[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 31, 2005
No. 05-10586
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
BIA Nos. A96-101-609 & A96-102-146
JAVIER MORALES,
CLAUDIA LILIANA JIMENEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent..
__________________________
Petition for Review of an Order of the
Board of Immigration Appeals
________________________
(August 31, 2005)
Before BIRCH, HULL and WILSON, Circuit Judges.
PER CURIAM:
Javier Morales and his wife, Claudia Liliana Jimenez (collectively the
“petitioners”), petition for review of the Board of Immigration Appeals’s (“BIA’s”)
order affirming the Immigration Judge’s (“IJ’s”) denial of asylum and withholding
of removal under the Immigration and Nationality Act (“INA”). We AFFIRM.
I. BACKGROUND
On or about 1 May 1999, Morales, a native and citizen of Colombia, was
admitted to the United States as a nonimmigrant visitor for pleasure, with
authorization to remain until 31 October 1999. Jimenez, Morales’s wife and also a
native and citizen of Colombia, was admitted to the Untied States as a
nonimmigrant visitor for pleasure on or about 12 August 1999, with authorization
to remain until 11 February 2000. On 24 December 2002, the petitioners were
served with Notices to Appear, charging them with removability under 8 U.S.C. §
1227(a)(i)(B) for remaining in the United States for a time longer than permitted.
On 31 October 2002, Morales filed an application on behalf of himself and
Jimenez for asylum and withholding of removal under the INA.1 He alleged that he
had suffered past persecution and harbored a well-founded fear of future
persecution on the basis of his political opinion. Specifically, Morales claimed that
the guerrilla group Fuerzas Armadas Revolucionaries de Colombia (the “FARC”)
1
Additionally, Morales claimed in his application that he and Jiminez were eligible for relief
under the United Nations Convention Against Torture and Other Cruel, Inhumane, and Degrading
Treatment or Punishment (“CAT”) , 8 C.F.R. § 208.16(c). However, the petitioners did not raise an
argument on this issue in their appellate brief, and we thus do not consider it here. Mendoza v.
United States Att’y Gen., 327 F.3d 1283, 1286 n.3 (11th Cir. 2003).
2
threatened him with kidnaping and death because of his prior military service in the
Colombian army and political involvement with the Liberal Party.
In a hearing before the IJ, Morales testified to the following facts.2 Morales
joined the Colombian army on 7 January 1990. While in the army, he served as a
plain-clothed intelligence agent tasked with collecting information on guerrilla
movements. Morales learned that a guerrilla group was planning to transport
munitions down the El Rageri river in the summer of 1990. Acting on this
information, Morales’s unit seized the munitions and captured fifteen guerrillas.
He was discharged from the army on 28 December 1990.
In 1995, Morales joined the Colombian Liberal Party. He spent every
Saturday campaigning in the neighborhoods of Bogota to recruit new members. On
6 February 1998, Morales was attending a Liberal Party community hall meeting,
and ten armed guerrillas from the FARC entered the community hall and asked
Morales and his companions for their identification cards. They were held for
three hours while the guerillas checked their IDs against information the FARC had
on file. According to Morales, the guerilla reviewed the IDs because they wanted
to ascertain the identities of those involved in political parties that support
2
Morales’s testimony before the IJ closely tracks the facts recited in his application for
asylum.
3
democracy in Colombia. Before leaving the hall, the guerillas returned Morales’s
ID and informed him that they knew about his 1990 army service.
On 11 May 1998, Morales received a threatening phone call from the FARC.
The FARC told Morales that they knew that he had participated in the army
operation in the El Rageri and that he was going to pay with his life for his actions
against the guerrillas. Between May and September 1998, Morales received eight
phone calls from the FARC in which they threatened to kidnap and kill him. In
September 1998, Morales traveled alone to the United States and remained for six
months in hopes that his absence would abate the threats. Morales returned to
Colombia on 11 March 1999, and resumed living with his wife in their home in
Bogota. Three days later, FARC guerillas called Morales at his home and told him
that they knew he had returned to Colombia and that he would pay for what he had
done in the army. Morales became “very fearful and very nervous.”
Administrative Record (“AR”) at 69. On 1 May 1999, Morales traveled to the
United States, and his wife joined him in the following August.
