NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-4208
___________
ABRAHAM CARRILLO RAMIREZ,
a/k/a Abraham Ramirez, a/k/a Abraham Carillo,
Petitioner
v.
ATTORNEY GENERAL UNITED
STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A205-309-488)
Immigration Judge: Honorable Dorothy Harbeck
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 20, 2015
Before: AMBRO, VANASKIE and SLOVITER, Circuit Judges
(Opinion filed: March 24, 2015)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Abraham Carillo Ramirez petitions for review of a final order of removal. For the
following reasons, we will deny the petition.
Ramirez, a native and citizen of Colombia, entered the United States in 2007 and
overstayed his visa. The Government started removal proceedings on that basis in 2012.
See 8 U.S.C. § 1227(a)(1)(B). Ramirez, who was represented by counsel at the
immigration hearing, conceded removability. He also applied for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”) based on his fear of
being killed or tortured by a drug cartel, the South Cartel, or a paramilitary group, the
Autodefensas Unidas de Colombia (“AUC”).
Ramirez testified about four encounters with the South Cartel, starting with a
meeting in which he was accused of being an informant for another cartel and asked to
prove his innocence by working for the South Cartel. He refused and was told “okay,
you have made your decision,” which he construed as a threat. About a month later,
Ramirez visited his aunt in another city. Upon arrival, she told him to leave because
armed men had come to her house looking for him. Ramirez’ last encounter occurred a
year later, while visiting his mother. He passed a lot controlled by the cartel while
walking to her house. The man who originally accused him of being an informant
accosted him at gunpoint, asking him why he was there. Ramirez said he was not an
informant and was only visiting his mother. The man then shoved Ramirez and told him
he would keep an eye on him.
2
As for the AUC, Ramirez received phone calls in 2006 telling him to join the
group. He testified that such recruitment was a common practice in his town. By the
second call, Ramirez was scared and moved to his father’s house in another city for a few
days. In the third call, he was told to report within twenty-four hours or be killed.
Ramirez fled again to his father’s house for several weeks. When he went to visit his
mother, two AUC members tried to kidnap him and his companion. The young men
fought off their attackers, who shot at them and drove away. Ramirez’ mother then drove
him to another part of the country to stay with a relative. He remained there for the rest
of 2006, but the AUC called his mother’s house while he was away. Finally, Ramirez
testified that while he was travelling by bus to school in early 2007, an unidentified man
followed him and shot at him.1 Ramirez sought refuge at his father’s house until he left
for the United States in May 2007.
The Immigration Judge (“IJ”) found Ramirez’ testimony credible, but denied
relief. She concluded that: (1) his asylum application was time-barred;2 (2) he had not
suffered harm rising to the level of past persecution on account of a protected ground;
and (3) he had not shown he faced a likelihood of torture by, or with the acquiescence of,
the Colombian government. In pertinent part, the IJ found that the threats and
1
The Immigration Judge found that Ramirez could not link this incident to either the
cartel or the AUC.
2
Ramirez filed his application years after the deadline expired. He has raised no
constitutional or legal questions regarding the IJ’s conclusion that he does not qualify for
an exception to the deadline, so the matter is beyond judicial review. See 8 U.S.C.
3
intimidation Ramirez experienced, though unfortunate, did not rise to the level of
persecution. As for his CAT claim, the IJ concluded that Ramirez had not shown that he
had been tortured in the past and found the country conditions evidence he submitted to
be too generalized to establish that it is more likely than not that he would be tortured if
he returned to Colombia. The Board of Immigration Appeals (“BIA”) upheld the IJ’s
decision, and this petition for review followed.
As an initial matter, the Government urges us to “clarify” whether we have
jurisdiction over the petition for review in light of the BIA’s sua sponte reconsideration
of its initial decision. While Ramirez’ appeal was pending before the BIA, he filed a
motion to reopen which presented additional articles in support of his claims for relief.
The BIA did not mention this motion in its September 2013 decision dismissing the
appeal. In December 2013 – after Ramirez petitioned this Court for review of the
September decision – the BIA sua sponte reconsidered its earlier decision. The Board
noted that it had previously failed to address the motion to reopen, construed it as a
motion to remand, and denied it, concluding that the additional documents did not
establish a prima facie case for relief. The BIA stated in its order that “[t]he appeal is
dismissed for the reasons stated in our September 26, 2013, decision.” Resp’t’s Br. at Ex.
A. The Government argues that it is not clear whether the BIA’s December 2013
decision “altered the status of [its earlier] decision as a final order of removal” because
the BIA did not explicitly state whether it was affirming or modifying its earlier decision.
§ 1158(a)(3); Sukwanputra v. Gonzales, 4344F.3d 627, 633, 635 (3d Cir. 2006).
Id. at 15. The Government contends that we would lack an order to review if the
December decision “effectively vacated” the earlier decision because Ramirez did not
petition for review of the BIA’s December decision.
