Eduardo Angel-Osorio v. U.S. Atty. Gen.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 20, 2005
No. 05-11863 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

BIA Agency No. A95-233-002

EDUARDO ANGEL-OSORIO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 20, 2005)

Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Eduardo Angel-Osorio (“Angel-Osorio”), 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 his application

for asylum under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-

1537. Substantial evidence supports the IJ’s decision. Petition DENIED.

I. BACKGROUND

On 14 December 2001, Angel-Osorio, a citizen and native of Colombia,

filed an application for asylum, based on his membership in a particular group and

his political opinion, claiming that he had been harassed and threatened with death

by the Revolutionary Armed Forces of Colombia (“FARC”). In his application, he

stated that, in 1990, he and his parents had moved to the city of Armenia, where

they established themselves as farmers and created a fumigation services business.

Angel-Osorio eventually became a manager of the company. While there, he was

an active member of the Colombian Liberal Party and later a member of the small

faction called the “Liberal Integration Movement of the Department of Quindio”

(“ILMQ”). He stated that he led the ILMQ movement in his area, through which

he worked on various political campaigns and marketed his company’s services

and products to local farmers.

Beginning in May of 1998, according to Angel-Osorio, the Colombian army

established its camp on his family’s farm for about two months, two or three times
2
a year. In response, the “50th Front” of the FARC sent messages to the farm which

accused Angel-Osorio of being a government spy and collaborator with politicians.

After the army left, the FARC demanded a war tax from him. When he refused to

pay, the FARC stole his cattle and sabotaged his equipment.

Near the end of 1999, his continued refusal to comply with its demands led

the FARC to phone death threats and to infiltrate his farm with a member posing as

an employee. Due to the intensity of these threats, Angel-Osorio sent his wife and

son to live with his mother-in-law in Medellin. On 31 January 2000 he came to the

United States “to wait for the situation to calm down.” Exhs., Vol. 1 at 182.

On 9 September 2000, Angel-Osorio returned to Colombia. He relocated his

family to Medellin and revived his fumigation business there. In March of 2001, he

was intercepted by a FARC roadblock, but the FARC allowed him to leave after

examining his documentation. After the roadblock, he once again received

threatening phone calls from the FARC, which repeated its demand for a war tax.

On 5 May 2001, he received a message that, if he did not pay the war tax by 8 May

2001, he “could consider [him]self a dead man.” Id. at 183. On 20 May 2001, he

fled to the United States.

In December 2001, Angel-Osorio filed a request for asylum and withholding

of removal. On 22 March 2002, the Immigration and Naturalization Service (INS)

issued a notice to appear, charging that Angel-Osorio was subject to removal as a
3
nonimmigrant who had remained in the United States for a time longer than

permitted. Before the immigration judge (“IJ”), Angel-Osorio conceded his

removability and requested asylum, withholding of removal, and relief under the

United Nations Convention Against Torture and Other Cruel, Inhuman and

Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c).1 The

government then submitted the 2001 and 2002 U.S. State Department’s Country

Reports on Human Rights Practices for Colombia, which stated that the FARC is a

guerrilla group well-known, inter alia, for killing, attacking, and threatening

military personnel and citizens who do not cooperate with them, and for kidnaping

and threatening business owners for refusing to comply with the FARC’s “Law

002,” which demands taxes from anyone with assets of over one million pesos.

During his asylum hearing, Angel-Osorio further alleged that, since 1999,

three of his family’s business associates, including his uncle, have been kidnaped

and ransomed by the FARC. His wife and son, however, have remained in

Colombia without incident. While his father has received threats from the FARC,

he has not been harmed.

In an oral decision, the IJ found that Angel-Osorio was credible but,

1
Angel-Osorio does not raise any challenge in his brief to the denial of relief under either
withholding of removal or the CAT. When an appellant fails to offer argument on an issue, that
issue is abandoned. See Sepulveda v. U.S. Attorney General, 401 F.3d 1226, 1228 n.2 (11th Cir.
2005)(per curiam)(citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998)).
4
nonetheless, did not establish eligibility for asylum. Specifically, the IJ could not

find that the FARC’s demand for war tax related to his political activities or any

other protected ground. Even if Angel-Osorio was targeted for his political

activities, the IJ concluded that the harassment against him did not amount to past

persecution nor did it establish a well-founded fear of future persecutions.

