Hernan Valencia Espinosa v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14655 ELEVENTH CIRCUIT
MAY 29, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK

Agency Nos. A97-194-379,
A97-194-380

HERNAN VALENCIA-ESPINOSA,
GLORIA LUCIA MONTES DE VALENCIA,
ANGELICA MARIA VALENCIA-MONTES,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(May 29, 2009)

Before BLACK, BARKETT and FAY, Circuit Judges.

PER CURIAM:
 Hernan Valencia Espinosa and his wife, Gloria Lucia Montes de Valencia,

and daughter, Angelica Maria Valencia-Montes (collectively, “the Petitioners”),

natives and citizens of Colombia, petition for review of the order by the Board of

Immigration Appeals (“BIA”) affirming the immigration judge’s (“IJ”) order of

removal and denial of asylum and withholding of removal under the Immigration

and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231(b)(3), and relief under the

United Nations Convention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). For the

reasons set forth below, we deny the petition.

I. Background

With his application for asylum, withholding of removal, and relief under

the CAT, Hernan submitted, inter alia: (1) a letter from Mariano Paz Ospino, a

Conservative Party member of the Chamber of Representatives, indicating that

Hernan had worked on his campaign; (2) an undated letter from the FARC, asking

Hernan and Gloria to join its struggle by making a payment and indicating that it

“[knew] about [Hernan’s] great spirit of collaboration with the poor people of

[Colombia] because of [his] position in the chamber of representatives [of

Congress]”; (3) an undated letter from the FARC, indicating that, because he had

not complied with its request for payment, his family had been declared military

targets, such that he had 15 days to pay or else the FARC “[would] have to defend
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[its] interests in [its] own way and [Hernan would] have to accept the

consequences”; (4) a police report, dated February 27, 2003, indicating that Hernan

had complained that he received two threatening letters from the FARC, in one of

which the FARC indicated that Hernan’s family had been declared military targets

because he had not complied with the FARC’s requests for economic requests, and

intimidating calls from the FARC; and (5) a notice indicating that Hernan had

reported to the Human Rights Office that the FARC had threatened the lives of

Gloria, Angelica, and a second daughter, Carolina.

At a hearing, Hernan testified as follows. He worked for Ospino, arranging

political meetings and fairs and sporting events designed to get people interested in

Ospino, and had been persecuted by the FARC because of this work. Specifically,

(1) on July 22, 2002, he received a letter from the FARC demanding money; (2) on

October 2, 2002, he received a call from a member of the FARC, reminding

Hernan of the contents of the previous letter and demanding that Hernan cease his

political activity; (3) on January 6, 2003, he received a call from a member of the

FARC, inviting him to a meeting in the mountains; (4) on February 25, 2003, he

received a letter from the FARC, informing him that the family had been declared

military targets; and (4) in early March 2003, he received a call from a member of

the FARC, who said, “[Y]ou son of a bitch, you think you can make fun of us.

[Since] neither the letters nor the [calls] have been able to make you see the light
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and do what we want you to do, I’m going to kill you and all your family.”

Because of the persecution, the Petitioners decided to flee.

The IJ denied relief, reasoning that (1) Hernan’s claims were incredible, as

the letter from Ospino, the letters from the FARC, and the police report showed

that the FARC was interested in money only; (2) the Petitioners had not

demonstrated the requisite nexus between the FARC’s acts and a protected ground;

(3) the FARC’s acts did not rise to the level of persecution; (4) because the

Petitioners could not establish asylum eligibility, they also could not establish

withholding-of-removal eligibility; and (5) the Petitioners had presented no

evidence establishing CAT eligibility. The BIA affirmed, echoing the IJ’s

reasoning and additionally reasoning that the Petitioners had not established

eligibility for relief based on a pattern and practice of the FARC persecuting

similarly situated individuals, because they had not demonstrated the requisite

nexus.

II. Analysis

When the BIA affirms the IJ’s decision, but issues a separate opinion, as

here, we review the BIA’s opinion “except to the extent that [the BIA] expressly

adopts the IJ’s opinion.” Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242

(11th Cir. 2004). When reviewing the BIA’s opinion, we review legal

determinations de novo and factual determinations under the “substantial evidence
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test.” See Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001)

(regarding denials of relief); Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th

Cir. 2006) (regarding adverse credibility determination). Under this test, which is

“highly deferential,” we “must affirm the BIA’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 (quotation omitted). In order to reverse a

finding of fact, “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).

A. Adverse Credibility Finding

As the trier of fact, the IJ “must determine credibility, and [we] may not

substitute [our] judgment for that of the [IJ] with respect to credibility findings.”

Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). The credible

testimony of the applicant “may be sufficient to sustain the applicant’s burden

without corroboration.” INA § 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii);

D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818-19 (11th Cir. 2004). “The

weaker an applicant’s testimony, however, the greater the need for corroborative

evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). If the

applicant offers such evidence, the IJ must consider it. Forgue, 401 F.3d at 1287.

Once the IJ makes an adverse credibility determination, the burden is on the

applicant to show that the determination “was not supported by specific, cogent
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reasons.” Id.