We do not perceive the situation to be as murky as the Government does. As we
have previously noted, the substance of the BIA’s decision upon reconsideration may
affect whether there is still a live controversy to be resolved:
For example, if the BIA’s subsequent decision substantively altered
the ratio decidendi in its earlier disposition and operated to vacate the
BIA’s earlier decision, then the petition for review of the earlier
decision is without effect because there is no longer any order or
decision for the court of appeals to review. On the other hand, if the
BIA’s subsequent decision did not materially alter the rationale of the
earlier ruling, that ruling remains effective and subject to judicial
review by the court of appeals.
Thomas v. Att’y Gen., 625 F.3d 134, 140 (3d Cir. 2010). In this case, the BIA’s decision
upon reconsideration did not materially alter the rationale of its earlier ruling. The
December decision makes clear that the BIA undertook sua sponte reconsideration for the
purpose of addressing the previously overlooked motion to remand, and the analysis in
the decision pertains only to that motion to remand, which was denied. Significantly, the
BIA’s decision did not state that it was modifying, reversing, or vacating the earlier
decision. On the contrary, the BIA explicitly adhered to its prior disposition and
rationale, stating that “[t]he appeal is dismissed for the reasons stated in our September
26, 2013, decision.” In this context, we conclude that the December 2013 decision did
5
not vacate or substantially modify the September 2013 decision and, therefore, the
petition for review continues to present a live controversy for judicial review.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Where, as here, the BIA
issues its own decision on the merits, we review that decision and consider the IJ’s ruling
“only insofar as the BIA deferred to it.” Roye v. Att’y Gen., 693 F.3d 333, 339 (3d Cir.
2012). We review the agency’s factual findings for substantial evidence. Dia v.
Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003). This is a deferential standard, and the
“BIA’s determination will not be disturbed unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir.
2008) (internal quotation marks omitted).
In this case, Ramirez challenges the denial of withholding of removal and CAT
relief. The Government argues that we lack jurisdiction to review the denial of
withholding of removal because Ramirez failed to raise any arguments relevant to that
issue when he appealed to the BIA. See Lin v. Att’y Gen., 543 F.3d 114, 120-21 (3d Cir.
2008) (holding that the failure to exhaust an issue before the BIA deprives this Court of
jurisdiction to review it). Although Ramirez failed to specifically challenge the IJ’s
ruling, we nonetheless retain jurisdiction to consider it because the BIA sua sponte
reviewed the IJ’s ruling.3 Id. at 126.
3
We note that the BIA’s decision could lead to some confusion on this point. The Board
first stated that “we agree with the [IJ] that [Ramirez] did not meet his burden of proving
that he faces a clear probability of persecution if removed to Colombia or that any harm
he suffered was on account of a statutorily enumerated ground.” Administrative Record
6
To establish entitlement to withholding of removal, Ramirez had to show that it is
more likely than not that he will be persecuted in Colombia on account of a protected
ground. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003). Past persecution
triggers a presumption that a petitioner will be persecuted after removal. 8 C.F.R.
§ 1208.16(b)(1)(i). The IJ determined that the intimidation Ramirez experienced did not
rise to the level of persecution because the threats remained unfulfilled and Ramirez
never suffered serious harm. Substantial evidence supports this conclusion. Persecution
“does not encompass all treatment that our society regards as unfair, unjust, or even
unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Rather,
it is defined as extreme behavior, such as “threats to life, confinement, torture, and
economic restrictions so severe that they constitute a real threat to life or freedom.”
Lukwago v. Ashcroft, 329 F.3d 157, 168 (3d Cir. 2003). In this case, Ramirez
experienced sporadic threats and an attempted kidnapping, in which he was shot at but
remained unharmed. Although undoubtedly frightening to Ramirez, these incidents do
not rise to the level of persecution. See Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir.
2005) (“isolated incidents that do not result in serious injury do not rise to the level of
persecution.”)
Ramirez notes that he was hit in the head during the attempted kidnapping and
(“A.R.”) at 2. However, the BIA later stated that Ramirez had not challenged the IJ’s
decision and supported its conclusion that he had not demonstrated error by citing
precedent wherein the Board refused to address issues not raised on appeal. Id.
Nevertheless, we find the Board’s initial and plain statement regarding its agreement with
7
argues that the event constituted persecution under Chavarria v. Gonzales, 446 F.3d 508
(3d Cir. 2006). In Chavarria, the petitioner was forced at gun and knife point into a car,
robbed, and threatened with death because he was a witness to a politically-motivated
crime. Id. at 519-20. While both cases involved forcing a victim into a car at gunpoint,
the similarities end there. The attempt on Ramirez was unsuccessful because he was able
to escape, and he did not suffer harm from it: he testified that the blow to his head was
not serious and he did not seek medical help. See A.R. at 540-41; Chen v. Ashcroft, 381
F.3d 221, 235 (3d Cir. 2004) (beatings that did not result in serious injury and for which
petitioner did not seek medical help did not rise to the level of persecution). Most
importantly, Chavarria established that he was attacked on account of a protected ground,
whereas Ramirez failed to make that showing, which we will discuss next.
