[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 6, 2009
No. 08-13393 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A96-087-130 & A96-087-131
FRANCISCO ROBERTO SOLORZANO ALVAREZ,
PATRICIA ESTHER CARRILLO AGUDELO,
JULIANA SOLORZANO CARRILLO,
JUAN PABLO SOLORZANO CARRILLO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 6, 2009)
Before BIRCH, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Petitioner Francisco Roberto Solorzano Alvarez (“Solorzano”), his wife,
Patricia Esther Carrillo Agudelo, and their two children, Juliana Solorzano Carrillo
and Juan Pablo Solorzano Carrillo (collectively, “petitioners”), natives and citizens
of Colombia, seek review through counsel of an order by the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of petitioners’
claims for asylum and withholding of removal 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”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c). Petitioners argue that the
BIA erred in denying their application for asylum because the documentary
evidence and Solorzano’s testimony established that Solorzano suffered past
persecution and had a well-founded fear of future persecution on account of his
political opinion.1 After careful consideration of the record, we conclude
otherwise. Accordingly, we DENY the petition for review.
I. BACKGROUND
In April 2003, petitioners were served with Notices to Appear (“NTA”),
charging that they were natives and citizens of Colombia, that they entered the
1
On appeal, petitioners do not challenge the BIA’s decision regarding their entitlement to relief
under CAT and so have abandoned this claim. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005) (per curiam) (noting that when a party “fails to offer argument on an
issue, that issue is abandoned”).
2
United States on 1 August 2002, and that they were subject to removal under INA
§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B) as nonimmigrants who remained in the
United States for a time longer than permitted. Administrative Record (“AR”) at
356, 368, 378, 388. Solorzano filed an asylum application, seeking asylum and
withholding of removal under the INA based on his political opinion and
protection under CAT. He included his wife and two children in his application.
Id. at 310-23. Solorzano alleged, inter alia, that he had been the victim of
persecution by the Revolutionary Armed Forces of Colombia (“FARC”) for his
social and political activities. Id. at 321.
Solorzano set out the following specific allegations in his application. In
October 2001, he received a letter from the FARC, in which the group demanded a
monetary contribution. When he did not comply, he began to receive threatening
telephone calls in which the callers ordered him to stop his political and social
activities. Id. He received a second letter from the FARC in May 2002, in which
the group again demanded monetary support and ordered him to stop his political
and social activities. Id. at 322. He also described an incident that occurred on 4
June 2002, in which he and his wife were traveling by car and were stopped at a
roadblock by guerrillas. After they were ordered out of the car, an army patrol
appeared, and the guerrillas engaged the patrol in a firefight. The guerillas
ultimately fled in Solorzano’s car. Id. Three days after the incident, Solorzano
3
received another telephone call in which the caller threatened Solorzano with death
and told him that he was a “military objective” of the FARC. Id. at 322-23.
Shortly after this call, Solorzano moved with his family to the United States. Id. at
323. While in the United States, Solorzano received one last threatening letter in
December 2003. Since then, the telephone calls and letters have ceased.
In support of his asylum application, Solorzano submitted the following:
(1) letters indicating that Solorzano was a member of the Conservative Party in
Colombia and had worked in the campaign for President Alvaro Uribe Velez, id. at
286-91, 292-95; (2) two reports from the Gaula,2 indicating that Solorzano had
received threatening telephone calls and death threats, id. at 112-15; (3) four letters
from the FARC, generally demanding monetary support and an end to Solorzano’s
social and political activities, id. at 118-127, 296-99; and (4) the 2005 U.S. State
Department’s Country Report on Human Rights Practices in Colombia. Id. at 131-
57.
Solorzano received the FARC letters in October 2001, May 2002, August
2003, and again in December 2003. The letters generally asked for a monetary
contribution and demanded that Solorzano end his “active association in political
2
The words “Gaula,” “Jaula,” and “Gala” appear throughout the record and apparently refer to
the same entity. See, e.g., id. at 32, 73, 113. We employ the term “Gaula” for consistency. In
removal proceedings, Solorzano testified that the Gaula was a branch of the Colombian army
that handled kidnapings and extortion. Id. at 82.
4
and social programs” to which the FARC was opposed. Id. at 121-22. The letters
became increasingly threatening, with the last naming Solorzano as a “military
target.” Id. at 126-27. The letters also suggested that a sizable monetary
contribution would “exonerate” him and obviate the necessity of retaliation. Id. at
121-22.
