[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-17174 ELEVENTH CIRCUIT
SEPTEMBER 8, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
BIA No. A96-085-310
ALEJANDRO ROBLES-QUECANO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 8, 2006)
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Alejandro Robles-Quecano petitions for review of the Board of Immigration
Appeals’ (BIA) order adopting and affirming an Immigration Judge’s (IJ’s)
decision finding him ineligible for asylum and denying his application for
withholding of removal under the Immigration and Nationality Act (INA), 8
U.S.C. §§ 1158, 1231, as amended by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat.
3009 (1996) (amended by the REAL ID Act of 2005, Pub. L. No. 109-13, 119
Stat. 302 (2005)).1 After review, we dismiss the petition in part, and deny the
petition in part.
I. DISCUSSION
A. Due Process Claim
In his petition, Robles-Quecano first argues the proceedings before the IJ
denied him due process of law. More specifically, Robles-Quecano claims the IJ’s
argumentative interrogation and partisan adjudication rendered the proceedings
fundamentally unfair. The Government, in turn, asserts we lack subject matter
jurisdiction over Robles-Quecano’s due process claim because he failed to raise it
in his notice of appeal or brief before the BIA.
1
Because Robles-Quecano’s removal and asylum proceedings commenced after April 1,
1997, the permanent provisions of IIRIRA govern his petition for review.
2
We review our subject matter jurisdiction de novo. See Gonzalez-Oropez v.
U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). Generally speaking, we
lack jurisdiction to consider a claim raised in a petition for review unless the
petitioner has exhausted his administrative remedies with respect thereto. See 8
U.S.C. § 1252(d)(1); see also Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003)
(opining the exhaustion requirement is jurisdictional, such that we “lack
jurisdiction to consider claims that have not been raised before the BIA”). We
have recognized, however, that “[s]ome courts have indicated in dicta
that . . . some due process claims do not require exhaustion, because the BIA does
not have the power to adjudicate those claims.” Sundar, 328 F.3d at 1325.
Nonetheless, “[t]hose same courts . . . have held that where the claim is within the
purview of the BIA which can provide a remedy, the exhaustion requirement
applies with full force.” Id. Although we have never specifically determined
which due process claims require exhaustion, other circuits have determined that
procedural due process claims, as well as procedural errors argued in due process
terms, must be raised before the BIA. See, e.g., Vargas v. INS, 831 F.2d 906, 908
(9th Cir. 1987) (holding due process claims predicated on procedural errors
subject to exhaustion requirement).
Robles-Quecano’s allegation of a due process violation—that he was denied
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a full and fair hearing before a neutral factfinder—is precisely the kind of
procedural error which requires exhaustion. See, e.g., Abduhlrahman v. Ashcroft,
330 F.3d 587, 596 n.5 (3d Cir. 2003) (noting “[a]lthough grounded in procedural
due process, a claim of IJ bias remains subject to administrative exhaustion”);
Sanchez-Cruz v. INS, 255 F.3d 775, 780 (9th Cir. 2001) (same). Because Robles-
Quecano failed to raise his due process claim before the BIA, we lack jurisdiction
to consider it. Thus, we dismiss this part of his petition for lack of jurisdiction.
B. Claims for Asylum and Withholding of Removal
In his petition, Robles-Quecano raises a number of issues in asserting the IJ
and BIA erred by denying his claim for asylum and withholding of removal. In
response, the Government argues that we lack jurisdiction to consider Robles-
Quecano’s claim insofar as he seeks review of his asylum claim. With respect to
Robles-Quecano’s claim for withholding of removal, the Government asserts
substantial evidence supports the IJ’s and BIA’s decisions and denial of relief was,
therefore, appropriate.
1. Asylum Claim
To reiterate, we review our subject matter jurisdiction de novo. See
Gonzalez-Oropez, 321 F.3d at 1332. Under 8 U.S.C. § 1158(a)(2)(B), an alien
may not apply for asylum “unless the alien demonstrates by clear and convincing
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evidence that the application has been filed within 1 year after the date of the
alien’s arrival in the United States.” An asylum application filed after one year of
the alien’s arrival in the United States may, however, be considered “if the alien
demonstrates to the satisfaction of the Attorney General either the existence of
changed circumstances which materially affect the applicant’s eligibility for
asylum or extraordinary circumstances relating to the delay in filing an application
within the period specified . . . .” 8 U.S.C. § 1158(a)(2)(D). Pursuant to 8 U.S.C.
