[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 6, 2007
No. 06-14643 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A79-102-095
TITO EILIAS ROJAS AZCARATE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 6, 2007)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Tito Eilias Rojas Azcarate (“Azcarate”) petitions for review of the final
order of the Board of Immigration Appeals (“BIA”), which adopted and affirmed
the removal order of the Immigration Judge (“IJ”) denying him asylum,
withholding of removal under the Immigration and Nationality Act (“INA”), and
relief under the United Nations Convention Against Torture (“CAT”). After
review, we deny the petition.
I. BACKGROUND
Azcarate, a native and citizen of Colombia, arrived in Miami, Florida on
March 29, 2001, without a visa or other type of entry permit. When Azcarate was
detained and interviewed by immigration officials at the Miami airport, he stated
his intention to apply for political asylum in the United States.
Azcarate was then served with a Notice to Appear, alleging, inter alia, that
he was an arriving alien without a valid unexpired visa or other valid entry
document, in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I). At the April 4, 2002,
hearing before the IJ, Azcarate conceded removability on the basis of being an
arriving alien without a valid unexpired visa or other valid entry document.
Azcarate also filed his asylum application.
According to his asylum application, Azcarate fears for his life because the
United Civil Defense Patrols of Colombia (“AUC”) believes him to be a guerrilla
sympathizer. Azcarate’s asylum application states that: (1) he began receiving
threatening telephone calls from the AUC in early March 2001; (2) he received six
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to eight such calls; (3) he received a threatening “condolence” note on March 22,
2001; (4) he fled the country in response to the condolence note and the phone
calls; and (5) the threats were related to the AUC’s murder of his cousin, with
whom he ran a business in Carmelo, Colombia. In Azcarate’s view, the AUC will
torture and kill him if he returns to Colombia.
Azcarate attached to his asylum application an AUC “death list” containing
his name; an AUC flyer warning that individuals collaborating with the guerrillas
would be considered military targets; a complaint he filed with the Office of Public
Prosecutor on March 27, 2001, regarding the death threats; a translated copy of the
condolence note; and a sworn statement from his deceased cousin’s wife stating
that AUC paramilitaries killed her husband and that Azcarate had to flee Colombia
in response to the death threats.
The merits hearing on Azcarate’s asylum application was held on March 31,
2005. Azcarate essentially testified consistently with his written application and
explained, through counsel, that he was seeking asylum on the basis of imputed
political opinion (specifically, the AUC’s belief that Azcarate was helping
guerrillas).
Azcarate further testified that on November 22, 2000, the AUC killed his
cousin because the AUC believed that Azcarate and his cousin were supplying
guerrillas through their store. Azcarate was out of town in Cali, Colombia on
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November 22, buying supplies for the store. After his cousin’s death, the store
closed, and Azcarate never returned to Carmelo.
Azcarate admitted that he and his cousin were never actually involved with
guerrillas, despite the fact that the AUC thought they were supplying guerrillas
through the store. Azcarate received between six to nine threatening phone calls;
his wife received four or five such calls. The threatening phone calls were made to
Azcarate’s residence in Cali. Azcarate notified the authorities of the death threats
five days after receiving the condolence note on March 22, 2001. The authorities
recommended he leave the country. Azcarate did not relocate within Colombia
because the AUC was well-organized and would find him.
However, Azcarate admitted that: (1) his wife and two daughters still reside
in Cali and have had no problems with the AUC; (2) he was never physically
accosted or attacked during the three months he spent in Colombia after his
cousin’s death; and (3) he was not involved in politics in any way in Colombia,
other than voting. This testimony was consistent with Azcarate’s asylum
application, which states that neither Azcarate nor any member of his family
belonged to or had been associated with any organization such as a political party,
military or paramilitary group, student group, or labor union.
The IJ denied Azcarate’s request for asylum, withholding of removal, and
CAT relief, concluding that the evidence did not support Azcarate’s claim that he
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had suffered past persecution or had a well-founded fear of future persecution. The
IJ noted that: (1) Azcarate testified that he was never involved with Colombian
politics, other than voting; (2) the death of Azcarate’s cousin did not appear to
have been directed at anyone in particular; (3) Azcarate was not present for the
incident that resulted in his cousin’s death; (4) Azcarate was not actually involved
with the guerrillas; (5) in any event, the AUC achieved their objective of
preventing Azcarate from helping the guerrillas, because Azcarate’s business
closed; (6) Azcarate’s wife and children still lived in Cali, and had not experienced
any threats or problems; and (7) and there was no evidence that the AUC was still
looking for Azcarate. Thus, the IJ ordered Azcarate be removed and deported to
Colombia.
Azcarate appealed the IJ’s decision to the BIA, which adopted and affirmed
the IJ’s decision. The BIA found that Azcarate’s “arguments on appeal regarding
credibility fail[ed] to establish” that the IJ erred in concluding that Azcarate had
not met his burden of establishing past persecution or a well-founded fear of future
persecution. Azcarate timely petitioned this Court for review.1
1
When the BIA issues a decision, we review only that decision, “except to the extent that
it expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well.”
Id. Here, the BIA essentially adopted and affirmed the IJ’s decision. Although the BIA also
determined that Azcarate’s “arguments on appeal regarding credibility fail[ed] to establish
error,” the IJ did not actually make an adverse credibility finding in this case, and in any event,
Azcarate does not raise any credibility arguments in his petition for review before this Court.
