[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
October 27, 2004
No. 03-16260 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
BIA No. A79-505-814
MARIA EUGENIA ELIAN SANCHEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Petition for Review of an Order
of the Board of Immigration Appeals
_________________________
(October 27, 2004)
Before TJOFLAT, BIRCH and PRYOR, Circuit Judges.
PER CURIAM:
Maria Eugenia Elian Sanchez petitions this court to review the final order of
the Board of Immigration Appeals (BIA) affirming the decision of an immigration
judge (IJ) denying her applications for asylum, withholding of removal under the
Immigration and Nationality Act (INA), and protection under the Convention
against Torture (CAT). The permanent rules of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 30009
(1996) (“IIRIRA”), govern our disposition of her petition because her removal
proceedings commenced after April 1, 1997.
Sanchez, a native and citizen of Colombia, entered the United States on or
about October 21, 1999, as a non-immigrant visitor with authorization to remain
until October 19, 2001. On September 24, 2001, Sanchez filed an application for
asylum. On November 14, 2001, the Immigration and Naturalization Service
(INS)1 served Sanchez with a Notice to Appear placing her in immigration
removal proceedings as an alien who had remained in the United States longer
than permitted. See INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).
An IJ heard Sanchez’s applications on December 7, 2001, and March 15 and
July 26, 2002.2 Sanchez, represented by counsel, conceded removability, then
1
The INS is now part of the Department of Homeland Security. For convenience, we refer
to the Department as the INS.
2
On July 26, the IJ also heard the application for asylum and withholding of removal filed
by her brother, Leonardo Eduardo Elian. His application is not before us.
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presented her case for asylum and withholding of removal. Sanchez testified to
essentially the same events she described in her applications for asylum and
withholding of removal. She said that in addition to her job with a consulting
company, she served as a volunteer organizer, support person, and counselor for
Corp. J. Siloe, which used sports and recreational activities to rehabilitate young
gang members and delinquents. Her brother, Leonardo Eduardo Elian, served
Corp. J. Siloe in the same way. In August 1999, she and Elian were stopped by
five men who were members of the Revolutionary Armed Forces of Colombia
(FARC) while returning from a Siloe outing. The men took their wallets, and
when they realized that Sanchez and Elian were doing social work, they
exclaimed, “you have saved yourselves.” After being detained for twenty minutes,
they were released. Neither Sanchez nor Elian reported the event to the police.
The next month, Sanchez received a phone call from FARC, asking that she
and Elian cooperate and meet with a FARC commander. Sanchez did not report
the call to the police; nor did she or Elian cooperate. She refused to cooperate
because she was “not in agreement with the way [FARC had] destroyed the
country.” Sanchez received another call several days later during which FARC
demanded twenty million pesos from her and the same amount from Elian for their
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refusal to cooperate. Fearing death if she stayed in Columbia, she fled to the
United States.
Elian said that he moved from Cali to Bogota, Columbia in September 1999
to live with an uncle. In February 2000, his uncle began receiving phone calls and
someone Elian did not know knocked on his uncle’s door looking for “Elian.” He
moved to a cousin’s house; thereafter, people on motorcycles began asking for
him. He reported none of the foregoing to the police. In December 2000, two
suspicious-looking men came to his aunt’s house to ask his aunt, a lawyer, to
represent them. That night he received a death threat over the telephone. He did
not report the threat to the police; instead, he came to the United States.
Based on the testimony of Sanchez and Elian and the documentary evidence
presented, the IJ denied Sanchez’s application for asylum on the ground that her
application was untimely and she had not demonstrated exceptional circumstances
that could excuse her failure to file her application on time. The IJ denied
Sanchez’s application for withholding of removal because she failed to establish
that FARC’s interest in her was related to a statutorily protected ground. The IJ
denied Sanchez CAT protection because she failed to show government
involvement or knowledge of FARC’s encounters with her and Elian.
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Sanchez appealed the IJ’s decision to the BIA on the ground that she
demonstrated eligibility for asylum and withholding of removal. She did not
appeal the IJ’s decision that she was ineligible for CAT protection. On November
13, 2003, the BIA adopted and affirmed the IJ’s decision. The BIA agreed with
the IJ’s determination that Sanchez was ineligible for asylum because she did not
timely file her application or demonstrate circumstances excusing her untimely
filing. The BIA also agreed that the IJ correctly found that Sanchez failed to meet
her burden of proof regarding withholding of removal under the INA.
In her petition for review, Sanchez raises three issues. We consider them in
order.
