[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 25, 2007
THOMAS K. KAHN
No. 06-12907
CLERK
________________________
Agency No. A97-204-149
GLORIA ARCIBELLY LOPEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 25, 2007)
ON PETITION FOR REHEARING
Before CARNES and WILSON, Circuit Judges, and STAGG,* District Judge.
CARNES, Circuit Judge:
*
Honorable Tom Stagg, United States District Judge for the Western District of
Louisiana, sitting by designation.
We grant the government’s petition for rehearing, withdraw our previous
opinion dated July 6, 2007, and published at 490 F.3d 1312, and substitute the
following opinion in its place:
Gloria Arcibelly Lopez, a Colombian native, joined the Colombian Liberal
Party in 1995 as a community coordinator, providing humanitarian assistance to
residents of poor communities and conducting seminars on the principles of the
Liberal Movement. In January 1998 she began receiving threatening phone calls
from the Revolutionary Armed Forces of Colombia, the FARC. The callers
instructed her to abandon her activities with the Liberal Party. Lopez did not
report the calls to the police.
In April 1999, Lopez returned to Colombia after spending six months in the
United States with her mother. She resumed her Liberal Party activities, and in
September of that year, after leaving a community event, she was approached by a
man and a woman who identified themselves as FARC members, insulted her, and
told her that she should resign from the Liberal Party and not come back to the
area. Lopez continued her work. On November 27, 1999, she was confronted by
a man and two women.1 They told her: “We are from FARC revolutionary
1
The IJ’s order states that Lopez was attacked by two women, but Lopez’s own
testimony, which we must accept as true, indicates that she was attacked by two women and a
man.
2
militias and we already warned you that you should not return to these places.”
Then they began hitting her about the face and arms, eventually throwing her to
the ground. Nothing was stolen from Lopez, but as a result of the attack she was
forced to seek medical attention. The medical report found: “[c]onclusive trauma
on [her] face, thorax and arms,” lacerations on her forearm and elbow, and at least
some bruising. Again, Lopez did not file a police report.
After that attack, Lopez withdrew from her political activities for some time.
Then in June 2001, Lopez resumed her humanitarian work. Even though she tried
to be more discrete, local residents warned her that members of the FARC were
asking about her. The FARC made threatening phone calls both to Lopez’s place
of work and to a rental property she owned, which resulted in Lopez once more
stopping her community involvement for a while. Again, she made no police
report.
In August 2002 Lopez and her mother began conducting training
workshops, which were supported by the Liberal Party, to teach local women how
to manage their household finances. She was warned by her students on October
12, 2002 that she needed to be careful, and on October 19, 2002, at the end of a
session, three armed men burst into the classroom and told Lopez: “We are
members of FARC’s urban militia[;] we sent you a message last week with one of
3
our students. We don’t want any shit workshops in our territory because what you
are doing is trying to brainwash our people and buy votes for those SOB
politicians.” Lopez left Colombia and arrived in the United States on November
8, 2002.
On July 15, 2003, the Department of Homeland Security issued Lopez, who
had overstayed her visa, a notice to appear. At a hearing in October 2003 Lopez
appeared and conceded her removability. She sought asylum, withholding of
removal, and relief under the Convention Against Torture. Although the IJ failed
to make an explicit credibility finding, she stated: “we are to take everything that
she has told the Court today at face value.” Even though she accepted Lopez’s
testimony as true, the IJ found that she had failed to meet her burden of proof in
establishing refugee status and denied all three of her requests.
More specifically, the IJ found that Lopez had not established that she had
suffered past persecution, because the activities she engaged in that drew the ire of
FARC were community-based and not political in nature, the menacing phone
calls and threats she received were not severe enough, and she had failed to show
that the one physical attack on her was more than a random act of violence. The IJ
also held that Lopez’s claims were due to be denied “because in this case she does
not even contact the authorities in order to obtain their protection first before
4
traveling outside of her home country to obtain the protection of the United
States.”
Lopez timely appealed the IJ’s decision to the BIA, challenging the denial
of her asylum and withholding of removal claims but abandoning her CAT claim.