The 2005 U.S. State Department’s Country Report on the Human Rights
Practices in Colombia indicated, inter alia, that: (1) the conflict between the
government and the FARC continued after the 2002 election of President Uribe;
(2) the government’s respect for human rights continued to improve; (3) serious
problems remained; and (4) the majority of the human rights abuses in Colombia
were perpetrated by illegal armed groups, such as the FARC. Id. at 131-32. The
report also provided that “[p]olitical and unlawful killings remained an extremely
serious problem,” and FARC guerrillas committed unlawful killings and kidnaped
civilians. Id. at 132-33, 142. According to the report, the FARC killed
“journalists, religious leaders, candidates for public office and local elected
officials and politicians, alleged paramilitary collaborators, and members of the
security forces.” Id. at 133, 142.
In removal proceedings before the IJ, Donna Eisenberg, a forensic document
examiner for the Department of Homeland Security, Immigrations and Customs
Enforcement Forensic Document Lab, testified concerning the authenticity of the
5
FARC letters. Id. at 56, 65, 67. After examining the letters, she could not offer an
opinion as to whether they were authentic or not. Id. at 69. However, she was
suspicious of the October 2001 letter because the envelope bore a postal
cancellation date of 28 July 2000, predating the letter within it by over a year. Id.
at 70. She made no finding as to whether the postal cancellation stamp was
authentic, but “took it at face value.” Id. On cross-examination, she testified that
she could not authenticate the Gaula reports and had no experience with Gaula
documents. Id. at 73.
Solorzano then testified and essentially recounted the allegations made out
in his asylum application. Id. at 75. He used to live in Cali, Colombia, where he
has owned a “plastic enterprise” for over seventeen years. Id. at 76-77. As for his
political activities, he had been a member of the Conservative Party since 1993.
Id. at 78. His role in the party was limited to offering financial assistance through
his business. He also supported educational programs for children and training for
adults to help them find work. Id. at 78-79. In 2001, he decided to support Uribe3
for president, and he worked in Uribe’s campaign. Id. at 83-84. Solorzano also
described the four FARC letters and the roadblock incident in some detail. Id. at
81-89. He concluded his testimony by stating that he feared for his life and that of
his family if returned to Colombia. On cross-examination, Solorzano conceded
3
The transcript provides that this name is “Ariva,” but it appears that it should be “Uribe.”
6
that neither he nor his business had received any threats since the December 2003
letter and that he did not hold a particular position in his political party, his support
for the Conservative Party being primarily through his business. Id. at 102-04.
The IJ denied Solorzano’s application for asylum, withholding of removal,
and request for relief under CAT, and ordered him and his family removed to
Colombia. Id. at 24. Although the IJ found his testimony to be credible, he
concluded that Solorzano’s description of his political activities was “not very
detailed” and that there was no evidence that he held an important position or did
anything to make him a target for anyone in Colombia. Id. at 31. Accordingly, the
IJ found that the letters were attempts to extort money from Solorzano and that
criminal extortion did not constitute persecution.4 Id. at 32. With respect to the
roadblock incident, the IJ determined that there was no indication that the
roadblock was specifically established to catch Solorzano. The IJ noted that
Solorzano testified that the guerillas manning the roadblock did not know who
Solorzano was when he was stopped. Id. The IJ also found that there was no
indication that anyone was still seeking to cause harm to Solorzano or his family,
given that his business was still operating in Colombia and that he had not been
4
The IJ also cited Solorzano’s testimony regarding the Guala’s response when he presented
them with the FARC letters – namely, that the letters were a common fund raising scheme
amongst the FARC guerillas and other groups. Many letters would be sent out indiscriminately
with the hope that at least a few recipients would accede to their demands. Id. at 32.
7
threatened in any form since December 2003. Id. at 33-34. Solorzano appealed
the IJ’s decision and argued that his claim was based on the FARC’s mixed
motives, one of which was Solorzano’s political opinion. Id. at 6-11.
The BIA dismissed the appeal. Id. at 2-4. The BIA agreed with the IJ that
the FARC’s singular goal was to obtain money from Solorzano. The BIA
concluded that Solorzano’s ownership of a successful business made him a target
for extortion by the FARC and that such extortion was not linked to any statutorily
protected ground for asylum purposes. Because Solorzano failed to establish
eligibility for asylum, the BIA concluded that he also failed to qualify for
withholding of removal. Id. The BIA also noted that Solorzano did not challenge
the IJ’s finding with respect to protection under CAT. Id. at 2 n.1.