In addition to establishing persecution, Ramirez also had to show that he was
targeted by the South Cartel and AUC on account of a protected ground. See Zubeda,
333 F.3d at 470. Ramirez checked the box for “membership in a particular social group”
on his asylum application, but never identified the social group in his application,
supporting statement, or testimony. He therefore failed to carry his burden on that
ground because he did not identify a particular social group, establish his membership in
that group, or show persecution on account of membership. See Lukwago, 329 F.3d at
170.4 The IJ considered whether the protected ground of political opinion might be at
the IJ’s conclusions to reflect sua sponte review of the denial of withholding of removal.
4
Ramirez argues in his brief that he belongs to the particular social groups of (1) young
8
issue but concluded that it was not, relying on INS v. Elias-Zacarias, 502 U.S. 478, 482
(1992), for the point that resistance to guerilla recruitment is not inherently an expression
of political opinion. Review of the record supports the IJ’s conclusion that this case is
similar to Elias-Zacarias because Ramirez presented no evidence that he was targeted by,
or resisted, the AUC and South Cartel on account of an expressed political opinion, or
one that was imputed to him. Furthermore, Ramirez testified that he was targeted by the
South Cartel because they thought he was working for another cartel. A.R. at 510.
In sum, Ramirez failed to establish past persecution on account of a protected
ground, and was therefore not entitled to a presumption of future persecution. He
likewise failed to independently show a likelihood of future persecution. He never
established a protected ground, as explained above, and the numerous articles and reports
he submitted about conditions in Colombia were too generalized to support his claims.
At most, he showed criminal activity and “generalized lawlessness and violence,” which
does not amount to persecution on account of a protected ground. See Abdille v.
Ashcroft, 242 F.3d 477, 494-95 (3d Cir. 2001). We therefore conclude that substantial
evidence supports the denial of withholding of removal.
Turning to Ramirez’ claim for CAT relief, he had to show by objective evidence
men who have resisted recruitment by gangs or paramilitary organizations, and (2)
Colombians who hold visas and have traveled to the United States. He did not make
these claims during the immigration proceedings or on appeal to the BIA; therefore they
are not exhausted and the BIA cannot be deemed to have considered them during its sua
sponte review of the IJ’s ruling regarding withholding of removal. Accordingly, we lack
jurisdiction to review the argument. See Lin, 543 F.3d at 120-21.
9
that it is more likely than not that he will be tortured in Colombia. See Kamara v. Att’y
Gen., 420 F.3d 202, 212-13 (3d Cir. 2005). The IJ determined that Ramirez had not been
tortured in the past and concluded that he suffered only “unpleasant and fear-inducing”
experiences that did not rise to the level of severe physical or mental suffering.
Substantial evidence supports this conclusion, as Ramirez experienced only sporadic
episodes of threats and intimidation, whereas torture is, by definition, an extreme form of
cruelty. See Zubeda, 333 F.3d at 472. Although the fear Ramirez felt from being
threatened at gunpoint and shot at caused him to move around Colombia and ultimately
flee to the U.S., his evidence did not show the type of “prolonged mental harm” resulting
from the threat of imminent death that would constitute torture. See 8 C.F.R.
§ 208.18(a)(4)(iii). The IJ also rejected Ramirez’ country conditions evidence as too
generalized, a characterization that is supported by the record.5 Ramirez claimed to fear
being tortured and killed by the South Cartel or the AUC. However, he failed to present
country conditions evidence explicitly mentioning the South Cartel, or evidence
indicating that the AUC is currently active in the region of Colombia he hails from.
Ramirez directs our attention to reports filed by his family regarding recent threats
from the South Cartel and AUC. One document was apparently submitted to the BIA in
5
We note that the IJ incorrectly stated the law regarding country conditions evidence
when she wrote that “[r]elevant country conditions alone are insufficient to obtain relief
under the CAT.” A.R. at 402. We have held the opposite. See Pieschacon-Villegas v.
Att’y Gen., 671 F.3d 303, 313 (3d Cir. 2011). This error does not affect our analysis,
however, because Ramirez’ testimony and other evidence were insufficient to support his
claim for CAT relief.
10
support of the motion to remand, and the other was submitted to this Court with his brief.
The latter document is not part of the administrative record and we thus may not consider
it. See 8 U.S.C. § 1252(b)(4)(A). The former document is beyond the scope of review in
this case because Ramirez’ petition pertains only to the BIA’s initial decision on appeal,
not to its decision regarding the motion to remand. Ramirez has not otherwise
persuasively argued that his testimony and other evidence of record established that it is
more likely than not that he will be tortured by the South Cartel or AUC if he returns to
Colombia. Therefore, we conclude that substantial evidence supports the denial of CAT
relief.
For these reasons, we will deny the petition for review.
11