[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 23, 2007
No. 06-10209 THOMAS K. KAHN
________________________ CLERK
Agency Nos. A79-342-397
A79-098-167
OSCAR MARINO CARDONA RIVERA,
MARTHA ISABEL VILLEGAS AGUDELO,
DIEGO FERNANDO CARDONA VILLEGAS,
MONICA ISABEL CARDONA VILLEGAS,
ANDRES MAURICIO CARDONA VILLEGAS,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 23, 2007)
Before PRYOR, KRAVITCH and ALARCON,* Circuit Judges.
*
Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
PRYOR, Circuit Judge:
This appeal requires us to determine whether applicants for asylum and
withholding of removal are persecuted “on account of” their political opinion when
their persecutors have murdered members of their family of business owners for
their refusal to pay a “war tax” to a Marxist paramilitary organization, the Sixth
Front of the Revolutionary Armed Forces of Colombia (FARC). Oscar Marino
Cardona Rivera and his wife and three children seek review of a decision of the
Board of Immigration Appeals that affirmed the denial of their applications for
asylum and withholding of removal. Because the record does not compel the
conclusion that the petitioners’ fear of persecution is on account of their political
opinion, we deny the petitions.
I. BACKGROUND
The petitioners are all natives and citizens of Colombia. During the events
described in their application for asylum, they lived in Tulua, several hours east of
Bogota. Cardona Rivera’s father was a prosperous businessman in Tulua, where
he owned a business providing glass for construction work. Cardona Rivera’s
father was also politically active and supported the Liberal Party by distributing
fliers, putting up billboards, donating money to the Party, and attending events and
meetings. Like his father, Cardona Rivera supported the Liberal Party by
distributing fliers and lending vehicles for Party activities.
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In January 1996, a member of the Sixth Front of FARC called Cardona
Rivera’s father and demanded that he pay a “war tax” of 100 million Colombian
pesos. The caller informed Cardona Rivera’s father that his responsibility for the
war tax was “based on his economical condition” and he would be murdered if he
refused to pay. Cardona Rivera’s father continued to receive calls demanding the
tax in 1997 and 1998, but Cardona Rivera’s father always refused to pay. In
February 1998, Cardona Rivera’s father told his family that he would not pay the
FARC “a solitary peso . . . because they were a subversive group that was against
the government and against all his principles.”
On June 24, 1998, while working at the family’s glass business, Cardona
Rivera’s father and younger brother were shot and killed by guerrillas. Cardona
Rivera heard the shots from an adjacent building. Cardona Rivera confronted the
killers who pointed a gun at him as they fled the scene. Cardona Rivera and his
remaining brothers took over their family business, and Cardona Rivera’s mother
began receiving telephone calls from members of the FARC, who claimed
responsibility for her husband’s murder and threatened that more murders would
follow unless the family paid its outstanding war tax.
On July 20, 1999, Cardona Rivera’s family gathered at the ranch of one of
his brothers to discuss the family’s response to the FARC when a bomb exploded
at the entrance of the home and destroyed its door and blew out its windows. The
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next day, the FARC called Cardona Rivera at the family business to declare
responsibility for the bombing. The FARC said that the bombing had been the
family’s last warning and demanded the war tax.
Cardona Rivera and his brother fled Tulua and made arrangements to come
to the United States. After Cardona Rivera fled Tulua, one of his other brothers,
Victor Hugo, began receiving phone calls demanding the war tax. Cardona
Rivera’s wife and children also began receiving threatening phone calls at the
family business. In March 2001, Cardona Rivera’s wife and children fled to the
United States and were charged with removability for lack of valid entry
documents. In August 2001, the Immigration and Naturalization Service also
charged Cardona Rivera with removability for remaining in the United States for a
time longer than permitted.
