Rosa Helena Arango Echeverri v. U.S. Atty. Gen.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 20, 2007
No. 06-13698 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

Agency Nos. A95-905-539
A95-905-540

ROSA HELENA ARANGO-ECHEVERRI,
MANUEL ANTONIO OCAMPO-MUNOZ,
JUAN MANUEL OCAMPO-ARANGO,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(April 20, 2007)

Before BLACK, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Upon sua sponte reconsideration of this appeal, we vacate our previous
opinion and substitute the following opinion in its place.

Rosa Helena Arango Echeverri, proceeding pro se, petitions this Court for

review of the Board of Immigration Appeals’ (“BIA”) final order adopting and

affirming the Immigration Judge’s (“IJ”) denial of asylum and withholding of

removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158,

1231, and relief under the United Nations Convention Against Torture and Other

Cruel, Inhuman and Degrading Treatment or Punishment (“CAT”), 8 C.F.R.

§ 208.16(c).1 After review, we deny the petition for review.

I. BACKGROUND

Arango Echeverri, a native and citizen of Colombia, was admitted into the

United States on April 24, 2002, as a non-immigrant visitor authorized to stay until

October 23, 2002. Once in the United States, Arango Echeverri filed an

application for asylum and withholding of removal, claiming persecution based on

her political opinion and membership in a particular social group. The former

Immigration and Naturalization Service (“INS”) issued a notice to appear, charging

Arango Echeverri with removability, pursuant to INA § 237(a)(1)(B), 8 U.S.C. §

1227(a)(1)(B), for overstaying her visa. Arango Echeverri conceded removability.

According to Arango Echeverri’s asylum application and her hearing

1
Arango Echeverri’s asylum application listed her husband, Manuel Antonio Ocampo
Munoz, and her son, Juan Manuel Ocampo Arango, as derivative applicants. Because Arango
Echeverri is the lead petitioner, we refer only to her.
2
testimony, Arango Echeverri had been a member of the Conservative Party in

Colombia since 1992. As a member of the Conservative Party, Arango Echeverri

participated in election and human rights campaigns, including traveling to poor

areas of Colombia with the health and education brigades. According to Arango

Echeverri, the main purpose of her travels was to encourage peasants to register

with the Conservative Party and vote for Conservative Party candidates. Arango

Echeverri also discouraged them from becoming involved with guerrilla groups in

Colombia, such as the Revolutionary Armed Forces of Colombia (“FARC”).

According to Arango Echeverri, the FARC became aware of her activities

and began calling her and threatening to kill her unless she stopped. Arango

Echeverri received her first threatening telephone call in October 1994. She

reported this call to the police, but did not report that the call was from the FARC.

Arango Echeverri received approximately thirteen additional threatening calls over

the next eight years. Although she was scared, she continued to work with the

Conservative Party.

Arango Echeverri’s brother-in-law and two nephews were also involved

with the Conservative Party. In November 1995, Arango Echeverri’s nephews

were kidnapped by the FARC and never seen again. The FARC murdered Arango

Echeverri’s brother-in-law in December 1995 after he began looking for his sons.

In September 2001, Arango Echeverri strengthened her Conservative Party
3
literacy campaign and began talking out against guerilla groups to young people

the FARC was trying to recruit. On April 10, 2002, Arango Echeverri received a

phone call from the FARC. In the call, the FARC threatened to kill Arango

Echeverri unless she stopped her activities and stated that they had already located

her. On April 13, Arango Echeverri found on her doorstep a funeral wreath with a

sympathy card, offering condolences on her death. Arango Echeverri abandoned

her home and sent her son to her in-law’s home, while she stayed with a friend.

Arango Echeverri and her son fled Colombia on April 24, 2002.

During the hearing, Arango Echeverri testified that her husband had entered

the United States in 1999 because he had problems with Arango Echeverri’s

participation in the Conservative Party and they had argued frequently.

Arango Echeverri also admitted that she had been to the United States three

times before she came in 2002 to apply for asylum. These visits occurred after

Arango Echeverri began receiving threatening phone calls and after her nephews

had been kidnapped and her brother-in-law had been killed. Arango Echeverri did

not apply for asylum during any of these earlier visits. Arango Echeverri stated

that she decided to leave Colombia and seek asylum in April 2002 because she

believed the level of the threat had increased when the FARC sent her the wreath.

In an oral decision, the IJ denied all requested relief. The IJ found Arango

Echeverri ineligible for asylum or withholding because she had failed to show
4
either past persecution or a well-founded fear of future persecution. The IJ

specifically concluded that the death threats and condolence wreath did not rise to

the level of persecution. The IJ also noted that he considered it significant that

Arango Echeverri had not sought asylum during her earlier visits to the United

States even though (1) the visits occurred after Arango Echeverri had received

most of the threats, her nephews had been kidnapped and her brother-in-law had

been murdered; and (2) her husband was already in the United States.

