Mendoza v. U.S. Atty. Gen.

• Decision Date: 16 April 2003
• Docket Number: No. 02-13235. Non-Argument Calendar.,02-13235. Non-Argument Calendar.
• Citation: 327 F.3d 1283
• Parties: Sergio Leonel MENDOZA, Petitioner, v. U.S. ATTORNEY GENERAL, Immigration and Naturalization Service, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1283

327 F.3d 1283

Sergio Leonel MENDOZA, Petitioner, v. U.S. ATTORNEY GENERAL, Immigration and Naturalization Service, Respondents.

No. 02-13235. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

April 16, 2003.

Robert Steven Sheldon, Hispanic Law Clinic, Pompano Beach, FL, for Petitioner.

Robbin Blaya, Nelda C. Reyna, Norah Ascoli Schwarz, Washington, DC, for U.S. Atty. Gen.

Petition for Review of a Final Order of the Board of Immigration Appeals.

Before ANDERSON, BLACK and HULL, Circuit Judges:

HULL, Circuit Judge:

Sergio Leonel Mendoza, through counsel, petitions this Court for review of the immigration judge's ("IJ's") order denying him asylum and withholding of removal under the Immigration and Nationality Act ("INA") and the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("CAT").¹ We affirm.

I. BACKGROUND

In 1994, Mendoza, a native and citizen of Guatemala, entered the United States without inspection. In 1998, the INS issued Mendoza a notice to appear charging him with removability under the INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being present in the United States without being admitted or paroled.² Mendoza does not challenge his removability.

A. Application for Asylum and Withholding of Removal

On August 24, 1998, Mendoza filed a pro se Form I-589 application for asylum and withholding of removal. In that application, he stated that Guatemalan guerillas were persecuting his family because his father, Cruz Mendoza Lopez ("Lopez"), had been in the Guatemalan military service. After Mendoza obtained counsel, he submitted these items to support his application: (1) a translated certificate of service showing that Lopez had served in the Guatemalan military from September 1963 to August 1965; (2) a translated letter from the Guerilla Army of the Poor ("EGP"), a Guatemalan guerilla organization, to Mendoza's parents, attempting to extort money from them and threatening to kill one of their family members; and (3) a translated letter attesting that Lopez had presented to the Guatemalan military authorities a threat letter he had received from the EGP. To rebut Mendoza's application, the INS submitted a copy of the State Department's 1997 Profile of Asylum Claims and Country Conditions for Guatemala.

B. Hearings

At an initial hearing before the IJ, Mendoza conceded his removability. The IJ scheduled a separate hearing to ascertain whether extraordinary circumstances justified Mendoza's untimely filing of his asylum claim, and whether he was entitled to withholding of removal. At that separate hearing, the IJ concluded that Mendoza had not shown that extraordinary circumstances justified his untimely filing for asylum. Accordingly, the IJ limited the scope of the remainder of the hearing to Mendoza's eligibility for withholding of removal under the INA and the CAT.

Mendoza then testified to these facts. He left Guatemala after (1) Lopez received anonymous letters, purportedly from guerillas, threatening to kill him and his family members if he did not cooperate with them; and (2) Lopez showed him one of these notes and advised him to leave. Mendoza believed the guerillas targeted Lopez because he had served in the military in 1965, and, as of 1994, aspired to be a military commissioner. Lopez's house was burned down in 1993. Sometime thereafter, Mendoza's uncle was killed. Mendoza cannot identify who killed his uncle, but believes it was the guerillas because of anonymous letters (that are not included in the administrative record) sent after his killing. He surmised that the guerillas mistook his uncle for Lopez (his father) based on their physical similarities.

On cross-examination, Mendoza stated that Lopez has relocated a few times in Guatemala and still lives in Aquataccan, Guatemala, the same place that Mendoza had resided, and that no harm has befallen Lopez. Mendoza testified that he was unaware that the guerilla organizations have been disbanded since the civil war in Guatemala ended in 1996; nonetheless, he still fears returning to Guatemala because former guerillas remain there.

