Chacon-Botero v. U.S. Atty. Gen., No. 04-16422 Non-Argument Calendar.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtPer Curiam
Citation427 F.3d 954
Decision Date06 October 2005
Docket NumberNo. 04-16422 Non-Argument Calendar.
PartiesLuis Fernando CHACON-BOTERO, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
427 F.3d 954
Luis Fernando CHACON-BOTERO, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent.
No. 04-16422 Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
October 6, 2005.

Marcial Antonio De Sautu, De Sautu & Associates, P.A., Coral Gables, FL, for Chacon-Botero.

Page 955

David V. Bernal, S. Nicole Nardone, OIL, Washington, DC, Judy K. Hunt, Tampa, FL, for U.S. Atty. Gen.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before BLACK, CARNES and MARCUS, Circuit Judges.

PER CURIAM.


Colombian native and citizen Luis Fernando Chacon-Botero petitions for review of the Board of Immigration Appeals' (BIA's) decision adopting and affirming the Immigration Judge's (IJ's) order denying his claim for asylum, 8 U.S.C. § 1158,1 withholding of removal, 8 U.S.C. § 1231(b)(3), under the Immigration and Nationality Act (INA), and his claim for protection under the United Nation's Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), 8 C.F.R. § 208.16(c). We dismiss the petition in part, and deny in part.

I. BACKGROUND

Chacon-Botero arrived in the United States on April 8, 2000, with authorization to remain in the United States for a temporary period not to exceed November 20, 2000. He remained in the United States beyond November 20, 2000, without permission from the Immigration and Naturalization Service (INS).2 Chacon-Botero filed an application for asylum and withholding of removal under the INA on May 28, 2002. He acknowledged he was filing his application for asylum more than one year after his arrival in the United States, but failed to explain why he did not file an asylum application within the first year after he arrived.

During removal proceedings in front of an IJ, Chacon-Botero admitted the allegations of fact, conceded the charge of removability as set forth in the notice to appear, and requested asylum, withholding of removal, and protection under the CAT. The IJ continued the hearing after finding the charge of removability was established by clear and convincing evidence and pointing out Chacon-Botero's asylum application was untimely.

During a later removal hearing, Chacon-Botero testified he had not filed his asylum application within one year after arriving in the United States because he had wanted to return to Colombia. Additionally, Chacon-Botero claimed he was "misinformed" by his previous attorney who advised him his only remedy was to apply for a labor certification. On cross-examination, however, Chacon-Botero admitted he "never made an agreement with [his former attorney] based on political asylum."

At the conclusion of the hearing, the IJ asked Chacon-Botero whether he informed his previous attorney he was persecuted in Colombia by the FARC guerillas. Chacon-Botero responded he informed his former attorney he was threatened in Colombia, but he never explicitly agreed with the attorney that he

Page 956

wanted to apply for asylum because he believed his attorney would advise him on the matter. Following the hearing, Chacon-Botero submitted an affidavit in which he explained: (1) he did not file for asylum during the year following his arrival in the United States because he "had every intention of going back to [his] country, Colombia; however, the situation did not allow [him] to do so;" (2) an attorney "suggested that the only process [he] could follow was" the labor certification process, and (3) he "did not know that [he] was capable of filing for political asylum."

After taking into consideration Chacon-Botero's testimony, as well as the documentary evidence, the IJ rendered an oral decision denying Chacon-Botero's application for asylum, withholding of removal, and protection under the CAT. The IJ found Chacon-Botero's application for asylum was statutorily time-barred because Chacon-Botero did not file it within one year after his entry into the United States and he did not show exceptional or extraordinary circumstances which justified a delay in filing. Nevertheless, the IJ went on to address the underlying merits of Chacon-Botero's application for asylum, finding because Chacon-Botero's testimony was not credible or sufficiently detailed, he failed to establish past persecution or a well-founded fear of future persecution in Colombia. Likewise, because of the inconsistencies in his application and testimony, the IJ concluded Chacon-Botero failed to meet his burden of establishing eligibility for withholding of removal and protection under the CAT.

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150 practice notes
  • Ferry v. Gonzales, No. 03-9526.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 8, 2006
    ...1214 (8th Cir. 2005) (same); Ramadan v. Gonzales, 427 F.3d 1218, 1222 (9th Cir.2005) (same); Chacon-Botero v. United States Attorney Gen., 427 F.3d 954, 957 (11th Cir.2005) (same); Vasile v. Gonzales, 417 F.3d 766, 768-69 (7th Cir.2005) (same). Accordingly, we conclude that we lack jurisdic......
  • Ramadan v. Gonzales, No. 03-74351.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 22, 2007
    ...decision of the Attorney General. See, e.g., Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir.2005); Chacon-Botero v. U.S. Atty. Gen., 427 F.3d 954, 957 (11th Cir.2005). However, because such a holding would conflict with other Ninth Circuit case law, as indicated in this section, we are comp......
  • Chen v. U.S. Dept. of Justice, Docket No. 02-4631.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 11, 2006
    ...is a predominantly factual determination, which will invariably turn on the facts of a given case."); Chacon-Botero v. U.S. Att'y Gen., 427 F.3d 954, 957 (11th Cir.2005) ("The timeliness of an asylum application is not a constitutional claim or question of law covered by the REAL ID Act's c......
  • Alim v. Gonzales, No. 04-11463.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 24, 2006
    ...we are "obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking." Chacon-Botero v. U.S. Attorney Gen., 427 F.3d 954, 956 (11th Cir.2005) (quotations omitted). An alien may not apply for asylum "unless [he] demonstrates by clear and convincing evidence tha......
  • Request a trial to view additional results
150 cases
  • Ferry v. Gonzales, No. 03-9526.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 8, 2006
    ...1214 (8th Cir. 2005) (same); Ramadan v. Gonzales, 427 F.3d 1218, 1222 (9th Cir.2005) (same); Chacon-Botero v. United States Attorney Gen., 427 F.3d 954, 957 (11th Cir.2005) (same); Vasile v. Gonzales, 417 F.3d 766, 768-69 (7th Cir.2005) (same). Accordingly, we conclude that we lack jurisdic......
  • Ramadan v. Gonzales, No. 03-74351.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 22, 2007
    ...decision of the Attorney General. See, e.g., Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir.2005); Chacon-Botero v. U.S. Atty. Gen., 427 F.3d 954, 957 (11th Cir.2005). However, because such a holding would conflict with other Ninth Circuit case law, as indicated in this section, we are comp......
  • Chen v. U.S. Dept. of Justice, Docket No. 02-4631.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 11, 2006
    ...is a predominantly factual determination, which will invariably turn on the facts of a given case."); Chacon-Botero v. U.S. Att'y Gen., 427 F.3d 954, 957 (11th Cir.2005) ("The timeliness of an asylum application is not a constitutional claim or question of law covered by the REAL ID Act's c......
  • Alim v. Gonzales, No. 04-11463.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 24, 2006
    ...we are "obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking." Chacon-Botero v. U.S. Attorney Gen., 427 F.3d 954, 956 (11th Cir.2005) (quotations omitted). An alien may not apply for asylum "unless [he] demonstrates by clear and convincing evidence tha......
  • Request a trial to view additional results

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