[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 2, 2009
No. 08-15087 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A078-584-998, A078-584-999
AUGUSTO GARCIA VALDERRAMA,
MARIA ELVIRA MATIZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 2, 2009)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
On September 10, 2002, petitioners Augusto Garcia Valderrama and his
wife, Maria Elvira Matiz, natives and citizens of Colombia, S.A., appeared before
an Immigration Judge (“IJ”) on a Notice to Appear, which charged them with
removability under the Immigration and Nationality Act (“INA”) as
nonimmigrants who had remained in the United States for longer than authorized
by law. Petitioners conceded their removability and sought asylum 1 on the
grounds that (1) the FARC, a leftist guerilla group in Colombia, had persecuted
them with violence and attacked Matiz2 because Valderrama belonged to the
Conservative Party and had engaged in political activity and made speeches in
opposition to FARC tactics, and (2) they feared further persecution if returned to
Colombia. On March 10, 2003, the IJ held a hearing on their application. After
receiving Valderrama’s testimony and documentary evidence, the IJ found that
[petitioners were] statutorily eligible for asylum and [Valderrama] had
offered credible . . . testimony. . . [but] failed to establish a nexus to a
protected ground under the [INA]. Furthermore, . . . [Valderrama’s]
testimony regarding his political activities was not specific and was
insufficient to meet the burden of demonstrating past persecution
and/or a well-founded fear of future persecution.
The IJ therefore denied petitioners’ application.
1
Matiz is a derivative asylum applicant on Valderrama’s application. Petitioners also
applied for withholding of removal under the INA and the Convention Against Torture. Those
applications were denied in decisions that are not before us here.
2
The FARC attacked and beat Matiz at petitioners’ home. She was four months
pregnant and, in consequence of the attack, lost the fetus.
2
Petitioners appealed the decision to the Board of Immigration Appeals
(“BIA”), challenging the IJ’s lack-of-nexus finding and the IJ’s determination that
they failed to demonstrate persecution. The BIA dismissed the appeal on August
13, 2004, agreeing with the IJ that petitioners failed to establish a nexus between
FARC’s threats and violence and Valderrama’s political activity. Petitioners then
petitioned this court for review.
We granted the petition for review and remanded the case to the BIA for
further proceedings with this statement:
The record in this case compels the conclusion that the FARC targeted
Valderrama, in part, because of his political opinion. The IJ’s holding
that he failed to show that his harm was linked to his political opinion
was therefore erroneous. Additionally, because the IJ failed to
determine whether the petitioners suffered past persecution or
established that they have a well-founded fear of future persecution,
we must remand the case to allow the agency to decide the issue in the
first instance.
Garcia-Valderrama v. U.S. Attorney General, 130 Fed.Appx. 434, 437 PIN (11 th
Cir. 2005).
On receipt of our mandate, the BIA, on September 9, 2005, remanded the
case to the IJ for further proceedings. The IJ construed our mandate as requiring
him “to determine if [petitioners] suffered past persecution or had a well-founded
fear of future persecution.” As it turned out, the IJ decided to do this on the basis
of the record of the March 10, 2003 hearing on petitioners’ asylum application
augmented with documents portraying Colombia’s “current country conditions.”
3
Accordingly, at a master calendar hearing on October 14, 2005, the IJ ordered
petitioners to submit such documentation.3
The IJ scheduled a hearing for January 24, 2006, in Miami, Florida, to
consider the merits of petitioners’ application, then sua sponte rescheduled the
hearing for April 17, 2006. Petitioners, who were living in Texas, traveled to
Miami for the hearing, but were notified after they arrived, on April 17, that the IJ
would not be able to hold the hearing. On April 24, the IJ rescheduled the hearing
for July 20, 2006. Petitioners appeared with counsel. The IJ announced that the
hearing was limited to what was already in the record – the record of the March 10,
2003 hearing and the documentation that had been submitted pursuant to his
October 14, 2005 order. Petitioners’ attorney asked the IJ for permission to present
the testimony of petitioner Matiz, since she had not testified at the March 10, 2003
hearing, but the IJ denied counsel’s request. The IJ adjourned the hearing with the
statement that he would issue a written decision in due course.
On August 15, 2006, the IJ issued his decision, denying petitioners asylum
and ordering their removal. The IJ found that the harm Valderrama and his wife
sustained at the hands of the FARC did not constitute past persecution. Assuming,
3
The documentation admitted into evidence in accordance with the IJ’s instructions
consisted of a U.S. Department of State 2004 Country Report on Human Rights Practices in
Colombia; a U.S. Department of State Country Report on Human Rights Practices in Colombia
and February 2006 Background Note; and various documents submitted by the respondent.