When asked why it had taken them so long to file for asylum, Morales
explained that soon after his wife arrived in the United States, they had consulted
an immigration attorney. According to Morales, the attorney failed to inform them
about the asylum process and instead suggested that they return to Colombia and
4
apply for a professional visa for Jimenez from there. The petitioners located a
company that would sponsor Jimenez for the professional visa. However, when
they returned to the attorney’s office in the fall of 2000, they discovered that
attorney had closed his office. Other than speaking to Morales’s brother about
getting a professional visa, the petitioners did not explore other ways of staying in
the United States legally. Morales first found out about the asylum process when
his wife’s uncle mentioned it to him.3
The record also contained four documents discussing country conditions in
Colombia generally. First, the record included the Department of State’s 2002
Country Report on Human Rights Practices for Colombia. The Country Report
indicated that Colombia’s human rights record remained poor and that “the internal
armed conflict between the Government and the leftist guerrillas, particularly the
FARC and terrorist organization National Liberation Army (“ELN”)–as well right-
wing paramilitaries . . . caused the deaths of between 5,000 and 6,000 civilians
during the year . . . .” Id. at 86. In 2002, the FARC committed more large-scale
massacres than in the previous year, and 85% of all civilian deaths in massacres
were attributed to guerrillas. Id. at 89. Additionally, “[t]he FARC committed
3
The record contained various documents supporting Morales’s factual allegations. As
Morales’s credibility is not at issue, we need not discuss these documents here.
5
numerous politically motivated kidnapings in an attempt to destabilize the
Government and pressure it into a prisoner exchange. . . . [T]here were 208
politically motivated kidnapings during the year.” Id. at 90.
Second, the record contained the State Department’s Profile of Asylum
Claims and Country Conditions for Colombia for June 1997 (the “Profile”). The
Profile estimates that 10,000 to 15,000 full-time guerillas, organized into more than
100 groups, exercised “some degree of permanent influence in more than half of
the country’s municipalities.” Id. at 105. The Profile states that “[t]he vast
majority (perhaps as high as 90 percent) of asylum claims from Colombia are based
on political grounds even in cases where there is little evidence that the political
views of the applicant were related to the mistreatment alleged.” Id. at 108. The
Profile reports that guerrillas committed many human rights violations, including
killings and kidnapings, and that any guerilla abuse alleged by asylum applicants
“could have occurred or at least would not be inconsistent with the country
conditions,” id. at 110. However, the Profile also states that those fleeing guerilla
persecution in “conflictive zones” of Colombia usually could live peacefully
elsewhere in the country. Id. According to the Profile, Bogota is a particularly
violent region in Colombia.
6
Third, the record included a 16 June 2003, State Department’s Travel
Warning (the “Warning”) which states that “[t]errorist and criminal violence by
narcotraffickers, guerrillas, illegal self-defense (paramilitary) groups and other
criminal elements continues to affect all parts of the country, urban and rural.” Id.
at 79. It also notes that there were approximate 3,000 reported kidnapings
throughout the country in 2002 and that “[t]here is a greater risk of being kidnaped
in Colombia than in any other country in the world.” Id. Finally, the record
contained a State Department’s Consulate Information Sheet dated 16 April 2003
(“the CIS”). The information provided in the CIS is consistent with that provided
by the Report, the Profile, and the Warning.
After listening to the testimony at the hearing and considering the evidence,
the IJ denied the petitioners’ asylum and withholding of removal claims and
ordered them removed to Colombia. First, the IJ found that no extraordinary
circumstances existed so as to excuse petitioners’ untimely filing of their asylum
applications. The IJ noted that the petitioners arrived in 1999 but did not apply for
asylum until 31 October 2002. The IJ stated that “[t]he most that the Court has
heard as far as an explanation [for waiting to file the application] is that they did
contact an attorney in the community, that attorney suggested to them that they file
an employment based petition on behalf of the consolidated respondent.” AR at
7
33. The IJ noted that there was no evidence that they had been ill-advised by the
attorney, that they had actually retained the attorney to file an asylum application,
or that there were health or other problems that prevented the petitioners from
filing a timely application. Therefore, the IJ found their claim for relief under
Section 208 was time barred.
