Sepulveda v. U.S. Atty. Gen., No. 03-14932 Non-Argument Calendar.

• Decision Date: 02 March 2005
• Docket Number: No. 03-14932 Non-Argument Calendar.
• Parties: Joana Claudia SEPULVEDA, Mauricio Sepulveda, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

401 F.3d 1226

Joana Claudia SEPULVEDA, Mauricio Sepulveda, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.

No. 03-14932 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

March 2, 2005.

COPYRIGHT MATERIAL OMITTED

Alfonso Oviedo-Reyes, Alfonso Oviedo-Reyes, P.A., Miami, FL, for Petitioners.

Jennifer J. Keeney, David V. Bernal, Anthony Cardozo Payne, Emily Anne Radford, Papu Sandhu, U.S. Dept. of Justice, Office of Immigration Litigation, Civ. Div., Washington, DC, for Respondent.

Appeal from a Final Decision of the Board of Immigration Appeals.

Before BLACK, HULL and PRYOR, Circuit Judges.

PER CURIAM:

An active judge of this court having withheld the mandate in this case, the Court, upon reconsideration, orders that its prior opinion, published at 378 F.3d 1260, be withdrawn, and substitutes the following opinion.

Joana C. Sepulveda, a Colombian national, petitions for review of the final order of the Board of Immigration Appeals (BIA), which affirmed without opinion the Immigration Judge's (IJ's) denial of her requests for asylum and withholding of removal under the Immigration and Nationality Act (INA). 8 U.S.C. §§ 1158, 1231(b)(3). Substantial evidence supports the IJ's decision. We deny the petition.

I. BACKGROUND

Sepulveda and her husband entered the United States on September 11, 2000, as visitors with permission to remain until March 10, 2001. On August 16, 2001, the Immigration and Naturalization Service (INS)¹ served Sepulveda with a notice to appear, charging her with removability for having remained in the United States beyond the time allowed. Sepulveda admitted the allegations of the notice to appear and conceded removability. Sepulveda requested asylum, withholding of removal, and relief under the CAT on behalf of herself and her husband.²

At the hearing before the IJ, Sepulveda testified her pro-democracy ideology conflicts with that of the ELN guerilla group,³ which advocates class struggle, Marxism, and dictatorship. Sepulveda, a resident of Cali, Colombia, belonged to a group at her university that initially organized political debates, and later organized marches and peace demonstrations. Sepulveda participated in approximately ten peace marches. When the "La Maria" kidnaping occurred,⁴ Sepulveda and group members cooperated with a priest to negotiate between the kidnapers and the hostages' families.

After becoming involved in the kidnaping negotiations, Sepulveda received three threatening telephone calls at her home. The callers, identifying themselves as ELN members, called Sepulveda by name, used profanity, directed her to stop her peace activities, and made death threats. The group received similarly threatening calls at its office. Many members of the group quit due to the threats, and the group's membership ultimately dwindled from 35 to 5.

As a part of the kidnaping negotiations, the group placed "mailboxes" within restaurants to facilitate communication between the kidnapers, their hostages, victims' families, and the public. One of the mailboxes set up by the group was located in the restaurant where Sepulveda was employed. A bomb placed in that mailbox exploded just after she finished her shift. Sepulveda believed the bomb was related to her political activities.

After Sepulveda graduated from the university, her brother was approached at the university cafeteria and threatened because of his sister's activities. She testified the threats were coming to her brother because the threateners could not locate her after graduation. Before coming to the United States, Sepulveda relocated to her parents' home in Hamondi, Colombia, and then to her in-laws' home in Cali, Colombia.

Sepulveda testified she fears the ELN guerilla group will kill her or her family if she and her husband return to Colombia. She testified that 13 years ago, her uncle, a judge, received death threats related to a drug trafficking case. The uncle's wife and sister-in-law were killed when he disregarded the threats.⁵ When asked about contacting the Colombian authorities about the threats she received, Sepulveda testified she believed the Colombian authorities would not assist her unless she had money or the names of the specific individuals issuing the threats. Sepulveda's testimony was generally consistent with her asylum application submitted in support of her application for relief.