Accordingly, we review the IJ’s decision.
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II. DISCUSSION
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
political opinion . . . .
8 U.S.C. § 1101(a)(42)(A). The asylum applicant has the burden of establishing
statutory “refugee” status. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001).
To carry this burden, 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.
Id. at 1287. In order to be well-founded, a fear of persecution must be both
“subjectively genuine and objectively reasonable.” Id. at 1289. A finding of past
To the extent that the IJ’s decision was based on a legal determination, our review is de
novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004); Mohammed v.
Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001). 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.’” Al Najjar,
257 F.3d at 1283-84 (citation omitted).
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persecution creates a presumption that the alien has a well-founded fear of
persecution and shifts the burden to the government to demonstrate either that
conditions have changed in the alien’s home country or that the alien could avoid
such persecution by relocating in the home country and relocation is reasonable. 8
C.F.R. § 208.13(b); § 208.16(b).
This Court has held 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) (quotation marks, citation, and alteration
omitted). “Not all exceptional treatment is persecution.” Gonzalez v. Reno, 212
F.3d 1338, 1355 (11th Cir. 2000).
Based on the record as a whole, we conclude that the IJ’s denial of
Azcarate’s asylum application is supported by substantial evidence. See Al Najjar,
257 F.3d at 1283-84. First, Azcarate’s treatment at the hands of the AUC did not
amount to persecution. According to Azcarate, he received between six and nine
threatening telephone calls from the AUC; he received a condolence note; and his
cousin was killed. However, Azcarate himself suffered no physical harm or
deprivation of liberty, and under our precedent, the threatening telephone calls and
condolence note do not amount to persecution. See Silva v. U.S. Att’y Gen., 448
F.3d 1229, 1237-38 (11th Cir. 2006) (condolence note followed by threatening
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telephone calls did not qualify as persecution); see also Sepulveda, 401 F.3d at
1231 (three threatening telephone calls and in-person threat to petitioner’s brother
did not compel a finding of persecution).
Second, and in any event, the record does not compel the conclusion that
either Azcarate’s cousin’s death or the threats to Azcarate himself occurred on
account of any political opinion imputed to Azcarate (or his cousin) by the AUC.2
See 8 U.S.C. § 1101(a)(42)(A). Azcarate admitted that, aside from voting, he was
not involved in Colombian politics. Azcarate further admitted that neither he nor
any members of his family are or ever have been involved or associated with any
political party, military or paramilitary group, student group, or labor union. Thus,
the evidence does not compel the conclusion that the AUC’s threats and attacks
were aimed at Azcarate on the basis of his actual or imputed political opinion or
activity. Instead, it appears just as plausible from this record that the attacks were
designed to shut down businesses that the AUC thought were supplying guerrillas,
a goal that the AUC actually achieved (at least in the case of Azcarate).
Finally, Azcarate admitted that his wife and children still live in Cali, at a
2
In passing, Azcarate’s brief asserts that he was persecuted not only on account of his
political opinion, but also on account of his membership in a particular social group. See 8
U.S.C. § 1101(a)(42)(A). However, Azcarate did not assert before the IJ that he was persecuted
on account of his membership in a particular social group, and accordingly that claim is not
properly before this Court because it has not been administratively exhausted. See 8 U.S.C. §
1252(d)(1). Moreover, Azcarate’s brief does not specify the social group to which the AUC
mistakenly thought he belonged, stating only that the AUC mistakenly thought that he had
“undertaken to collaborate with the guerrillas and others.”
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different address, and they have remained there without any problems. We have
previously stated that when the alleged persecutors are not affiliated with the
government, “‘it is not unreasonable to require a refugee who has an internal
resettlement alternative in his own country to pursue that option before seeking
permanent resettlement in the United States, or at least to establish that such an
option is unavailable.’” Sepulveda, 401 F.3d at 1231 (citation omitted). Thus,
even if Azcarate had managed to establish past persecution or a well-founded fear
of future persecution based on his imputed political opinion or membership in a
social group, Azcarate nevertheless failed to establish that relocation within
Colombia is an option unavailable to him. See Ruiz v. U.S. Att’y Gen., 440 F.3d
1247, 1259 (11th Cir. 2006) (concluding that petitioner’s claim that he could not
relocate internally to avoid future persecution was contradicted by his own
testimony that his son and his parents have remained unharmed in the region of
Colombia where he allegedly was threatened).
For all of these reasons, we conclude that Azcarate has failed to carry his
burden of proof on his asylum claim. Moreover, because Azcarate has failed to
carry the burden of proof on his asylum claim, his claims for withholding of
removal and CAT relief also fail. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282,
1288 n.4 (11th Cir. 2005) (“Because [petitioner] has failed to establish a claim of
asylum on the merits, he necessarily fails to establish eligibility for withholding of
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removal or protection under CAT.”).3
III. CONCLUSION
For the foregoing reasons, we conclude that the BIA’s and IJ’s denial of
asylum, withholding of removal, and CAT relief are supported by substantial
evidence. Accordingly, we deny Azcarate’s petition for review.
PETITION DENIED.
3
Azcarate’s claim that the IJ abused his discretion by failing to conduct an independent
evaluation of his CAT claim is belied by our precedent and does not require additional
discussion. See Forgue, 401 F.3d at 1288 n.4.
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