Rojas v. United States Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 8, 2005
No. 04-11796 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

Agency Docket No. A79-497-701

FERNANDO ROJAS,
Petitioner,

versus

UNITED STATES ATTORNEY GENERAL,

Respondent.

__________________________

Petition for Review from a Final Order
of the Board of Immigration Appeals
_________________________
(June 8, 2005)

Before TJOFLAT, DUBINA, and HULL, Circuit Judges.

PER CURIAM:

Fernando Rojas, a Colombian citizen appearing with counsel, petitions for

review of the Board of Immigration Appeals’ (“BIA’s”) order affirming the
Immigration Judge’s (“IJ’s”) denial of asylum and withholding of removal under

the Immigration Nationality Act (“INA”) and the United Nations Convention

Against Torture and other Cruel, Inhumane, and Degrading Treatment or

Punishment (“CAT”). After review, we deny Rojas’s petition.1

I. BACKGROUND

On or about September 12, 2000, Rojas was admitted to the United States

on a six-month visa, with authorization to remain until March 11, 2001. Rojas

then remained in the United States beyond that period without authorization from

the Immigration and Naturalization Service (“INS”). On October 29, 2001, the

INS served Rojas with a notice to appear (“NTA”) charging that he was removable

because he remained in the United States for a time longer than permitted, in

violation of INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). At an April 25, 2002,

hearing, Rojas appeared with counsel and conceded the allegations in the NTA

and conceded removability. However, Rojas filed an application for asylum,

withholding of removal, and CAT protection.

A. Rojas’s Evidence

1
Because Rojas’s removal proceedings commenced after April 1, 1997, the permanent rules
of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Publ. L. No. 104-208,
110 Stat. 3009 (1996) apply. Sanchez v. United States Att’y Gen., 392 F.3d 434, 435 (11th Cir.
2004).
2
 On September 25, 2002, the IJ held a hearing regarding Rojas’s application.

Rojas testified that he was persecuted in Colombia on account of his political

opinion.2 Specifically, Rojas testified that he was harassed, threatened, and

persecuted by the Revolutionary Armed Forces of Colombia (“FARC”) based on

his association with the Liberal Party and his efforts to maintain democracy in

Colombia.

Rojas testified, consistent with his asylum application, that he joined the

Liberal Party in 1985 because his father was a party leader. He helped with

election campaigns and recruitment and supported the party with his computer

expertise. In March 1998, Rojas and several family members were headed back to

Bogota from a political youth meeting when they were stopped by FARC

guerrillas. The FARC took their identification documents, separated them, and

asked them questions about their activities. The FARC also said they were

offended because of Rojas’s and his companions’ political activities, and told them

that they were to stop telling the youth about their political party, but instead

recruit them into the FARC. The FARC told them that they would all be under

2
Rojas also submitted, the evening before the hearing, a statement describing his alleged
persecution and death threats in Colombia. The IJ noted that his testimony at the hearing was
consistent with this statement.
3
surveillance, and if they informed the authorities about the incident, they could

consider themselves dead.

Rojas worked as a computer technician for a company whose clients

included Colombian politicians and Colombian government agencies. In March or

April following the above incident, Rojas received phone calls at his office from

persons asking questions that a normal customer would not ask, including

questions about the company’s owners and clients.

Rojas subsequently moved from Bogota to Medellin, where he opened a

new company and again became involved in politics. He participated in political

campaigns, health brigades, and administrative activities, and also provided

computer support to the Liberal Party and provided computers and computer

training to school students. Rojas testified that he received numerous threats from

FARC guerrillas for supporting the Liberal Party and teaching the youth computer

skills. He indicated that the guerillas had infiltrated everywhere and could easily

learn of his activities.

On August 19, 2000, Rojas was at a public political meeting speaking about

the campaign platform of Dr. Alvaro Uribe,3 who was running for president of

Colombia, and about the guerillas. At the end of the meeting, two men

3
Uribe is the current president of Colombia.
4
approached him and told him to stop speaking out against them and participating

in the Liberal Party, and that if he reported the threat, they would find him and

harm him or his family.

On September 8, 2000, Rojas called his office and his secretary told him

that two men from the FARC had come to the office looking for him, searched the

office, been vulgar towards her, and told her to tell him that they would find him.

