[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 2, 2005
No. 03-14932
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Docket No. A79-346-908
JOANA CLAUDIA SEPULVEDA,
MAURICIO SEPULVEDA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Appeal from a Final Decision of
the Board of Immigration Appeals
_________________________
(March 2, 2005)
Before BLACK, HULL and PRYOR, Circuit Judges.
PER CURIAM:
An active judge of this court having withheld the mandate in this case, the
Court, upon reconsideration, orders that its prior opinion, published at 378 F.3d
1260, be withdrawn, and substitutes the following opinion.
Joana C. Sepulveda, a Colombian national, petitions for review of the final
order of the Board of Immigration Appeals (BIA), which affirmed without opinion
the Immigration Judge’s (IJ’s) denial of her requests for asylum and withholding
of removal under the Immigration and Nationality Act (INA). 8 U.S.C. §§ 1158,
1231(b)(3). Substantial evidence supports the IJ’s decision. We deny the petition.
I. BACKGROUND
Sepulveda and her husband entered the United States on September 11,
2000, as visitors with permission to remain until March 10, 2001. On August 16,
2001, the Immigration and Naturalization Service (INS)1 served Sepulveda with a
notice to appear, charging her with removability for having remained in the United
States beyond the time allowed. Sepulveda admitted the allegations of the notice
to appear and conceded removability. Sepulveda requested asylum, withholding
of removal, and relief under the CAT on behalf of herself and her husband.2
1
The INS is now part of the Department of Homeland Security. For convenience, we refer
to the Department as the INS.
2
Sepulveda does not raise any challenge in her brief to the denial of relief under the
Convention Against Torture (CAT). When an appellant fails to offer argument on an issue, that
issue is abandoned. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); see
2
At the hearing before the IJ, Sepulveda testified her pro-democracy ideology
conflicts with that of the ELN guerilla group,3 which advocates class struggle,
Marxism, and dictatorship. Sepulveda, a resident of Cali, Colombia, belonged to a
group at her university that initially organized political debates, and later
organized marches and peace demonstrations. Sepulveda participated in
approximately ten peace marches. When the “La Maria” kidnaping occurred,4
Sepulveda and group members cooperated with a priest to negotiate between the
kidnapers and the hostages’ families.
After becoming involved in the kidnaping negotiations, Sepulveda received
three threatening telephone calls at her home. The callers, identifying themselves
as ELN members, called Sepulveda by name, used profanity, directed her to stop
her peace activities, and made death threats. The group received similarly
threatening calls at its office. Many members of the group quit due to the threats,
and the group’s membership ultimately dwindled from 35 to 5.
also Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (stating that
passing references to issues are insufficient to raise a claim for appeal, and such issues are deemed
abandoned).
3
The National Liberation Army, or ELN, is one of Colombia’s two major guerilla groups.
4
The State Department’s 1999 Country Report on Human Rights Practices for Colombia
described this kidnaping as the abduction of 170 people from La Maria church by the ELN.
3
As a part of the kidnaping negotiations, the group placed “mailboxes”
within restaurants to facilitate communication between the kidnapers, their
hostages, victims’ families, and the public. One of the mailboxes set up by the
group was located in the restaurant where Sepulveda was employed. A bomb
placed in that mailbox exploded just after she finished her shift. Sepulveda
believed the bomb was related to her political activities.
After Sepulveda graduated from the university, her brother was approached
at the university cafeteria and threatened because of his sister’s activities. She
testified the threats were coming to her brother because the threateners could not
locate her after graduation. Before coming to the United States, Sepulveda
relocated to her parents’ home in Hamondi, Colombia, and then to her in-laws’
home in Cali, Colombia.
Sepulveda testified she fears the ELN guerilla group will kill her or her
family if she and her husband return to Colombia. She testified that 13 years ago,
her uncle, a judge, received death threats related to a drug trafficking case. The
uncle’s wife and sister-in-law were killed when he disregarded the threats.5 When
asked about contacting the Colombian authorities about the threats she received,
Sepulveda testified she believed the Colombian authorities would not assist her
5
Sepulveda testified that in Colombia such threats extend to family members.
4
unless she had money or the names of the specific individuals issuing the threats.
Sepulveda’s testimony was generally consistent with her asylum application
submitted in support of her application for relief.
In addition to Sepulveda’s testimony and her asylum application, the record
before the IJ included the State Department’s 1999 and 2000 Country Reports on
Human Rights Practices for Colombia. The 1999 Country Report stated that
Colombia’s two major guerilla groups, FARC and ELN, exercised significant
influence in nearly 1,000 of the country’s 1,085 municipalities. It described the
abduction of 170 people from La Maria church by the ELN, and a demonstration
in Cali by 70,000 to 250,000 people protesting the mass kidnaping. The 1999
Country Report also noted that as many as six million people marched in antiwar
protests in October of that year.
