Margarita Saldarriaga v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-15084 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 12, 2006
________________________ THOMAS K. KAHN
CLERK
BIA Nos. A95-219-545 & A95-219-547

MARGARITA SALDARRIAGA,
JORGE EDUARDO VARGAS BAEZ,
SERGIO ARTURO VARGAS SALDARRIAGA,
Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(April 12, 2006)

Before DUBINA, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

Petitioners Margarita Saldarriaga (“Saldarriaga”), Jorge Eduardo Vargas

Baez (“Jorge”), and Sergio Arturo Vargas Saldarriaga (“Sergio”) (collectively
“petitioners”), all citizens of Colombia, through counsel, petition this court for

review of the Board of Immigration Appeals’ (“BIA’s”) order affirming without

opinion the immigration judge’s (“IJ’s”) decision to deny their application for

asylum and withholding of removal under the Immigration and Nationality Act

(“INA”).1 The petitioners argue that the IJ erred in determining that Saldarriaga

did not suffer past persecution or the threat of future persecution based on six

threats that she received from being a member of the Liberal Party, including a

threat from a man who identified himself as a member of the National Liberation

Army (“ELN”). The petitioners argue that the IJ erred in applying a standard of

“physical mistreatment” or “harm” to establish past persecution and in finding that

there was no correlation between Saldarriaga’s political activities and the

guerrillas. The petitioners further argue that the IJ erred in determining that

Saldarriaga could relocate in Colombia and in finding that Saldarriaga was not

credible.

We review the IJ’s decision in this case, not the BIA’s, because the BIA

affirmed the IJ’s decision without opinion, thereby making the IJ’s decision the

final agency determination. See 8 C.F.R. § 1003.1(e)(4)(ii); Mendoza v. U.S. Att’y

1
The petitioners do not challenge in this court the denial of relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”), and, thus, this issue is abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d. 1226, 1228
n.2 (11th Cir. 2005).
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Gen., 327 F.3d 1283, 1284 n.1. (11th Cir. 2003). To the extent that the IJ’s

decision was based on a legal determination, review is de novo. D-Muhumed v.

U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). However, we examine factual

findings under the substantial evidence test. Id. at 817-18. Under this highly

deferential standard of review, the IJ’s decision must be deferred to if supported by

substantial evidence, unless the evidence “compels” a reasonable factfinder to find

otherwise. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1, 112 S. Ct. 812, 815 n.1,

117 L. Ed. 2d 38 (1992). Therefore, 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), cert. denied, 125 S. Ct. 2245 (2005); see also 8

U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the contrary .

. . .”).

We also review credibility determinations under the substantial evidence

test.2 Ruiz v. U.S. Att’y Gen., No. 05-13987, ___ F.3d __ (11th Cir. Jan. 4, 2006).

2
The REAL ID Act of 2005 amended credibility determinations, adding INA
§§ 208(b)(3)(B)(iii), 240(c)(4)(C), 8 U.S.C. §§ 1158(b)(3)(B)(iii), 1229a(c)(4)(C). Section
101(a)(3) and (d), Pub. L. No. 109-13, 119 Stat. 231, 303, 304-05. The Act states that these
provisions “shall apply to applications for asylum, withholding, or other relief from removal made
on or after” the date of enactment of the act, May 11, 2005, and, thus, the provisions do not affect
this appeal. Pub. L. No. 109-13, 119 Stat. at 305.
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The trier of fact determines credibility under this test, and this court “may not

substitute its judgment for that of the [IJ] with respect to credibility findings.”

Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quotation

omitted). Furthermore,

[T]he IJ must offer specific, cogent reasons for an adverse credibility
finding. Once an adverse credibility finding is made, the burden is on
the applicant alien to show that the IJ’s credibility decision was not
supported by specific, cogent reasons or was not based on substantial
evidence. A credibility determination, like any fact finding, may not
be overturned unless the record compels it.

Id. at 1287 (citations and quotations omitted).

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

asylum, which the Secretary of Homeland Security or the Attorney General (“AG”)

has discretion to grant if the alien is a “refugee” as defined in 8 U.S.C.

