[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-13805 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 17, 2005
________________________ THOMAS K. KAHN
CLERK
Agency Nos. A95-547-246 & A95-547-247
LEONARDO SALAMANCA,
NANCY SOTO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
(June 17, 2005)
Before DUBINA, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Leonardo Salamanca and his wife, Nancy Soto (“Salamanca” and “Soto,”
collectively, “the petitioners”), through counsel, petition this court for review of
the Board of Immigration Appeal’s (“BIA’s”) order summarily affirming the
Immigration Judge’s (“IJ’s”) decision to deny them asylum and withholding of
removal under the Immigration and Nationality Act (“INA”). Because the
petitioners’ immigration proceedings commenced after April 1, 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. When the BIA issues a decision, we review that decision,
except to the extent that the BIA expressly adopts the IJ’s decision. Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Because the BIA in this case
stated that the IJ’s decision was “the final agency determination,” we will “review
the IJ’s analysis as if it were the [BIA’s].” See id.
On appeal, the petitioners assert that the IJ failed to explain why the threats
directed towards Salamanca and the assaults he endured were not politically
motivated, as the IJ failed to address the attacks and threats with any specificity.
The petitioners contend that Salamanca testified, and the evidence showed, that he
was involved in the Conservative Party, a group which the Revolutionary Armed
Forces of Colombia (“FARC”), one of the major paramilitary groups in Colombia,
found “objectionable.” The petitioners allege that Salamanca received numerous
threatening calls from FARC members, and that the persecution escalated, as
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Salamanca was shot by FARC members on August 12, 1995. These threats and
attacks, the petitioners contend, were more than mere harassment, and the IJ erred
in finding that Salamanca was not persecuted on the basis of a protected ground.
In light of the evidence in the record, particularly the evidence discussing the role
of guerilla groups in Colombia, the petitioners contend, a reasonable person would
fear that he was endangered on account of a protected ground.
To the extent that the IJ’s decision was based on a legal determination, our
review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001). The IJ’s factual determination that an alien is not entitled to asylum must
be upheld if it is supported by substantial evidence. See Mazariegos v. U.S. Att’y
Gen., 241 F.3d 1320, 1323 (11th Cir. 2001); cf. INA § 242(b)(4)(B), 8 U.S.C.
§ 1252(b)(4)(B) (providing that “administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary”). Under this highly deferential standard of review, a denial of asylum
may be reversed only if the evidence would compel a reasonable factfinder to find
that the requisite fear of persecution exists. INS v. Elias-Zacarias, 502 U.S. 478,
481 n.1, 112 S.Ct. 812, 815 n.1, 117 L.Ed.2d 38 (1992).
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1); Sepulveda v. U.S. Att’y Gen.,
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401 F.3d 1226, 1230 (11th Cir. 2005), superseding 378 F.3d 1260 (11th Cir.
2004). The Attorney General has discretion to grant asylum if the alien meets the
INA’s definition of a “refugee.” See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1);
Sepulveda, 401 F.3d at 1230.
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). The asylum applicant carries the burden of proving
statutory “refugee” status. Al Najjar, 257 F.3d at 1284. If the applicant meets this
burden, then the Attorney General may exercise his discretion to grant the
applicant asylum. Id. In this instance, because the IJ concluded that Silva failed
to establish eligibility for asylum, there was no exercise of discretion.
Accordingly, we need only address whether substantial evidence supports the IJ’s
conclusion that Silva failed to establish that she was statutorily eligible for asylum
and withholding of removal.
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An alien is entitled to asylum if he or she can establish, with specific and
credible evidence: (1) past persecution on account of his or her membership in a
particular social group, political opinion, or other statutorily listed factor, or (2) a
“well-founded fear” that his or her membership in a particular social group,
political opinion, or other statutorily listed factor will cause future persecution.
8 C.F.R. § 208.13(a), (b); Sepulveda, 401 F.3d at 1230-31. “[A]n applicant must
demonstrate that his or her fear of persecution is subjectively genuine and
objectively reasonable.” Al Najjar, 257 F.3d at 1289.
If the alien demonstrates past persecution, he or she is presumed to have a
well-founded fear of future persecution unless the government can rebut the
presumption. 8 C.F.R § 208.13(b)(1); Sepulveda, 401 F.3d at 1231. If, however,
the alien does not establish past persecution, he or she bears the burden of
showing a well-founded fear of persecution by showing that (1) he or she fears
persecution based on his or her membership in a particular social group, political
opinion, or other statutorily listed factor; (2) there is a reasonable possibility he or
she will suffer persecution if removed to his or her native country; and (3) he or
she could not avoid persecution by relocating to another part of his or her country,
if under all the circumstances, it would be reasonable to expect relocation. See 8
C.F.R. § 208.13(b)(2), (3)(i).
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Establishing a nexus between the statutorily listed factor and the feared
persecution “requires the alien to 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. Al Najjar, 257 F.3d at 1287 (emphasis in original)
(internal quotation omitted). “‘[T]he statute protects against persecution not only
by government forces but also by nongovernmental groups that the government
cannot control.’” Sanchez v. U.S. Att’y General, 392 F.3d 434, 437 (11th Cir.
2004) (quoting Sotelo-Aquije v. Slattery, 17 F.3d 33, 37 (2nd Cir. 1994) (alteration
in original) (discussing INA § 208, 8 U.S.C. § 1158, the asylum statute)).