The State Department’s 2000 Country Report on Human Rights Practices
for Colombia described the ELN’s common abuse of noncombatants, including
kidnapings and bombings. The 2000 Country Report indicated that as many as
one million people have been displaced within Colombia since 1996, and noted
the flood of displaced persons has overwhelmed the capacity of smaller
municipalities and larger cities to provide services, leaving displaced individuals
without health care, education, or employment.
5
The IJ denied Sepulveda’s application for asylum and withholding of
removal. The IJ found the following: (1) neither Sepulveda nor her husband had
suffered past persecution; (2) Sepulveda failed to establish she suffered past
mistreatment on account of political opinion or any other protected ground, or that
anyone had the inclination to persecute her; (3) Sepulveda failed to demonstrate a
reasonable possibility that she would be harmed or threatened on account of any
protected ground if returned to Colombia at this time; and (4) Sepulveda failed to
show that internal flight alternatives were unavailable to her. Having determined
that she failed to meet the lower burden of proof for asylum eligibility, the IJ
concluded that Sepulveda was ineligible for withholding of removal. Sepulveda
appeals the BIA’s decision, which summarily affirmed the IJ’s decision without
opinion.
II. STANDARD OF REVIEW
When the BIA summarily affirms the IJ’s decision without an opinion, the
IJ’s decision becomes the final removal order subject to review. See Mendoza v.
U.S. Attorney Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003). The IJ’s findings of
fact are reviewed under the substantial evidence test, and we “must affirm the
[IJ’s] decision if it is supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
6
(11th Cir. 2001) (quotation marks and citation omitted). Under this highly
deferential standard of review, the IJ’s decision can be reversed only if the
evidence “compels” a reasonable fact finder to find otherwise. INS v.
Elias-Zacarias, 502 U.S. 478, 481 n.1, 112 S. Ct. 812, 815 n.1 (1992); Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
III. DISCUSSION
A. Asylum
An alien who arrives in or is present in the United States may apply for
asylum, which the Attorney General has discretion to grant if the alien meets the
INA’s definition of a “refugee.” 8 U.S.C. § 1158(a)(1), (b)(1). A “refugee” is
defined as:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, 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) (emphasis added). The asylum applicant carries the
burden of proving statutory “refugee” status and thereby establishing asylum
eligibility. Al Najjar, 257 F.3d at 1284.
7
To establish asylum eligibility based on political opinion or any other
protected ground, the alien must, with credible evidence, establish (1) past
persecution on account of her political opinion or any other protected ground, or
(2) a “well-founded fear” that her political opinion or any other protected ground
will cause future persecution. 8 C.F.R. § 208.13(a), (b). If he or she meets that
burden, the actual grant of asylum is a matter of discretion. Id. The Attorney
General’s discretionary judgment whether to grant asylum “shall be conclusive
unless manifestly contrary to the law and an abuse of discretion.” 8 U.S.C.
§ 1252(b)(4)(D).
1. Past persecution
Although the INA does not expressly define “persecution” for purposes of
qualifying as a “refugee,” see 8 U.S.C. § 1101(a)(42), we have discussed other
circuits’ holdings that “persecution” is an “extreme concept,” requiring “more than
a few isolated incidents of verbal harassment or intimidation,” and that “[m]ere
harassment does not amount to persecution.” Gonzalez v. Reno, 212 F.3d 1338,
1355 (11th Cir. 2000) (quotation marks and citations omitted).
Sepulveda sets forth two grounds to establish past persecution: (1) the
restaurant bombing; and (2) threats to her, her brother, and other members of the
university group. Her arguments are not sufficient to overturn the IJ’s decision.
8
Although the evidence may permit a conclusion the restaurant bombing was
directed at Sepulveda on account of her political activity, it does not compel such
a conclusion. See Elias-Zacarias, 502 U.S. at 481 n.1, 112 S. Ct. at 815 n.1.
Moreover, the menacing telephone calls and threats to her, her brother, and other
members of the university group do not rise to the level of past persecution that
would compel reversal of the IJ’s decision. See Gonzalez, 212 F.3d at 1355.
Thus, the evidence does not compel the finding that Sepulveda suffered past
persecution on account of her political opinion or any other protected ground.
2. Well-founded fear of future persecution
A showing of past persecution creates a presumption of a “well-founded
fear,” subject to rebuttal by the INS. 8 C.F.R § 208.13(b)(1). “[A]n applicant
must demonstrate that his or her fear of persecution is subjectively genuine and
objectively reasonable.” Al Najjar, 257 F.3d at 1289. The applicant must also
establish a causal connection between the political opinion and the feared
persecution, presenting “specific, detailed facts showing a good reason to fear that
he or she will be singled out for persecution on account of such an opinion.” Id. at
1287 (quotation marks and citations omitted). After establishing a “well-founded
fear” of persecution, the alien must establish the persecution cannot be avoided by
relocating within the subject country. 8 C.F.R § 208.13(b)(2)(ii). We have stated
9
that “where the alleged persecutors are not affiliated with the government, it is not
unreasonable to require a refugee who has an internal resettlement alternative in
his own country to pursue that option before seeking permanent resettlement in the
United States, or at least to establish that such an option is unavailable.”
