Diego Alejandro Melgarejo-Sandoval v. US Atty. Gen

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 7, 2009
No. 08-12572 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

BIA Nos. A95-905-462 & A95-905-463

DIEGO ALEJANDRO MELGAREJO-SANDOVAL,
SONIA YANETH ZAMORA-TAVERA,
PAULA ALEJANDRA MELGAREJO-ZAMORA,
NATALIA MELGAREJO-ZAMORA,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(January 7, 2009)

Before BLACK, BARKETT and FAY, Circuit Judges.

PER CURIAM:
 Diego Alejandro Melgarejo-Sandoval (“Melgarejo-Sandoval”) and his wife,

Sonia Zamora-Tavera, and their two children, Paula and Natalia Melgarejo-

Zamora, through counsel, seek review of the decision by the Board of Immigration

Appeals (“BIA”) affirming the immigration judge’s (“IJ’s”) order denying their

application for asylum, withholding of removal, and voluntary departure under the

Immigration and Nationality Act (“INA”), and relief under the United Nations

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishment (“CAT”).

As an initial matter, Melgarejo-Sandoval failed to raise any arguments in his

brief concerning: (1) the BIA’s denial of withholding of removal, (2) the denial of

CAT relief, or (3) the denial of voluntary departure. Therefore, he has abandoned

those issues. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.

2005).

On appeal, Melgarejo-Sandoval argues that the BIA erred when it failed to

find a nexus between his fear of persecution by the National Liberation Party of

Colombia (“ELN”) and either his political opinion or his membership in the

particular social group consisting of relatives of his father, Arturo Melgarejo. He

also argues that the IJ and the BIA erred when they failed to make clear credibility

and persecution factual findings, thus precluding meaningful review of the IJ’s

decision, and further erred when they found that relocation within Colombia was a
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reasonable option, because they failed to address the statutory factors set out in

8 C.F.R. § 1208.13(b)(3), and because the 2005 and 2006 Country Reports stated

that the ELN continued to engage in illegal activities in Colombia.

“We review only the [BIA’s] decision, except to the extent that it expressly

adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). In the instant case, the BIA issued its own opinion with analysis and did

not expressly adopt the IJ’s decision. Therefore, we review only the BIA’s

decision.

To the extent that the BIA’s decision was based on a legal determination,

review is de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir.

2004). The BIA’s factual determinations, however, are reviewed under the

substantial-evidence test, which requires us to “view the record evidence in the

light most favorable to the agency’s decision and draw all reasonable inferences in

favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir.

2004) (en banc). We must affirm the BIA’s decision “if it is supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.” D-Muhumed, 388 F.3d at 818 (quotation omitted). “To reverse the . . .

fact findings, we must find that the record not only supports reversal, but compels

it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).

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I. BIA’s finding that no nexus existed between Melgarejo-Sandoval’s
persecution and either his political opinion or his membership in a particular
social group

An alien who arrives in or is present in the United States may apply for

asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General or

Secretary of the Department of Homeland Security has discretion to grant asylum

if the alien meets the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C.

§ 1158(b)(1). A “refugee” is:

any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion[.]

8 U.S.C. § 1101(a)(42)(A). An asylum petitioner must establish a nexus between

the feared persecution and the statutorily listed factor. The alien must present

“specific, detailed facts showing a good reason to fear that he or she will be singled

out for persecution on account of” the statutorily listed factor. Forgue v. U.S.

Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quotation omitted). However,

the alien does not need to prove that he would be “singled out” for persecution if

(1) there is a “pattern or practice” of persecution against similarly situated

individuals and (2) his or her inclusion within that group of individuals makes fear

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of persecution reasonable. See 8 C.F.R. 208.13(b)(2)(iii). Additionally, one of the

five enumerated grounds need not be the only motivation for the persecution, as

long as the applicant can show that the persecution is, “at least in part, motivated

by a protected ground.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232

(11th Cir. 2007) (citation omitted). The asylum applicant carries the burden of

proving statutory “refugee” status. 8 C.F.R. § 208.13(a); Al Najjar, 257 F.3d at

1284.

Melgarejo-Sandoval testified that after he escaped from an ELN roadblock –

which he encountered during his work as a BellSouth security guard – and refused

to turn over his company’s vehicle and weapons to the ELN, “that’s when all the

threats started.” The BIA found that it was the encounter with the ELN that he had

at the roadblock, while working for BellSouth, and his refusal to hand over the

weapons and vehicle that led to his harassment. The BIA also agreed with the IJ’s

determination that corroboration existed for Melgarejo-Sandoval’s assertion that he

accompanied Liberal Party candidates during campaigns, but concluded that those

party activities were unrelated to any persecution experienced by Melgarejo-

Sandoval. Thus, there was sufficient evidence that his persecution by the ELN was

unrelated to his Liberal Party membership or activities and therefore not “because

of his political opinion.” Rodriguez-Morales v. U.S. Att’y Gen., 488 F.3d 884, 890

(11th Cir. 2007).
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 Based on the evidence and viewing the record in the light most favorable to

the agency’s decision, the BIA’s determination that Melgarejo-Sandoval was not

and will not be persecuted because of his political opinion or his membership in a

particular social group is supported by substantial evidence and does not compel

reversal.

