[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 7, 2008
THOMAS K. KAHN
No. 07-13014
CLERK
Non-Argument Calendar
________________________
BIA Nos. A95-903-978 & A97-194-337
LINA MARIA MONCADA-RUBIO,
MARIA ALEYDA RUBIO-FRANCO,
SILVIO MONCADA-MARIN,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 7, 2008)
Before BIRCH, DUBINA and KRAVITCH, Circuit Judges.
PER CURIAM:
Lina Maria Moncada-Rubio (“Rubio”) arrived in the United States on a non-
immigrant student visa in 1999, and, when she did not attend classes, she received
a notice to appear charging her with removability under INA § 237(a)(1)(C)(i); 8
U.S.C. § 1227(a)(1)(C)(i). Rubio’s parents Maria Rubio-Franco (“Franco”) and
Silvo Moncada Marin (“Marin”), arrived in the United States in 2001 on non-
immigrant visas, remained beyond the expiration period, and were charged with
removability under INA § 237(a)(1)(B); 8 U.S.C. § 1227(a)(1)(B). Rubio and
Franco applied for asylum in 2005; Marin proceeded as a derivative beneficiary on
Franco’s petition.1 The applications were consolidated.
At the removal hearing, the IJ first questioned the timeliness of the asylum
applications because the petitioners entered in 1999 and 2001, but did not file until
2002.2 Rubio explained that she had sought assistance with the application from a
religious organization, but that the attorney helping her stole her money and never
filed the application. Rubio admitted, however, that she never contacted police
about the theft, nor did she file a complaint with the state bar association.
Addressing the merits of the application, Rubio testified as follows: She had
been born in Colombia and attended the university there until she was forced to
1
Rubio claimed persecution on account of her political opinion. Franco alleged persecution
based on religion.
2
Rubio testified that she filed the original application in 2002, but that the attorney who
assisted her stole the money and never filed the application. The application submitted with the
record is dated 2005. In the 2002 application, Rubio did not mention the threats and kidnaping
attempt. According to Rubio, this information was omitted because the application was prepared
by the attorney who later stole her money.
2
leave the country. Her mother worked as a counselor, visiting neighborhoods and
preaching to drug addicts and couples seeking divorce. Her father was a member
of the Civil Police, which was a volunteer arm of the National Police and which
conducted surveillance and intelligence work. In 1999, while at the university,
some friends tried to recruit her to work with FARC because of her father’s access
to intelligence information. Rubio was not interested, but the friend warned her
that she must join or die. In mid-October, members of FARC chased Rubio by car
in an attempt to kidnap her. Rubio drove to her boyfriend’s house and rammed her
car into the garage to get attention.3 Thereafter, Rubio received phone calls
seeking coded intelligence such as planned roadblocks and information on various
people. Frightened, Rubio fled to the United States. Although she informed her
father of the threats, she did not file a police report.
In December 2000, FARC attempted to kidnap Rubio’s younger sister Paula
from Franco’s clothing boutique. An employee interrupted the kidnaping,
screamed for help, and the FARC members ran as security arrived. Paula left
Colombia in January 2001. Shortly thereafter, Franco was shot in the leg by a man
on a motorcycle. Rubio’s sister Sandra, who was a physician, treated the wound,
and Franco did not report the attack. Franco went to Bogota to hide, but FARC
3
In her asylum application Rubio indicated that she had driven to the police station to avoid
FARC. On cross-examination she confirmed that she had driven to her boyfriend’s home.
3
members found her, and Franco received a threatening phone call while in Bogota.
Rubio admitted that the situation in Colombia had improved since the new
president came to power, but she nevertheless feared she would be killed if she
returned.
In support of the applications, the petitioners submitted the Department of
State Profile on Colombia and the 2004 Country Report. Although both reports
addressed FARC’s presence and violent tendencies, neither referenced any of the
incidents of which Rubio or Franco alleged. Moreover, the reports indicated that
the situation in Colombia had improved.
The IJ denied relief, finding first that the asylum application was untimely
and that there were no exceptional circumstances to excuse the untimely
application. The IJ then concluded that Rubio was not eligible for relief because
she was not a member of a protected group, and there were changed circumstances
in Colombia. The IJ noted that there was no corroborating evidence of the
shooting or other alleged incidents.
Rubio appealed to the BIA. While the appeal was pending, Rubio moved to
remand to add new evidence in the form of letters from Franco and Rubio’s
church, confirming that FARC made threatening phone calls after Rubio left
Colombia. The BIA adopted and affirmed the IJ’s decision with additional
comments and denied the motion to remand. Rubio now petitions this court for
4
review, arguing that the BIA erred by (a) concluding that the family did not suffer
past persecution sufficient to show that it was more likely than not that they would
face future persecution in Colombia and (b) failing to use its own judgment.4 She
further asserts that she established past persecution, and she notes that her sister
Sandra has been granted asylum in the United States.
As an initial matter, Franco and Marin offered no argument on their claims,
and thus they have abandoned them. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 (11th Cir. 2005). Therefore, the only issue before us is whether Rubio
established eligibility for withholding of removal.5 Importantly, withholding of
removal does not provide for derivative benefits. Therefore, even if the record
compelled withholding of removal, only Rubio, and not her parents, would be
entitled to relief. See Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir.
2007).
We review “only the decision of the BIA, except to the extent that it
expressly adopts the IJ’s opinion.” Nreka v. U.S. Att’y Gen., 408 F.3d 1361, 1368
(11th Cir. 2005) (internal quotations and citation omitted). To the extent that the
4
Rubio does not challenge the determination that she is not eligible for asylum or CAT
relief. Therefore, she has abandoned those issues. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 (11th Cir. 2005).