Mazariegos v. Office of U.S. Attorney Gen., 241 F.3d 1320, 1327 (11th Cir. 2001).
Sepulveda asserts she established a well-founded fear of persecution on
account of her political opinion and activity, and challenges the IJ’s finding that
internal relocation was a viable option. As for a well-founded fear of future
persecution, substantial evidence supports the IJ’s determination that Sepulveda
did not establish a reasonable possibility of personal persecution on account of a
protected ground if returned to Colombia at this time. The evidence also does not
compel the conclusion Sepulveda had a well-founded fear that the ELN retains an
inclination to single her out for persecution. Although the evidence shows
Sepulveda exercised leadership in the nonviolence movement while a university
student, particularly in 1999, the evidence does not indicate her notoriety as an
activist would outlast her four-year absence from Colombia. Rather, the 1999
Country Report indicated Sepulveda’s opposition to guerilla violence was shared
by hundreds of thousands of people in Cali, and millions around Colombia, who
marched in protest. Additionally, as discussed above, the evidence does not
10
compel the conclusion the restaurant bombing was directed at Sepulveda on
account of her political activity, and the menacing telephone calls and threats to
her, her brother, and other members of the university group do not rise to the level
of persecution. Although Sepulveda may subjectively fear returning to Colombia
at this time, her fear is not objectively reasonable based on the record evidence.6
See Al Najjar, 257 F.3d at 1289. Thus, the evidence does not compel the finding
that Sepulveda has a well-founded fear of future persecution.7
3. Incorrect standard
Sepulveda contends the IJ applied a heightened standard, thus violating the
Supreme Court’s decision in INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S. Ct.
1207 (1987). In Cardoza-Fonseca, the Supreme Court held Congress did not
intend to restrict eligibility for asylum only to “those who could prove that it is
6
After rendering his oral decision, the IJ spoke to Sepulveda on the record, “I have no doubt
that you subjectively fear returning to your country at this time. That said, your fears are not
subjectively reasonable based on the evidence that I have in front of me.” Although the IJ said
Sepulveda’s fears were not subjectively reasonable, the context suggests what he meant was that her
fears were not objectively reasonable.
7
To the extent the IJ based his decision on a finding that Sepulveda could viably relocate
to an area where the ELN presence was nonexistent or minimal, the evidence does not support such
a finding. The 1999 and 2000 Country Reports, on which the IJ ostensibly relied, make clear that
guerillas exercise influence throughout Colombia, and that small and large municipalities are already
overwhelmed by the huge populations of displaced persons, who are consequently without access
to health care, education, or employment. Nevertheless, Sepulveda’s inability to demonstrate she
has a well-founded fear that she will be singled out for persecution on account of any protected
ground is fatal to her asylum claim.
11
more likely than not that they will be persecuted if deported.” 480 U.S. at 450,
107 S. Ct. at 1222. There is no indication in the record the IJ applied an incorrect
standard in adjudicating Sepulveda’s claim. The IJ found Sepulveda’s allegations
did not “demonstrate a ‘reasonable’ possibility that she, or together, they would be
subject to persecution, or harmed or threatened if returned to Colombia at this
time.” Here, the IJ did not apply the “more likely than not” standard disapproved
of in Cardoza-Fonseca, instead he applied a “reasonable possibility” standard.
B. Withholding of Removal
An alien is entitled to withholding of removal under the INA if she can
show that her “life or freedom would be threatened in that country because of [her]
race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). The alien bears the burden of demonstrating
that it is “more likely than not” she will be persecuted or tortured upon being
returned to her country. Fahim v. U.S. Attorney Gen., 278 F.3d 1216, 1218 (11th
Cir. 2002) (quotation marks and citations omitted). This is a more stringent
standard than for asylum. Mazariegos, 241 F.3d at 1324–25 n.2. “[I]f an
applicant is unable to meet the well-founded fear standard for asylum, [s]he is
generally precluded from qualifying for either asylum or withholding of
deportation.” Id. (quotation marks and citation omitted).
12
Sepulveda failed to establish past persecution or a well-founded fear of
persecution on account of political opinion or any other protected ground to
support her asylum claim. On this basis, we hold there are no grounds for
reversing the IJ’s determination that she cannot establish entitlement to
withholding of removal under the INA.
IV. CONCLUSION
Under our highly deferential standard of review, we hold the IJ’s decision
denying asylum and withholding of removal is supported by substantial evidence;
the evidence does not compel an opposite conclusion.
PETITION DENIED.
13