Second, although it determined that Morales’s testimony was credible
overall, the IJ found that Morales had failed to meet his burden of proof in
establishing that it would be more likely than not that his life or freedom would
suffer on account of any of the grounds enumerated under Section 208. The IJ
found that the petitioners were not victims of past persecution because (1) the
petitioners had not been physically or psychologically harmed; (2) Morales had
received just eight threatening phone calls during a brief period in 1998; and (3) at
the 6 February 1998 Liberal Party meeting, Morales suffered no harm and was
released after the FARC checked his papers. Additionally, the IJ wondered why
the FARC would have allowed Morales to leave their presence if they truly had an
interest in him. The IJ also noted that Morales did not apply for political asylum
during his 1998 United States trip after having been contacted by the guerrillas.
Acting through counsel, the petitioners appealed the IJ’s decision to the BIA.
In their brief before the BIA, the petitioners argued that Morales had shown that he
8
was entitled to withholding of removal because Morales was being persecuted
based on his membership in a protected social group4 because the FARC targeted
Morales on account of his prior military service, the reach of guerillas extended to
all parts of the country, and the Colombian government was unable to control the
guerrillas. Notably, the petitioners did not challenge the IJ’s ruling that the asylum
application was time-barred. The BIA adopted and affirmed the IJ’s decision.
II. DISCUSSION
On appeal, the petitioners argue that the BIA erred in denying their
application for asylum and withholding of removal because Morales has
established he suffered past persecution and has a well-founded fear of persecution
on the basis of a political opinion imputed upon him by the “FARC” on account of
his prior service with the Colombian army.5
When the BIA summarily affirms the decision of IJ without an opinion, we
review the IJ’s decision as the final removal order. Sepulveda v. United States
Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005) (per curiam). We review the IJ’s
4
In their appellate brief, the petitioners do not raise this enumerated ground, membership in
a protected social group. Instead, the petitioners’ brief relies on the ground of imputed political
opinion, as did the original asylum application.
5
Because the petitioners’ removal proceedings commenced after 1 April 1997, the permanent
rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-
208, 110 Stat. 3009 (1996) (“IIRIRA”), govern their petition for review. See Gonzalez-Oropeza v.
United States Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003) (per curiam).
9
factual determinations under the highly deferential substantial evidence test. Under
this test, we “must affirm the [IJ’s] decision if it is ‘supported by reasonable,
substantial, and probative evidence on the record considered as a whole,’” Al
Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (citation omitted), and
we can reverse the IJ’s decision “only if the evidence ‘compels’ a reasonable fact
finder to find otherwise.” Sepulveda, 401 F.3d at 1230 (citation omitted). To the
extent that the IJ’s ruling is based on the interpretation of applicable statutes, we
review de novo. Mazariegos v. United States Att’y Gen., 241 F.3d 1320, 1324
(11th Cir. 2001).
A. Jurisdiction over the Petitioners’ Asylum Claim
Generally, an alien must file an application for asylum within one year of
his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The IJ may
nevertheless consider an untimely asylum application “if the alien demonstrates to
the satisfaction of the Attorney General either the existence of changed
circumstances which materially affect the applicant’s eligibility for asylum or
extraordinary circumstances relating to the delay in filing an application . . . .”
§ 1158(a)(2)(D). A court may review a final order of removal only if the alien has
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exhausted all administrative remedies available to the alien as of right.6 8 U.S.C. §
1252 (d)(1).
In this case, the petitioners failed to raise before the BIA their argument that
their failure to file a timely asylum application should be excused. Accordingly,
the petitioners have failed to exhaust their administrative remedies, and we lack
jurisdiction to hear their argument. § 1252(d)(1). We therefore dismiss the
petition as to the petitioners’ asylum claim.
B. Withholding of Removal
To obtain withholding of removal, an alien must “establish that his or her
6
The INA provides that “[n]o court shall have jurisdiction to review any determination of
the Attorney General under paragraph (2)” of 8 U.S.C. § 1158(a). § 1158(a)(3). We have recognized
that, pursuant to this section,“the Attorney General’s decision regarding whether an alien complied
with the one-year time limit or established extraordinary circumstances, such that the time limit
should be waived, is not reviewable by any court.” Fahim v. United States Att’y Gen., 278 F.3d
1216, 1218 (11th Cir. 2002) (per curiam).