Angel-Osorio appealed to the BIA, arguing that, since his life was threatened

numerous times by the FARC, the IJ erred by finding that he failed to establish past

persecution. He argued that he was targeted because: (1) the FARC saw him as a

collaborator with the government; (2) he was a member of a political party adverse

to the guerrillas; and (3) he refused to pay the war tax. He further contended that,

because he established past persecution, he was entitled to a presumption of future

persecution, which the government failed to rebut. Without opinion, the BIA

affirmed the IJ’s decision. In his petition, Angel-Osorio argues that the BIA

committed error by not finding that the threats and harassment he endured fell

within the level of persecution required by the Immigration and Nationality Code.

II. DISCUSSION

A. Standard of Review

We only review the BIA’s decision, “except to the extent that it expressly

adopts the IJ's opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). “Insofar as the [BIA] adopts the IJ's reasoning, we will review the IJ's
5
decision as well.” Id. In this case, because the BIA expressly adopted the IJ’s

decision, we will review the IJ’s decision as if it were the BIA’s. See id. To the

extent that the IJ’s decision was based on a legal determination, review is de novo.

Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). The IJ’s factual

determinations, however, are reviewed “under the highly deferential substantial

evidence test,” which requires us to “view the record in the light most favorable to

the [IJ]’s decision and draw all reasonable inferences in favor of that decision.”

Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004)(en banc), cert.

denied, ___ U.S. ___, 125 S.Ct. 2245 (2005). 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, 257 F.3d at 1284 (quoting Lorisme v. INS, 129

F.3d 1441, 1444-45 (11th Cir. 1997)). “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.” Sepulveda, 401 F.3d at 1230 (citing INS

v. Elias-Zacarias, 502 U.S. 478, 481 n.1, 112 S. Ct. 812, 815 n.1 (1992); Adefemi,

386 F.3d at 1027).

B. Asylum

An alien who arrives in, or is present in, the United States may apply for

asylum. 8 U.S.C. § 1158(a)(1). The Secretary of Homeland Security and the
6
Attorney General both have the discretion to grant asylum if the alien meets the

Code’s definition of a “refugee.” Id. § 1158(b)(1)(A). In relevant part, a

“refugee” is defined as:

any person who is outside any country of such person’s nationality . . .
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 . . . .

Id. § 1101(a)(42)(A). The asylum applicant carries the burden of proving

statutory “refugee” status. Al Najjar, 257 F.3d at 1284. To establish asylum

eligibility, the alien must, with specific and credible evidence, establish (1) past

persecution on account of a statutorily listed factor, or (2) “a well-founded fear”

that the statutorily listed factor will cause future persecution. 8 C.F.R. § 208.13(a)-

(b); Al Najjar, 257 F.3d at 1287. As such, “an applicant must demonstrate that his

or her fear of persecution is subjectively genuine and objectively reasonable.” Al

Najjar, 257 F.3d at 1289. Further, “[t]he applicant must also establish a causal

connection between the [statutory ground] and the feared prosecution, presenting

specific, detailed facts showing a good reason to fear that he or she will be singled

out for persecution on account of [the statutory ground].” Sepulveda, 401 F.3d at

1231 (internal quotations omitted). We have stated that “where the alleged

persecutors are not affiliated with the government, it is not unreasonable to require

7
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 the United

States Attorney General, 241 F.3d 1320, 1327 (11th Cir. 2001).

Although neither the INA nor the regulations define “persecution,” 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 mere harassment does not amount to persecution.” Sepulveda, 401 F.3d at

1231 (11th Cir. 2005) (internal quotations and alteration omitted). Moreover, we

have recognized 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.” Sanchez v.

U.S. Attorney General, 392 F.3d 434, 438 (11th Cir. 2004) (citing Abdille v.

Ashcroft, 242 F.3d 477, 494-95 (3d. Cir. 2001)).

