[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 11, 2006
No. 05-17230 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A97-193-802
LUZ ESTELA PARRA,
a.k.a. Luz Stella Parra,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 11, 2006)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Luz Estela Parra, a Colombian citizen and national proceeding pro se,
petitions this Court for review of a final order of the Board of Immigration Appeals
(BIA). The BIA’s order affirmed an Immigration Judge’s (IJ’s) denial of her
applications for asylum under the Immigration and Nationality Act (INA) and
withholding of removal under the INA and the United Nations Convention Against
Torture (CAT). 8 U.S.C. §§ 1158, 1231(b)(3)(A). Because we lack subject matter
jurisdiction to review the IJ’s finding that Parra did not file a timely application for
asylum, we dismiss that part of her petition. And because substantial evidence
supports the IJ’s decision not to withhold removal, we deny that part of her petition
as well.
I.
Parra entered the United States in September 2000 as a non-immigrant
visitor authorized to remain in the United States until March 2001. She remained
in the United States beyond the authorized period, and in April 2003, she filed an
application for asylum under INA § 208(a) and for withholding of removal under
INA § 241(b)(3) and CAT art. III.1 In her application Parra alleged that she was
threatened and persecuted in Colombia by the United Auto Defense Forces of
1
Luz Parra’s children, Marcela and Ricardo, were named as derivative applicants. For
clarity’s sake, this opinion will refer to the three applicants as “Parra,” and to the extent that the
children are derivative appellants, their claims for review fail for the same reasons that Luz
Parra’s fail.
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Colombia (UAC), a group of violent paramilitaries who seek to control that
country.
In her application, Parra attributed the UAC’s alleged persecution to her
political opinions and her membership in a particular social group. Specifically,
Parra stated in her application that she had previously acted as a campaign assistant
for the Liberal Party and that she had received threatening phone calls from the
UAC after she refused to provide members of the group with money and food. Her
application also alleges that UAC members stole food from her family’s farm and,
on one occasion, even shot at her house, which was located on the farm. She
further alleged that the shooting incident prompted her family to sell their farm and
relocate to Bogota. Parra, however, decided Bogota was not safe enough and
resolved to move to the United States with her children. About two months after
her family left the farm she sent her son to live with an uncle in the United States.
Then, “five or six” months later, she and her daughter entered the United States
legally as non-immigrant visitors. She now contends that if she or her children
return to Colombia, they will “certainly” be hunted, tortured, and killed by the
UAC.
In June 2003, the Immigration and Naturalization Service (INS) charged
Parra with removability under INA § 237(a)(1)(B) for remaining in the United
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States beyond her authorized time period. When she appeared before the IJ to
answer the charge, she gave testimony that conflicted with portions of her asylum
application. First, she told the IJ that she had sent her son to the United States to
frustrate the UAC’s attempts to recruit him, but her application made no mention
of any attempted recruitment. Second, Parra told the IJ that her family vacated the
farm without selling it because they would have been forced to give the sale
proceeds to the UAC, but her application states that her family sold the farm. And
third, in response to the IJ’s questions about her political affiliations, Parra stated
that although she was never a member of the Liberal Party, she had collaborated
with them “once or twice” by assisting with political meetings held by the Liberal
Party at the family farm, but her application states that she “belonged” to the
Liberal Party and was an active campaign assistant. The IJ found her political
activities “unspecific and unremarkable.” In addition to the inconsistencies
between Parra’s testimony and her asylum application, Parra’s testimony also
revealed that during her eight months in Bogota she had experienced no threats or
attacks from the UAC and that her parents have lived safely in Bogota since they
left the farm.
The IJ denied Parra’s application for asylum and withholding of removal.
He found that her application for asylum was untimely and that withholding of
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removal under the INA was improper because Parra had not established that it was
“more likely than not” that she would be persecuted in Colombia. He also denied
her request for CAT relief, finding that she had not stated a valid claim because she
had not established that a government official or anyone acting under a government
official’s consent would torture her or her children if they were removed to
Colombia. Instead, the IJ found that any hostilities directed at Parra were meant
only to coerce her family into providing food or money to the UAC or to pressure
Parra’s son into becoming a member of the UAC. On appeal, the BIA adopted and
affirmed the IJ’s order.
II.
This Court reviews de novo the BIA’s legal conclusions. Mohammed v.
Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001). We review the BIA’s factfindings
under the substantial evidence test, which requires us to “affirm the BIA’s decision
if it is supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Forgue v. United States Att’y Gen., 401 F.3d 1282, 1286
(11th Cir. 2002) (quoting Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001)). Under the substantial evidence test, “we review the record evidence in the
light most favorable to the agency’s decision and draw all reasonable inferences in
favor of that decision.” Id. (quoting Adefemi v. Ashcroft, 386 F.3d 1022, 1027
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(11th Cir. 2004) (en banc), cert. denied, 544 U.S. 1035, 125 S. Ct. 2245 (2005)).
The test is “highly deferential” and does not allow “re-weigh[ing] the evidence
from scratch.” Mazariegos v. United States Att’y Gen., 241 F.3d 1320, 1323 (11th
Cir. 2001). Under the substantial evidence test, the record must not only support
reversal, it must compel it. Fahim v. United States Att’y Gen., 278 F.3d 1216,
1218 (11th Cir. 2002).
We review only the BIA’s decision, except for those portions of the IJ’s
decision expressly adopted by the BIA. Al Najjar, 257 F.3d at 1284. Here, the
BIA expressly adopted the IJ’s decision that Parra failed to file a timely application
for asylum and failed to present sufficient credible evidence to carry her burdens of
proof and persuasion in support of her application for withholding of removal.