§ 1101(a)(42)(A). See INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A), as amended

by the REAL ID Act § 101(c), Pub. L. No. 109-13, 119 Stat. 231, 302 (2005); Al

Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). That statute defines a

“refugee” 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 . . . .

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8 U.S.C. § 1101(a)(42)(A) (emphasis added). The asylum applicants carry the

burden of proving statutory “refugee” status and thereby establishing asylum

eligibility. 8 C.F.R. § 208.13(a); D-Muhumed, 388 F.3d at 818.

“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.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230-

31 (11th Cir. 2005) (citing 8 C.F.R. § 208.13(a), (b)). Absent corroborating

evidence, the applicant’s testimony, “if credible, may be sufficient to sustain the

burden of proof.” 8 C.F.R. § 208.13(a).

Neither the INA nor the regulations define “persecution.” We have stated,

however, that “persecution is an extreme concept, requiring more than few isolated

incidents of verbal harassment or intimidation, and . . . mere harassment does not

amount to persecution.” Sepulveda, 401 F.3d at 1231 (quotations omitted). To be

an act of persecution, the behavior must threaten death, punishment, or the

infliction of substantial harm or suffering. See Sharif v. INS, 87 F.3d 932, 935 (7th

Cir. 1996). “Threats alone generally do not constitute actual persecution; only

rarely, when they are so immediate and menacing as to cause significant suffering

or harm in themselves, do threats per se qualify as persecution.” Vatulev v.
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Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003). “To qualify as persecution, a

person’s experience must rise above unpleasantness, harassment, and even basic

suffering.” Nelson v. INS, 232 F.3d 258, 263-64 (1st Cir. 2000) (citing various

cases regarding past persecution and finding that three episodes of solitary

confinement accompanied by physical abuse did not constitute persecution).

“A showing of past persecution creates a presumption of a ‘well-founded

fear,’ subject to rebuttal by the INS.” Sepulveda, 401 F.3d at 1231 (citing 8 C.F.R

§ 208.13(b)(1)). If, however, the alien does not establish past persecution, she

bears the burden of demonstrating a well-founded fear of persecution by showing

that (1) she fears persecution based on her political opinion or other statutorily

listed factor; (2) there is a reasonable possibility she will suffer persecution if

removed to her native country; and (3) she could not avoid persecution by

relocating to another part of her country, if under all the circumstances it would be

reasonable to expect relocation. See 8 C.F.R. § 208.13(b)(2), (3)(i); see also

Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320, 1327 (11th Cir. 2001)

(holding that the petitioner must show that she could not avoid persecution by

relocating to another part of her country if it was possible).

To establish eligibility for withholding of removal under the INA, the alien

must show that it is more likely than not that, if she returned to her country, her life

or freedom would be threatened because of one of the five covered grounds.
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Sepulveda, 401 F.3d at 1232. Where an applicant fails to establish a claim of

asylum on the merits, her other claims for withholding of removal under the INA

generally fail. Forgue, 401 F.3d at 1288 n.4.

Here, the record demonstrates that the IJ provided specific, cogent reasons

for finding Saldarriaga not credible, specifically listing several facets of

Saldarriaga’s story that the IJ found incredible, and which were supported by

substantial evidence. Thus, a reasonable factfinder would not be compelled to

reach a conclusion different than the IJ. Forgue, 401 F.3d at 1287. In addition,

even if Saldarriaga was credible, she was not eligible for asylum because

substantial evidence supports the IJ’s finding that Saldarriaga neither has suffered

past persecution nor has a well-founded fear of future persecution because, while

the events that Saldarriaga described may have been unpleasant, they amount more

to isolated incidents of verbal harassment or intimidation, which is not persecution.

See Sepulveda, 401 F.3d at 1231. Further, Saldarriaga cannot establish a fear of

future persecution because she has not shown that there is a reasonable possibility

that she will suffer persecution if removed to Colombia or that she could not avoid

persecution by relocating to another part of that country. See 8 C.F.R.

§ 208.13(b)(2), (3)(i). Because the petitioners failed to establish a claim of asylum,

their petition for withholding of removal under the INA also fail, as it requires a

more stringent standard to be satisfied. See Forgue, 401 F.3d at 1288 n.4.
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For the above-stated reasons, we deny the Petition for Review.

PETITION DENIED.

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