Cardona Rivera and his family filed for asylum and withholding of removal
based on the same events in Colombia, and the cases were consolidated. In
addition to the family’s testimony about the events leading up to their flight to the
United States, the petitioners presented evidence about the operations of the FARC
in Colombia. Cardona Rivera testified that the majority of businessmen in
Colombia are threatened and that he would be persecuted if returned to Colombia
because he owes the war tax. Cardona Rivera also testified that, although he did
not hold a position with the Liberal Party, he thought he was targeted to pay the
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war tax based on his family’s monetary support for the Liberal Party. Dr. Luz
Stella Nagle, a former Colombian judge, testified that the political mission of the
FARC is to attack small business owners to undermine the economy and
government. She explained that any politically active Colombian is considered a
threat to the FARC but that, if an individual pays a war tax, that person would be
viewed by the FARC as “a supporter and one of their friends.”
The petitioners presented two articles about the practice of the FARC of
extorting money from middle and upper-class businessmen. A January 3, 2000,
article explained that “[t]he principle aim of most . . . extortion operations is to
raise revenue” and that the FARC has “vowed to make the country’s middle and
upper class feel the pain of protracted conflict whose principal victims have long
been civilians in rural areas.” Both articles explained that the FARC employs a
sophisticated process for gaining information on the wealth of their prospective
extortion targets and that the rate of extortion increased in 1999.
Other documentary evidence corroborated that this method of extortion is
common. The United Kingdom 2003 Country Report and the 2003 U.S.
Department of State Country Report state that the FARC targets small and
medium-sized business owners for extortion. The country reports also explain that
the FARC persecutes and assassinates political leaders and government officials.
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The Immigration Judge denied the applications for asylum and withholding
of removal. The Immigration Judge found the petitioners to be credible and
determined that the FARC was behind the threats and murders against their family
but concluded that these incidents did not “lay a basis for past persecution” on
account of political opinion. The Immigration Judge found that neither Cardona
Rivera nor any of his family members held positions in the Liberal Party or the
Colombian government. The Immigration Judge reasoned that, had the FARC
targeted the petitioners for persecution on account of their political opinion, the
FARC would have attempted to harm or kill them instead of threatening harm or
death if they did not pay the tax. The Immigration Judge found it especially
relevant that the FARC killed Cardona Rivera’s father several years after he first
refused to pay the tax and had never attempted to kill or harm the petitioners. The
Immigration Judge found that the behavior of the FARC was more consistent with
its pattern of criminally motivated extortion than political persecution. The Board
affirmed without opinion.
II. STANDARDS OF REVIEW
When the Board adopts the Immigration Judge’s decision without opinion,
we review only the decision of the Immigration Judge. Silva v. U.S. Att’y Gen.,
448 F.3d 1229, 1236 (11th Cir. 2006). To the extent the Immigration Judge’s
decision is based on a legal determination, we review it de novo. Mohammed v.
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Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). “This court reviews
administrative fact findings under the highly deferential substantial evidence test.”
Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). 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 v. Ashcroft,
257 F.3d 1262, 1284 (11th Cir. 2001) (internal quotation marks omitted). “Under
the substantial evidence test, we view the record evidence in the light most
favorable to the agency’s decision and draw all reasonable inferences in favor of
that decision.” Adefemi, 386 F.3d at 1027. “In sum, findings of fact made by
administrative agencies, such as the BIA, may be reversed by this [C]ourt only
when the record compels a reversal; the mere fact that the record may support a
contrary conclusion is not enough to justify a reversal of the administrative
findings.” Id.
III. DISCUSSION
Cardona Rivera and his family petition for review of the denial of their
applications for both asylum and withholding of removal. There are separate but
related standards for evaluating requests for these two forms of relief. The denial
of an application for asylum ordinarily requires the denial of an application for
withholding of removal.
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Under the Immigration and Naturalization Act, the Attorney General may
grant asylum if an alien meets the statutory definition of a “refugee.” See 8 U.S.C.
§ 1158(b)(1)(A). A “refugee” is “any person who is outside any country of such
person’s nationality” who is unwilling to return to 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.” Id.
§ 1101(a)(42)(A). To prove their status as refugees, the petitioners must, with
specific and credible evidence, establish (1) past persecution on account of a
statutorily protected ground or (2) a “well-founded fear” of future persecution on
account of a protected ground. 8 C.F.R. § 208.13(b). “An imputed political
opinion, whether correctly or incorrectly attributed, may constitute a ground for a
well-founded fear of political persecution within the meaning of the INA.” Al
Najjar, 257 F.3d at 1289 (internal quotation marks and citations omitted).