4
however, that they had suffered past persecution, the IJ held that “the regulatory
presumption of future persecution would be rebutted due to the change in country
conditions.” On that score, he “determined that [petitioners’] past suffering did not
constitute persecution, and, therefore, any fears of similar sufferings in the future
d[id] not constitute persecution . . . [and] that [petitioners’] well-founded fear of
future persecution has not been established.” But, assuming that they had,
Colombian country conditions had changed dramatically since 2000, with FARC’s
strength declining and incidents of FARC’s kidnaping and other violent crimes
decreasing. Further, and that assuming that petitioners had shown past
persecution, the presumption that they would suffer future persecution had been
rebutted due to the change in country conditions. In addition, petitioners had not
established a reasonably objective fear of returning to Colombia.
Petitioners appealed the IJ’s decision to the BIA. In their brief to the BIA,
petitioners argued that the IJ failed to follow the mandate of this court and the BIA
to conduct “further proceedings” on their asylum application for the purpose of
determining whether they suffered past persecution or had a well-founded fear of
future persecution on account of their political opinion; that the IJ denied them
procedural due process by denying them the right to present the testimony of
Matiz. As the BIA recited in its decision dismissing the appeal,
5
[petitioners] argue[d] that the [IJ] disregarded the remand issued by
this Board and by the Eleventh Circuit, and violated their
constitutional right to due process, as he did not allow [them] to
present any testimony on remand. They also complain[ed] that the
[IJ] erred and violated their rights by requiring them, and not the
Department of Homeland Security, to present the evidence of changed
country conditions.4
In dismissing the appeal, the BIA noted the IJ’s findings that petitioners
failed to establish past persecution and that, assuming they had established it, “the
regulatory presumption of future persecution would be rebutted due to the change
in country conditions in Colombia. . . .” The BIA agreed “with the [IJ’s] finding of
changed country conditions,” but said nothing in its decision in response to
petitioners’ argument that the IJ had denied them due process in refusing to allow
them to present any testimony.
Petitioners now seek review of the BIA’s latest decision. Two issues are
presented: (1) whether substantial evidence supports the agency’s conclusion that
Valderrama’s proof failed to establish a well-founded fear of future persecution;
4
Regarding this point, we note that 8 C.F.R. § 208.13(b) states, in relevant part:
An [asylum] applicant who has been found to have established . . . past
persecution shall also be presumed to have a well-founded fear of persecution . . .
. That presumption may be rebutted if an . . . [IJ] [finds] by a preponderance of
the evidence . . . [t]hat there has been a fundamental change in circumstances
such that the applicant no longer has a well-founded fear of persecution in the
applicant’s country. . . .
6
(2) whether the IJ denied petitioners due process of law by failing to conduct a full
and fair hearing on remand.
When the BIA issues a decision, we review only that decision, except to the
extent that it expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). Here, the BIA agreed with some of the IJ’s findings
but also made additional observations, so we will review both the IJ’s and the
BIA’s decisions.
To the extent that the BIA’s decision was based on a legal determination, our
review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001). The BIA and IJ’s findings of fact are reviewed under the substantial-
evidence test, and we must affirm if the findings are “‘supported by reasonable,
substantial, and probative evidence on the record considered as a whole.’” Al
Najjar, 257 F.3d at 1283-84 (citation omitted). The substantial evidence test is
“deferential” and does not allow “re-weigh[ing] the evidence from scratch.”
Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001). “To reverse
the . . . fact findings, 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).
That evidence in the record may also support a conclusion contrary to the
administrative findings is not enough to justify a reversal. Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
7
Valderrama argues that the BIA erred in dismissing his appeal because it is
established and well-known that the FARC targets people like him, who speak out
against the FARC and have some financial resources. He contends that his
unrebutted testimony was both credible and detailed regarding his fear of returning
to Colombia as well as the past persecution he endured there. As such, his
testimony was sufficient to meet the burden of proving eligibility for asylum.
Valderrama claims that the events he described, specifically (1) being stopped on
the road and told to cease his political activities; (2) his wife’s being beaten and
left for dead, which resulted in her losing her baby and having to have an ovary
removed; and (3) being shot at while driving, when taken together, indicate past
persecution. Moreover, the IJ erred in finding that the shooting incident was not
politically motivated, since this court had already ruled in his favor on that issue.
