[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Sept. 30, 2009
No. 09-11518 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A098-857-947
A098-857-948
ANA MILENA JARAMILLO OCAMPO,
ALEJANDRO GIRALDO GARCIA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 30, 2009)
Before BIRCH, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Ana Milena Jaramillo Ocampo (“Ocampo”) and her husband Alejandro
Giraldo Garcia (“Garcia”) petition for review of the Board of Immigration
Appeals’ (“BIA”) decision adopting and affirming the Immigration Judge’s (“IJ”)
order denying 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). The BIA affirmed the
IJ’s decision denying Ocampo’s petition without opinion. We find that Ocampo
did not exhaust her administrative remedies by arguing a political opinion theory
of persecution during the administrative proceedings and therefore DENY the
petition for review.
I. BACKGROUND
Ocampo, a native and citizen of Colombia, arrived in the United States on or
about 25 August 2004, as a non-immigrant B-2 visitor with authorization to remain
until 24 February 2005. Administrative Record [“AR”] at 247. Her husband,
Garcia, also a native and citizen of Colombia, entered the United States on or about
17 May 2001, as a non-immigrant B-2 visitor with authorization to remain until 24
February 2005. Id. at 262. The Department of Homeland Security (“DHS”) served
both parties with a Notice to Appear on 7 July 2005, alleging that they remained in
the United States beyond 24 February 2005. Id. at 247, 262. The parties conceded
removability at a hearing on 14 March 2006. Id. at 62. Since the cases were
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consolidated, id. at 55, all references to Ocampo also pertain to Garcia.
On 24 May 2005, Ocampo completed an application for asylum and
withholding of removal based on religion.1 Id. at 193. According to Ocampo,
Revolutionary Armed Forces of Columbia (“FARC”) members sentenced her to
death based on her religion, Catholicism, and her membership in “Verbum Dei,” a
missionary Catholic community. Id. at 199. In particular, Ocampo described her
background and devotion to the Catholic faith and explained that she started a
religious group at her school, the Technological University of Pereira. Id. In
February 2004, two students began attending Ocampo’s religious group and
insisted that she run for the university’s student council. Id. Two months later,
they approached Ocampo in the school cafeteria and told her that they were FARC
members and wanted her to join the student council “to train [her] in political
subjects of the FARC and to join the political committee of the urban militia of
Pereira.” Id. at 200. When Ocampo refused to join the student council, and the
FARC, due to her religion, the two students stopped attending her religious group,
continued to press her to join the FARC, and thereafter threatened her. Id.
In June 2004, the two students approached Ocampo in the university parking
lot after she finished a night class. Id. The students again pressed her about
1
Ocampo did not initially apply for CAT relief but this claim was added at a 14 March
2006 hearing. AR at 62.
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joining the student council because the elections were soon, but she again refused
to join both the student council and the FARC. Id. The students then escorted her
to a dark area of the parking lot, held a gun to her head, and told her that she
needed to join them or die. Id. The students commanded her to continue to hold
her religious group meetings so she would not “lose the confidence of the
students,” run for student council, and investigate students to discover army,
police, or other paramilitary infiltrators. Id. at 201.
After this encounter, Ocampo secretly traveled from Pereira to
Villavicencio, where her brother and sister lived. Id. While in Villavicencio, an
unnamed female FARC member telephoned Ocampo and told her she would die
for not doing as the FARC commanded, and that there was no escape from the
FARC because she was a military objective. Id. Ocampo then came to the United
States “to protect [her] life.” Id.
Ocampo’s asylum application included the following: (1) her passport and
other identifying documents, (2) a letter from her brother, Pedro Antonio Jaramillo
Ocampo, who was a Catholic priest, and (3) letters from other religious leaders in
Colombia. Id. at 202-13, 216, 218. At Ocampo’s 7 May 2008 removal hearing,
the parties entered additional documents into evidence: (1) the 2007 country report
for Colombia, (2) two January 2008 letters from Ocampo’s priests certifying her
membership in a Lilburn, GA, Catholic church, (3) an October 2006 letter from
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Ocampo’s father, (4) reports on the January 2006 death of Ocampo’s brother from
a traffic accident, (5) hospital admissions paperwork for Ocampo’s father, (6)
internet articles relating to the FARC, and (7) the 2003 international religious
freedom report for Colombia. Id. at 87, 114, 116, 119, 122, 128, 137, 140, 148-52,
154-69, 180-88. The religious freedom report indicated that illegal armed groups
often targeted religious leaders and practitioners for political, not religious,
reasons. Id. at 182.
At her removal hearing, Ocampo testified about her encounters with the
FARC and restated the incidents described in her asylum application. Id. at 73-77.
