Leyla Ines C.D. Medina 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[DO NOT PUBLISH]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
February 27, 2006
No. 05-13680 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

BIA Nos.
A78-599-103
A78-599-104

LEYLA INES CRISSIEN MEDINA,
RICARDO ANTONIO MEDINA SOTO,
RICARDO AUGUSTO MEDINA CRISSIEN,
MAURICIO ALEJANDRO MEDINA CRISSIEN,
ANDRES FELIPE MEDINA CRISSIEN,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of an Order of the
Board of Immigration Appeals
_________________________

(February 27, 2006)

Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:

Leyla Ines Crissien Medina (“Medina”), her husband Ricardo Antonio

Medina Soto, and their children Ricardo Augusto Medina Crissien, Mauricio

Alejandro Medina Crissien, and Andres Felipe Medina Crissien, (collectively the

“petitioners”) petition for review of the BIA’s adoption and affirmation of the

Immigration Judge’s (“IJ”) order of removal and denial of asylum and withholding

of removal under the Immigration and Nationality Act (“INA”) and relief under the

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishment (“CAT”). On appeal, Medina asserts that she was persecuted in

Colombia on account of her imputed political opinion, through her membership in

the Liberal Party, and that she has demonstrated a well-founded fear of future

persecution if she were returned to Colombia because of her past activities against

the Revolutionary Armed Forces of Colombia (“FARC”). She also argues that the

IJ did not question her credibility or her participation with the Liberal Party, and

that her testimony was credible. Medina further argues that she qualifies for CAT

relief because guerilla movements in Colombia, such as the FARC, constituted the

government there and because she demonstrated fear under CAT.

Asylum

As an initial matter, we “are obligated to inquire into subject-matter

jurisdiction sua sponte whenever it may be lacking.” Cadet v. Bulger, 377 F.3d
2
1173, 1179 (11th Cir. 2004) (quotation omitted). An alien must file her asylum

application “within [one] year after the date of [her] arrival in the United States.”

INA § 208(a)(2)(B); 8 U.S.C. § 1158(a)(2)(B). An untimely application “may be

considered . . . if the alien demonstrates to the satisfaction of the Attorney General

either the existence of changed circumstances which materially affect the

applicant’s eligibility for asylum or extraordinary circumstances relating to the

delay in filing an application . . . .” INA § 208(a)(2)(D); 8 U.S.C. § 1158(a)(2)(D).

The determination of whether an alien can apply for asylum, however, is left

exclusively to the Attorney General, and 8 U.S.C. § 1158(a)(3) “divests our Court

of jurisdiction to review a decision regarding whether an alien complied with the

one-year time limit or established extraordinary circumstances that would excuse

his untimely filing.” Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th

Cir. 2003). Further, we have held that the REAL ID Act of 2005, Pub. L. No. 109-

13, 119 Stat. 231 (2005), does not alter this conclusion. Chacon-Botero v. U.S.

Attorney Gen., 427 F.3d 954, 957 (11th Cir. 2005) (per curiam).

Here, the BIA and IJ determined that the petitioner’s asylum application was

untimely and that they had failed to establish changed or extraordinary

circumstances to excuse the untimeliness. Accordingly, because we lack

jurisdiction to consider the denial of the asylum claim as time-barred, we dismiss

the petition for review as to the petitioner’s claim for asylum. Nevertheless, we
3
still must consider their claim for withholding of removal under the INA and relief

under the CAT.

Withholding of Removal

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

adopts the IJ’s opinion. Insofar as the [BIA] adopts the IJ’s reasoning, we will

review the IJ’s decision as well.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th

Cir. 2001) (citation omitted). Here, because the BIA expressly adopted the IJ’s

decision, we review the IJ’s decision and the BIA’s. To the extent that the IJ’s and

the BIA’s decisions were based on a legal determination, review is de novo. See

Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001). 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, 125 S. Ct. 2245 (2005). If the BIA’s and the IJ’s decision “is supported by

reasonable, substantial, and probative evidence on the record considered as a

whole,” we must affirm. Id. at 1027 (quotation omitted). With respect to

corroborating evidence, the REAL ID Act of 2005 provides that, “[n]o court shall

reverse a determination made by a trier of fact with respect to the availability of

corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact
4
is compelled to conclude that such corroborating evidence is unavailable.” REAL

ID Act of 2005 § 101(e).

