Javier Yamit Zapata v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 31, 2008
THOMAS K. KAHN
No. 07-13363
CLERK
Non-Argument Calendar
________________________

BIA Nos. A98-552-596 & A98-552-597

JAVIER YAMIT ZAPATA,
PAMELA FIGUEROA,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(March 31, 2008)

Before BIRCH, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Javier Yamit Zapata and his wife, Pamela Figueroa, proceeding pro se, seek
review of the Board of Immigration Appeals’s (“BIA”) decision adopting and

affirming the Immigration Judge’s (“IJ”) order denying Zapata’s application for

asylum and withholding of removal.1 Figueroa’s claim was derivative to Zapata’s

asylum claim.2 On appeal, Zapata briefly states that the IJ erred in finding him

ineligible for asylum. In addition, Zapata argues that the IJ erred in denying him

withholding of removal based on its finding that he failed to establish a nexus

between his fear of future persecution in his home country, Colombia, and his

political opinion or membership in a social group.

“We review our subject matter jurisdiction de novo.” Amaya-Artunduaga v.

U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). An

application for asylum must be filed within one year of an alien’s arrival in the

United States, unless the alien can demonstrate changed or extraordinary

circumstances relating to the delay in filing the asylum application. Immigration

1
Zapata also applied for relief under the United Nations Convention Against Torture and
Other Cruel, Inhumane, or Degrading Treatment or Punishment (“CAT”). Because he did not
exhaust his administrative remedies regarding that claim after the IJ denied it, we lack
jurisdiction to consider it. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th
Cir. 2006) (per curiam). Alternatively, we decline to consider the CAT relief claim because
Zapata abandoned it after failing to raise the issue in his brief on appeal. See Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam).
2
To the extent that Figueroa asserted any derivative claim to Zapata’s withholding of
removal claim, that must automatically fail because “there are no derivative benefits associated
with a grant of withholding of removal.” Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th
Cir. 2007) (per curiam).
2
and Nationality Act (“INA”) § 208(a)(2), 8 U.S.C. § 1158(a)(2). We lack

jurisdiction to review the IJ’s determination that an asylum applicant filed an

untimely application and failed to establish changed or extraordinary

circumstances to excuse his untimely filing. Chacon-Botero v. U.S. Att’y Gen.,

427 F.3d 954, 957 (11th Cir. 2005) (per curiam) (citing INA § 208 (a)(3), 8 U.S.C.

§ 1158(a)(3)).

The IJ found that Zapata’s asylum application was untimely and that no

exceptions excused the untimeliness, thus we lack jurisdiction to review its denial

of Zapata’s asylum application on appeal. Accordingly, we dismiss the petition

regarding Zapata’s asylum claim, and Figueroa’s derivative claim.

II.

When the BIA expressly adopts and affirms the IJ’s opinion, as it did in this

instance, we only review the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262,

1284 (11th Cir. 2001).

The IJ’s factual findings are reviewed under the substantial evidence test,

and we must affirm the IJ’s decision based on those findings “if it is supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (internal

quotation marks omitted). Under this highly deferential test, we may not reweigh

the evidence, and a factual finding may only be reversed if the record compels a
3
reversal. Id.

To qualify for withholding of removal under the INA, an alien must show

that his life or freedom would be threatened, in the country to which he would be

removed, 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). Under

this standard, an alien must prove that it is “more likely than not” that he will be

persecuted upon returning to his country. Tan v. U.S. Att’y Gen., 446 F.3d 1369,

1375 (11th Cir. 2006). The statute protects against persecution by both

government forces and non-governmental groups that the government cannot

control. Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437 (11th Cir. 2004) (per

curiam).

An applicant for withholding of removal may satisfy his burden of proof in

one of two ways. 8 C.F.R. § 208.16(b). First, an alien may establish past

persecution based on a protected ground, which creates a rebuttable presumption

that his life or freedom would be threatened upon return to his country. See

Sanchez, 392 F.3d at 438. The government may rebut that presumption by

showing, by a preponderance of evidence, that the applicant’s life or freedom

would not be threatened because (1) a fundamental change in circumstances

occurred, or (2) the applicant could relocate within the country to avoid the future

threat. Id. Second, an alien may show that it is more likely than not that he would
4
be persecuted on account of a protected ground upon removal to his country,

unless relocation within the country would avoid the threat and relocation would

be reasonable to expect. 8 C.F.R. § 208.16(b)(2).

Under either method of satisfying the burden of proof for withholding of

removal, the applicant must establish a nexus between the past or future

persecution and one of the five protected grounds: race, religion, nationality,

membership in a particular social group, or political opinion. See 8 C.F.R.

§ 208.16(b). The application must show that the persecution was motivated, at

least in part, by a protected ground. Tan, 446 F.3d at 1375 (noting that the

protected ground need not be the sole basis for the persecution). An imputed

political opinion or social group membership, whether correctly or wrongly

attributed, may constitute a basis for satisfying the nexus test. See Al Najjar, 257

F.3d at 1289.

The nexus test refers to persecution on account of the victim’s political

opinion or social group membership, rather than the persecutor’s. See I.N.S. v.

Elias-Zacarias, 502 U.S. 478, 482, 112 S. Ct. 812, 816, 117 L. Ed. 2d 38 (1992).

Also, criminal activity and acts of private violence and personal retribution do not

constitute evidence of persecution on account of a statutorily protected ground.

Sanchez, 392 F.3d at 438.

Substantial evidence supported the IJ’s denial of withholding of removal
5
based on its finding that Zapata’s past persecution, or fear of future persecution,

was not on account of a protected ground. The record supports the IJ’s findings in

this regard because it shows that Zapata’s past persecution may have resulted from

two possible motivations, which were unrelated to any protected grounds: (1) his

acceptance of money from the persecutors to pay for tuition and failure to pay back

the money; and (2) his refusal to join the persecutors in supporting the

Revolutionary Armed Forces of Colombia (“FARC”). Moreover, the record

supports the IJ’s refusal to recognize any connection between the possible

persecution Zapata suffered and a political opinion that his persecutors imputed to

him.

Even assuming, arguendo, that Zapata’s opposition to the FARC’s political

views constituted an affirmative political opinion or that his affiliation with a

military school constituted membership in a particular social group, substantial

evidence supported the IJ’s findings. The evidence in the record does not compel a

finding that Zapata established a nexus, especially in light of the evidence showing

that the persecution might have been motivated by unprotected grounds.

Accordingly, we deny the petition regarding Zapata’s withholding of removal

claim.

DISMISSED, IN PART; DENIED, IN PART.