Arango Echeverri appealed to the BIA. The BIA adopted and affirmed the

IJ’s decision. The BIA noted that it affirmed the IJ’s decision “especially given the

lead respondent’s three trips to the United States before finally filing for asylum in

2002.” Arango Echeverria filed this petition for review.

II. DISCUSSION

A. Asylum

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

asylum. See 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant

asylum if the alien meets the INA’s definition of a “refugee.” See 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
5
 political opinion . . . .

8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving

statutory “refugee” status. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th

Cir. 2001).

To carry this burden of proving statutory “refugee” status, the alien must,

with specific and credible evidence, establish either (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. In order to be well-founded, a fear of persecution must be both

“subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289. A

finding of past persecution creates a presumption of a well-founded fear of future

persecution and shifts the burden to the government to demonstrate that either

conditions have changed in the alien’s home country, or the alien could avoid such

persecution by relocating in the home country and that relocation is reasonable. 8

C.F.R. § 208.13(b)(1).

B. Arango Echeverri’s Claim

After reviewing the record as a whole, we conclude that the IJ’s denial of

Arango Echeverri’s asylum application is supported by substantial evidence.2 With

2
Where, as here, the BIA expressly adopts the IJ’s decision, we review both the BIA and
the IJ’s rulings. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). To the extent the
BIA’s and the IJ’s decision rests on a legal conclusion, or review is de novo. Mohammed v.
6
regard to past persecution, the FARC’s telephone threats and the funeral wreath

placed on Arango Echeverri’s doorstep do not rise to the level of persecution. This

Court has held that harassment, such as threats and acts of intimidation, without

any physical harm, do not rise to the level of persecution. See Sepulveda v. U.S.

Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (concluding that three phone

calls with death threats to Sepulveda and an in-person threat to a family member

did not amount to past persecution and noting that the bombing of the mailbox

placed by Sepulveda’s political group at the restaurant where Sepulveda worked

did not compel the conclusion that the bombing was directed at her on account of

her political activities); see also Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290-91

(11th Cir. 2007) (concluding that “Zheng’s five-day detention during which he was

not harmed does not compel the conclusion that he experienced past persecution”).

Because the FARC’s harassment of Arango Echeverri does not amount to

past persecution, Arango Echeverri is not entitled to a presumption of a well-

founded fear of future persecution. Nor does the record compel the conclusion that

there is a reasonable possibility that Arango Echeverri personally will suffer

Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). We review a factual determination that an
alien is statutorily ineligible for asylum or withholding of removal under the substantial evidence
test. Al Najjar, 257 F.3d at 1283-84. Under the substantial evidence test, “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). The fact that evidence in the record may support a contrary conclusion
does not warrant reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
7
persecution if she returns to Colombia.3 Even assuming Arango Echeverri’s fear of

future persecution is subjectively genuine, there is substantial evidence to support

the finding that it is not objectively reasonable given that Arango Echeverri was

never physically harmed.4 Although Arango Echeverri emphasizes that the FARC

kidnapped her nephews and murdered her brother-in-law, these events occurred in

1995. Arango Echeverri remained in Colombia for another seven years, and there

is no evidence that the FARC harmed or attempted to harm her physically during

that time. Additionally, Arango Echeverri has relatives who have continued to live

in Colombia unharmed. Furthermore, Arango Echeverri has not presented

evidence suggesting that the FARC continues to be interested in her.

Given that Arango Echeverri failed to carry her lower burden of proof with

regard to asylum, she is also ineligible for withholding of removal. See Forgue v.

U.S. Att’y Gen., 401 F.3d 1282, 1288 n.4 (11th Cir. 2005).5

PETITION DENIED.

3
Because substantial evidence supports the finding that Arango Echeverri does not face a
reasonable possibility of personal persecution, we do not address her arguments regarding
whether she showed she could avoid persecution by relocating within Colombia. See 8 C.F.R.
§ 208.13(b)(2).
4
There is also substantial evidence to suggest that Arango Echeverri’s subjective fear was
not genuine given that Arango Echeverri only sought asylum on her fourth trip to the United
States and her three previous trips had occurred after she began receiving telephone threats, her
nephews had been kidnapped and her brother-in-law had been killed.
5
On appeal, Arango Echeverri does not raise any challenge to the denial of CAT relief
and has abandoned this issue. See Sepulveda, 401 F.3d at 1228 n.2.
8