[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 05-16660 and 06-10756 SEPTEMBER 6, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA Nos. A95-240-792 & A95-240-793
ESTEBAN FERNANDO ANTONI PARRA,
ROSA HELENA CHAPARRO,
SAMARA HELENA PARRA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 6, 2006)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Esteban Fernando Antoni Parra, his wife, Rosa Helena Chaparro, and his
daughter, Samara Helena Parra, petition for review of (1) the Board of Immigration
Appeals’ (“BIA’s”) decision adopting and affirming the immigration judge’s
(“IJ’s”) order, which found them removable and denied their application for
asylum, withholding of removal under the Immigration and Nationality Act
(“INA”) and relief under the United Nations Convention Against Torture (“CAT”),
8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 208.16(c); and (2) the BIA’s order
denying their motion to reopen, 8 C.F.R. § 1003.2(c). After review, we dismiss in
part and deny in part the petitions for review.
I. BACKGROUND
A. The Petitioners’ Arrival
Parra last arrived in the United States on May 7, 1999, and his wife and
daughter arrived later that year, on December 2, 1999. The petitioners, who are all
natives and citizens of Colombia, were admitted as nonimmigrant visitors for
pleasure but overstayed their visas and are subject to removal under INA
§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).
B. The Petitioners’ Claims
On March 6, 2002, Parra filed an application for asylum, withholding of
removal and CAT relief, alleging that he had been persecuted on account of his
political opinion by members of the Revolutionary Armed Forces of Colombia
2
(“FARC”).1 Parra owned and managed multiple companies in Colombia.
According to Parra, the FARC began threatening him in November 1997 because
he had “records in the Liberal Party.”2 The FARC first contacted Parra at his office
by calling and requesting that he pay a “vacuna,” or a monthly quota of money, in
support of the FARC’s cause. Parra tried to delay, telling the caller that he needed
time to gather the money. Parra later received two more telephone calls reminding
him of his promise. As a result of these calls, in 1998, Parra decided to close his
office and work directly in the warehouses. Later, in February 1998, Parra
received a telephone call from the FARC at his home, in which the caller, in an
aggressive manner, indicated that the money they were asking for was a tax. The
caller advised that if Parra continued to hide from them, they knew where he and
his family lived. Parra moved in March 1998 in order to avoid the FARC’s pursuit
because he was not willing to contribute to their “terrorist cause,” because of his
involvement with politics and because he did not have the ability to pay the
1
Parra’s wife and daughter were included in the application.
2
Parra stated that he had been a member of the Liberal Party since the 1970s and helped
coordinate meetings for the party until 1998. Parra also supported the New Liberalism political
movement starting in1980, but withdrew from active membership in the movement in 1989
because of threats. There is no indication that these threats came from the FARC, however, and
Parra stated that these threats stopped once he withdrew from the movement.
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requested quota.3 After moving, Parra did not have any other contact with the
FARC until October 1998.
In October 1998, while Parra was assisting his son, Daniel Fernando Parra
(“Daniel”), with his business, three men came to Daniel’s business in the morning
asking for Parra. These men forced Parra to get in their car by identifying
themselves as members of the FARC and showing him a weapon. As they were
driving around, the men mistreated Parra and slapped him in the face. According
to Parra, their intention was to frighten him and give him an ultimatum so that he
would make the requested payments in exchange for his peace. The men let Parra
go around 7:30 p.m. that evening, leaving him in a town about an hour away from
his home.
As a result of this event, Parra relocated to Ecuador for two months, returned
to Colombia, and in February 1999, moved in with his mother while his wife and
children moved in with another relative. In May 1999, Parra left Colombia to live
in the United States temporarily until conditions improved. Because conditions did
not improve, his family joined him in the United States in December 1999, but his
two sons, Daniel and Esteban Dario Parra (“Esteban”), later returned to Colombia
to finish school. His two sons eventually came back to the United States after
3
At the asylum hearing, Parra testified that he had the money to pay the FARC, but that
he did not do so because his “political ideology does not go[] with their thinking.”
4
Esteban received a threatening telephone call in August 2001, instructing him to
tell Parra to report to the FARC unless he “wanted to receive [his] child in a coffin
in pieces.” At that point, Parra decided to seek political asylum in the United
States because he feared that he would be kidnaped, tortured or even killed if he
returned to Colombia.
C. Immigration Proceedings
The record contained several documents in support of Parra’s asylum
application, including a letter indicating that his son Esteban had been granted
asylum in the United States on March 11, 2002. At the asylum hearing, the
government objected to the introduction of this evidence, noting that Esteban’s
asylum application was not included in the record. Parra stated that he had
requested a copy of Esteban’s asylum application but had not received it yet, and
that Esteban was present and available to testify regarding his asylum application if
necessary.