5
We do not consider this evidence because it was not presented to the BIA. Al Najjar v.
U.S. Att’y Gen., 257 F.3d 1262, 1283 (11th Cir. 2001).
5
BIA’s or IJ’s decision was based on a legal determination, review is de novo. Id.
The IJ’s and BIA’s factual determinations are reviewed under the substantial
evidence test, and this court will “affirm the [IJ’s] decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005)
(alteration in original) (internal quotations and citations omitted); Al Najjar v.
Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (quotation and internal marks
omitted). We will not reverse unless the record compels a contrary conclusion.
Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007) (citing Fahim v. U.S. Att’y
Gen., 278 F.3d 1216, 1218 (11th Cir. 2002)).
To obtain withholding of removal, an applicant must establish that her “life
or freedom would be threatened in that country because of his race, religion,
nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A). “The alien bears the burden of demonstrating that it is
‘more likely than not’ she will be persecuted or tortured upon being returned to her
country.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005)
(quoting Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002)). An
applicant for withholding of removal may satisfy her burden of proof in either of
two ways. First, an alien may establish “past persecution in his country based on a
protected ground.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir.
6
2003). If the applicant can show that the persecution was, at least in part,
motivated by a protected ground, then the applicant can establish eligibility for
withholding of removal. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir.
2006). If an alien establishes “past persecution,” a rebuttable presumption arises
that she has a “well-founded fear of future persecution,” and the burden then shifts
to the Department of Homeland Security to show that the conditions in the country
have changed or the alien could avoid a future threat through relocation. Mendoza,
327 F.3d at 1287. Second, an alien is entitled to withholding of removal if she
establishes “that it is more likely than not that she would be persecuted on account
of race, religion, nationality, membership in a particular social group, or political
opinion upon removal to that country.” 8 C.F.R. § 208.16(b)(2).
In considering a petitioner’s claim for withholding of removal, the IJ must
determine credibility in the same manner as in asylum cases. See 8 U.S.C.
§ 1231(b)(3)(C); 8 U.S.C. § 1158(b)(1)(B)(ii)-(iii). Thus, to establish entitlement
to relief, the applicant must establish past persecution with “specific and credible
evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1202 (11th Cir. 2005). IJs
must make “clean determinations of credibility.” Mejia v. U.S. Att’y Gen., 498
F.3d 1253, 1257 (11th Cir. 2007). Here, because the IJ did not make an explicit
adverse credibility determination, we consider Rubio’s testimony to be credible.
As this court has explained, “‘persecution’ is an extreme concept, requiring
7
more than a few isolated incidents of verbal harassment or intimidation, and . . .
mere harassment does not amount to persecution.” Sepulveda v. U.S. Att’y Gen,
401 F.3d 1226, 1231 (11th Cir. 2005) (internal quotations omitted); see also Silva
v. U.S. Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006) (concluding that a written
death threat alone did not compel a finding of past persecution).
In several recent cases, this court has explored the issue of persecution,
analyzing the types of acts that, considered cumulatively amount to persecution.
See Mejia, 498 F.3d at 1255 (finding past persecution where petitioner experienced
“threats and attempted attacks over an eighteen-month period, which culminated
when [the petitioner was] stopped on a roadway by three armed members of the
FARC, who threatened [him] at gunpoint, threw him to the ground, and smashed
him in the face with the butt of a rifle, breaking his nose.”); Ruiz, 479 F.3d at 766
& n.2 (finding past persecution where the petitioner suffered repeated death
threats, was twice physically assaulted, and was kidnaped and held against his will
by FARC for eighteen days); see also Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211
(11th Cir. 2007) (finding the cumulative effect of numerous beatings, arrests,
searches, and interrogations, culminating in a fifteen-day, food-deprived detention
compelled a finding of past persecution); Delgado, 487 F.3d at 862 (concluding
that when considered cumulatively, the death threats, threats with unloaded
weapons, and a beating compelled a finding of past persecution).
8
Moreover, this court recently explained that it could consider a threatening
act against another as evidence that the petitioner suffered persecution where that
act concomitantly threatens the petitioner. Santamaria v. U.S. Att’y Gen., slip op.
at 827 n.7 (11th Cir. Jan.11, 2008); see also Ruiz, 479 F.3d at 762 (considering a
rape of the petitioner’s friend’s wife during the kidnaping of petitioner as evidence
of persecution); Niftaliev, 504 F.3d at 1211 (noting same); Delgado 487 F.3d at
861-62 (considering severe beating of petitioner’s son as evidence that petitioner
suffered persecution).
We conclude that the record in this case does not compel the conclusion that
Rubio suffered past persecution or that it is more likely than not that she would be
persecuted on account of a protected ground. According to the testimony, FARC
sought to recruit Rubio because of her access to information. It did not single her
out for persecution on account of her political opinion. In fact, Rubio did not
identify any political opinion attributed to her. The refusal to cooperate with
guerillas does not qualify as persecution on account of a political opinion.
Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007).
Moreover, none of the incidents described rise to the level of persecution. Cf.
Santamaria, slip op. at 827 n.7; Niftaliev, 504 F.3d at 1211; Delgado 487 F.3d at
861-62; Ruiz, 479 F.3d at 762.
Even if we were to consider the shooting against Franco as evidence of
9
persecution against Rubio, this incident does not compel us to conclude that Rubio
suffered persecution. Franco alleged that she was singled out due to her religious
actions, and not due to political motivations. Franco could not identify the shooter,
there were no corroborating reports, and the only evidence to connect the incident
to FARC was a phone call after the incident.
Because the record does not compel the conclusion that Rubio suffered past
persecution or that it was more likely than not that she would face persecution
should she return to Colombia, we DENY the petition.
10