Solorzano and his family now petition us for review of the BIA’s decision.
He argues that the FARC had mixed motives for persecuting him and his family –
he was targeted not only for his money, but also because of his political opinion.
Accordingly, Solorzano contends that he has sufficiently established past
persecution on account of his political opinion and a well-founded fear of future
persecution.
II. DISCUSSION
We review only the BIA’s decision, but where the BIA expressly adopts the
IJ’s decision, we also review the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d
8
1262, 1284 (11th Cir. 2001). To the extent that the BIA adopts the IJ’s reasoning,
we review the IJ’s decision as well. Id. When reviewing the IJ and BIA’s factual
determinations, we employ the substantial evidence test and will affirm if the
decision “is supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256
(11th Cir. 2007) (quotation marks omitted). Under the substantial evidence test,
we can reverse a finding of fact by the IJ or BIA “only when the record compels a
reversal; the mere fact that the record may support a contrary conclusion is not
enough to justify a reversal of the administrative findings.” Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). We review the IJ and BIA’s legal
determinations de novo. Mejia, 498 F.3d at 1256.
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 . . ., 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.
9
8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the burden of proving that
he or she qualifies as a “refugee.” 8 C.F.R. § 208.13(a). In order to meet this
burden, “the applicant must, with specific and credible evidence, establish (1) past
persecution on account of a statutorily protected ground or (2) a well-founded fear
of future persecution on account of a protected ground.” Mejia, 498 F.3d at 1256.
“Persecution” is not defined in the INA, but we have described it as “an
extreme concept, requiring more than a few isolated incidents of verbal harassment
or intimidation.” Sepulveda, 401 F.3d at 1231 (quotations marks omitted). We
have also noted that “mere harassment does not amount to persecution.” Id.
(quotation and alteration omitted). In determining whether an alien has suffered
past persecution, the BIA considers the cumulative impact of the alleged incidents
of persecution. Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861-62 (11th Cir. 2007)
(per curiam).
“An applicant who has demonstrated past persecution is presumed to have a
well-founded fear of future persecution.” Mejia, 498 F.3d at 1257; 8 C.F.R.
§ 208.13(b)(1). The presumption can be rebutted by a showing that “[t]here has
been a fundamental change in circumstances such that the applicant no longer has a
well-founded fear of persecution” or the “applicant could avoid future persecution
10
by relocating to another part of the applicant’s country of nationality.” 8 C.F.R.
§ 208.13(b)(1)(i).
To establish a well-founded fear of future persecution, an alien “need only
show that there is a reasonable possibility of suffering such persecution if he or she
were to return to that country.” Mejia, 498 F.3d at 1256 (quotation marks and
alteration omitted). The alien must establish a fear that is both “subjectively
genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289. “The subjective
component is generally satisfied by the applicant’s credible testimony that he or
she genuinely fears persecution.” Id. “[T]he objective prong can be fulfilled either
by establishing past persecution or that he or she has a good reason to fear future
persecution.” Id. (quotation marks omitted). An alien must establish a nexus
between a statutorily protected ground and the feared persecution and can do so by
presenting “specific, detailed facts showing a good reason to fear that he or she
will be singled out for persecution on account of” such ground. Sepulveda, 401
F.3d at 1231 (quotation marks omitted). An alien does not have to prove he or she
would be singled out if he or she can establish a pattern or practice of persecution
of a group of which he or she is a member. 8 C.F.R. § 208.13(b)(2)(iii). If the
applicant makes an initial showing of a fear of future persecution, “the government
may rebut the applicant’s evidence by demonstrating, based upon a preponderance
of the evidence, that the applicant could avoid future persecution by relocating
11
within the country if, under all the circumstances, it would be reasonable to expect
the applicant to do so.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008
(11th Cir. 2008) (quotation marks omitted).
An applicant can establish eligibility for asylum under a mixed-motive
theory if the applicant can establish that “persecution was, at least in part,
motivated by a protected ground.” Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821
(11th Cir. 2007) (quotation marks omitted). “So long as an applicant for asylum
proves with specific and credible evidence he or she has a well-founded fear of
persecution on account of a protected ground, it matters not that his or her
persecutors may have additional motives for their actions.” Id.
To qualify for withholding of removal, an alien must show that it is more
likely than not that if returned to his or her country, the alien’s life or freedom
would be threatened on account of a statutorily protected ground. See INA §
241(b)(3), 8 U.S.C. § 1231(b)(3); Al Najjar, 257 F.3d at 1303. A failure to meet
the lower burden for asylum necessarily amounts to a failure to meet the more
stringent burden for withholding of removal. See Sepulveda, 401 F.3d at 1232-33.