Later that evening, Rojas received a phone call at home from someone declaring

him a “military objective.”

Following that phone call, Rojas and his wife went to a friend’s house, and

the next day Rojas left for Bogota, where he stayed with a friend and purchased a

ticket to the United States.4 Rojas’s wife remained in her mother’s house in

Medellin. Rojas testified that after he left, his office received several phone calls

asking when he would return, and testified that if he returned to Colombia, he

would be killed.

On cross-examination, Rojas stated that his wife still lives in Medellin and

his parents and two sisters still live in Bogota. He further admitted that he had no

problems in Colombia from April of 1998 until August of 2000 and that he never

4
Rojas had obtained a visitor’s visa in 1999.
5
informed the authorities about what had happened to him because he thought they

could be infiltrated by the guerrillas.

In addition to Rojas’s testimony, the record also included the following

relevant evidence: (1) a certified statement from a representative of the department

of Antioquia, the department in which Rojas resided, stating that threats by

“subversive groups” against Rojas’s life and his family’s lives forced him to leave

the country; (2) a declaration by the friend with whom Rojas stayed in Medellin

before leaving Colombia, stating that threats against Rojas’s life because of his

political activities forced him to leave Colombia; and (3) the 2001 State

Department Country Report for Colombia, which states that the FARC regularly

attacked civilian populations; that the guerillas were responsible for the majority

of the kidnapings; that common guerilla targets included elected officials,

candidates for public office, and civic leaders; that kidnaping is a major source of

money for the FARC; and that the FARC undertook armed actions in nearly 1,000

of the country’s 1,097 municipalities.

B. IJ’s Decision

The IJ concluded that Rojas was not entitled to asylum because he had not

established that he had a well-founded fear of persecution if he returned to

Colombia because: (1) Rojas failed to establish that he could not safely relocate

6
within Colombia; (2) Rojas never contacted the authorities to seek protection; and

(3) his wife and parents remain in Colombia without any problems. The IJ further

concluded that the threats he received did not rise to the level of past persecution.

The IJ further concluded that Rojas had failed to satisfy the higher standard

required for withholding of removal and did not qualify for CAT protection.

C. BIA Appeal

The BIA affirmed the IJ’s decision without opinion, and Rojas now

petitions this Court for review.

II. STANDARD OF REVIEW

The IJ’s factual determination that an alien is not entitled to asylum must be

upheld if it is supported by substantial evidence. See D-Muhumed v. United

States Att’y Gen., 388 F.3d 814, 817-18 (11th Cir. 2004); cf. 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

7
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 (1992).5

III. DISCUSSION

On appeal, Rojas asserts that the IJ erred in denying his asylum claim based

on the fact that he failed to establish that he faced past persecution or had a well-

founded fear of persecution.6

An alien who arrives in or is present in the United States may apply for

asylum. See 8 U.S.C. § 1158(a)(1). However, the Attorney General has discretion

to grant asylum only if the alien meets the INA’s definition of a “refugee.” See 8

U.S.C. § 1158(b)(1).

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

5
“When the BIA summarily affirms the IJ’s decision without opinion, the IJ’s decision
becomes the final removal order subject to review.” Sepulveda v. United States Att’y Gen., 401 F.3d
1226, 1230 (11th Cir. 2005) (citation omitted).
6
On appeal, Rojas failed to argue his withholding of removal and CAT claims. Those issues
are waived, and we need not consider them. See Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th
Cir. 1998) (holding that issues not argued on appeal are deemed waived). Therefore, the only issue
on appeal is whether the IJ erred in denying Rojas’s asylum claim. In any event, because he failed
to establish eligibility for asylum, he also fails to satisfy eligibility for withholding of removal or
CAT relief. Nreka v. United States Att’y Gen., — F.3d —, No. 04-10009 (11th Cir. May 16, 2005).

8
 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) (emphasis added). The asylum applicant carries the

burden of proving statutory “refugee” status. Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001).

An alien is a “refugee” and therefore eligible for asylum if he can establish,

with specific and credible evidence: (1) past persecution on account of his political

opinion or other statutorily listed factor; or (2) a “well-founded fear” that his

political opinion or other statutorily listed factor will cause future persecution.

