[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 19, 2006
No. 05-17123 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A95-886-120
ENRIQUE OCTAVIO MORALES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 19, 2006)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Petitioner Enrique Octavio Morales, through counsel, seeks review of the
Board of Immigration Appeal’s (“BIA”) order affirming the Immigration Judge’s
(“IJ”) final order denying claims for asylum, 8 U.S.C. § 1158, withholding of
removal under the Immigration and Nationality Act (“INA”) § 241(b)(3)(A), 8
U.S.C. 1231(b)(3), and the United Nations Convention Against Torture (“CAT”), 8
C.F.R. § 208.16(c). Because Morales does not make any argument or cite to any
law with respect to withholding of removal and CAT relief, he has waived those
issues on appeal, and they are not before us. See Rowe v. Schreiber, 139 F.3d
1381, 1382 n.1 (11th Cir. 1998) (holding that issues not argued on appeal are
deemed waived).
On appeal, Morales first argues that the IJ violated his right to due process
by failing to consider evidence he presented in support of his asylum application.
The government responds that Morales’s due process claim fails because he did not
raise it in his brief to the BIA. In reply, Morales argues that he is entitled to
present additional issues and evidence to show that he was prejudiced by
ineffective assistance of counsel and by the IJ’s conduct and thereby effectively
prevented from developing an adequate record. Next, Morales argues that the IJ’s
conclusion that he did not demonstrate past persecution or a well-founded fear of
future persecution is not supported by substantial, probative, or reasonable
evidence.
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I.
“We review subject-matter jurisdiction de novo.” Gonzalez-Oropeza v. U.S.
Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).
To the extent that Morales is appealing the IJ’s treatment of his documentary
evidence in an effort to challenge the IJ’s adverse credibility finding, that argument
is moot because the BIA reversed the IJ’s adverse credibility finding. Therefore,
there is no question as to the credibility of his testimony. See Al Najjar v. Ashcroft,
273 F.3d 1330, 1335 -1336 (11th Cir. 2001) (applying the doctrine of mootness to
an issue in the context of an immigration petition). However, to the extent that
Morales is raising this issue on appeal for other substantive reasons, he would had
to have administratively exhausted his remedies.
“The exhaustion requirement applicable to immigration cases is found in 8
U.S.C. § 1252(d)(1), which provides that ‘[a] court may review a final order of
removal only if . . . the alien has exhausted all administrative remedies available to
the alien as of right.’” Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003). We
have “interpreted that requirement to be jurisdictional, so we lack jurisdiction to
consider claims that have not been raised before the BIA.” Id.
Constitutional challenges and some due process claims do not require
exhaustion because the BIA does not have the authority to adjudicate those claims.
Id. at 1325. However, where the BIA can provide a remedy to the constitutional
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claim, “the exhaustion requirement applies with full force.” Id. (holding that an
alien should have exhausted his due process claim that the IJ’s and BIA’s
application of an immigration statute violated the Constitution, because “[i]t was
within the BIA’s authority to reconsider and change its decision”).
“Due process is satisfied only by a full and fair hearing.” Ibrahim v. INS,
821 F.2d 1547, 1550 (11th Cir. 1987). The INA provides that “the alien shall have
a reasonable opportunity . . . to present evidence on the alien’s own behalf . . . .”
INA § 240(b)(1), (4)(B), 8 U.S.C. § 1229a(b)(1), (b)(4)(B).
Morales’s due process challenge is procedural in nature as he is complaining
about the IJ’s handling of documentary evidence and arguing that the BIA could
have provided a remedy. Thus, the exhaustion requirement applies to Morales’s
due process claim. See Sundar, 328 F.3d at 1325. As the government correctly
notes, however, Morales did not mention his due process claim in either his notice
of appeal or brief before the BIA, and, therefore, he has failed to exhaust his
administrative remedies with respect to his due process claim.
Even assuming Morales’s due process claim did not require exhaustion, we
conclude from the record that his hearing complied with due process. The
transcript reveals that although Morales untimely filed his documentary evidence,
the IJ admitted such evidence in the record. Additionally, the IJ acknowledged the
documentary evidence but noted that it did not contain any corroborative evidence
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from a law enforcement authority to confirm the incidents testified to by Morales.
Thus, nothing in the transcript indicates that the IJ denied Morales’s right to
present evidence. For these reasons, we dismiss Morales’s petition in this respect.
Last, Morales may not assert a claim of ineffective assistance of counsel
here because he did not raise this claim before the BIA, and he raises this issue for
the first time before us in his reply brief. See United States v. Whitesell, 314 F.3d
1251, 1256 (11th Cir.2002) (holding that arguments raised for the first time in a
reply brief are not properly before a reviewing court). Thus, the only issue on
appeal is whether the IJ erred in denying Morales’s asylum claim.
II.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11 th Cir. 2001). Because the BIA adopted the IJ’s decision, and
made some findings of its own, we review both.
The IJ made an adverse credibility finding, but the BIA expressly reversed
that determination, so the following analysis considers the testimony as credible.
To the extent that the BIA’s decision was based on a legal determination,
review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001). The BIA’s factual determinations are reviewed under the substantial
evidence test, and we “must affirm the BIA’s decision if it is ‘supported by
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reasonable, substantial, and probative evidence on the record considered as a
whole.’” Najjar, 257 F.3d at 1283-84 (citation omitted). The substantial evidence
test is “deferential” and does not allow “re-weigh[ing] the evidence from scratch.”
Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001).
“To reverse the IJ’s fact findings, we must find that the record not only supports
reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th
Cir. 2003) (considering withholding of removal claim).
An alien who arrives in or is present in the U.S. may apply for asylum. See
INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). 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). 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. See Najjar, 257 F.3d at 1284.
The alien must establish past persecution or a well-founded fear that his
political opinion, or other protected ground, will cause harm or suffering that rises
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to the level of persecution. 8 C.F.R. § 208.13(b)(1),(2); Najjar, 257 F.3d at 1287.
To establish a well-founded fear, “an applicant must demonstrate that his fear of
persecution is subjectively genuine and objectively reasonable.” Id. at 1289. A
finding of past persecution creates the presumption of a well-founded fear of
persecution and shifts the burden to the government to demonstrate that either
conditions have changed in the alien’s home country, or the alien could avoid such
persecution by relocating in the home country and that relocation is reasonable. 8
C.F.R. § 208.13(b)(i). Otherwise, an applicant must show that he faces a threat of
future persecution country-wide. Arboleda v. U.S. Atty. Gen. 434 F.3d 1220, 1223
(11th Cir. 2006). In Ruiz v. U.S. Att’y Gen., 440 F.3d 1247 (11th Cir. 2006), we
acknowledged that the 2002 Country Report revealed that “persons in Colombia
who are ‘fleeing guerillas or police/military harassment or threats in conflictive
zones usually are able to find peaceful residence elsewhere in the country.’” Id. at
1259. Since 2001, the immigration regulations have codified the country-wide
requirement, and have instructed the IJ to consider whether “under all the
circumstances it would be reasonable to expect the applicant to [relocate].” 8 CFR
§ 1208.13(b)(2)(ii).
While we have not specifically defined persecution, we have noted that
“‘persecution’ is an ‘extreme concept,’ requiring ‘more than a few isolated
incidents of verbal harassment or intimidation,’ and that ‘[m]ere harassment does
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not amount to persecution.’” Sepulveda v. U.S. Att’y Gen. 401 F.3d 1226, 1231
(11th Cir. 2005) (quotation omitted). “Not all exceptional treatment is
persecution.” Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000) (citing
Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir.1998) (persuasive authority
stating that “persecution” “requires more than a few isolated incidents of verbal
harassment or intimidation, unaccompanied by any physical punishment, infliction
of harm, or significant deprivation of liberty”)).
Further, it is not enough that an alien hold a political opinion, he must show
that he was persecuted because of that opinion. INS v. Elias-Zacarias, 502 U.S.
478, 482, 112 S. Ct. 812, 816, 117 L. Ed. 2d 38 (1992).
With respect to past persecution, the record demonstrates that Morales
received multiple threatening phone calls from the Revolutionary Armed Forces of
Colombia (“FARC”), and that, on April 20, 2000, three uniformed but unidentified
persons came to his farm and fired gun shots after speaking with the farm
administrator. First, we have held that menacing phone calls and threats do not rise
to the level of persecution. See Sepulveda, 401 F.3d at 1231. Second, because it is
not clear who the uniformed visitors were, or whether they had any connection to
the FARC, Morales’s assertion that he was persecuted by the FARC guerillas is not
supported by the record.
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With regard to whether Morales established that he was targeted on account
of his political opinion, Morales admitted that several of the phone calls he
received from the FARC demanded money and malaria medicine, thus, apparently,
the FARC targeted him for his financial status. Furthermore, the record, with
respect to the April 20, 2000, incident does not reveal on what basis the three
unidentified men visited his farm demanding to speak to him. Even assuming that
Morales did show that he was targeted, at least in part, on account of a protected
ground, because Morales has failed to establish that he suffered past persecution,
the fact that he could establish a protected ground is not sufficient to compel a
reversal of the BIA’s and IJ’s decision.
Furthermore, despite his fear of harm by the FARC, and having had a visa to
enter the United States in April 2000, at the time he experienced the most extreme
treatment, Morales did not leave Colombia to the United States after the FARC
visited his farm in Choco. Rather, Morales left Colombia for the United States
over a year later in May 2001, long after the threatening phone calls stopped.
Upon arriving in the United States, Morales did not apply for asylum.
Furthermore, Morales returned to Colombia despite his fear of persecution, and
remained there after he received two more threatening phone calls. Even though
Morales testified that since he left Colombia and shortly before the removal
hearing, his son and the mother of another son were beaten by attackers who asked
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his whereabouts, he did not testify as to the attackers identity, or whether they were
connected to the FARC. Even assuming that Morales could demonstrate a well
founded fear of future persecution based on a certified statement from the mother
of his son that, since March 2002, she received three suspicious and threatening
phone calls from a member of the FARC, Morales did not establish country-wide
persecution.
Here, we conclude that the BIA and IJ’s finding with respect to establishing
country-wide persecution is supported by substantial evidence because Morales
testified that he never considered living outside of Bogota. Therefore, even if
Morales had established a well-founded fear of future persecution, he could
reasonably have been expected to avoid future threat to his life or freedom by
relocating to another part of the country. See Ruiz, 440 F.3d at 1259.
For the above-stated reasons, we conclude that Morales failed to carry his
burden of establishing eligibility for asylum. Accordingly, we deny the petition in
this respect.
PETITION DISMISSED IN PART, DENIED IN PART.
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