II. BIA’s credibility determination and factual findings

As to factual findings on credibility, the fact-finder must “determine

credibility, and we may not substitute our judgment for that of the fact-finder with

respect to credibility findings.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201

(11th Cir. 2005). When a fact-finder “says not that [s]he believes the asylum

seeker or [that] [s]he disbelieves her . . . the reviewing Court is left in the dark.”

Id. (citations omitted). If credible, an alien’s testimony may be sufficient, without

corroboration, to sustain her burden of proof in establishing her eligibility for relief

from removal. Forgue, 401 F.3d at 1287. However, our case law mandates that

“specific, cogent reasons” for a credibility determination be given only in the

context of adverse credibility findings. See, e.g., id.; D-Muhumed, 388 F.3d at

819.

Because the BIA presumed that Melgarejo-Sandoval’s testimony was

credible and therefore was not obligated to provide explicit reasons for its

credibility determination, and because there was substantial evidence supporting
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the BIA’s determination of whether persecution existed, we are not compelled to

reverse the BIA’s decision.

III. BIA’s finding that relocation within Colombia was reasonable

As stated in 8 C.F.R. § 1208.13, “an immigration judge, in the exercise of

his or her discretion, shall deny the asylum application of an alien found to be a

refugee on the basis of past persecution if . . . [t]he applicant could avoid future

persecution by relocating to another part of the applicant’s country of

nationality . . . and under all the circumstances, it would be reasonable to expect

the applicant to do so.” 8 C.F.R. § 1208.13(b)(1)(i)(B). Furthermore, “[a]n

applicant does not have a well-founded fear of persecution if the applicant could

avoid persecution by relocating to another part of the applicant’s country of

nationality . . . if under all the circumstances it would be reasonable to expect the

applicant to do so.” 8 C.F.R. § 1208.13(b)(2)(ii). To determine the reasonableness

of internal relocation under 8 C.F.R. § 1208.13(b)(1)(i) and (b)(2), 8 C.F.R.

§ 1208.13(b)(3) provides:

[A]djudicators should consider, but are not limited to considering,
whether the applicant would face other serious harm in the place of
suggested relocation; any ongoing civil strife within the country;
administrative, economic, or judicial infrastructure; geographical
limitations; and social and cultural constraints, such as age, gender,
health, and social and familial ties. Those factors may, or may not, be
relevant, depending on all the circumstances of the case, and are not
necessarily determinative of whether it would be reasonable for the
applicant to relocate.
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 In cases in which the applicant has not established past persecution,
the applicant shall bear the burden of establishing that it would not be
reasonable for him or her to relocate, unless the persecution is by a
government or is government-sponsored.

8 C.F.R. § 1208.13(b)(3) and (b)(3)(i).

We have stated that “it is not unreasonable to require a refugee who has an

internal resettlement alternative in his own country to . . . establish that such an

option is unavailable.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1327 (11th

Cir. 2001). Furthermore, we found reversible error when the BIA failed to mention

the factors of 8 C.F.R. § 1208.13(b)(3) in making its determination of whether

internal relocation was reasonable. Arboleda v. U.S. Atty. Gen., 434 F.3d 1220,

1226 (11th Cir. 2006).

In the instant case, the BIA concluded that no past persecution existed.

Therefore, the burden was on Melgarejo-Sandoval to establish that it was

unreasonable for him to relocate, and he offered insufficient evidence to this effect,

testifying only that the guerrillas would find him in any part of Colombia. The IJ

noted in his decision that Melgarejo-Sandoval’s mother and two sisters continued

to live in Bogota, Colombia, without government protection. The IJ also stated

that the FARC operated roadblocks throughout the country, but Melgarejo-

Sandoval failed to offer evidence of any persecution or threats of persecution by

the FARC. Thus, he failed to meet his burden when he presented only vague

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testimony and relied on the Country Report. See Arboleda, 434 F.3d at 1224

(finding that the DHS’s submission of two country reports and an asylum profile

was insufficient to meet its burden).

Furthermore, Melgarejo-Sandoval’s inability to establish that any past

persecution or fear of future persecution was because of a protected ground is fatal

to his asylum claim. See Sepulveda, 401 F.3d at 1232 n.7. Therefore, even if the

IJ failed to properly analyze the relocation factors, the error was harmless. (Id.).

Because substantial evidence supported the BIA’s conclusion that

Melgarejo-Sandoval did not meet his burden of proving that internal relocation was

unreasonable and because any failure by the BIA to apply the reasonableness

factors was harmless error, the BIA did not err when it determined that internal

relocation was reasonable.

Upon review of the record and consideration of the parties’ briefs, we find

no reversible error. Accordingly, we deny the petitioners’ petition for review.

PETITION DENIED.

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