “social group” for purposes of the restriction on removal

statute, and that it “lacks social visibility.” Admin. R. at 3. W e need not

determine whether the social group he describes constitutes a legitimate

“social group” for purposes of restriction on removal. The BIA’s finding,

that M r. Terreros was not persecuted in the past on any statutory ground, and

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had failed to show that he was likely to be persecuted in the future on any such

ground, represents an adequate ground for its denial of restriction on removal.

The petition for review is DENIED.

Entered for the Court

Timothy M . Tymkovich
Circuit Judge

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