The IJ allowed the letter, but cautioned that her decision on the petitioners’
application would be based on the merits of their case, and not on the fact that
Esteban had been granted asylum. Esteban did testify at the petitioners’ asylum
hearing, and his testimony was consistent with Parra’s claims.
5
The IJ ultimately denied the petitioners’ applications for asylum,
withholding of removal and CAT relief, and ordered them removed to Colombia.
Specifically, the IJ denied the petitioners’ asylum application as untimely, finding
no extraordinary circumstances to excuse its late filing. The IJ also denied the
petitioners’ application for withholding of removal, finding that the FARC’s
request that Parra pay a war tax, the threatening telephone calls, and Parra’s
detention without being physically harmed, did not amount to past persecution or
establish by a clear probability that it would be more likely than not that the
petitioners would suffer if returned to Colombia. The IJ also noted that these acts
demonstrated extortion, but found that there was insufficient evidence to
demonstrate a mixed motive based in part on Parra’s political opinion. Finally, the
IJ denied the petitioners’ request for CAT relief, finding that the petitioners had not
been tortured, and that the FARC was not a governmental entity. The petitioners
appealed the IJ’s decision to the BIA, which adopted and affirmed the IJ’s
decision, and dismissed the petitioners’ appeal.
In addition to filing a timely petition for review with this Court, the
petitioners also filed a motion to reopen with the BIA. Petitioners’ motion stated
that they now were in possession of Esteban’s asylum application, which they
claimed was a crucial and material piece of evidence that would have “significantly
increased the likelihood” that they would have prevailed. The petitioners also
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alleged due process and equal protection violations. The BIA denied the motion to
reopen, finding that Esteban’s asylum application did not represent new facts.
Specifically, the BIA noted that the IJ already had considered the fact that Esteban
was granted asylum and the facts underlying his claim, but had concluded that
these facts did not excuse the petitioners’ untimely asylum application or
demonstrate that they had experienced persecution.
The petitioners filed another timely petition for review from the BIA’s
decision denying their motion to reopen. The two petitions for review in our Court
have now been consolidated.
II. BACKGROUND
A. Asylum Application
Petitioners’ brief argues that the IJ erred in denying their asylum application.
We lack jurisdiction to review this decision because the IJ determined that the
petitioners’ asylum application was untimely. See INA § 208(a)(3); 8 U.S.C.
§ 1158(a)(3); see also Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir.
2003) (noting that 8 U.S.C. § 1158(a)(3) “divests our Court of jurisdiction to
review a decision regarding whether an alien complied with the one-year time limit
or established extraordinary circumstances that would excuse his untimely filing”).
Accordingly, to the extent that the petitioners seek review of the denial of their
asylum application, we dismiss the petition.
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B. CAT Relief
Because the petitioners do not challenge the denial of their application for
CAT relief, they have abandoned that issue. See Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1228 n.2 (11th Cir. 2005).
C. Withholding of Removal Claim Based on Membership in a Particular
Social Group
We also lack jurisdiction to review the petitioners’ claim for withholding of
removal based on their membership in a particular social group because the
petitioners failed to exhaust this claim before the BIA. See INA § 242(d), 8 U.S.C.
§ 1252(d) (“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.”); see also
Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001)
(explaining that the exhaustion requirement is jurisdictional and precludes review
of a claim that was not presented to the BIA). The petitioners’ brief to the BIA
contained no substantive argument or discussion concerning persecution on
account of their membership in a particular social group. Moreover, this issue was
not raised in Parra’s asylum application or before the IJ. Accordingly, we dismiss
the petition in part.
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D. Withholding of Removal Claim Based on Political Opinion
The government argues that the petitioners also failed to exhaust their claim
for withholding of removal based on their political opinion. We disagree. The
petitioners’ brief to the BIA sufficiently raised this claim. See Alim v. Gonzales,
446 F.3d 1239, 1253-54 (11th Cir. 2006). Accordingly, we have jurisdiction to
review that claim and now do so.
An alien is entitled to withholding of removal under the INA if he can show
that his “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.” INA § 241(b)(3), 8 U.S.C. § 1231(b)(3)(A). “The alien bears the burden
of demonstrating that it is ‘more likely than not’ [he] will be persecuted or tortured
upon being returned to [his] country.” Sepulveda, 401 F.3d at 1232. This standard
is more stringent than the “well-founded fear of future persecution” required for
asylum. Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1324 n.2 (11th Cir. 2001).