The BIA adopted and affirmed the IJ’s decision “as described herein.” The BIA
stated it agreed with the IJ “that because the respondent did not seek protection
from law enforcement authorities in Colombia after her encounters with the
[FARC] . . . she failed to demonstrate that the Colombian government is unable or
unwilling to protect her.” This appeal followed.
Lopez now contends that the BIA erred (1) in finding that she did not suffer
past persecution sufficient to merit asylum and (2) in denying her petition for
relief on the ground that she had failed to seek help from the Colombian
authorities, which she claims would have been futile.
I.
When the BIA issues a decision, we review only that decision, except to the
extent the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). The BIA’s legal determinations are reviewed de
novo. D-Muhumed v. United States Att’y Gen., 388 F.3d 814, 817 (11th Cir.
2004). However, any factual determinations are reviewed under the substantial
5
evidence test, and we “must affirm the . . . decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Al Najjar, 257 F.3d at 1283–84 (quotation marks omitted). That means a
finding of fact will be reversed “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. . . . ” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en
banc).
II.
Lopez first contends that the IJ erred in finding that she did not suffer past
persecution in Colombia. We will not address this contention because the IJ’s
finding that it concerns was not adopted by the BIA in its decision and therefore
does not form any part of the order currently under review. We can review only
the final administrative order, which is the decision of the BIA. Chen v. United
States Att’y Gen., 463 F.3d 1228, 1230 (11th Cir. 2006) (“Where the BIA issues a
decision, we review that decision, except to the extent that it expressly adopts the
IJ's opinion.”); Al Najjar, 257 F.3d at 1284 (“We review only the Board’s
decision, except to the extent that it expressly adopts the IJ’s opinion.”).
The only conclusion of the IJ that the BIA adopted and affirmed was the one
that Lopez’s asylum and withholding of removal claims were deficient because
6
she did not first seek the protection of the Colombian government. Because this is
all that we are permitted to review, we deny Lopez’s petition to the extent that it
asks us to review the past persecution part of the IJ decision.
III.
Lopez also contends that the IJ erred in denying her asylum and withholding
of removal claims because she had failed to seek help from the Colombian
authorities, which she argues would have been futile. The BIA did adopt the IJ’s
decision that by failing to seek protection from law enforcement authorities in
Colombia after her encounters with FARC, Lopez failed to demonstrate that the
Colombian government was unable or unwilling to protect her. We can and will
review that part of the decision.
We have said that “[a]s a matter of immigration policy, a government may
expect that an asylum seeker be unable to obtain protection anywhere in his own
country before he seeks the protection of another country.” Mazariegos v. United
States Att’y Gen., 241 F.3d 1320, 1327 (11th Cir. 2001). As a result, in order to
satisfy her burden of establishing asylum eligibility, Lopez must show not only
past persecution or a well-founded fear of future persecution, but also that she is
unable to avail herself of the protection of her home country. Id.
7
The BIA ruled that because Lopez did not “seek protection from law
enforcement authorities in Colombia after her encounters with the [FARC] . . . she
failed to demonstrate that the Colombian government is unable or unwilling to
protect her.” Although it is not entirely clear, the ruling appears to be that the
failure to seek protection without more is enough to defeat a claim for asylum. If
so, that decision is not fully consistent with In re S-A-, 22 I. & N. Dec. 1328, 1335
(BIA 2000). Although the failure to report persecution to local government
authorities generally is fatal to an asylum claim, Mazariegos, 241 F.3d at 1327, the
BIA in S-A- held that it would be excused where the petitioner convincingly
demonstrates that those authorities would have been unable or unwilling to protect
her, and for that reason she could not rely on them. 22 I. & N. Dec. at 1335.
Lopez contends that through her testimony and the country reports she has
convincingly made the showing required by S-A-, and that is a contention which
neither the IJ nor the BIA addressed. It should be addressed on remand. See
Gonzalez v. Thomas, 547 U.S. 183, 186, 126 S. Ct. 1613, 1615 (2006) (per
curiam) (“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.’ Rather, ‘the proper course, except in rare circumstances, is to
8
remand to the agency for additional investigation or explanation.’” (quoting INS v.
Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355 (2002) (per curiam)).
Accordingly, we DENY in part and GRANT in part the petition for review
and REMAND this proceeding to the BIA for further consideration consistent
with this opinion.
9