Dora Nelcy Sanchez Ledesma v. U.S. Attorney Gen.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10831 ELEVENTH CIRCUIT
FEBRUARY 23, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK

Agency Nos. A099-555-398, A099-555-399

DORA NELCY SANCHEZ-LEDESMA,
LUIS MARIO SUAREZ-NARVAEZ,
et al.,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(February 23, 2010)

Before EDMONDSON, BLACK and ANDERSON, Circuit Judges.

PER CURIAM:
Dora Nelcy Sanchez-Ledesma,1 a native and citizen of Colombia, seeks

review of the Board of Immigration Appeals’ (BIA) decision affirming the

Immigration Judge’s (IJ) order finding her removable and denying her application

for asylum and withholding of removal under the Immigration and Nationality Act

(INA), 8 U.S.C. §§ 1158, 1231. On appeal, Sanchez-Ledesma argues: (1) the BIA

erred in concluding she was not persecuted on account of her political opinion, and

(2) she should be granted asylum based on her membership in a particular social

group. After review, we deny the petition in part and dismiss it in part.2

Sanchez-Ledesma agues the BIA erred in concluding she was not persecuted

on account of her political opinion. She asserts the BIA erroneously applied the

“nexus test” in a unidimensional manner, ignoring its obligation to determine if an

applicant can show her persecution was motivated at least in part by a protected

ground. She further asserts her employment and political opinion were

1
Sanchez-Ledesma appeals on behalf of herself, her husband Luis Mario Suarez-
Narvaez, and her son Santiago Ospina-Sanchez, who are listed as derivative beneficiaries on her
asylum application.
2
We review the BIA’s legal conclusions de novo. Lin v. U.S. Att’y Gen, 555 F.3d 1310,
1314 (11th Cir. 2009). We review the BIA’s findings of fact under the substantial evidence test,
which requires us to affirm the BIA’s decision if it is “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Forgue v. United States Att’y Gen.,
401 F.3d 1282, 1286 (11th Cir. 2005).

2
inextricably linked, compelling the conclusion the Revolutionary Armed Forces of

Colombia’s (FARC) mistreatment of her was based in part on her political opinion.

The government has discretion to grant asylum if an alien establishes he is a

“refugee,” which requires a showing that “race, religion, nationality, membership

in a particular social group, or political opinion, was or will be at least one central

reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis

added). Thus, a showing the persecution was motivated at least in part by a

protected ground will permit the applicant to establish eligibility for asylum.

Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th Cir. 2007).

Persecution on the basis of political opinion must be on account of the

victim’s opinion. INS v. Elias-Zacarias, 112 S. Ct. 812, 816 (1992). An imputed

political opinion may also constitute a ground for a well-founded fear of

persecution. Rivera v. U.S. Att’y Gen., 487 F.3d 815, 820 (11th Cir. 2007)

(quoting Al Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir. 2001)). To succeed

on a theory of imputed political opinion, an alien must show the “persecutor falsely

attributed an opinion to him, and then persecuted him because of that mistaken

belief about his views.” Al Najjar, 257 F.3d at 1289.

“To warrant reversal of the BIA’s finding that an alien has failed to

demonstrate a sufficient nexus between his political opinion and his alleged

persecution, we must be compelled to find that the alien will be persecuted because
3
of his political opinion.” Rodriguez Morales v. U.S. Atty. Gen., 488 F.3d 884, 890

(11th Cir. 2007) (quotations omitted). Evidence that is consistent with acts of

personal retribution, a petitioner’s failure to cooperate with guerillas, or that

merely shows a person has been the victim of criminal activity, does not constitute

evidence of persecution based on a statutorily protected ground. Sanchez v. U.S.

Atty Gen., 392 F.3d 434, 438 (11th Cir. 2004). When the evidence could equally

support an inference of political persecution or nonpolitical motivation, we will not

be “compelled” to reverse the BIA’s determination the motivation was

nonpolitical. See Rodriguez Morales, 488 F.3d at 891 (refusing to overturn the

BIA’s determination petitioner was threatened for refusal to provide dental services

despite the fact the evidence could support a finding of political persecution).

The BIA determined the FARC’s threats against Sanchez-Ledesma were

neither motivated in whole or in part by her political opinion. In doing so, the BIA

applied the nexus test correctly. Sanchez Jimenez, 492 F.3d at 1232. The BIA

based this determination on the record, which consisted of Sanchez-Ledesma’s

testimony and various documentary exhibits. In her testimony, Sanchez-Ledesma

expressly stated she believed the FARC took action against her because of

knowledge she obtained on her job, namely, the identities of previously-unknown

guerilla collaborators. The nature of at least some of the FARC’s calls was for her

to stop doing her work. Although the calls continued after she resigned her
4
position, Sanchez-Ledesma stated the calls continued because the intelligence she

had obtained about guerilla operations and certain collaborators could be harmful

to the FARC’s efforts. This evidence supports the conclusion the FARC targeted

Sanchez-Ledesma because of her job duties. Sanchez, 392 F.3d at 438. Therefore,

the BIA’s decision that any mistreatment Sanchez-Ledesma suffered was not on

account of her political is supported by substantial evidence on the record.3

II.

Sanchez-Ledesma contends she is protected as a member of a “particular

social group,” because she is an active member of the conservative party who is

also a former high-level government official charged with politically sensitive

tasks. Sanchez-Ledesma further argues the IJ erred in concluding she had not

established past persecution and a well-founded fear of future persecution.

“We lack jurisdiction to consider a claim raised in a petition for review

unless the petitioner has exhausted his administrative remedies with respect

thereto.” Amaya-Artunduaga v. U.S. Atty. Gen., 463 F.3d 1247, 1250 (11th Cir.

2006). As such, if an alien fails to raise a challenge in his appeal to the BIA, we

3
As Sanchez-Ledesma has failed to satisfy the requirements for asylum, she has
similarly failed to satisfy the more stringent requirements for withholding of removal. Silva v.
U.S. Att’y Gen., 448 F.3d 1229, 1243 (11th Cir. 2006).

5
may not consider such a challenge in his petition for review. Amaya-Artunduaga,

463 F.3d at 1250.

During the course of the proceedings, Sanchez-Ledesma sought relief on

account of her political opinion, and did not argue a claim of error based on her

membership in a social group. In the course of her appeal to the BIA, Sanchez-

Ledesma’s counsel never advanced a substantive argument based on her

membership in a social group. Accordingly, she has failed to exhaust her

administrative remedies, and we are jurisdictionally barred from reviewing her

claim for relief on this ground. Amaya-Artunduaga, 463 F.3d at 1250.

PETITION DENIED IN PART, DISMISSED IN PART.