Gomez v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 6, 2006

Charles R. Fulbruge III
Clerk
No. 05-60048
Summary Calendar

CLAUDIA GOMEZ

Petitioner

v.

ALBERTO R GONZALES, U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
No. A95 908 179

Before KING, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

PER CURIAM:*

Petitioner Claudia Gomez petitions this court for review of

a final order of the Board of Immigration Appeals denying her

claims for asylum, withholding of removal, and protection under

the Convention Against Torture. In her petition for review, she

also claims that she was denied judicial review of her claims.

*
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that this opinion should not be published and is not precedent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.

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For the following reasons, the petition for review is DENIED in

part and DISMISSED in part for lack of jurisdiction.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 11, 2001, Gomez, a native and citizen of Colombia,

entered the United States as a non-immigrant visitor with

authorization to remain until June 10, 2002.1 On June 7, 2002,

Gomez filed an asylum application with the Immigration and

Naturalization Service (“INS”),2 but she later had to re-file her

application because the INS found that her initial application

was incomplete. On March 11, 2003, the INS instituted removal

proceedings against Gomez under 8 U.S.C. § 1229(a).

On May 13, 2003, at her first appearance before the

Immigration Judge (“IJ”), Gomez acknowledged service of the

charging document and conceded removability. At the hearing, she

requested asylum under 8 U.S.C. § 1158(a), withholding of removal

under 8 U.S.C. § 1231(b)(3), and protection under the United

1
Gomez initially was authorized to remain in the United
States until December 10, 2001, but she applied for and received
an extension to stay until June 10, 2002.
2
As of March 1, 2003, the INS’s administrative, service,
and enforcement functions were transferred from the Department of
Justice to the new Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116
Stat. 2135 (2002). The Bureau of Immigration and Customs
Enforcement in the Department of Homeland Security assumed the
INS’s detention, removal, enforcement, and investigative
functions. See Peters v. Ashcroft, 383 F.3d 302, 304 n.1 (5th
Cir. 2004). Because the events in this case began before the
reorganization, we will continue to use INS throughout this
opinion to avoid confusion.

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Nations Convention Against Torture (“CAT”),3 or in the

alternative, voluntary departure.

At her second hearing on July 13, 2003, Gomez testified

before the IJ in an attempt to prove her claims of asylum,

withholding of removal, and protection under the CAT. She

alleged that between April 2001 and June 2001 she was verbally

threatened by members of the National Liberation Army (“ELN”), a

terrorist organization in Colombia, on account of her political

opinion and membership in a particular social group. She further

testified that she was afraid that members of the ELN would

torture or kill her if she returned to Colombia. During the time

she was threatened, she was a member of the Independent Liberal

Alternative Political Movement (“MILAP”), a branch of the liberal

party, and a volunteer for Funides,4 an organization devoted to

assisting low income people in Colombia.

According to Gomez’s testimony, ELN members had approached

her on two occasions in an attempt to convince her to join their

organization. She claims that after she refused, she received

death threats. Specifically, she testified that one of the ELN

members who threatened her said that if she did not join ELN, she

3
The United Nations Convention Against Torture and Other
Forms of Cruel, Inhuman or Degrading Treatment or Punishment, as
enacted by Foreign Affairs Reform and Restructuring Act of 1998,
Pub. L. No. 105-277, Div. G, § 2242(b), 112 Stat. 2681 (1998).
4
The administrative transcript refers to “Unides,” but the
exhibits introduced at the hearing indicate that the group was
called “Funides.” A.R. at 149, 151.

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could choose whether she wanted her family to find her with her

mouth full of insects or floating in the river. She testified

that since she left Colombia, her mother has received telephone

calls stating that the ELN will be waiting for Gomez upon her

return to Colombia. During her testimony, Gomez also claimed

that ELN members killed two of her MILAP colleagues, and two of

her other MILAP colleagues have disappeared.

At the conclusion of the hearing, the IJ denied Gomez’s

claims for asylum, withholding of removal, and protection under

the CAT and granted voluntary departure. The IJ concluded that

(1) Gomez’s testimony was not credible, and (2) Gomez had failed

to meet her burden of proof for the requested relief. On August

11, 2003, Gomez appealed the IJ’s decision to the Board of

Immigration Appeals (“BIA”).

On December 27, 2004, the BIA affirmed the IJ’s order in a

per curiam opinion. The BIA adopted the IJ’s finding that Gomez

had not satisfied her burden of proof for asylum, withholding of

removal, and relief under the CAT. Specifically, the BIA adopted

and affirmed “the decision of the Immigration Judge insofar as he

found that [Gomez] had not satisfied the burden of proof for the

requested forms of relief.” A.R. at 2. The BIA further

concluded that even if the IJ had found Gomez to be credible,

Gomez still failed to meet her burden of proving past persecution

or a well-founded fear of persecution. On January 24, 2005,

Gomez filed this timely petition for review of the BIA’s

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decision.

