[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 2, 2007
No. 06-12221 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A96-091-448
CARLOS FELIPE ORDONEZ MEZA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_______________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 2, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Carlos Felipe Ordonez Meza (“Ordonez Meza”), through counsel, seeks
review of the decision of the Board of Immigration Appeals (“BIA”) adopting and
affirming the order of the Immigration Judge (“IJ”) denying his application for
asylum, withholding of removal under the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1231(b)(3), and relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”), 8 C.F.R. § 208.16(c). Ordonez Meza, a native of Colombia, reported that
he was an active member of the youth arm of the Liberal Party for one year while
he was a university student. He indicated that guerillas from the Revolutionary
Armed Forces of Colombia (“FARC”) wanted him to join their organization
because of his influence with young people. He further reported that, when he
refused to join them, the FARC began threatening him, physically attacked him
once by pushing him, and attempted to kidnap him.
On appeal, Ordonez Meza first argues that, through substantial testimonial
and documentary evidence, he established that he suffered past persecution on
account of his political opinion, and had a well-founded fear of future persecution,
such that he was entitled to asylum. He asserts that the FARC first attempted to
recruit him because of his political opinions, and when he refused to join, the
FARC began to target him because they labeled him as a “betrayer” and an
“enem[y] to their cause.”
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In this case, the BIA expressly adopted and affirmed the IJ’s decision
without issuing its own decision. When the BIA issues a summary affirmance of
the IJ’s opinion, we review the IJ’s opinion as if it were the BIA’s. See Al Najjar
v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review legal determinations
of the IJ de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001).
On the other hand, we review any factual determinations under the “substantial
evidence test.” Al Najjar, 257 F.3d at 1283. We look to see if the IJ’s factual
determinations are “supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” Id. at 1284 (internal quotations marks
omitted). “To reverse the IJ’s fact findings, 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). A determination that an alien is ineligible for asylum
or withholding is a factual determination. See Al Najjar, 257 F.3d at 1283.
The Secretary of Homeland Security or the Attorney General has discretion
to grant asylum if an alien meets the INA’s definition of a “refugee.” INA
§ 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is:
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 . . . .
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INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). 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 such future persecution. 8 C.F.R. § 208.13(a),
(b). “Demonstrating such a connection requires the alien to present specific,
detailed facts showing a good reason to fear that he or she will be singled out for
persecution on account of” a statutory factor. Al Najjar, 257 F.3d at 1287 (internal
quotations marks omitted). An asylum applicant may not show merely that he has
a political opinion, but must show that he was persecuted because of that opinion.
I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483, 112 S. Ct. 812, 816, 117 L. Ed. 2d 38
(1992). Additionally, we have stated 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. Att’y
Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (per curiam) (internal quotation marks
omitted).
An alien who has not shown past persecution still may be entitled to asylum
if he can demonstrate a future threat to his life or freedom on a protected ground. 8
C.F.R. § 208.13(b). To establish a “well-founded fear,” an applicant must show
that he has a fear of persecution in his home country and that “[t]here is a
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reasonable possibility of suffering such persecution if he or she were to return to
that country.” 8 C.F.R. § 208.13(b)(2)(i).
To qualify for withholding of removal under the INA, an alien must show
that, if returned to his country, the alien’s life or freedom would be threatened on
account of race, religion, nationality, membership in a particular social group, or
political opinion. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). Generally, where an
alien fails to meet the “well-founded fear” standard for establishing asylum
eligibility, the alien cannot establish the higher burden for withholding of removal.
Al Najjar, 257 F.3d at 1292-93. Similarly, the burden on the alien seeking CAT
relief is higher than the burden imposed on the asylum seeker. Id. at 1303.
We have held that “[a]n imputed political opinion, whether correctly or
incorrectly attributed, may constitute a ground for a well-founded fear of political
persecution within the meaning of the INA.” Al Najjar, 257 F.3d at 1289 (internal
quotation marks omitted). In order to qualify for relief from removal based on a
political opinion, the petitioner “must establish that the guerillas persecuted h[im]
or will seek to persecute h[im] in the future because of h[is] actual or imputed
political opinion.” Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004)
(per curiam). “It is not enough to show that []he was or will be persecuted or
tortured due to h[is] refusal to cooperate with the guerillas.” Id. In the context of
forcible recruitment, “the mere existence of a generalized ‘political’ motive
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underlying the guerrillas’ forced recruitment is inadequate to establish . . . the
proposition that [the petitioner] fears persecution on account of political opinion,
as [INA] § 101(a)(42) requires.” Elias-Zacarias, 502 U.S. at 482, 112 S.Ct. at 816.
The IJ determined that Ordonez Meza failed to demonstrate past persecution
because his encounters with members of the FARC were not severe enough to
constitute persecution. Moreover, the IJ concluded that Ordonez Meza did not
establish a well-founded fear of future persecution given the length of time since
the FARC’s last contact with his parents and the decreased likelihood that the
FARC would still be interested in his political opinions after his time away from
the university, especially because he was only involved with the Liberal Party for
one year. The IJ also highlighted discrepancies and doubts concerning certain
documentary evidence which Ordonez Meza presented, specifically the threatening
sympathy cards his parents received and his father’s police report which did not
mention the FARC or any of its members. Bound by the deferential “substantial
evidence” standard of review, we cannot say that the record compels a contrary
result. Accordingly, we affirm the IJ’s decision denying Ordonez Meza asylum
and withholding of removal.
Ordonez Meza also argues that the IJ “errantly presumed” that, in order to be
eligible for relief under the CAT, he would have to establish that he was tortured
by government actors or the government acquiesced to the torture. “A court may
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review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right . . . .” 8 U.S.C. §
1252(d)(1). This requirement is jurisdictional and bars review of claims not raised
before the BIA. Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir. 2003). The
exhaustion requirement gives the BIA the opportunity to discover and correct its
own error. See id. at 1325. We also have recognized that the “exhaustion
requirement ensures the [Department of Homeland Security] has had a full
opportunity to consider a petitioner’s claims.” Amaya-Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam) (internal quotations marks
omitted). Because Ordonez Meza failed to present to the BIA his argument that the
IJ erroneously believed that torture would have to be conducted by the government
in order to entitle him to relief under the CAT, we lack jurisdiction to review that
claim and must dismiss it.
Accordingly, we deny Ordonez Meza’s petition for review in part, and
dismiss it in part.
DENIED IN PART, DISMISSED IN PART.
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