Effective 11 May 2005, the REAL ID Act amended portions of 8 U.S.C. § 1252. The REAL
ID Act states, in relevant part:
(a) IN GENERAL. – Section 242 of the Immigration and Nationality Act (8 U.S.C.
1252) is amended--
(1) in subsection (a)--
...
(iii) by adding at the end the following:
(D) JUDICIAL REVIEW OF CERTAIN LEGAL CLAIMS.--Nothing in
subparagraph (B) or (C), or in any other provision of this Act (other than this section)
which limits or eliminates judicial review, shall be construed as precluding review
of constitutional claims or questions of law raised upon a petition for review filed
with an appropriate court of appeals in accordance with this section.”
REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a), 119 Stat. 231, 310 (2005). Section 106(a) of
the REAL ID Act may put the continued viability of Fahim and similar cases into question.
However, we need not address this issue here because we dismiss on other grounds the petitioners’
petition as to his asylum claim.
11
life or freedom would be threatened in the proposed country of removal on
account of race, religion, nationality, membership in a particular social group, or
political opinion.” 8 C.F.R. § 208.16(b). If it is determined that the alien suffered
past persecution in his native country on account of his political opinion, we
presume that his life or freedom would be threatened in the future if he were
removed to his country of origin. § 208.16(b)(1)(i). However, an alien who has
not suffered past persecution still may establish a future threat to his life or
freedom if he can “establish that it is more likely than not that he . . . would be
persecuted on account of race, religion, nationality, membership in a particular
social group, or political opinion upon removal to that country,” and that the threat
cannot be reasonably avoided by relocation within the home country. §
208.16(b)(2).
Although the INA does not explicitly define “persecution,” we have
recognized that “[n]ot all exceptional treatment is persecution,” Gonzalez v. Reno,
212 F.3d 1338, 1355 (11th Cir. 2000), that “persecution . . . requir[es] more than a
few isolated incidents of verbal harassment or intimidation,” and that “[m]ere
harassment does not amount to persecution.” Sepulveda, 401 F.3d at 1231
(internal quotations omitted). As a general rule, “behavior . . . must threaten
death, imprisonment, or the infliction of substantial harm or suffering” in order to
12
qualify. Sharif v. INS, 87 F.3d 932, 935 (7th Cir. 1996); see Nelson v. INS, 232
F.3d 258, 263 (1st Cir. 2000) (persecution “must rise above unpleasantness,
harassment, and even basic suffering”). “Threats alone generally do not constitute
actual persecution; only rarely, when they are so immediate and menacing as to
cause significant suffering or harm in themselves, do threats per se qualify as
persecution.” Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003); see also
Sepulveda, 401 F.3d at 1232 (menacing telephone calls and threats did not
constitute past persecution). The well-founded fear inquiry requires the alien to
demonstrate that his or her fear of persecution “is subjectively genuine and
objectively reasonable.” Sepulveda, 401 F.3d at 1231.
In this case, we conclude that substantial evidence supports the IJ’s finding
that the petitioners did not suffer past persecution. The FARC’s threats, consisting
of a total of nine threatening phone calls, while upsetting, does not constitute
persecution. See Sepulveda, 401 F.3d at 1232. Additionally, we hold that
substantial evidence supports the IJ’s finding that the petitioners did not have a
well-founded fear of future persecution because they failed to meet their burden of
establishing that it would be more likely than not that their lives or freedoms
would suffer on account of any of the enumerated grounds. The petitioners failed
to demonstrate that their fear of persecution is subjectively genuine and
13
objectively reasonable. If the FARC had wanted to kidnap or kill Morales, they
could have easily done so at the 6 February 1998 Liberal Party meeting that they
interrupted; however, the FARC chose to release Morales unharmed.
Additionally, the petitioners did not flee immediately after Morales received a
threatening phone call upon his return in March 1999, but instead, took two
months to sell all their belongings before coming to the United States. Because
substantial evidence supports the BIA’s conclusion, we deny the petition for
review as to the petitioners’ claim for withholding of removal.
III. CONCLUSION
Because we lack jurisdiction to hear the petitioners’ challenge as to the IJ’s
denial of their asylum claim as untimely, and because substantial evidence
supports the BIA’s conclusion as to the denial of their withholding of removal
claim, we DISMISS the PETITION IN PART and DENY the PETITION IN
PART.
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