Toro v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 5, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 03-60107
Summary Calendar

WILLIAM ALBERTO TORO; JULIANA BAEZ;
DANIELA BAEZ LOPEZ; ANDRES TORO,

Petitioners,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

Respondent.

--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78-350-939
BIA No. A78-350-940
BIA No. A78-350-941
BIA No. A78-350-942
--------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

William Alberto Toro, his wife Juliana Baez, and their

children, Daniela Baez Lopez and Andres Toro, all natives of

Colombia, petition for review of an order from the Board of

Immigration Appeals (“BIA”) affirming the immigration judge’s

(“IJ”) decision to deny their applications for asylum,

withholding of removal under the Immigration and Nationality Act

*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
 No. 03-60107
-2-

(“INA”), and withholding of removal under the Convention Against

Torture Act (“CAT”).

The Toros raise several claims asserting procedural errors

occurring during the hearing held before the IJ, which were not

presented to the BIA. The respondent argues that these claims

must be dismissed for lack of jurisdiction based on a failure to

exhaust the claims administratively.

Because the exhaustion requirement is statutorily mandated,

an alien’s failure to exhaust an issue before the BIA is a

jurisdictional bar to this court’s consideration of the issue.

Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001). The alleged

procedural errors raised by the Toros could have been corrected

if they had been presented to the BIA. Therefore, these claims

are not subject to review based on lack of exhaustion. Id.

The Toros argue that the BIA erred in allowing the case to

be “streamlined” because the factual issues in the case merited

a full review by the BIA and the errors in the decision were not

harmless or nonmaterial. The BIA’s affirmance was not a summary

affirmance pursuant to 8 C.F.R. § 3.1(a)(7) (now 8 C.F.R.

§ 1003.1(a)(7)) because the BIA did not cite that provision as

required by the regulation and did not indicate that it was

affirming without opinion. See 8 C.F.R. § 1003.1(a)(7)(iii).

Further, the BIA provided reasons for agreeing with the decision

of the IJ. This claim is without merit.
 No. 03-60107
-3-

The Toros argue that the BIA erred in adopting the IJ’s

finding that the Toros were not “refugees” based on a well

founded fear of future persecution because Toro was no longer

working for the alarm company and was not sure if the company

was still in business. A refugee is a person who is outside of

his or her country and is unable or unwilling to return “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).

Pretermitting the question whether the action taken by the

guerillas against the Toros was due to Mr. Toro’s political

opinion or his membership in a social group, the evidence of

threatening telephone calls and verbal threats made by guerillas

during Toro’s brief detention does not reflect that such action

was so severe as to constitute persecution. See Mikhael v. INS,

115 F.3d 299, 303-04 (5th Cir. 1997); Abdel-Masieh v. U.S. INS,

73 F.3d 579, 582, 584 (5th Cir. 1996).

To establish a “well-founded fear of persecution,” Toro

"must show that a reasonable person in the same circumstances

would fear persecution if deported." Mikhael, 115 F.3d at 304.

Toro does not dispute that his company is no longer in business.

Thus, the guerillas’ main reason for harassing him has been

eliminated. Toro has not provided any evidence to show that it

is likely that the guerillas will single him out for intolerable

abuse if he returns to Colombia. Thus, the Toros have not
 No. 03-60107
-4-

established that a reasonable person would fear persecution if

he returned to Colombia. There is substantial evidence in the

record to support the BIA’s denial of the Toros’ application for

asylum.

Because Toro did not establish a prima facie case for

asylum, he also cannot meet the more stringent standard for

proving his eligibility for withholding of removal. See Girma

v. INS, 283 F.3d 664, 666-67 (5th Cir. 2002). Toro failed to

brief any arguments regarding the BIA’s denial of relief under

the CAT and has therefore abandoned any arguments relating to

that claim. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993).

The respondent’s motion to dismiss the unexhausted claims is

GRANTED. The petition for review is DENIED. The respondent’s

motion to waive the briefing requirement is GRANTED, and the

motion for an extension of time to file a brief is DENIED as

moot.