In addition to Sepulveda's testimony and her asylum application, the record before the IJ included the State Department's 1999 and 2000 Country Reports on Human Rights Practices for Colombia. The 1999 Country Report stated that Colombia's two major guerilla groups, FARC and ELN, exercised significant influence in nearly 1,000 of the country's 1,085 municipalities. It described the abduction of 170 people from La Maria church by the ELN, and a demonstration in Cali by 70,000 to 250,000 people protesting the mass kidnaping. The 1999 Country Report also noted that as many as six million people marched in antiwar protests in October of that year.

The State Department's 2000 Country Report on Human Rights Practices for Colombia described the ELN's common abuse of noncombatants, including kidnapings and bombings. The 2000 Country Report indicated that as many as one million people have been displaced within Colombia since 1996, and noted the flood of displaced persons has overwhelmed the capacity of smaller municipalities and larger cities to provide services, leaving displaced individuals without health care, education, or employment.

The IJ denied Sepulveda's application for asylum and withholding of removal. The IJ found the following: (1) neither Sepulveda nor her husband had suffered past persecution; (2) Sepulveda failed to establish she suffered past mistreatment on account of political opinion or any other protected ground, or that anyone had the inclination to persecute her; (3) Sepulveda failed to demonstrate a reasonable possibility that she would be harmed or threatened on account of any protected ground if returned to Colombia at this time; and (4) Sepulveda failed to show that internal flight alternatives were unavailable to her. Having determined that she failed to meet the lower burden of proof for asylum eligibility, the IJ concluded that Sepulveda was ineligible for withholding of removal. Sepulveda appeals the BIA's decision, which summarily affirmed the IJ's decision without opinion.

II. STANDARD OF REVIEW

When the BIA summarily affirms the IJ's decision without an opinion, the IJ's decision becomes the final removal order subject to review. See Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1284 n. 1 (11th Cir.2003). The IJ's findings of fact are reviewed under the substantial evidence test, and we "must affirm the [IJ's] decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole." Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001) (quotation marks and citation omitted). Under this highly deferential standard of review, the IJ's decision can be reversed only if the evidence "compels" a reasonable fact finder 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); Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.2004) (en banc).

III. DISCUSSION

A. Asylum

An alien who arrives in or is present in the United States may apply for asylum, which the Attorney General has discretion to grant if the alien meets the INA's definition of a "refugee." 8 U.S.C. § 1158(a)(1), (b)(1). A "refugee" is defined as:

any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, 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.

8 U.S.C. § 1101(a)(42)(A) (emphasis added). The asylum applicant carries the burden of proving statutory "refugee" status and thereby establishing asylum eligibility. Al Najjar, 257 F.3d at 1284.

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. 8 C.F.R. § 208.13(a), (b). If he or she meets that burden, the actual grant of asylum is a matter of discretion. Id. The Attorney General's discretionary judgment whether to grant asylum "shall be conclusive unless manifestly contrary to the law and an abuse of discretion." 8 U.S.C. § 1252(b)(4)(D).

1. Past persecution

Although the INA does not expressly define "persecution" for purposes of qualifying as a "refugee," see 8 U.S.C. § 1101(a)(42), we have discussed other circuits' holdings that "persecution" is an "extreme concept," requiring "more than a few isolated incidents of verbal harassment or intimidation," and that "[m]ere harassment does not amount to persecution." Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir.2000) (quotation marks and citations omitted).

Sepulveda sets forth two grounds to establish past persecution: (1) the restaurant bombing; and (2) threats to her, her brother, and other members of the university group. Her arguments are not sufficient to overturn the IJ's decision. Although the evidence may permit a conclusion the restaurant bombing was directed at Sepulveda on account of her political activity, it does not compel such a conclusion. See Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. at 815 n. 1. Moreover, the menacing telephone calls and threats to her, her brother, and other members of the university group...