Thus, we review the IJ’s findings under the substantial evidence test and will
uphold those findings unless “any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
III.
The IJ found that Parra’s application for asylum was untimely. Parra
concedes that point, but claims that she has established “extraordinary
circumstances” that excuse her late application. In response, the government
argues that this Court lacks subject matter jurisdiction to review the timeliness of
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Parra’s application. The government is correct.
As part of the asylum application process, an alien must demonstrate “by
clear and convincing evidence that the application has been filed within 1 year
after the date of the alien’s arrival in the United States.” § 1158(a)(2)(B). If an
alien files after the one-year deadline, his application may still be considered “if
the alien demonstrates to the satisfaction of the Attorney General . . . extraordinary
circumstances related to the delay in filing . . . .” § 1158(a)(2)(D). However, §
1158(a)(3) specifies that “no court shall have jurisdiction to review any
determination of the Attorney General [under § 1158(a)(2)].” Mendoza v. United
States Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003) (quoting § 1158(a)(3))
(alteration in original). We have held that the phrase “no court” in § 1158(a)(3)
includes this Court. See id. Therefore, we lack subject matter jurisdiction to
reconsider Parra’s asylum application.
In addition to her application for asylum, Parra is also petitioning for
withholding of removal under the INA and CAT. “An applicant for withholding of
removal may satisfy her burden of proof in either of two ways.” Tan, 446 F.3d at
1375. First, an applicant may prove that she experienced past persecution that was
motivated, at least in part, because of her race, religion, nationality, membership in
a particular social group, or political opinion. Id. Second, an applicant may
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establish that it is “more likely than not” that she would be persecuted on account
of one of those grounds if she returned to country of citizenship. Id. (citation
omitted). Either way, the applicant must establish a causal connection between her
political opinion and the feared persecution by presenting “specific, detailed facts
showing a good reason to fear that [she] will be singled out for persecution on
account of such an opinion.” Al Najjar, 257 F.3d at 1287 (quotation marks and
citations omitted).
Although the INA does not define “persecution,” we have held that
persecution is an “extreme concept” requiring “more than a few isolated incidents
of verbal harassment or intimidation,” and that “[m]ere harassment does not
amount to persecution.” Sepulveda v. United States Att’y Gen., 401 F.3d 1226,
1231 (11th Cir. 2005) (quotation marks and citation omitted). Menacing telephone
threats do not rise to the level of past persecution. Id. Also, “[i]t is not enough to
show that she was or will be persecuted or tortured due to her refusal to cooperate
with the guerillas.” Sanchez v. United States Att’y Gen., 392 F.3d 434, 438 (11th
Cir 2004).
On appeal, Parra contends that the Liberal Party’s occasional use of her
family’s farm as a political forum caused the UAC to label her as a “collaborator”
with that party. According to Parra, being labeled as a collaborator is the
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equivalent of being identified as a member of a political party or of a particular
social group that opposes the UAC’s goals. Accordingly, since the UAC allegedly
views her as a political enemy, she contends that if she were returned to Colombia,
the group would resume its alleged hostilities against her and her children. The IJ,
however, discounted Parra’s testimony and denied her application.
The IJ’s decision is supported by substantial evidence. Parra’s testimony
regarding her political activities lacks the “specific, detailed facts” necessary to
qualify for withholding of removal under the INA. See Al Najjar, 257 F.3d at
1287. Although Parra contends that if she were returned to Columbia the UAC
would punish her for being a “collaborator” with the Liberal Party, the IJ found
that her “unspecific and unremarkable” political activities did not satisfy her
burden of proving that she would be persecuted because of her political opinion.
On appeal Parra points to no facts that undermine the IJ’s decision.
Even if we assume that she received threatening phone calls from the UAC
and that she relocated to Bogota because the UAC shot at her home, there is no
persuasive evidence that undermines the IJ’s conclusion that the guerillas did so
because they were seeking material support, and not because she had collaborated
with the Liberal Party. Parra’s application for asylum and her testimony to the IJ
indicate that members of the UAC were upset with Parra for not complying with
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their demands for support. However, violence and threats of violence brought on
by a refusal to cooperate are not forms of political persecution that meet the burden
for withholding of removal under the INA. See Sanchez, 392 F.3d at 438 (“It is
not enough to show that she was or will be persecuted or tortured due to her refusal
to cooperate with the guerillas.”); Sepulveda, 401 F.3d at 1231 (explaining that
threatening phone calls do not constitute political persecution).
Further, the IJ also noted that Parra lived peacefully in Bogota for eight
months after she and her family left their rural farm. In fact, her parents still live
there. We have stated that a petitioner’s claim that she fears future persecution can
be contradicted by the fact that she has family members who remain in the country
from which he fled. Ruiz v. United States Att’y Gen., 440 F.3d 1247, 1259 (11th
Cir. 2006). Thus, Parra did not meet her burden in front of the IJ to establish that
she “more likely than not” would be persecuted if she were returned to Colombia.
Additionally, the IJ’s finding that Parra did not qualify for CAT relief is
also supported by substantial evidence. To qualify for CAT relief, Parra “must
show that it is more likely than not that she will be tortured in [Colombia] at the
hands of [the] government or that the government will acquiesce in the torture.”
Sanchez, 392 F.3d at 438. Parra has presented no evidence that she faces torture
from anyone acting on behalf of the Colombian government. Thus, her claim for
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relief under CAT also fails.
Because substantial evidence supports the IJ’s decision, Parra’s petition for
withholding of removal is denied.
PETITION DISMISSED IN PART, DENIED IN PART.
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