II. STANDARD OF REVIEW

This court reviews the BIA’s factual findings to determine

if they are supported by substantial evidence. INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992); Mikhael v. INS, 115 F.3d 299,

302 (5th Cir. 1997). “Under substantial evidence review, we may

not reverse the BIA’s factual determinations unless we find not

only that the evidence supports a contrary conclusion, but that

the evidence compels it.” Chun v. INS, 40 F.3d 76, 78 (5th Cir.

1994). Thus, the petitioner must prove that the evidence she

presented was so compelling that no reasonable factfinder could

reach a different conclusion. 8 U.S.C. § 1252(b)(4)(B) (2000)

(“[T]he administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary . . . .”); Elias-Zacarias, 502 U.S. at 483-84; Chun, 40

F.3d at 78.

“We have authority to review only an order of the BIA, not

the IJ, unless the IJ’s decision has some impact on the BIA’s

decision.” Mikhael, 115 F.3d at 302; see also Chun, 40 F.3d at

78. Here, because the BIA adopted and affirmed the IJ’s decision

to the extent that the IJ found that Gomez had not satisfied her

burden of proof for the requested relief, we have authority to

review only this aspect of the IJ’s decision for substantial

evidence. See Mikhael, 115 F.3d at 302.

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 III. DISCUSSION

A. Adverse Credibility Finding

Gomez argues that the IJ’s adverse credibility finding is

not supported by substantial evidence in the record. According

to Gomez, a review of the record reveals that her testimony was

consistent with her written application and was consistent during

her hearing. She also contends that the IJ’s adverse credibility

finding is improperly based on testimony that does not go to the

heart of her claim. Citing a Ninth Circuit case, Gomez maintains

that minor inconsistencies in the record, such as discrepancies

about dates, are not an adequate basis for an adverse credibility

finding. See Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.

1988).

Although the BIA adopted and affirmed the IJ’s findings that

Gomez had not met her burden of proof for the requested relief,

it did not adopt the IJ’s adverse credibility finding. Rather,

in its per curiam order, the BIA stated that “[e]ven if credible,

we find that [Gomez] has failed on this record to establish past

persecution or a well-founded fear of persecution.” A.R. at 2.

Based on the BIA’s order, we will review the IJ’s decision only

to the extent that it denied Gomez’s claims for asylum,

withholding of removal, and protection under the CAT. See

Mikhael, 115 F.3d at 303 (concluding that credibility is not an

issue on appeal where the BIA stated that the IJ correctly

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addressed all issues other than credibility, and reviewing the

IJ’s decision only to the extent that it denied the petitioner’s

claim for asylum). In other words, we do not have the authority

to review the IJ’s adverse credibility finding where, as here,

the BIA did not adopt or affirm that finding. See id. at 302.

B. Gomez’s Requested Relief

Gomez next argues that the IJ erred by finding that she did

not establish her burden of proof with respect to her claims for

asylum, withholding of removal, and protection under the CAT.

1. Asylum

To prevail on her claim for asylum, Gomez would have to

prove that she is a refugee, i.e., she is unable or unwilling to

return to Colombia “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) (defining refugee). In order to prove

a well-founded fear of persecution, the petitioner must show that

her subjective fear of future persecution is objectively

reasonable. See Mikhael, 115 F.3d at 304. Gomez contends that

she established a well-founded fear of persecution on account of

her political opinion and membership in a particular social

group.5 As evidence of her well-founded fear of persecution,

5
Gomez does not specifically challenge the IJ’s finding
that she did not meet her burden of proof for past persecution.
Rather, she challenges only the IJ’s finding that she did not
establish a well-founded fear of persecution. See Pet’r Br. at

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Gomez points to her testimony that she received death threats

from the ELN, the ELN killed two of her colleagues, and her

mother received death threats concerning Gomez’s eventual return

to Colombia.

The IJ determined that Gomez had failed to show that her

fear of persecution was objectively reasonable. See id. As an

example, the IJ noted that Gomez had failed to show that she

could not go to the Colombian authorities with her death threats

from members of the ELN. A.R. at 57-58. Based on the evidence,

the IJ concluded that Gomez had not established that she was a

refugee and denied her request for asylum. Id. at 59.