C. IJ's Order

On January 10, 2000, the IJ entered an eight-page order denying Mendoza's application for withholding of removal. The IJ made detailed findings of fact and conclusions of law. For example, the IJ deemed Mendoza's testimony conclusory as it failed to demonstrate who burned Lopez's house and murdered Mendoza's uncle. The IJ noted that, according to the State Department's 1997 Profile of Asylum Claims and Country Conditions, the Guatemalan government and guerillas signed peace accords in 1996, and that Guatemala is facing significant political, social, and economic reform. The IJ found that Mendoza failed to establish a countrywide fear of persecution because Lopez relocated in Guatemala and resides in Aquataccan, the same area in which Mendoza lived. As such, there was no reason Mendoza would not be able to reside in Aquataccan or other areas of Guatemala free of threats.

The IJ also noted that Mendoza failed to rebut the evidence of changed country conditions contained in the State Department's 1997 report. The IJ concluded that Mendoza did not show he more-likely-than-not would be persecuted on a protected ground. Finally, the IJ found Mendoza ineligible for CAT relief because Mendoza failed to show that the present Guatemalan government would more-likely-than-not torture him or acquiesce in his torture by other individuals.³ Accordingly, the IJ ordered Mendoza removed to Guatemala.

Mendoza appealed to the BIA. On May 14, 2002, the BIA summarily affirmed the IJ's decision without an opinion.

II. DISCUSSION

On appeal, Mendoza makes several arguments, which we review in turn.⁴

A. Appellate Review of Untimely Asylum Application

Mendoza first argues that the IJ erroneously concluded that he was ineligible for asylum due to his untimely application. INA § 208(a)(2)(B) provides that an alien may not apply for asylum "unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States." 8 U.S.C. § 1158(a)(2)(B). This one-year filing period commences either on the date of the alien's last arrival in the United States or April 1, 1997, whichever is later. See 8 C.F.R. § 208.4(a)(2)(ii). Mendoza arrived in the United States in 1994. He filed his asylum application on August 24, 1998, and thus, the application was not filed within one year after April 1, 1997.

An untimely asylum application may be considered if the alien can demonstrate extraordinary circumstances relating to the delay in filing an application within the one-year period. See 8 U.S.C. § 1158(a)(2)(D); see also 8 C.F.R. § 208.4(a)(5) (identifying events that qualify as extraordinary circumstances). However, "[n]o court shall have jurisdiction to review any determination of the Attorney General under [section 1158(a)(2)]." 8 U.S.C. § 1158(a)(3). This Court already has determined that section 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. Fahim v. U.S. Attorney Gen., 278 F.3d 1216, 1217-18 (11th Cir.2002). Accordingly, we lack jurisdiction to consider Mendoza's argument regarding the timeliness of his asylum application.⁵

B. Withholding of Removal

Mendoza next argues that the IJ erred in failing to withhold his removal.⁶ The IJ's findings of fact are conclusive unless the record demonstrates that "any reasonable adjudicator would be compelled to conclude to the contrary." INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B). To reverse the IJ's fact findings, we must find that the record not only supports reversal, but compels it. Fahim, 278 F.3d at 1218 ("To conclude that the Board [of Immigration Appeals] should be reversed, a reviewing Court must find that the record not only supports that conclusion, but compels it.") (quotation marks and citation omitted).

An alien seeking withholding of removal under the INA must show that his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A). An alien bears the burden of demonstrating that he more-likely-than-not would be persecuted or tortured upon his return to the country in question. See Fahim, 278 F.3d at 1218. The alien's testimony, "if credible, may be sufficient to sustain the burden of proof without corroboration." See 8 C.F.R. § 208.16(b). If the alien establishes past persecution in his country based on a protected ground, it is presumed that his life or freedom would be threatened upon return to his country unless the INS shows by a preponderance of the evidence that, among other things, (1) the country's conditions have changed such that the applicant's life or freedom would no longer be threatened upon his removal; or (2) that the alien could avoid a future threat to his life or freedom by relocating to another part of the proposed country of removal, and it would be reasonable to expect him to do so. See id. § 208.16(b)(1)(i).

An alien who has not shown past persecution, though, may still be entitled to withholding of removal if he can demonstrate a future threat to his life or freedom on a protected ground in his country. See 8 C.F.R. § 208.16(b)(2). An alien cannot demonstrate that he more-likely-than-not would be persecuted on a protected ground if the IJ finds that the alien could avoid a future threat by relocating to another part of his country. See id.

Upon review of the administrative record and the parties' briefs, we conclude that Mendoza failed to meet the required showing for withholding of removal. The record does not compel reversal of the IJ's finding that Mendoza failed to show...