A. Past Persecution
Solorzano argues that the following evidence supports his claim of past
persecution: (1) the letters that he received from the FARC; (2) the roadblock
incident; and (3) the telephone call informing Solorzano that he was a military
12
target of the FARC. After careful consideration of the record evidence and in light
of our precedent in this area, we conclude that the BIA did not err in its
determination that Solorzano failed to sufficiently establish past persecution on
account of his political opinion.
We first consider the letters and telephone call. In Sepulveda, we considered
an alien who received several menacing telephone calls in which she was
threatened with death, and concluded that “the menacing telephone calls and
threats . . . do not rise to the level of past persecution.” 401 F.3d at 1231.
Moreover, the letters and phone calls received by Solorzano generally demanded
money and threatened retaliation should that money not be forthcoming.
Solorzano refused to pay and the letters and telephone calls continued, each a bit
more menacing than the last. We have held that “[e]ven if the evidence compels
the conclusion that the petitioner refused to cooperate with the guerillas because of
his political opinion, the petitioner still has to establish that the record also compels
the conclusion that he has a well-founded fear that the guerillas will persecute him
because of that political opinion, rather than because of his refusal to cooperate
with them.” Rivera, 487 F.3d at 822 (quotation marks and alterations omitted).
Although the letters and phone calls did exhort Solorzano to cease his political
activities, substantial evidence supports the BIA’s conclusion that the guerillas’
motives were primarily financial. Specifically, we note Solorzano’s testimony that
13
the Guala told him that indiscriminately threatening prosperous businessmen was a
common fund raising scheme employed by the FARC. Accordingly, the record
does not compel the finding that the FARC specifically targeted Solorzano
because of his political opinion. See id. at 823 (“Although other inferences about
the guerillas’ motives may be drawn, it is not our task to do so as long as
substantial evidence supports the Immigration Judge’s conclusion.”) (quotation
marks and alteration omitted).
With respect to the road block incident, Solorzano provides no evidence that
he was a target of the road block or that he and his wife were anything but
bystanders in the ensuing firefight between the guerillas and the army patrol that
later arrived on the scene. Indeed, Solorzano testified that the guerillas at the road
block did not know who he was upon his arrival and that neither he nor his wife
were ever specifically targeted during the shootout. Although we do not doubt the
terrifying nature of such an incident, the record does not compel the conclusion
that the guerillas’ actions were in any way tied to Solorzano’s political opinion.
B. Fear of Future Persecution
Because substantial evidence supports the IJ’s and BIA’s finding that
Solorzano did not suffer past persecution, he was not entitled to a presumption that
he had a well-founded fear of future persecution if returned to Colombia. See 8
C.F.R. § 208.13(b)(1). The IJ and the BIA determined that Solorzano did not have
14
an objectively reasonable fear of future persecution based on the absence of any
threats from the FARC since December 2003. The IJ and the BIA also pointed out
that Solorzano’s business enterprise in Colombia has remained in operation since
his departure, apparently unmolested by the FARC. Given the IJ and BIA’s
reliance on substantial evidence in support of their finding that Solorzano did not
have an objectively reasonable fear of future persecution and the lack of any record
evidence suggesting that Solorzano or his family would be singled out for
persecution on account of his political opinion if returned to Colombia, we would
be hard pressed to find error in the BIA’s determination. In light of Solorzano and
his family’s experiences in Columbia, we certainly credit them with a well-
founded, subjective fear of future persecution. But the law requires more. As we
noted in Rivera, “[w]e assume, without deciding, that the petitioners’ experiences
in Columbia prove that they have a well-founded fear of persecution upon their
return . . . [but] [e]ven with that assumption, we conclude that the record does not
compel the finding that the petitioners either were persecuted or have a well-
founded fear of future persecution on account of political opinion.” Rivera, 487
F.3d at 821. Because Solorzano and his family failed to establish past persecution
or a well-founded fear of future persecution on account of political opinion, we
further conclude that they do not meet the more stringent standard for withholding
of removal.
15
III. CONCLUSION
Petitioners seek review of an order by the BIA affirming the IJ’s denial of
their claims for asylum and withholding of removal under the INA and relief under
the CAT. Under our highly deferential standard of review, we conclude that the
BIA’s determination is supported by substantial evidence. Accordingly, we DENY
the petition.
16