An IJ may grant withholding of removal if the IJ decides that, if returned to

her country, “the alien’s life or freedom would be threatened . . . on account of

[her] race, religion, nationality, membership in a particular social group, or

political opinion.” INA § 241(b)(3)(A); 8 U.S.C. § 1231(b)(3)(A). Additionally,

an alien may receive withholding of removal based on an imputed political opinion

that the alien does not actually hold. See Sanchez v. U.S. Attorney Gen., 392 F.3d

434, 438 (11th Cir. 2004) (per curiam). The burden of proof is on the alien to

show her eligibility for withholding of removal. 8 C.F.R. § 208.16(b). An alien is

entitled to withholding of removal if she can establish a past threat to life or

freedom through proof of past persecution on account of a protected ground, or a

future threat to life or freedom if it “is morely likely than not” that the protected

ground will cause future persecution. 8 C.F.R. § 208.16(b)(1), (2).

In order to review a credibility determination, it must first be established that

the IJ made an adverse credibility finding. See Yang v. U.S. Attorney Gen., 418

F.3d 1198, 1201 (11th Cir. 2005) (stating that “IJ’s must make clean

determinations of credibility.”) (quotation omitted).

The petitioners did not present significant corroborating evidence to the IJ,

and applying the deferential standard of review from the REAL ID Act, we are not
5
compelled to conclude that any corroborating evidence in support of their claim

was unavailable at the time of their hearing. See REAL ID Act of 2005 § 101(e).

In addition, neither the IJ nor the BIA made an explicit credibility finding about

Medina, the only petitioner to testify, as described in Yang. Therefore, we do not

reach the issue of whether the IJ erred in adversely determining Medina’s

credibility. See Yang, 418 F.3d at 1201.

Nevertheless, substantial evidence supports the IJ’s determination that the

petitioners failed to establish past persecution or a well-founded fear of future

persecution based on her imputed political opinion. Although the petitioners

provided evidence corroborating Medina’s political involvement during the 1970s

and her work for a communal action board, they provided no evidence that she was

active in Colombian politics or activities about which the FARC could impute any

political opinion to her around the time that the FARC threatened her and her

family. Therefore, the petitioners failed to demonstrate that the FARC persecuted

Medina in the past on account of her imputed political opinion. See 8 C.F.R. §

208.16(b)(1); Sanchez, 392 F.3d at 438. Also, Medina has not engaged in any

political activity in Colombia for several years, which weakens her claim that she

has a well-founded fear of future threat to her life or freedom by the FARC based

on her imputed political opinion.

6
CAT Relief

In order to obtain relief under the CAT, the burden is on the applicant to

establish that it is “more likely than not” that he will be tortured in the country of

removal. 8 C.F.R. § 208.16(c)(2). Torture is defined as

any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.

8 C.F.R. § 208.18(a)(1). CAT relief carries a higher legal standard than asylum.

Al Najjar, 257 F.3d at 1303. “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, 392 F.3d at 438.

Here, there is nothing in the record to suggest that she was previously

tortured by the FARC with the consent or acquiescence of the Colombian

government. Likewise, there is nothing in the record to suggest that she “more

likely than not” would be tortured by the FARC with the consent or acquiescence

of the Colombian government upon her return to Colombia. Consequently,

because the petitioners did not present any evidence that any alleged harm was
7
“inflicted at the instigation of or with the consent or acquiescence of a public

official,” they have not established eligibility for CAT relief. 8 C.F.R. §§

208.18(a)(1), 208.16(c)(2).

PETITION DISMISSED IN PART; DENIED IN PART.

8