First, Sanchez contends that the IJ erred in determining that she was
ineligible for asylum given that she established the requisite well-founded fear of
persecution on account of a statutorily protected ground, her opposition to the
FARC. Responding, the Attorney General says that we lack jurisdiction to review
the BIA’s determination that Sanchez failed to timely file her asylum application
or establish extraordinary or changed circumstances sufficient to excuse her
untimely filing. The Attorney General is correct. INA § 208(a)(2)(D), 8 U.S.C. §
1158(a)(2)(D), divests this court of jurisdiction to review a BIA “decision
regarding whether an alien complied with the one-year time limit [for filing an
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application for asylum]or established extraordinary circumstances that would
excuse his untimely filing.” Mendoza v. U. S. Attorney General, 327 F.3d 1283,
1287 (203) (citing Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1217-18 (11th Cir.
2002)). We therefore dismiss Sanchez’s petition to the extent it seeks review of
the denial of her asylum application.
Second, Sanchez contends that she satisfied her burden of proof for
withholding of removal under the INA. She maintains that the evidence
demonstrates that the FARC is in control of over half of Colombia and may attack
and kill her if she is forced to return.
“An alien seeking withholding of removal under the INA must show 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. “An alien bears the burden of demonstrating that he more-likely-than-not
would be persecuted or tortured upon his return to the country in question.” Id.
“If the alien establishes past persecution in his country based on a protected
ground, it is presumed that his life or freedom would be threatened upon return to
his country unless the INS shows by a preponderance of the evidence that, among
other things, (1) the country’s conditions have changed such that the applicant’s
life or freedom would no longer be threatened upon his removal; or (2) that the
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alien could avoid a future threat to his life or freedom by relocating to another part
of the proposed country of removal, and it would be reasonable to expect him to
do so.” Id. “An alien who has not shown past persecution, though, may still be
entitled to withholding of removal if he can demonstrate a future threat to his life
or freedom on a protected ground in his country.” Id. “An alien cannot
demonstrate that he more-likely-than-not would be persecuted on a protected
ground if the IJ finds that the alien could avoid a future threat by relocating to
another part of his country.” Id.
“[T]he statute protects against persecution not only by government forces
but also by nongovernmental groups that the government cannot control.”
Sotelo-Aquije v. Slattery, 17 F.3d 33, 37 (2d Cir. 1994) (persuasive authority
discussing INA § 208, 8 U.S.C. § 1158, the asylum statute). “Persecution on
account of . . . political opinion . . . is persecution on account of the victim’s
political opinion, not the persecutor’s.” INS v. Elias-Zacarias, 502 U.S. 478, 482,
112 S. Ct. 812, 816, 117 L. Ed.2d 38 (1992) (internal quotations omitted). To
qualify for withholding of removal based on persecution by a guerilla group on
account of a political opinion, Sanchez must establish that the guerillas persecuted
her or will seek to persecute her in the future because of her actual or imputed
political opinion. See id. at 482-83, 112 S. Ct. at 815-16. It is not enough to show
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that she was or will be persecuted or tortured due to her refusal to cooperate with
the guerillas. See id. at 483, 112 S. Ct. at 816 (finding that persecution due to a
refusal to join forces with the guerillas is not persecution on account of a political
opinion); see also Grava v. INS, 205 F.3d 1177, 1181 n.3 (9th Cir. 2000) (“Purely
personal retribution is, of course, not persecution on account of political opinion,”
but mixed-motive persecution may qualify if one of the motives is political)
(persuasive authority); Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir. 2001)
(finding that evidence consistent with acts of private violence or that merely
shows that an individual has been the victim of criminal activity does not
constitute evidence of persecution on a statutorily protected ground) (persuasive
authority).
Our examination of the record in this case reveals no evidence establishing
Sanchez’s actual or imputed political opinion, much less any nexus between
Sanchez’s political opinion and the FARC’s alleged persecution. In fact, the
evidence is consistent with a finding that the FARC harassed Sanchez due to her
refusal to cooperate with them, which is not enough to qualify for withholding of
removal under the INA. See Elias-Zacarias, 502 U.S. at 483, 112 S. Ct. at 816.
The BIA’s denial of Sanchez’s application for withholding of removal is therefore
affirmed.
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Third, Sanchez contends that she made out a case for CAT protection. We
reject her contention as frivolous. To demonstrate eligibility for CAT protection,
an applicant must show that it is more likely than not that she will be tortured in
her home country at the hands of her government or that her government will
acquiesce in the torture. Sanchez presented no evidence on either point.
PETITION DISMISSED, in part; DENIED, in part.
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