§ 1158(a)(3), “[n]o court shall have jurisdiction to review any determination of the
Attorney General under paragraph (2).” See also Fahim v. U.S. Att’y Gen., 278
F.3d 1216, 1217 (11th Cir. 2002) (holding “federal courts do not have jurisdiction
to review the Attorney General’s decision as to the timeliness of . . . a request [for
asylum]”). This jurisdiction stripping provision remains in effect after the REAL
ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310 (2005). See also Chacon-
Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005).2
In this case, both the IJ and BIA held that Robles-Quecano’s asylum
application was untimely and that he failed to establish changed or extraordinary
2
While Robles-Quecano’s case commenced before the enactment of the REAL ID Act of
2005, the jurisdictional provisions apply to his case. See REAL ID Act of 2005, § 106(b), Pub.
L. No. 109-13, 119 Stat. 231, 311 (stating the jurisdictional provisions of § 1252(a)(2)(D) “shall
take effect upon the date of the enactment” and shall apply to any case “in which the final
administrative order of removal . . . was issued before, on, or after the date of the enactment”).
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circumstances excusing the untimely application. 8 U.S.C. § 1158(a)(3) deprives
us of jurisdiction to review this determination, and, therefore, we dismiss Robles-
Quecano’s petition to the extent he seeks review of his asylum claim.
2. Withholding of Removal
Robles-Quecano raises several issues in arguing the IJ and BIA erred in
denying him relief in the form of withholding of removal. He asserts, for instance,
he established past persecution or a well-founded fear of future persecution based
on political opinion, his testimony was sufficiently detailed so as to obviate the
need for corroborating evidence, and the IJ applied the wrong legal standard. The
Government counters that considering the record, the generalized and vague
nature of Robles-Quecano’s testimony, and the higher standard for withholding of
removal, substantial evidence supports a finding that Robles-Quecano did not
meet his burden of showing eligibility for such relief.
Where the BIA issues a decision, we review that decision, except to the
extent that it expressly adopts the IJ’s opinion. See Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). Insofar as the BIA adopts the IJ’s reasoning, we
review the IJ’s decision as well. See Prado-Gonzalez v. INS, 75 F.3d 631, 632
(11th Cir. 1996). In this case, the BIA adopted and affirmed the IJ’s decision
except to the extent the IJ held Robles-Quecano failed to establish a nexus
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between his alleged political opinion and the treatment to which he was subjected.
Thus, we review both the decisions of the BIA and IJ, insofar as the IJ’s decision
comports with the BIA’s order.
We review the IJ’s and BIA’s determination that an alien is ineligible for
withholding of removal under a “substantial evidence” test. See Arboleda v. U.S.
Att’y Gen., 434 F.3d 1220, 1222 (11th Cir. 2006). That is, we “must affirm the
[IJ’s and] BIA’s decision if [they are] supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Id. (quotation and
citations omitted). We “may not reweigh the evidence and may not reverse the
[IJ’s and] BIA’s findings of fact unless the record compels a contrary conclusion.”
Id. (citation omitted).
The INA provides “the Attorney General may not remove an alien to a
country if the Attorney General decides that the alien’s life or freedom would be
threatened in that country because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). To establish his eligibility for withholding of removal, the
applicant bears the burden of demonstrating that his life or freedom would more
likely than not be threatened upon return to his country because of his race,
religion, nationality, political opinion, or membership in a particular social group.
7
See Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003); 8 U.S.C.
§ 1231(b)(3); 8 C.F.R. § 208.16(b).3 That is, an alien bears the burden of
demonstrating that he more likely than not would be persecuted or tortured on
account of a statutorily protected ground upon his return to the country in
question. Mendoza, 327 F.3d at 1287. Neither the INA nor its attendant
regulations define “persecution,” but we have noted “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 1231 (internal quotations and citation omitted).
Establishing causation, moreover, “requires the alien to present specific, detailed
facts showing a good reason to fear that he or she [has been or] will be singled out
for persecution on account of [a statutorily protected ground].” Al Najjar, 257
F.3d at 1287 (quotations and citation omitted) (emphasis in original). “If the alien
establishes past persecution in his country based on a protected ground, it is
presumed that his life or freedom would be threatened upon return to his country
3
The burden of proof for withholding of removal is more stringent than the burden for
asylum. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). Thus, if an
applicant is unable to meet the standard of asylum, he is generally precluded from qualifying for
withholding of removal. Id. at 1232-33. To establish eligibility for asylum, the alien must
establish, with specific and credible evidence, (1) past persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion; or (2) a well-founded
fear of future persecution on account of a statutorily-protected ground. See 8 U.S.C.