Under the deferential standard of review we accord to the

BIA’s, and here, IJ’s decision, we cannot conclude that Gomez

established that she was a refugee entitled to the discretionary

relief of asylum. Although persecution generally refers to

malfeasance by government authorities, this court has recognized

that persecution can occur at the hands of private persons when

the government is wholly unable or unwilling to intervene.

Adebisi v. INS, 952 F.2d 910, 913-14 (5th Cir. 1992) (noting that

“the BIA extends the qualifying range of persecution fear to

include acts by groups the government is unable or unwilling to

control”) (internal quotation marks omitted). Gomez has failed

23-24. Accordingly, her claim for asylum based on past
persecution is waived. See Cinel v. Connick, 15 F.3d 1338, 1345
(5th Cir. 1994) (“An appellant abandons all issues not raised and
argued in its initial brief on appeal.”).

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to show, however, that she could not go to the Colombian

authorities or that the Colombian authorities were unable or

unwilling to intervene. See id. The record shows--and in fact,

the IJ found--that the Colombian government is actively opposing

guerilla organizations, such as the ELN. See, e.g., A.R. at 54,

176, 183, 200-01. Having reviewed the record and the parties’

briefs, we conclude that Gomez has failed to “show that the

evidence [s]he presented was so compelling that no reasonable

factfinder could fail to find the requisite fear of persecution.”

Elias-Zacarias, 502 U.S. at 483-84. Accordingly, the petition

for review is DENIED with respect to Gomez’s claim for asylum.

2. Withholding of Removal and Protection Under the CAT

Gomez spends very little time in her brief--if any--

discussing her withholding of removal and CAT claims. She sets

out the legal standard for withholding of removal and then, in a

short and cursory fashion, recognizes that the standard for

withholding of removal “is a more rigorous standard than the one

required for asylum.” See Pet’r Br. at 25. Gomez fails to

explain, however, how the IJ erred in denying her claims for

withholding of removal and relief under the CAT. In fact, she

completely fails to mention her CAT claim in her brief. By

failing to brief any argument concerning the IJ’s denial of her

withholding of removal and CAT claims, Gomez has abandoned these

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claims on appeal.6 See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th

Cir. 2004) (noting that the petitioner waived her CAT claim by

failing to raise it in her petition for review); Rodriguez v.

INS, 9 F.3d 408, 414 n.15 (5th Cir. 1993) (“[G]rounds for

reversal not set forth in a petitioner’s (or appellant’s) opening

brief in this Court are normally waived.”); see also Calderon-

Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986) (noting

that this court does not consider issues that the party failed to

brief).

Because Gomez waived her withholding of removal and CAT

claims by failing to brief them on appeal, the petition for

review is DENIED with respect to these claims.

C. Due Process Violation

Finally, Gomez argues that she did not receive a full and

fair hearing before the IJ. Although Gomez does not refer to a

violation of her due process rights anywhere in her brief, she

contends that the IJ “created a hostile environment that

inhibited [her] testimony and rendered [her] hearing

fundamentally unfair because of [the IJ’s] bias.” See Pet’r Br.

6
Even if Gomez had sufficiently raised her claim for
withholding of removal, this claim would fail because she cannot
meet the less stringent burden of proof required for a claim of
asylum. See Adebisi, 952 F.2d at 914 (noting that an alien who
cannot establish eligibility for the discretionary grant of
asylum is necessarily precluded from establishing the more
stringent requirement of withholding of deportation); see also
Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002) (“Withholding
of removal is a higher standard than asylum.”).

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at 34. According to Gomez, the manner in which the IJ conducted

the hearing “completely eliminated judicial review.” See id. at

35.

Our review of the record reveals that Gomez did not raise

this “due process” issue before the BIA. Although she argued in

her brief before the BIA that the IJ created an unnecessarily

hostile environment, she never referred to a violation of her due

process rights or alluded to the hearing being fundamentally

unfair or precluding judicial review. See A.R. at 23-24.

Because Gomez failed to raise her due process challenge in her

BIA appeal, we lack jurisdiction to consider this issue. See

Rodriguez, 9 F.3d at 414 (“Because [the petitioner] failed to

raise this issue before the BIA, he has not exhausted his

administrative remedies, and we have no jurisdiction to consider

these grounds.”); see also Goonsuwan v. Ashcroft, 252 F.3d 383,

389 (5th Cir. 2001) (noting that the BIA should be given the

first opportunity to correct any procedural errors committed

during the petitioner’s hearing). Accordingly, with regard to

Gomez’s due process claim, the petition for review is DISMISSED

for lack of jurisdiction.

IV. CONCLUSION

For the foregoing reasons, Gomez’s petition for review is

DENIED in part and DISMISSED in part for lack of jurisdiction.

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