[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 24, 2008
No. 07-12520 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A79-470-771 & A79-470-772
ALAND GILBERTO PORTILLO-SIERRA,
MARIA JOSEFINA SUAREZ-PAREDES,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 24, 2008)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Petitioners, Aland Gilberto Portillo-Sierra and Maria Josefina Suarez-
Paredes, are husband and wife, and natives and citizens of Columbia, S.A. The
only issue their petition for review presents is whether substantial evidence
supports the Board of Immigration’s (“BIA”) rejection of their asylum claim on the
ground that they failed to establish past persecution or a well-founded fear of
persecution if returned to Columbia. We conclude that substantial evidence does
support the BIA’s finding, and therefore dismiss their petition.
This case has been here before. In Portillo-Sierra v. U.S. Att’y Gen., 200
Fed. App. 925, 927 (11th Cir. 2006) (unpublished), petitioners sought review of
the BIA’s affirmance of the Immigration Judge’s (“IJ”) decision denying their
application for asylum, withholding of removal under the Immigration and
Nationality Act (“INA”), and protection under the Convention Against Torture
(“CAT”). The IJ had found against petitioners on the ground that their testimony
was not credible, and the BIA, in dismissing petitioners’ appeal, had affirmed the
IJ’s adverse credibility finding. We held that substantial evidence supported the
adverse credibility finding, but because the BIA had not considered all of the
evidence in the record, we remanded the case to the BIA “for consideration of the
evidence of [petitioner Suarez-Paredes’s] uncle’s murder.” On remand, the BIA
again dismissed petitioners’ appeal, finding that petitioners had failed to establish a
well-founded fear of persecution if removed to Columbia. The case is now back
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before us.1
Petitioners argue that they are eligible for asylum because the totality of the
evidence shows they suffered past persecution when (1) Portillo-Sierra was
kidnapped, (2) Suarez-Paredes’s uncle was murdered, and (3) Portillo-Sierra
received threatening telephone calls, all because Portillo-Sierra refused to join the
National Liberation Army’s (“ELN”) political movement. Petitioners also argue
that they have a well-founded fear that they will be persecuted if returned to
Columbia because they continued to receive threatening telephone calls after
Suarez-Paredes’s uncle was killed, and Suarez-Paredes’s aunt wrote a letter
indicating that the aunt had been identified as a future kidnap victim.
We review the BIA’s decision, but where the BIA expressly adopts the IJ’s
reasoning, we also review the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001). Here, we review the BIA’s decision because it did not
expressly adopt the IJ’s reasoning.
The BIA’s factual determinations are reviewed under the highly deferential
substantial evidence test; we “must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Id. (quotation omitted). We can reverse a finding of fact by the BIA
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In their brief, petitioners do not argue that they are entitled to withholding of removal
or CAT relief. Accordingly, we do not consider those matters.
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“only when the record compels a reversal; the mere fact that the record may
support a contrary conclusion is not enough to justify a reversal of the
administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.
2004) (en banc). The BIA’s legal determinations are reviewed de novo. Lopez v.
U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007).
The Attorney General has discretion to grant asylum to an alien if the
Attorney General determines that the alien is a refugee within the meaning of 8
U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A). A “refugee” is defined as
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 bears the burden of proving that
he qualifies as a “refugee.” 8 C.F.R. § 208.13(a). In order to meet this burden,
“the applicant must, with specific and credible evidence, establish (1) past
persecution on account of a statutorily protected ground or (2) a well-founded fear
of future persecution on account of a protected ground.” Mejia v. U.S. Att’y Gen.,
498 F.3d 1253, 1256 (11th Cir. 2007).
“Persecution” is not defined in the INA, but we have indicated that it is “an
extreme concept, requiring more than a few isolated incidents of verbal harassment
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or intimidation.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir.
2005) (quotations omitted). We have also stated that “mere harassment does not
amount to persecution.” Id. (quotation and alteration omitted).