Evidence consistent with acts of private violence or that merely shows that an
individual has been the victim of criminal activity does not constitute evidence of
persecution on a statutorily protected grounds. Abdille v. Ashcroft, 242 F.3d 477,
494-95 (3rd Cir. 2001).
Neither the INA nor the regulations define “persecution.” We have
indicated that “persecution is an extreme concept, requiring more than a few
isolated incidents of verbal harassment or intimidation, and that mere harassment
does not amount to persecution.” Sepulveda, 401 F.3d at 1230 (internal quotations
and citations omitted). Other courts have held that, to be an act of persecution, the
behavior must threaten death, punishment, or the infliction of substantial harm or
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suffering. See Sharif v. INS, 87 F.3d 932, 935 (7th Cir. 1996). “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). “To qualify as persecution, a person’s experience must rise
above unpleasantness, harassment, and even basic suffering.” Nelson v. INS, 232
F.3d 258, 263 (1st Cir. 2000).
In the instant case, we conclude from the record that substantial evidence
supports the IJ’s finding that the petitioners failed to demonstrate asylum
eligibility because they did not establish that they suffered past persecution or had
a well-founded fear of future persecution on account of Salamanca’s political
opinion. In regards to past persecution, Salamanca testified that FARC members
continuously made threatening phone calls to his family’s home, but these threats
do not appear to have been “immediate and menacing,” and “[t]hreats alone
generally do not constitute actual persecution.” See Vatulev, 354 F.3d at 1210
(persuasive authority).
Salamanca also detailed several incidents, including: (1) a drive-by shooting
at his parents’ house resulting in a bullet wound to his leg; (2) a shooting directed
towards him, his brother, and his friends as they drove through the country; (3) an
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attack and beating of his brother; and (4) a drive-by shooting directed towards
him, his brother-in-law, and a friend, resulting in a bullet wound to his brother-in-
law’s leg. Salamanca identified FARC members as the perpetrators of two of the
attacks: (1) the incident where he was shot at his parents’ house, because he saw
the FARC insignia on their clothing; and (2) the incident where he, his brother,
and his friends were shot at as they drove, because the shooters wore “plastic
boots,” which he claims are part of typical FARC uniforms. However, Salamanca
failed to establish a causal connection between his political opinion and these
attacks, as he was not engaging in political activities when the shootings occurred,
and there is no indication that the FARC shot at him “on account of” his political
opinion. See Sangha v. INS, 103 F.3d 1482, 1486-87 (9th Cir. 1997) (holding that
alien must establish a causal connection between his political opinion and the
harm suffered by direct or circumstantial evidence, not by inference).
In relation to the other incidents, including the attack allegedly perpetrated
against his brother as Salamanca and his friends hung political propaganda,
Salamanca did not provide any evidence indicating that the perpetrators were
FARC members. Moreover, the 2001 Country Report listed several groups that
the FARC persecuted, including political candidates whom it did not support, but
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did not indicate that the FARC persecuted election workers, regardless of their
party affiliation, merely because it was opposed to the electoral process.
Finally, Salamanca’s claim that he was persecuted is undermined by: (1) the
fact that he returned to Colombia two times after he initially left to avoid
persecution, and during his travels to various countries around the world, he never
sought help or reported the persecution; and (2) the fact that he never reported any
of the threats or attacks to the authorities in Colombia. Accordingly, substantial
evidence supports the IJ’s conclusion that the petitioners failed to establish past
persecution.
Furthermore, substantial evidence supports the IJ’s conclusion that the
petitioners did not establish a well-founded fear of future persecution. A
“well-founded fear” of persecution may be established by showing (1) past
persecution that creates a presumption of a well-founded fear and overcomes any
rebuttal by the INS, (2) a reasonable possibility of personal persecution that cannot
be avoided by relocating within the subject country,1 or (3) a pattern or practice in
1
We recently rejected an IJ’s finding that petitioners could avoid persecution at the hands of
Colombia guerilla groups by relocating within Colombia, because the 1999 and 2000 Country
Reports indicated that guerillas exercised influence throughout Colombia. See Sepulveda, 401 F.3d
at 1232 n.7. However, as in Sepulveda, we need not address the petitioners’ ability to relocate within
Colombia in the instant case, because the evidence does not compel the conclusion that Salamanca
was persecuted, or would be persecuted, on account of his political opinion if he were to return to
Colombia.
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the subject country of persecuting members of a statutorily defined group of which
the alien is a part. 8 C.F.R. § 208.13(b)(1), (2). As discussed above, the
petitioners did not establish that Salamanca had been subjected to past
persecution, and hence, no presumption of a well-founded fear of future
persecution arose. Salamanca also failed to establish a pattern or practice by
FARC of persecuting members of the Conservative Party. Because the petitioners
failed to present specific, detailed facts compelling the conclusion that they
experienced past persecution in Colombia, or that they had a well-founded fear of
persecution if they returned to Colombia, on account of Salamanca’s political
opinion, substantial evidence supports the IJ’s denial of asylum.
In addition, if “an applicant is unable to meet the ‘well-founded fear’
standard for asylum, he is generally precluded from qualifying for either asylum or
withholding of deportation.” Al Najjar, 257 F.3d at 1292-93 (internal quotations
and citations omitted). Accordingly, because the petitioners failed to establish a
well-founded fear of persecution sufficient to support their asylum claim, they also
could not establish that they were eligible for withholding of removal. See Id.,
257 F.3d at 1292-93, 1303-04. Accordingly, we deny the petitioners’ petition for
review.
PETITION DENIED.
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