Ruiz v. U.S. Atty. Gen.

• Decision Date: 04 January 2006
• Docket Number: No. 05-13987. Non-Argument Calendar.,05-13987. Non-Argument Calendar.
• Citation: 440 F.3d 1247
• Parties: Jaime RUIZ, Sandra Milena Sanchez Cabrera, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1247

440 F.3d 1247

Jaime RUIZ, Sandra Milena Sanchez Cabrera, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.

No. 05-13987. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

January 4, 2006.

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Mario M. Lovo, Law Firm of Mario M. Lovo, Miami, FL, for Petitioners.

Andrew C. Maclachlan, David V. Bernal, Regina Byrd, U.S. Dept. of Justice, Civil-OIL, Washington, DC, Stephen M. Doyle, Montgomery, AL, for Respondent.

Petitions for Review of an Order of the Board of Immigration Appeals.

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:

Jaime Ruiz and Sandra Milena Sanchez Cabrera, through counsel, petition this Court for review of the Board of Immigration Appeals' ("BIA's") order summarily affirming the immigration judge's ("IJ's") order of removal and denial of the petitioners' application for asylum and withholding of removal under the Immigration and Nationality Act ("INA"), filed pursuant to INA §§ 208, 241, 8 U.S.C. §§ 1158, 1231.¹ The petitioners challenge on appeal whether substantial evidence supported the IJ's (1) adverse credibility determination, and (2) alternative determination that the petitioners failed to establish statutory eligibility for either asylum or withholding of removal. For the reasons set forth more fully below, we affirm.

On September 12, 2002, Ruiz, a native and citizen of Colombia, entered the United States as a non-immigrant visitor for pleasure, with authorization to remain in the United States for a period not to exceed March 11, 2003. On December 1, 2002, Ruiz filed an application for asylum and withholding of removal, asserting that, if he returned to Colombia, he would be persecuted by the Revolutionary Armed Forces of Colombia ("FARC"), a guerilla organization, on account of his membership in a particular social group and his political opinion.² Ruiz specifically contended that the FARC had threatened to kill him if he returned to Colombia, due to his campaign work for the United Popular Movement ("UPM"), during the August 2002 mayoral election in the Municipality of Patia, Colombia.

In April 2003, the former Immigration and Naturalization Service ("INS")³ served Ruiz and his wife with notices to appear ("NTAs"), charging them respectively with removability for remaining in the United States for a period longer than permitted, pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), and for being present in the United States without being admitted or paroled, pursuant to INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Ruiz appeared before an IJ and, through counsel, conceded the petitioners' removability.

In December 2003, at a hearing on the petitioners' application for asylum and withholding of removal, Ruiz, who was the only witness, offered the following testimony. As a member of the UPM, which was affiliated with the Liberal Party, Ruiz managed social-work projects and actively campaigned for the party's candidate during the mayoral election in Patia in August 2002. As part of this campaign work, Ruiz organized weekly meetings of approximately 100 people, at which he and the candidate discussed the UPM's goals, including the importance of not cooperating with the FARC. On August 27, 2002, two days after the UPM's candidate lost this mayoral election, at approximately noon, two unidentified armed men on a motorcycle stopped Ruiz, called him by name, and told him to leave the region because "the activities [he] was carrying out with their people [were] not well looked upon." These men did not state that they belonged to a particular political group, and Ruiz did not report immediately this threat to the police or any other governmental authority.

On September 1, 2002, while Ruiz was in the City of Popayan, Colombia, three men in a gray Toyota camper stopped him on the street, forced him into their vehicle, held him at gunpoint for approximately half an hour, and again ordered him to leave the region. These men also insulted Ruiz, beat him, and dumped him on the Pan American Highway. They told Ruiz that Commandant de Felipe, a member of the FARC, had ordered Ruiz to leave. Ruiz also did not report this incident to the police because he was frightened.

Ruiz further testified that, on September 4, 2002, two armed men on a motorcycle, one of whom previously had threatened Ruiz, stopped Ruiz as he was leaving his parents' farm, approached Ruiz with a gun in his hand, and told him that, unless he left the region by the following weekend, he and his family would "suffer the consequences." On September 5, 2002, Ruiz moved with his family to Popayan, and they stayed there until they moved to Ruiz's in-laws' home in Cali, Colombia, which was 100 kilometers from their home. Ruiz flew to the United States on September 12, 2002.