8 C.F.R. § 208.13(a), (b); see also Al Najjar, 257 F.3d at 1287. While the INA

does not define persecution, this Court previously has recognized 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 v. United States Att’y Gen., 401 F.3d 1226, 1231 (11th

Cir. 2005) (internal quotation marks, brackets, and citations omitted); see also

Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000) (collecting cases);

Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000) (persecution “must rise above

unpleasantness, harassment, and even basic suffering”).

9
 If the alien demonstrates past persecution, he is also 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). If, however, the alien does not establish

past persecution, he bears the burden of demonstrating a well-founded fear of

future persecution by showing that: (1) he fears persecution based on his political

opinion; (2) there is a reasonable possibility he will suffer persecution in his home

country; and (3) he could not avoid persecution by relocating to another part of

that country, if under all the circumstances it would be reasonable to expect him to

do so. See 8 C.F.R. § 208.13(b)(2), (b)(3)(i). “[A]n applicant must demonstrate

that his or her fear of persecution is subjectively genuine and objectively

reasonable.” Al Najjar, 257 F.3d at 1284. 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 such [a factor].” D-Muhumed, 388 F.3d at 818.

Rojas failed to establish that he faced past persecution. Although he was

detained by the FARC at a roadblock and received several threatening phone calls,

mere threats and harassment do not constitute persecution. See Sepulveda, 401

F.3d at 1231. Rojas does not contend that he suffered any harm beyond threats

and the brief detention at the roadblock in 1998. Accordingly, substantial

10
evidence supports the IJ’s decision that Rojas did not demonstrate that he faced

past persecution. See Tawm v. Ashcroft, 363 F.3d 740, 742-44 (8th Cir. 2004) (no

past persecution where alien was twice detained briefly and lightly beaten but

sustained no serious injury); see also Nelson, 232 F.3d at 264 (no past persecution

where alien was three times placed in solitary confinement and physically abused,

and subjected to periodic surveillance, threatening phone calls, occasional stops

and searches and visits to her place of employment).

As for Rojas’s argument that he has a well-founded fear of future

persecution, substantial evidence supports the IJ’s determination that Rojas failed

to establish a reasonable possibility that he would suffer persecution if he returned

to Colombia. Although Rojas was affiliated with the Liberal Party and the

guerrillas were aware of this affiliation, he was a self-described “low ranking

political activist,” and left Colombia nearly five years ago. The evidence thus

does not compel the conclusion that Rojas “had a well-founded fear that the

[FARC] retains an inclination to single [him] out for persecution.”7 Sepulveda,

401 F.3d at 1231-32. As Rojas admitted, his parents, sisters, one brother, and his

wife have remained in Colombia without incident, despite the facts that his family

7
Although we do not rely on it, we note that Rojas himself asserts in his brief that President
Uribe, for whom Rojas campaigned, “has waged an effective and drastic military campaign against
the FARC” since Rojas left Colombia.
11
has long been involved with the Liberal Party and that Rojas was scared for his

wife’s life.8 See Tawm, 363 F.3d at 743 (finding that an alien did not establish a

well-founded fear where, inter alia, the alien’s family continued to live in Lebanon

without incident). In addition, Rojas himself lived for years in Colombia without

incident and never reported to the authorities the threats that he received. As a

result, he has not shown that the Colombian government could not or would not

offer him whatever protection, if any, he might need in Colombia. See Mazariegos

v. United States Att’y Gen., 241 F.3d 1320, 1327 (11th Cir. 2001).

Under these circumstances, substantial evidence supports the IJ’s decision

that Rojas failed to meet his burden of proving that he faced past persecution or

had a well-founded fear of persecution, and that he was, therefore, ineligible for

asylum. See 8 C.F.R. § 208.13(b)(2)(i).9

Upon review of the record and the parties’ briefs, we discern no reversible

error. Accordingly, we deny Rojas’s petition for review.

8
Although Rojas argues that his parents are no longer politically active, the fact that they
historically were active in the Liberal Party and have remained in Bogota without incident
substantially undercuts Rojas’s assertion that his fear of future persecution is reasonable.
9
Rojas also challenges on appeal the application and constitutionality of the internal-
relocation requirement. Because we conclude that Rojas failed to demonstrate past persecution or
a well-founded fear of future persecution, we do not address this issue. See Sepulveda, 401 F.3d at
1231.
12
PETITION DENIED.

13