“An applicant who has demonstrated past persecution is presumed to have a
well-founded fear of future persecution.” Mejia, 498 F.3d at 1257; 8 C.F.R.
§ 208.13(b)(1). The presumption can be rebutted by a showing that “there has
been a fundamental change in circumstances such that the applicant no longer has a
well-founded fear of persecution” or the “applicant could avoid future persecution
by relocating to another part of the applicant’s country of nationality.” 8 C.F.R.
§ 208.13(b)(1)(I).
The law of the case doctrine holds that “a court should not reopen issues
decided in earlier stages of the same litigation.” Agostini v. Felton, 521 U.S. 203,
236, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997). “Under the ‘law of the case’
doctrine, the findings of fact and conclusions of law by an appellate court are
generally binding in all subsequent proceedings in the same case in the trial court
or on a later appeal.” This That and the Other Gift and Tobacco, Inc. v. Cobb
County, Georgia, 439 F.3d 1275, 1283 (11th Cir. 2006) (quotation omitted). The
law of the case doctrine will not bar reconsideration of an issue when “(1) a
subsequent trial produces substantially different evidence, (2) controlling authority
has since made a contrary decision of law applicable to that issue, or (3) the prior
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decision was clearly erroneous and would work manifest injustice.” Joshi v.
Florida State Univ. Health Ctr., 763 F.2d 1227, 1231 (11th Cir. 1985). In addition
to these exceptions, the doctrine does not bar consideration of “an issue . . .
outside the scope of the prior appeal.” Transamerica Leasing, Inc. v. Inst. of
London Underwriters, 430 F.3d 1326, 1332 (11th Cir. 2005).
Here, the IJ made an adverse credibility finding and concluded that
petitioners failed to establish that the alleged kidnapping of Portillo-Sierra took
place and the existence of a causal connection between the telephone calls and the
murder of his wife’s uncle. The BIA found no clear error in this decision, and we
upheld the adverse credibility findings. Portillo-Sierra, 200 Fed. App. at 927.
Therefore, we will not now reconsider the issues of Portillo-Sierra’s alleged
kidnaping or the connection between the telephone calls and the murder, as our
prior holding has become the law of the case. See Agostini, 521 U.S. at 236, 117
S.Ct. at 2017.
The record does not compel the finding that Petitioners suffered past
persecution based upon the uncle’s murder, and substantial evidence supports the
BIA’s finding that they failed to establish past persecution. See Sepulveda, 401
F.3d at 1231.
To establish a well-founded fear of future persecution, an alien “need only
show that there is a reasonable possibility of suffering such persecution if he or she
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were to return to that country.” Mejia, 498 F.3d at 1256 (quotation and alteration
omitted). The alien must establish a fear that is both “subjectively genuine and
objectively reasonable.” Al Najjar, 257 F.3d at 1289. “The subjective component
is generally satisfied by the applicant’s credible testimony that he or she genuinely
fears persecution.” Id. “[T]he objective prong can be fulfilled either by
establishing past persecution or that he or she has a good reason to fear future
persecution.” Id. (quotation omitted). An alien must establish a nexus between his
political opinion and the feared persecution and can do so by presenting “specific,
detailed facts showing a good reason to fear that he or she will be singled out for
persecution on account of such opinion.” See Sepulveda, 401 F.3d at 1231. We
“must be compelled to find that the alien will be persecuted ‘because of’ his
political opinion.” Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th
Cir. 2007). An alien does not have prove he would be singled out if he can
establish a pattern or practice of persecution of a group of which he is a member. 8
C.F.R. § 208.13(b)(2)(iii).
Petitioners did not present any credible testimony or other evidence that they
would be singled out or targeted upon their return to Columbia; therefore,
substantial evidence supports the BIA’s finding that they failed to establish a well-
founded fear of persecution if returned to Columbia. See Sepulveda, 401 F.3d at
1231.
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For the foregoing reasons, their petition for review is
DENIED.
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