An alien can meet his burden of proof in either of two ways. First, an alien
can show past persecution in his country that was motivated, at least in part, by a
protected ground, in which case a rebuttable presumption is created that his life or
freedom would be threatened if he returned to his country. See Tan v. U.S. Att’y
Gen., 446 F.3d 1369, 1375 (11th Cir. 2006); Mendoza, 327 F.3d at 1287. If the
alien makes such a showing, then the burden shifts to the government to show that
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the conditions in the country have changed, or that the alien could avoid a future
threat by relocating within the country. Tan, 446 F.3d at 1375; Mendoza, 327 F.3d
at 1287. Second, the alien can meet his burden of proof by showing that it is more
likely than not that he would be persecuted in the future on account of a protected
ground. Tan, 446 F.3d at 1375. The alien cannot make this showing, however, if
the IJ finds that the alien could avoid a future threat by relocating to another part of
his country. Id.
We conclude that substantial evidence supports the IJ’s denial of the
petitioners’ application for withholding of removal.4 First, the petitioners failed to
establish that they suffered past persecution. See Sepulveda, 401 F.3d at 1231
(stating that “persecution is an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation”) (quotation marks omitted).
Although Parra received threatening telephone calls from the FARC and was
detained but not harmed for part of one day, these events do not compel a finding
that Parra suffered past persecution. Id. (concluding that menacing telephone calls
4
Because the BIA expressly adopted and affirmed the IJ’s decision, we review the IJ’s
decision in this case. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). The IJ’s
factual determinations are reviewed under the substantial evidence test, and we “must affirm the
[IJ’s] decision if it is supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Id. at 1283-84 (quotation marks omitted). Under this highly deferential
standard of review, the IJ’s factual determinations can be reversed “only when the record
compels a reversal; the mere fact that the record may support a contrary conclusion is not
enough to justify a reversal . . . .” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004)
(en banc), cert. denied, 544 U.S. 1035, 125 S. Ct. 2245 (2005).
10
and threats did not compel a finding of past persecution); Zheng v. U.S. Att’y
Gen., 451 F.3d 1287, 1290-91 (11th Cir. 2006) (concluding that a five-day
detention where there was no evidence of harm did not compel a finding of past
persecution).
Second, the record does not compel a finding that this alleged persecution
was on account of Parra’s political opinion, as opposed to his refusal to cooperate
with the FARC and give them money. See Sanchez v. U.S. Att’y Gen., 392 F.3d
434, 438 (11th Cir. 2004). There is little, if any, evidence in the record showing
that the FARC was even aware of Parra’s political opinion. Further, Parra cannot
demonstrate persecution on account of his political opinion, actual or imputed,
simply by showing that he was threatened for refusing to cooperate with the
FARC’s extortionate demands. As this Court has explained:
To qualify for withholding of removal based on persecution by a
guerilla group on account of a political opinion, [the petitioner] must
establish that the guerillas persecuted [him] or will seek to persecute
[him] in the future because of [his] actual or imputed political opinion.
It is not enough to show that [he] was or will be persecuted or tortured
due to [his] refusal to cooperate with the guerillas.
Id. (citation omitted). Finally, there is nothing in the record to compel a reversal of
the IJ’s determination that the petitioners failed to show that they would more
likely than not suffer persecution if they returned to Colombia.
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E. Denial of Motion to Reopen
A petitioner may file a motion to reopen with the BIA which “shall state the
new facts that will be proven at a hearing to be held if the motion is granted and
shall be supported by affidavits or other evidentiary material.” 8 C.F.R.
§ 1003.2(c)(1). “A motion to reopen proceedings shall not be granted unless it
appears to the [BIA] that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the former hearing.”
Id.
The BIA did not abuse its discretion by denying the petitioners’ motion to
reopen.5 The petitioners’ motion was based on the fact that they had obtained a
copy of Esteban’s asylum application, which was not available at the time of their
asylum hearing. We agree with the BIA that this evidence did not constitute new
facts sufficient to justify reopening the proceedings given that (1) the IJ already
was aware that Esteban had been granted asylum, and (2) Esteban had testified
regarding his asylum claims at the petitioners’ hearing. Furthermore, based on
these same reasons, we conclude that there was no due process or equal protection
5
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. U.S.
Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). This review is “limited to determining whether
there has been an exercise of administrative discretion and whether the matter of exercise has
been arbitrary or capricious.” Id. (quotation marks omitted). The petitioners’ constitutional
claims are reviewed de novo. Id.
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violation as a result of the IJ’s decision to conduct the petitioners’ hearing without
a copy of Esteban’s asylum application.
III. CONCLUSION
For the above reasons, we dismiss in part and deny in part the petitions for
review.
PETITIONS DISMISSED in part; DENIED in part.
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