§§ 1101(a)(42)(A), 1158; Sepulveda, 401 F.3d at 1230-31.
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unless the INS shows by a preponderance of the evidence that, among other
things, (1) the country’s conditions have changed such that the applicant’s life or
freedom would no longer be threatened upon his removal; or (2) that the alien
could avoid a future threat to his life or freedom by relocating to another part of
the proposed country of removal, and it would be reasonable to expect him to do
so.” Mendoza, 327 F.3d at 1287; 8 C.F.R. §§ 208.13(b), 208.16(b).
The alien’s testimony, if credible, may be sufficient to sustain the burden of
proof for asylum or withholding of removal without corroboration. See 8 C.F.R.
§§ 208.13(a), 208.16(b); see also Matter of Dass, 20 I&N Dec. 120, 124 (BIA
1989) (testimony alone can suffice for political asylum where it is believable,
consistent, and sufficiently detailed to support the claim). “However, the weaker
the applicant’s testimony, the greater the need for corroborative evidence.” Yang
v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). “An applicant should
provide documentary support for material facts which are central to his . . . claim
and easily subject to verification, such as . . . documentation of medical
treatment.” In re S-M-J, 21 I&N Dec. 722, 725 (BIA 1998).
Based on the evidence and testimony Robles-Quecano presented, we hold
substantial evidence supports the BIA’s finding that Robles-Quecano failed to
meet his burden of showing eligibility for withholding of removal. The
9
threatening phone calls Robles-Quecano received from the Revolutionary Armed
Forces of Colombia (FARC) and the single incident where he was allegedly
physically harmed by the FARC in November 2000 do not amount to persecution,
but are better characterized as isolated incidents and verbal harassment. See
Sepulveda, 401 F.3d at 1231.
Similarly, Robles-Quecano’s testimony regarding harassing phone calls and
the November 2000 incident does not establish that he faced a future threat and
that he would more likely than not be persecuted upon his return to Colombia. See
Mendoza, 327 F.3d at 1287. When he stopped working for the Uribe campaign
after the November 2000 incident, Robles-Quecano remained in Colombia
unharmed for six months before coming to the United States, even though he
testified that the FARC knew where he lived and studied. While he testified that
the FARC continued to contact his family and girlfriend, he did not state that the
FARC tried to contact him directly. Robles-Quecano further indicated that he has
family remaining in Colombia who have gone unharmed by the FARC. While he
testified that the FARC continued to call his family after he came to the United
States, he also testified that this ceased when his family moved. Ruiz v. United
States, 440 F.3d 1247, 1259 (11th Cir. 2006) (holding petitioner’s claim of
well-founded fear, in the context of his claim for asylum, was negated by his
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testimony that he had family remaining unharmed in Colombia). Based on his
testimony, therefore, Robles-Quecano did not show it is more likely than not that
he will be persecuted if returned to Colombia.4
Additionally, the IJ did not apply the wrong legal standard in determining
Robles-Quecano was ineligible for withholding of removal. Because
Robles-Quecano did not (and statutorily could not) pursue asylum relief at his
hearing, he thereby sought relief only in the form of withholding of removal. The
IJ, therefore, correctly used the “more-likely-than-not” standard in determining
whether he qualified for such relief. See Mendoza, 327 F.3d at 1287. The IJ did
not err in noting this standard was higher than the standard for asylum. See
Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1324-25 n.2 (11th Cir. 2001).
Substantial evidence thus supports the BIA’s finding that Robles-Quecano
did not meet his burden of establishing eligibility for withholding of removal.
Accordingly, we deny his petition in this respect.
For the foregoing reasons, we dismiss Robles-Quecano’s petition in part,
4
We also note the BIA was permitted to consider Robles-Quecano’s lack of
corroborating evidence in determining he was ineligible for withholding of removal. Though
Robles-Quecano correctly asserts that in some circumstances, testimony alone may suffice to
show eligibility for withholding of removal, the need for corroborative testimony is greater if the
applicant’s testimony is weak. See Yang, 418 F.3d at 1201. Here, Robles-Quecano’s testimony
was vague and insufficiently detailed and, therefore, the nature of his testimony amplified the
need for corroborative evidence.
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and deny the petition in part.
PETITION DISMISSED IN PART, AND DENIED IN PART.
12