To be entitled to withholding of removal, the petitioners must meet a higher
evidentiary threshold than the “well-founded fear” standard for asylum. The
petitioners must establish that they would “more likely than not” be persecuted on
account of a protected ground if returned to Colombia. Fahim v. U.S. Att’y Gen.,
278 F.3d 1216, 1218 (11th Cir. 2002). “If an applicant is unable to meet the ‘well-
founded fear’ standard for asylum, he is generally precluded from qualifying for
either asylum or withholding of [removal].” Nkacoang v. INS, 83 F.3d 353, 355
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(11th Cir. 1996); see also Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1324 n.2
(11th Cir. 2001).
The petitioners argue that the record of their family’s experiences in
Colombia compels the conclusion that the FARC would persecute them upon their
return and compels the conclusion that the persecution would be on account of
their actual or imputed political opinion. We assume, without deciding, that the
petitioners’ experiences in Colombia prove that they have a well-founded fear of
persecution upon their return. Even with that assumption, we conclude that the
record does not compel the finding that the petitioners either were persecuted or
have a well-founded fear of future persecution on account of political opinion.
There is no dispute that the FARC persecuted the petitioners, at least in part,
because they were wealthy and refused to pay the tax; therefore, their applications
for asylum and withholding of removal are predicated on a “mixed motive” theory.
This Court has held that an applicant is entitled to withholding of removal “[i]f
[he] can show that persecution was, at least in part, motivated by a protected
ground.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). Because
the burden of proof to establish eligibility for asylum is lower than the burden of
proof to establish a right to withholding of removal, it follows that mixed-motive
persecution establishes eligibility for asylum as well. See De Brenner v. Ashcroft,
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388 F.3d 629, 636 (8th Cir. 2004); Borja v. INS, 175 F.3d 732, 735-36 (9th Cir.
1999) (en banc); Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir. 1994). So long as an
applicant for asylum proves with specific and credible evidence he or she has a
well-founded fear of persecution on account of a protected ground, it matters not
that his or her persecutors may have additional motives for their actions. See In re
S–P–, 21 I. & N. Dec. 486, 490 (BIA 1996) (in a mixed-motive case, “the applicant
[must] produce[] evidence from which it is reasonable to believe that the harm was
motivated by a protected ground”).
The issue before us is whether the record compels a finding that at least one
motivation of the alleged persecutors involved a protected ground. The petitioners
employ two theories to establish a nexus between their fear of persecution by the
FARC and their actual or imputed political opinion. Neither theory is persuasive.
The petitioners first argue that the record compels the finding that their
family was targeted for the war tax, in part, based on their support for the Liberal
Party, but the contrary finding of the Immigration Judge is supported by substantial
evidence. The country reports and articles in the record detail political
assassinations and kidnappings but explain that extortions are primarily a method
of raising revenue and a tactic to undermine the legitimacy of the Colombian
government. The country reports and articles also establish that the FARC
employs sophisticated techniques to identify extortion targets based on their ability
10
to pay, but the FARC assassinates, kidnaps, or assaults political enemies. Dr.
Nagle also testified that the FARC selects targets based on their income, not their
politics.
The record does not compel the conclusion that the FARC varied from its
usual practices. The FARC never demanded that Cardona Rivera cease any
political activities, never accused Cardona Rivera of being a government operative,
and never demanded that his family cease involvement in the Liberal Party.
Cardona Rivera did not occupy a post in either the Liberal Party or the
government. Although Cardona Rivera wrote in his application that “the FARC
told [my father] that in the same way that we collaborated with the Liberal Party
we had to collaborate with them,” the Immigration Judge reasonably surmised that,
in context, Cardona Rivera made this statement to explain that the war tax was not
voluntary. The record does not compel the conclusion that the FARC targeted
Cardona Rivera’s father because of his donations to the Liberal Party. Cf. Borja,
175 F.3d at 737 (holding that petitioner was extorted on account of her political
opinion when she was targeted for extortion after a “hostile political confrontation
with [the guerrillas]”).
