Fredy Achuri Barrera v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 26, 2006
No. 06-11763 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

BIA Nos. A79-340-216 & A79-340-429

FREDY ACHURI BARRERA,
BERENICE CRUZ PARDO,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(September 26, 2006)

Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Petitioners Fredy Achuri Barrera and his wife, Berenice Cruz Pardo, seek
review of the Board of Immigration Appeal’s (“BIA”) decision affirming the

Immigration Judge’s (“IJ”) order denying their application for asylum and

withholding of removal under the Immigration and Nationality Act (“INA”).

§ 208(a)(1), 8 U.S.C. § 1158(a)(1); § 241, 8 U.S.C. § 1231(b)(3).

Petitioners, who are citizens of Colombia, claim that they demonstrated past

persecution because of Barrera’s political beliefs and union affiliation, based on

their receipt of threatening pamphlets and telephone calls from the Revolutionary

Armed Forces of Colombia (“FARC”), and the fact that Barrera was physically

assaulted by a member of the FARC at a roadblock. In addition, Barrera asserts

that they demonstrated a well-founded fear of future persecution and that they

would not be able to safely relocate in Colombia because the FARC presents a

country-wide threat. Finally, Barrera concludes that he and his wife would more

likely than not be persecuted if they returned to Colombia.

We only review “the decision of the BIA, except to the extent that it

expressly adopts the IJ’s opinion.” Nreka v. United States Att’y Gen., 408 F.3d

1361, 1368 (11th Cir. 2005) (internal quotations and citations omitted). Because

the BIA mostly adopted and affirmed parts of the IJ’s decision and added

comments of its own, we review both, excepting the IJ’s finding of adverse

credibility and the IJ’s relocation analysis. To the extent that the BIA’s or IJ’s

decision was based on a legal determination, our review is de novo. Nreka, 408
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F.3d at 1368. The IJ’s and BIA’s factual determinations are reviewed under the

substantial evidence test, and we “affirm the [IJ's] decision if it is supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.” Forgue v. United States Attorney Gen., 401 F.3d 1282, 1286 (11th Cir.

2005) (internal quotations and citations omitted). The substantial evidence test is

“highly deferential” and does not allow “re-weigh[ing] the evidence from scratch.”

Id. The fact that evidence in the record may also support a conclusion contrary to

the administrative findings is not enough to justify a reversal, rather, reversal is

only appropriate where the record “compels” it. Adefemi v. Ashcroft, 386 F.3d

1022, 1027 (11th Cir. 2004), cert. denied, 125 S. Ct. 2245 (2005).

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

asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of Homeland

Security and the Attorney General both have the discretion to grant asylum if the

alien meets the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. §

1158(b)(1)(A) (as amended by the REAL ID Act). A “refugee” is defined as:

any person who is outside any country of such person’s nationality. . .,
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 . . .

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the

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burden of proving statutory “refugee” status. Al Najjar v. Ashcroft, 257 F.3d 1262,

1284 (11th Cir. 2001). To establish asylum eligibility, the alien must, with specific

and credible evidence, establish: (1) past persecution on account of a statutorily

listed factor; or (2) a “well-founded fear” that the statutorily listed factor will

cause future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287.

Although neither the INA nor the regulations define “persecution,” we have

discussed other circuits’ holdings 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. U.S.

Attorney General, 401 F.3d 1226, 1231 (11th Cir. 2005) (internal quotations

omitted). If an alien does not establish past persecution, he bears the burden of

showing a well-founded fear of future persecution by showing that: (1) he fears

persecution based on his membership in a statutorily protected class; (2) there is a

reasonable possibility that he will suffer persecution if removed to his native

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

or her country, if, under all of the circumstances, it would be unreasonable to

expect relocation. See 8 C.F.R. § 208.13(b)(2), (3)(i). Additionally, “an applicant

must demonstrate that his or her fear of persecution is subjectively genuine and

objectively reasonable.” Al Najjar, 257 F.3d at 1289. A petitioner’s claim that he

has a well-founded fear of future persecution is undercut by evidence that his
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family remained without incident in the same region where the petitioner had

allegedly been threatened. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th

Cir. 2006).

Along with seeking asylum, the alien may also seek withholding of removal.

See INA § 241, 8 U.S.C. § 1231(b)(3). One significant difference between proving

asylum eligibility and withholding of removal eligibility is that, to merit the latter,

the alien must prove that future persecution would occur “more likely than not.”

See Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). As the

more-likely-than-not standard that applies to withholding of removal is more

stringent than the well-founded-fear standard that applies to asylum, ineligibility

for asylum generally precludes withholding of removal eligibility. Al Najjar, 257

F.3d at 1292-93.

After reviewing the record, we conclude that substantial evidence supports

the IJ’s conclusion that Barrera and his wife were not entitled to asylum or

withholding of removal. First, Barrera failed to demonstrate anything more than a

few isolated incidents of harassment insufficient to compel a finding that he and

his wife suffered persecution. Furthermore, their allegations are undercut by the

fact that Barrera’s family remained in Colombia unharmed, despite their similar

political involvement. Barrera’s fear may have been subjectively genuine, but

substantial evidence supports the IJ’s conclusion that it was not objectively
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reasonable. Thus, irrespective of whether Barrera’s fear was sufficiently based on

his political or union affiliations, or whether relocation was a viable option, the IJ’s

conclusion is supported by substantial evidence.

Because petitioners failed to demonstrate past persecution or a well-founded

fear of future persecution, their claim that they are more likely than not to be

persecuted if they return to Colombia necessarily fails.

For the above-stated reasons, we deny Barrera’s and Pardo’s petition.

PETITION DENIED.