On the other hand, Ruiz's wife, who did not have a visa to enter the United States, did not leave Colombia until September 24, 2002. In the intervening period, Ruiz's wife, who was living with her in-laws in Cali, received four threatening phone calls from men who identified themselves as FARC guerillas. During these calls, the men asked about Ruiz's whereabouts and threatened that they would find him, kill him, and kill anyone who was hiding him. Ruiz stated that he believed he could not relocate within Colombia because the FARC was "all over the country," and because members of the FARC wanted him killed.⁴ Ruiz, however, did not assert that his ten-year-old son, who was still living in Cali with his in-laws, and his parents, who continued living in Patia, had been harmed.

In addition to this testimony, Ruiz submitted a translated "penal denouncement," which his attorney had filed on his behalf with the Public Defender's Office in Popayan ("the Complaint"), on September 9, 2002. Although Ruiz described in the Complaint the same three harassing incidents that he identified during the evidentiary hearing, he stated in the Complaint that he could not identify the source of the alleged threats because, due to "all kind[s] of illegal organizations" operating in the region, it was impossible to determine which one made the threats.⁵ He explained that he had no documentary evidence, and that his parents and siblings were scared because they did not know the origin of the threats. Furthermore, Ruiz did not allege in the Complaint that men held him at gunpoint and beat him on September 1, 2002, and, instead, stated that he was afraid that "something more serious was going to happen."

The government submitted for the IJ's review the U.S. State Department's 2002 Country Report on Human Rights Practices for Colombia ("2002 Country Report"). The 2002 Country Report included that Colombia is a constitutional, multiparty democracy, but that the government's human-rights record remained poor. Internal security was maintained by both the armed forces and the national police. As a result of armed conflict between the government, right-wing paramilitary groups, leftist guerillas, including the FARC, and the National Liberation Army ("ELN"), 5,000 to 6,000 civilians were killed during 2002, including combat casualties, political killings, and forced disappearances. The guerillas, particularly the FARC, were responsible for a large percentage of civilian deaths and appeared to have committed a higher percentage of Colombia's unlawful killings than the previous year, often targeting noncombatants. In 2002, the FARC also committed numerous politically motivated kidnapings in an attempt to destabilize the government.

Additionally, the record included the U.S. State Department's June 1997 Profile of Asylum Claims and Country Conditions for Colombia ("Profile"), which stated that an estimated 10,000 to 15,000 full-time guerillas had organized in over 100 groups and represented a "growing challenge to [g]overnment security forces," along with influencing more than half of the country's municipalities. Guerilla targets included those persons who (1) refused to submit to recruitment or extortion, and (2) were suspected of collaborating with authorities. This Profile, however, also discussed that Colombia is a large country of more than a million square kilometers and 35.5 million people, that violence generally is centered in a few provinces, and that persons "fleeing guerillas or police/military harassment or threats in conflictive zones usually are able to find peaceful residence elsewhere in the country."

In an oral decision, the IJ found the petitioners removable, denied their application for asylum and withholding, and ordered them removed to Colombia. The IJ explained that, in denying the petitioners relief from removal, he was relying on both an adverse credibility determination and his conclusion that Ruiz had failed to establish eligibility for either asylum or withholding of removal. In reaching his adverse credibility determination, the IJ discussed that he had "taken into account not only [Ruiz's] demeanor while testifying, but also the rationality, internal consistency and inherent persuasiveness of his testimony." The IJ also stated that, although Ruiz had testified about three specific incidents, he had not included in the Complaint his attempted kidnaping on September 2001, along with failing to report any of these events to the Colombian police. The IJ discussed that he had not found plausible Ruiz's testimony that he could not relocate within Colombia because (1) Ruiz did not include this belief in the Complaint; (2) Ruiz testified that members of the FARC only had told him to leave the area; (3) if members of the FARC had wanted to kill Ruiz, they could have done so during any of the three harassing incidents; and (4) members of Ruiz's family remaining in Colombia had not been harmed. Moreover, the IJ found that, if Ruiz's family had been threatened, Ruiz would not have left his son in the same home where these threats were...