Substantial evidence supports the IJ’s adverse credibility finding. See Chen,

463 F.3d at 1231. The IJ’s reason was sufficiently specific, in that he referenced

and discussed the specific pieces of documentary evidence that demonstrated the

inconsistency and supported his finding. See Forgue, 401 F.3d at 1286. The IJ’s

reason also was cogent. See id. The pieces of documentary evidence that support

the Petitioners’ claim of persecution include a letter from the FARC asking for a

donation, a letter from the FARC reminding Hernan of its request for a donation, a

police report from February 2003 referencing these letters and certain calls from

the FARC, and a notice from the Human Rights Office noting that Hernan had

reported the death threats from the FARC. This documentary evidence

demonstrates that the FARC targeted Hernan and his family because it wanted

money. Although the first letter mentioned above referred to Hernan’s

employment with the Chamber of Representatives, it seemed to do so as a means of

pointing out that Hernan was familiar with helping the poor and, thus, should

donate to the FARC, rather than as a threat against his political activity.

Conversely, the only evidence presented that suggests that the FARC was

motivated by Hernan’s political activity is Hernan’s testimony that a member of

the FARC called him on October 2, 2002, and told him to cease his political

activity. Although this evidence of political motivation is weak when compared to
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the above evidence of a solely economical motivation, especially since the police

report was made after the October 2, 2002, call and yet still did not mention the

FARC’s alleged political motivation, the Petitioners failed to present corroborating

evidence to support the testimony. See Yang, 418 F.3d at 1201. Thus, the IJ

reasonably found that, because Hernan’s testimony did not match the only

documentary evidence offered, it was not believable. Accordingly, we deny the

petition as to this issue.

B. Asylum & Withholding of Removal

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

alia, asylum and withholding of removal. INA §§ 208(a)(1), 241, 8 U.S.C.

§§ 1158(a)(1), 1231(b)(3)(A), 8 C.F.R. § 208.16(c). To qualify for asylum, the

alien must prove that he is a refugee. Al Najjar, 257 F.3d at 1284 (citing 8 U.S.C.

§ 1101(a)(42)(A)). A refugee is defined in the INA 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.

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). To establish refugee status, the

alien must establish, through specific, detailed facts, (1) his past persecution on

account of a protected ground, or (2) his “well-founded fear” that he will be

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persecuted in the future on account of a protected ground. 8 C.F.R. § 208.13(a),

(b); see Al Najjar, 257 F.3d at 1287. A well-founded fear of future persecution

may be established by showing (1) past persecution that creates a rebuttable

presumption of a well-founded fear of future persecution based on a protected

ground, (2) a reasonable possibility of personal persecution based on a protected

ground, or (3) a pattern or practice in the subject country of persecuting a group of

similarly situated people, to which the petitioner belonged, on account of a

protected ground. 8 C.F.R. § 208.13(b)(1), (b)(2)(i) and (iii). Regarding the nexus

element of the standard, the applicant must demonstrate that one of the enumerated

grounds “was or will be at least one central reason for persecuting” him. INA

§ 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added). We specifically

have held that persecution by a guerilla group for refusing to make extortion

payments or pay “war taxes” is not persecution on account of a protected ground.

See Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821-22 (11th Cir. 2007).

To qualify for withholding of removal, the alien similarly must show that it

is more likely than not that his life or freedom would be threatened on account of

race, religion, nationality, membership in a particular social group, or political

opinion. Mendoza, 327 F.3d at 1287 (citing 8 U.S.C. § 1231(b)(3)(A)). Because

the more-likely-than-not standard that applies to withholding of removal claims is

more stringent than the well-founded-fear standard that applies to asylum claims,
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ineligibility for asylum generally precludes withholding of removal eligibility. Al

Najjar, 257 F.3d at 1292-93.

Substantial evidence supports the BIA’s denial of asylum and withholding of

removal. See id. at 1283-84. The Petitioners failed to establish a requisite nexus

between the FARC’s acts and a protected ground. See INA §§ 101(a)(42)(A),

208(b)(1)(B)(i), 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i). As discussed

above, the only credible evidence offered demonstrates that the FARC was

motivated by monetary concerns only. Efforts to extort, even when the money is

intended for use by a politically focused organization, are not equivalent to a

persecution on account of a protected ground. See Rivera, 487 F.3d at 821-22.

Thus, the Petitioners could not establish past persecution on account of a protected

ground or a well-founded fear of future persecution on account of a protected

ground, either because Hernan would be singled out in the future for persecution or

because the FARC has a pattern and practice of persecuting political opponents

such as Hernan, as both standards require proof of a nexus. See 8 C.F.R.

§ 208.13(a), (b)(2)(i), (iii); see Al Najjar, 257 F.3d at 1287.1 Therefore, the

Petitioners were not eligible for asylum. Likewise, both because the Petitioners

could not establish a nexus and did not merit asylum, the Petitioners were not

1
Because the Petitioners could not establish the requisite nexus, we need not address
whether the FARC’s acts rose to the level of persecution.
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eligible for withholding of removal. See Mendoza, 327 F.3d at 1287 (citing 8

U.S.C. § 1231(b)(3)(A)); Al Najjar, 257 F.3d at 1292-93. Accordingly, we deny

the petition as to this issue.

C. CAT Relief

We will not consider arguments presented before the IJ or BIA but not

discussed on appeal. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1282 n.2 (11th

Cir. 2005) (explaining that “[w]hen an appellant fails to offer argument on an

issue, that issue is abandoned”). On appeal, the Petitioners do not argue that they

are eligible for CAT relief. Therefore, they have abandoned the issue. See id.

PETITION DENIED.

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