As an initial matter, substantial evidence exists to support the IJ’s decision

that Angel-Osorio was not targeted because of membership in a particular social

group or his political opinion but was targeted instead for economic and monetary

reasons. As for membership in a particular social group, Angel-Osorio did not

provide sufficient evidence to compel the conclusion that the FARC specifically

targeted him because he shared a protected characteristic with others, as opposed to
8
targeting him simply because the group wanted to extort large amounts of money.

See In re Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), (noting further that the

common characteristic defining a particular social group “must be one that the

members of the group either cannot change, or should not be required to change

because it is so fundamental to their individual identities or consciences”),

overruled on other grounds, Matter of Mogharrabi, 19 I. & N. Dec. 439, 441 (BIA

1987); see also Garcia et al. v. United States Attorney General, No. 04-12185,

2005 U.S. App. LEXIS 16991, at *14 (11th Cir. Aug. 10, 2005) (“shared economic

status does not create a social group for asylum purposes.”).

As for his political opinion, while there is some mention by the FARC of

Angel-Osorio being corrupt and collaborating with government officials, the

evidence similarly does not compel the conclusion that the FARC targeted Angel-

Osorio to punish him for his political opinion, rather than to raise funds for its own

activities through the war tax. See INS v. Elias-Zacarias, 502 U.S. 478, 483, 112

S. Ct. 812, 816 (1992); Sanchez, 392 F.3d at 438. Additionally, his involvement

with a small political affiliate of the Colombian Liberal Party, the ILMQ, in which

he participated for both economic and political reasons, also does not compel the

conclusion that the FARC’s alleged persecution was on account of his political

opinion. In short, there is insufficient evidence to compel a finding that a nexus

exists between his political opinion and the FARC’s onerous demands. See Elias-
9
Zacarias, 502 U.S. at 483, 112 S. Ct. at 816.

Even assuming that the FARC targeted Angel-Osorio on account of a

statutorily listed factor, the few isolated incidents of harassment in this case were

not so menacing and immediate as to rise to the level of persecution. The essence

of his claim is that members of FARC phoned him multiple times to demand

extortion money and threaten his life, had one abortive attempt to infiltrate his

farm, and briefly detained him at a roadblock. Under our precedent, such actions

are insufficient to amount to past persecution. See Sepulveda, 401 F.3d at 1231

(concluding that mail and phone threats and the bombing of a restaurant where

petitioner worked did not constitute persecution); Gonzalez v. Reno, 212 F.3d

1338, 1355 (11th Cir. 2005) (noting that “‘persecution’ requires more than a few

isolated incidents of verbal harassment or intimidation, unaccompanied by any

physical punishment, infliction of harm, or significant deprivation of liberty”)

(quoting Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998)). Moreover,

contrary to Angel-Osorio’s contention, the level of alleged persecution in this case

was lower than the persecution in Bellido v. Ashcroft, where the petitioner was

physically abused while in custody pursuant to an illegal arrest. See 367 F.3d 840,

846 (8th Cir. 2004).

Substantial evidence also supports the IJ’s conclusion that the petitioner

failed to establish a well-founded fear of future persecution. As previously noted,
10
the FARC’s alleged persecution of Angel-Osorio consisted almost exclusively of

phone threats and Angel-Osorio never was physically harmed. This undercuts his

claim that he fears that he will be persecuted should he return to Colombia.

Further undercutting his fear of future persecution is the evidence that (1) his

family has remained unharmed in Colombia; and (2) he came to the United States,

following what he called “intense” threats from the FARC and, rather than

applying for asylum, he shortly thereafter returned to Colombia. Although Angel-

Osorio may subjectively fear that he will be persecuted by the FARC upon his

return to Colombia, his fear is not objectively reasonable based on the record

evidence. See Al Najjar, 257 F.3d at 1289. Moreover, the evidence does not

compel a conclusion that Angel-Osorio will be singled out for alleged persecution

on a statutorily protected ground rather than for his wealth and his refusal to pay

extortion money.

III. CONCLUSION

Angel-Osorio has appealed the BIA’s final order affirming the IJ’s denial of

his application for asylum. Under our highly deferential standard of review, we

hold that the IJ’s decision denying asylum is supported by substantial evidence.

Petition DENIED.