[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 7, 2010
No. 09-16453
JOHN LEY
Non-Argument Calendar
CLERK
________________________
Agency Nos. A097-190-300, A097-190-301
JOHN FREDY OSPINA HERNANDEZ,
PAULA ANDREA VELEZ YEPEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 7, 2010)
Before EDMONDSON, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
John Fredy Ospina Hernandez, a native and citizen of Colombia, petitions
for review of the order by the Board of Immigration Appeals (“BIA”) affirming the
decision of the Immigration Judge (“IJ”). The IJ’s decision denied asylum and
withholding of removal.1 No reversible error has been shown; we dismiss the
petition in part and deny it in part.
Here, we review only the decision of the BIA because the BIA did not
expressly adopt the IJ’s decision. Mehmeti v. U.S. Attorney Gen., 572 F.3d 1196,
1199 (11th Cir. 2009). We review legal determinations de novo. Id. And we
review fact determinations under the “highly deferential substantial evidence test”
whereby we “must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Adefemi
v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We “view the
record in the light most favorable to the [BIA’s] decision and draw all reasonable
inferences in favor of that decision”; and we may reverse the BIA’s fact
determinations “only when the record compels a reversal.” Id. at 1027.
1
Petitioner raises no challenge to the portion of IJ’s decision denying relief under the
Convention Against Torture; so that issue is abandoned. See Sepulveda v. U.S. Attorney Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
The BIA concluded that Petitioner’s asylum application was time-barred
because he did not file it within one year of arriving in the United States, as
required by 8 U.S.C. § 1158(a)(2)(B).2 Petitioner contends that we have
jurisdiction to consider whether he established an exception to the one-year filing
requirement. But we have concluded that section 1158(a)(3) divests us of
jurisdiction to review a time-bar decision. Mendoza v. U.S. Attorney Gen., 327
F.3d 1283, 1287 (11th Cir. 2003). So, we dismiss the petition for review on the
asylum claim.
We have jurisdiction only over Petitioner’s withholding of removal claim.3
To establish eligibility for withholding of removal, an alien must show “that his
life or freedom would be threatened on account of” a protected ground, including
political opinion and membership in a particular social group. Delgado, 487 F.3d
at 860-61. Therefore, Petitioner bore “the burden of demonstrating that he more-
likely-than-not would be persecuted or tortured upon his return to” Colombia. Id.
at 861. Where, as here, Petitioner made no claim of past persecution, to meet this
2
Petitioner entered the United States in April 1999 and filed his asylum application in
March 2003.
3
Petitioner included his wife as a derivative beneficiary in his application. But as a
derivative petitioner, Petitioner’s wife is ineligible for withholding of removal even if Petitioner
is granted such relief. See Delgado v. U.S. Attorney Gen., 487 F.3d 855, 862 (11th Cir. 2007).
3
burden, he had to show a future threat to his life or freedom on a protected ground
in Colombia. Id.
In the absence of past persecution, an alien must demonstrate that his fear of
persecution is “subjectively genuine and objectively reasonable,” and “establish a
causal connection between the [protected ground] and the feared persecution.”
Sepulveda, 401 F.3d at 1231. The alien must establish either that he would be
singled out individually, or that there is a pattern or practice of persecution based
on a protected ground against the group with which he identifies. 8 C.F.R. §
208.16(b)(2)(i).
Petitioner sought relief because he feared future persecution in Colombia by
guerilla and paramilitary groups based on his membership in a particular social
group of educators and because of his involvement with the Liberal Party.
Petitioner served as a sports coordinator in the campaigns of certain Liberal Party
candidates in the late 1990s. He obtained this job after approaching the Liberal
Party and asking for its support. As a sports coach, Petitioner helped to expand the
Liberal Party’s voting base through the parents and relatives of the children
participating in the sports programs.
Petitioner worked in a small town in the mountains and often traveled with
his teams to other small towns for sports competitions. In traveling, Petitioner
4
would occasionally have contact with the guerillas and members of paramilitary
groups that controlled the town and other nearby towns, including some members
who were on his adult sports teams. He eventually left the town because he felt
like his life was in danger because of these groups. He feared persecution upon
return to Colombia because he was involved in education and those involved in
education were not respected and often were attacked by the guerilla and
paramilitary groups.
The IJ concluded that Petitioner showed no clear probability of persecution
because of his membership in a particular social group of educators or because of
his support of the Liberal Party. The BIA agreed with the IJ, concluding that
Petitioner’s coaching did not place him within a particular social group because
employment was not based on a common, immutable characteristic and that
Petitioner showed no clear probability of being persecuted based on his support of
Liberal Party candidates because he presented no evidence that any of the
candidates or their supporters had been targeted. And Petitioner could avoid future
threats by relocating to a more urban area.
On appeal, Petitioner argues that he showed that, as a member of a particular
social group of educators and because of his involvement in the Liberal Party, he
would be singled out for persecution by guerillas and paramilitary groups and,
5
thus, qualified for withholding of removal.4 He also argues that he demonstrated a
pattern or practice of persecution against Liberal Party supporters to qualify for
relief. We disagree.
Even if Petitioner’s job as a sports coordinator places him in the role of an
educator, he still has not shown that he is part of a particular social group. Because
Petitioner could change jobs, his position as a sports coach is not an immutable
characteristic that is fundamental to his identity. See Castillo-Arias v. U.S.
Attorney Gen., 446 F.3d 1190, 1196 (11th Cir. 2006); Matter of Acosta, 19 I. & N.
Dec. 211, 234 (BIA 1985), overruled on other grounds by Matter of Mogharrabi,
19 I. & N. Dec. 439 (BIA 1987) (concluding that taxi workers were not a
“particular social group” under the INA because “the internationally accepted
concept of a refugee simply does not guarantee an individual a right to work in the
job of his choice”). The BIA’s determination that educators did not constitute a
particular social group was not unreasonable so we must accept the BIA’s
interpretation. See Castillo-Arias, 446 F.3d at 1196.
Petitioner also demonstrated no objectively reasonable fear of being singled
out for future persecution because of his political opinion. His activities with the
4
Contrary to Petitioner’s assertion, the BIA did not apply the incorrect standard to
Petitioner’s asylum claim. The BIA concluded that Petitioner’s asylum claim was time-barred
and applied the correct “more-likely-than-not” standard to his remaining withholding of removal
claim.
6
Liberal Party were limited to his activities with sports; and he had never been
targeted, threatened, or harmed by guerillas or paramilitary groups because of his
party associations, even while working in an area with strong guerilla and
paramilitary activity. He occupied no significant post in the Liberal Party and he
did not show that any notoriety he had with the Party would outlast his decade-
long absence. See Sepulveda, 401 F.3d at 1231-32. And, as the BIA noted
correctly, Petitioner could avoid a future threat by relocating to a less rural area of
Colombia, where these militant groups had less of a presence. See Mendoza, 327
F.3d at 1287.
Petitioner also demonstrated no pattern or practice of persecution against
Liberal Party supporters. Documents submitted by Petitioner indicated that
violence by paramilitary and guerilla groups was meted out without regard to
political affiliation. And Petitioner testified that he knew of no Liberal Party
members who had been threatened or attacked by paramilitary groups.
Viewing the evidence in the light most favorable to the BIA’s decision,
Petitioner did not show that he would more likely than not suffer persecution
because of his role as an educator or involvement in the Liberal Party. And we are
not compelled to reverse the BIA’s conclusions.
PETITION DISMISSED IN PART AND DENIED IN PART.
7