This record contrasts with the record in De Brenner v. Ashcroft, for
example. There the Eighth Circuit reversed the determination of the Board that an
asylum applicant who had been extorted by the Shining Path guerrillas in Peru was
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not persecuted on account of political opinion. 388 F.3d at 639. The court
explained that “the Shining Path guerrillas expressly named Ms. De Brenner as a
member and supporter of the APRA [a political party], accused her family of
supporting the government, and mistakenly singled her out as an actual worker for
the APRA (alleging that she was employed as the personal secretary of the
Director of the Mineral Bank who was a senior, active member of the APRA).” Id.
at 637.
The petitioners next argue that they refused to pay the war tax on account of
their family’s political opposition to the FARC and this political opposition is
sufficient to render the likely persecution of their family “on account of” their
political opinion. We disagree. Even if we were to assume that the record compels
the finding that Cardona Rivera’s father and his family refused to pay the war tax
for political reasons, this finding would not establish persecution on account of
political opinion. In INS v. Elias-Zacarias, the Supreme Court reasoned that it is
not enough for an asylum applicant to prove that he refused to cooperate with
guerrillas because of his political opinion. 502 U.S. 478, 483, 112 S. Ct. 812, 816
(1992). “Even if [the evidence compels the conclusion that the petitioner refused
to cooperate with the guerrillas because of his political opinion, the petitioner] still
has to establish that the record also compels the conclusion that he has a ‘well-
founded fear’ that the guerrillas will persecute him because of that political
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opinion, rather than because of his refusal to [cooperate] with them.” Id. We also
have held that “[i]t is not enough to show that [the petitioner] was or will be
persecuted or tortured due to [the petitioner’s] refusal to cooperate with the
guerillas.” Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004).
Although Dr. Nagle testified that the FARC imputes a political opinion to
any person who refuses to pay a war tax, this statement is unsupported by the
country reports. Instead, the country reports support the Immigration Judge’s
finding that, more often than not, the FARC does not care about a business owner’s
political opinion. The country reports and newspaper articles explain that business
owners, once targeted for taxation, will be harassed until they pay but that even a
grudging payment of the war tax ordinarily ends the harassment.
There is substantial evidence to support the Immigration Judge’s finding that
the motive of the FARC for persecuting the petitioners’ family was to raise funds
for its war against the Colombian government. Neither Dr. Nagle’s testimony nor
any other evidence compels the finding that the FARC demanded that the
petitioners’ family pay a war tax as a political litmus test. The FARC committed
violence against the petitioners’ family only after they refused to pay the tax for
several years, long after the FARC would have imputed a political opinion to
Cardona Rivera’s father. After the murders of Cardona Rivera’s father and
brother, the FARC harassed, threatened, and extorted the family solely for the war
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tax. The FARC did not target the petitioners for assassination or kidnapping as it
does its political enemies. “It is quite plausible, indeed likely, that [persecution]
would be engaged in by the guerrillas in order to augment their [income] rather
than show their displeasure” with the petitioners’ political opinion. Elias-Zacarias,
502 U.S. at 483 n.2, 112 S. Ct. at 816 n.2. “Although other inferences about the
guerillas’ motives may be drawn, it is not our task to do so as long as substantial
evidence supports the [Immigration Judge’s] conclusion.” Perlera-Escobar v.
Exec. Off. for Immigration, 894 F.2d 1292, 1299 (11th Cir. 1990). “[E]ven if the
evidence could support multiple conclusions, we must affirm the agency’s
decision.” Adefemi, 386 F.3d at 1029.
Based on the foregoing discussion, we must deny the petitions for review of
the denial of the petitioners’ applications for asylum and withholding of removal.
The record does not compel the finding that the petitioners have a credible fear of
persecution on account of their actual or imputed political opinions. Because the
record does not compel the determination that there is a reasonable probability that
the petitioners will be persecuted on account of their political opinion, they also do
not meet the greater evidentiary burden for establishing eligibility for withholding
of removal. Silva, 448 F.3d at 1243.
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IV. CONCLUSION
The petitions for review of the decision of the Board of Immigration
Appeals are
DENIED.
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