She also described two events that happened to her family members since she left
Colombia. First, her brother died in a traffic accident which, although she had no
proof, Ocampo thought the FARC was responsible for. Id. at 78, 81. Second,
Ocampo believed guerillas were responsible for drugging her father with
Scopolamine and stealing his car. Id. at 78-79. According to the IJ, however,
Scopolamine is used to dilate the eyes, and Ocampo testified that her father wore
glasses and went to the eye doctor that same day. Id. at 19-20, 79. On cross
examination, the government elicited testimony confirming that neither Ocampo
nor her father were ever physically harmed, that she had no proof the FARC was
responsible for her brother’s death, and that the remaining members of her family
never had any issues with the FARC. Id. at 81-82.
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The IJ found Ocampo credible, but nonetheless denied her application for
asylum, withholding of removal, and CAT relief. Id. at 17, 23. First, the IJ
concluded that Ocampo’s encounters with FARC members did not amount to
persecution. Id. at 20. The incidents consisted “solely of threats that never went
beyond more than a very short term kidnaping and communication to her in June
of 2005.” Id. Relying on Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226 (11th Cir.
2005) (per curiam), and Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223 (11th
Cir. 2007), the IJ concluded that simple threats short of physical violence were
insufficient to show either past persecution or a well-founded fear of future
persecution. AR at 20.
Second, the IJ found that Ocampo failed to establish a nexus between any
alleged persecution and religion. Id. at 20-21. Specifically, the IJ found the case
to consist “solely of an attempt to recruit her into the service of the FARC.” Id. at
20. Relying on a longstanding BIA rule in Matter of R-O-, 20 I.&N. Dec. 455
(BIA 1992), the IJ found that a victim of forced recruitment, without more, is not
persecuted. AR at 21. The IJ noted that the FARC members did not find
something abhorrent in Ocampo, or try to prevent her from exercising her religious
beliefs, but rather found something attractive in her that they could use for their
own purposes. Id.
Ocampo appealed the IJ’s decision to the BIA. In her brief, Ocampo again
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asserted persecution based on religion. Id. at 6. She also included for the first time
“membership in a particular social group,” that group being “a leader of the
[Catholic] [c]hurch.” Id. at 7. She argued to the BIA that FARC members
“persecuted her with the intent of silencing and killing her . . . in reprisal for her . .
. participation with the Catholic Church.” Id. at 8. The BIA affirmed, without
opinion, the IJ’s decision denying Ocampo’s petition. Id. at 2.
Ocampo now petitions for review. She contends that the IJ’s decision was
incorrect from inception because her persecution was clearly due to political
opinion.
II. DISCUSSION
In her petition before us, Ocampo states that she seeks asylum “because in
Columbia she was persecuted by the [ ] FARC due to her political opinion . . . the
persecution is clearly because of the Petitioner’s political opinion.” Ocampo brief
at 9, 13. In her brief before the BIA and her asylum application, however, Ocampo
asserted persecution based on religion. AR at 6, 193.
We review our subject matter jurisdiction de novo. See Gonzalez-Oropeza
v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003) (per curiam). The
exhaustion requirement applicable to immigration cases is found in 8 U.S.C. §
1252(d)(1), which provides that “[a] court may review a final order of removal
only if . . . the alien has exhausted all administrative remedies available to the alien
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as of right.” We have interpreted that requirement to be jurisdictional, so we lack
jurisdiction to consider claims that have not been raised before the BIA. Sundar v.
U.S. Att’y Gen., 328 F.3d 1320, 1323 (11th Cir. 2003) citing Fernandez-Bernal v.
U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001) (holding that because
of § 1251(d)(1) we lack jurisdiction to review a claim the petitioner does not raise
in his appeal to the BIA). Moreover, any argument not advanced in a party’s initial
brief is abandoned. Sepulveda, 401 F.3d at 1228 n.2.
Ocampo argues a political opinion theory on appeal, but she did not present
that theory to either the IJ or the BIA during the administrative proceedings.
Therefore, Ocampo has not exhausted her administrative remedies and we lack
jurisdiction to consider her claim based on political opinion. See Sundar, 328 F.3d
at 1323. The theory Ocampo did rely on, religion, is abandoned because she did
not assert that theory on appeal. See Sepulveda, 401 F.3d at 1228 n.2. Ocampo’s
petition for review is therefore dismissed and we need not address the
government’s arguments related to the IJ and BIA’s credibility findings being
supported by substantial evidence.
III. CONCLUSION
We AFFIRM the BIA’s denial of asylum, withholding of removal, and CAT
relief. The petition for review before us argues a political opinion theory on appeal
not exhausted during the administrative proceedings before the IJ or BIA.
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Accordignly, we DENY the petition for review.
PETITION DENIED.
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