[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 4, 2007
No. 06-12877 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A95-905-082
A95-905-083
LUIS EDUARDO MALDONADO,
MARIA ALEJANDRA MALDONADO,
MARTHA LUCIA GONZALEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 4, 2007)
Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.
PER CURIAM:
The question we must decide in this petition for review is whether
substantial evidence supports the finding of the Immigration Judge (IJ) and the
Board of Immigration Appeals (BIA) that Petitioners – all nationals and citizens of
Colombia, S.A. – did not qualify for asylum, withholding of removal under the
Immigration and Naturalization Act (INA), and relief under the U.S. Convention
Against Torture (CAT).
In support of their applications for asylum, withholding of removal and CAT
relief, Petitioners explained that Revolutionary Armed Forces of Colombia
(“FARC”) guerillas had demanded that Petitioner Luis Maldonado assist in their
fund raising efforts by handing over confidential financial data belonging to clients
of the bank at which he worked. Petitioners claimed that, because of Luis’s refusal
to comply with this demand, they suffered repeated phone calls, an attempted
kidnaping, and an attempted shooting, and would continue to suffer such
persecution if returned to Columbia. Petitioners contended that such persecution
was on account of Luis’s imputed political opinion, namely opposition of the
FARC as demonstrated by his refusing to cooperate with them, and Luis’s
membership in a particular social group, namely persons singled out by the FARC
for recruitment in raising funds.
Where, as here, the BIA expressly adopts the IJ’s decision, we essentially
review the IJ’s decision. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 956
2
(11th Cir. 2005). Specifically, we apply the “highly deferential” substantial
evidence test, under which 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. (quotation omitted). To reverse, “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).
An alien who arrives in or is present in the United States may apply for
asylum, withholding of removal, and CAT relief. INA §§ 208(a)(1), 241, 8 U.S.C.
§§ 1158(a)(1), 1231(b)(3)(A), 8 C.F.R. 208.16(c). To qualify for asylum, the alien
must prove that he is a refugee. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001) (citing 8 U.S.C. § 1101(a)(42)(A)). A refugee is defined in the INA 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). To establish refugee status, the
alien must establish, through specific, detailed facts, (1) his past persecution on
account of a protected ground, or (2) his “well-founded fear” that he will be
persecuted in the future because of a protected ground. 8 C.F.R. § 208.13(a), (b);
3
see Al Najjar, 257 F.3d at 1287. As to establishing persecution, “evidence that
either is consistent with acts of private violence or the petitioner’s failure to
cooperate with guerillas” or which “merely shows that a person has been the victim
of criminal activity, does not constitute evidence of persecution.” Ruiz v. U.S.
Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006). Likewise, as to claims based on
a political opinion or an imputed political opinion, “[i]t is not enough to show that
[the alien] was or will be persecuted or tortured due to [the alien’s] refusal to
cooperate with the guerillas.” Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th
Cir. 2004). Moreover, as to claims based on membership in a particular social
group, “[t]he risk of persecution alone does not create a particular social group
within the meaning of the INA.” Castillo-Arias v. U.S. Att’y Gen., 446 F.3d
1190, 1196 (11th Cir. 2006).
To qualify for withholding of removal, the alien similarly must show that it
is more likely than not that his life or freedom would be threatened on account of
race, religion, nationality, membership in a particular social group, or political
opinion. Mendoza, 327 F.3d at 1287 (citing 8 U.S.C. § 1231(b)(3)(A)). Likewise,
to qualify for CAT relief, the alien must prove that it is more likely than not that he
would be tortured by, or with the consent or acquiescence of, a public official or
person acting in an official capacity upon return to his country. Al Najjar, 257
4
F.3d at 1303; 8 C.F.R. § 208.18(a). Because the more-likely-than-not standard that
applies to withholding of removal and CAT claims is more stringent than the
well-founded-fear standard that applies to asylum claims, ineligibility for asylum
generally precludes withholding of removal and CAT relief eligibility. Al Najjar,
257 F.3d at 1292-93, 1303-04.
After careful review of the record, we find that reversal of the removal order
before us is not compelled. See Mendoza, 327 F.3d at 1287. Because the FARC’s
actions against Luis stemmed from an attempt at criminal extortion, these actions
were sufficiently consistent with “acts of private violence” or “criminal activity”
such that they do not constitute persecution. See Ruiz, 440 F.3d at 1258.
Likewise, Luis’s refusal to cooperate with the FARC’s demands does not constitute
a political opinion or an imputed political opinion. See Sanchez, 392 F.3d at 438.
Moreover, if those people “at risk of persecution” are not a social group, then
those people “at risk of recruitment,” are not either. See Castillo-Arias, 446 F.3d at
1198. Finally, since Petitioners failed to meet their burden of demonstrating
asylum eligibility, they are precluded from obtaining withholding of removal and
CAT relief, as these forms of relief require a higher standard of proof. See Al
Najjar, 257 F.3d at 1292-93, 1303-04.
In fine, as substantial evidence supports the findings that Petitioners did not
5
establish persecution or the required nexus between the FARC’s actions and an
enumerated asylum ground, the petition for review must be denied.
PETITION DENIED.
6