According to Valderrama, he produced voluminous documentary evidence that
corroborated the facts set forth in his application and testimony and supported his
claim for asylum, but, of all that documentary evidence, the IJ only pointed out
those articles favoring the proposition of changed country conditions without
mentioning or explaining the articles discussing Colombia’s ongoing violence and
the FARC’s refusal to negotiate peace with the Uribe administration.
8
The Attorney General or the Secretary of Homeland Security has discretion
to grant asylum if an alien meets the INA’s definition of a “refugee.” See INA
§ 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). 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.
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the
burden of proving statutory “refugee” status. Al Najjar, 257 F.3d at 1284. To
carry this burden, the alien must, with specific and credible evidence, establish
(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. 8 C.F.R.
§ 208.13(a), (b); Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006). If
an alien demonstrates past persecution, which creates a presumption of future
persecution, the burden then shifts to the government to show by a preponderance
of the evidence that (1) there is a fundamental change in circumstance such that the
alien no longer has a well-founded fear of persecution; or (2) the alien could avoid
future persecution by relocating to another part of the country and under the
circumstances it would be reasonable to expect the alien to do so. 8 C.F.R.
§ 208.13(b)(1)(i)(A) and (B).
9
In the absence of past persecution, the alien “must demonstrate a
well-founded fear of future persecution that is both subjectively genuine and
objectively reasonable.” Ruiz, 440 F.3d at 1257. “The subjective component can
be proved ‘by the applicant’s credible testimony that he or she genuinely fears
persecution,’ while the objective component ‘can be fulfilled either by establishing
past persecution or that he or she has a good reason to fear future persecution.’”
Id. (citation omitted). We require the applicant to present “specific, detailed facts
showing a good reason to fear that he or she will be singled out for persecution on
account of” a protected ground. Al Najjar, 257 F.3d at 1287 (quotation marks and
citation omitted) (emphasis in original).
Where the BIA fails to consider an issue, the proper course of action is to
remand except in rare circumstances. I.N.S. v. Orlando Ventura, 537 U.S. 12, 16,
123 S.Ct. 353, 355, 154 L.Ed.2d. 272 (2002); Calle v. U.S. Atty. Gen., 504 F.3d
1324, 1330 (11th Cir. 2007) (describing a rare circumstance as one raising legal
and not factual issues).
We conclude that the evidence on the record of Colombia’s country
conditions compels reversal of the IJ and the BIA’s determination that country
conditions have changed such that Valderrama no longer has a well-founded fear
of future persecution. We remand the case, however, so the BIA can consider
10
whether Valderrama made a showing of past persecution and whether relocation
within Colombia is a reasonable option.
Valderrama argues that the IJ disregarded our remand order and, in so doing,
violated his constitutional right to due process. We remanded the case for further
proceedings, but, except for instructing Valderrama to submit documentary
evidence about Colombia’s country conditions, he held no further proceedings.
Valderrama claims that such instruction indicated the IJ’s intent to deny his asylum
application and improperly placed the burden of proving country conditions on
him. The IJ’s refusal to allow Matiz to testify and his statement that our remand
order only directed him to “make a finding” is evidence of such intent. If the IJ
was right, and all we directed him to do was to make a finding without taking
further testimony, he should have made his finding on the basis of the record of the
original asylum hearing.
“A court of appeals is not generally empowered to conduct a de novo inquiry
into the matter being reviewed and to reach its own conclusions based on such an
inquiry . . . . [r]ather, the proper course, except in rare circumstances, is to remand
to the agency for additional investigation or explanation.” Gonzales v. Thomas,
547 U.S. 183, 186, 126 S.Ct. 1613, 1615, 164 L.Ed.2d 358 (2006) (quotations and
citations omitted). Exhaustion is specifically required where a petitioner alleges a
due process violation in being denied a full and fair hearing. See
11
Amaya-Artunduaga v. U.S. Atty. Gen., 463 F.3d 1247, 1251 (11th Cir. 2006).
Accordingly, where, as in this case, the BIA fails to consider an issue, the proper
course of action is to remand. Orlando Ventura, 537 U.S. at 16, 123 S.Ct. at 355.
Because the BIA failed to address Valderrama’s argument that the IJ denied
petitioners due process of law in depriving them of a full and fair hearing on
remand, we remand the case to the BIA with the instruction that it address the
argument.
PETITION GRANTED.
12