Filed: Jul. 13, 2007
Latest Update: Feb. 21, 2020
Summary: JUAN LOPEZ;and Howard, Circuit Judge.Carlos E. Estrada on brief for petitioners. 2003) (quoting Elias-Zacarias, 502 U.S. at 481 n.1).circumstances relating to the delay in filing.168 F.3d 565, 569 n.3 (1st Cir.in Convivir.tortured if removed to Colombia.the evidence compels an alternative result.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2257
JUAN LOPEZ; MARIA LOPEZ,
Petitioners,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Carlos E. Estrada on brief for petitioners.
Greg D. Mack, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Peter D.
Keisler, Assistant Attorney General, Civil Division, Terri J.
Scadron, Assistant Director, and Kobi O. Smith, Contract Attorney,
on brief for respondent.
July 13, 2007
STAHL, Senior Circuit Judge. Juan and Maria Lopez
petition for review of a decision of the Board of Immigration
Appeals ("BIA") affirming a decision of an Immigration Judge ("IJ")
denying them asylum, withholding of removal, and protection under
the Convention Against Torture ("CAT"). We deny the petition.
We glean the following facts from the record of the
hearing before the IJ. Juan and Maria Lopez are married citizens
of Colombia. Juan Lopez ("Lopez") owned a trucking business in Don
Matias, Colombia. On May 28, 1998, he was stopped while making a
delivery by members of the guerilla group known as the
Revolutionary Armed Forces of Colombia ("FARC"). The FARC
guerillas held him for a short period of time, during which they
beat him and demanded that he inform them in the future about other
trucks they could hijack and rob.
After being released, Lopez reported his robbery and
kidnapping to the police, but they reportedly did not investigate
the matter. Lopez then approached a group known as Convivir,
which, according to the record, was a quasi-private self-protection
organization formed with the support of the Colombian government to
help with such things as security of cargo transportation. With
the help of Convivir, the police then arrested five people
suspected of being Lopez's assailants, two of whom Lopez ultimately
identified. However, the two posted bail and were released, and it
does not appear that they were ever tried for the offense.
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The Lopezes continued to be harassed by these two
suspected assailants and others. They received threatening phone
calls, and on one occasion, two people approached Maria Lopez at
her workplace, looking for her husband. After that incident, the
Lopezes moved to Monteria Cordoba, to stay with relatives. Shortly
thereafter, the local leader of Convivir in Don Matias was
assassinated. The Lopezes then moved to Medellin and sought visas
to the United States. Juan Lopez traveled to the United States on
or about August 23, 1999, on a nonimmigrant visa for pleasure
travel, with authorization to stay in the United States until
February 22, 2000. Maria Lopez traveled to the United States on or
about February 24, 2000, as a nonimmigrant working on a B-1 visa,
with authorization to remain until March 22, 2000.
On November 20, 2001, the Immigration and Naturalization
Service ("INS")1 issued them Notices to Appear. On the Lopezes'
pre-hearing statement of May 29, 2003, they stated an intention to
pursue asylum and withholding of removal claims. Their application
for asylum was ultimately filed on April 28, 2005. On that same
date, the Lopezes appeared before the IJ, who ruled that they did
not qualify for asylum, withholding of removal, or protection under
1
On March 1, 2003, the functions of the INS were transferred
to the Department of Homeland Security. Homeland Security Act of
2002, Pub. L. No. 107-296, § 471(a), 116 Stat. 2135, 2205 (codified
at 6 U.S.C. § 291(a)).
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the CAT. They appealed to the BIA, which adopted and affirmed the
decision of the IJ on August 10, 2006.
We will uphold decisions of the BIA "if supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992) (internal quotation marks and citation omitted). The
substantial evidence standard applies to asylum and withholding
claims as well as to claims brought under the CAT. See Settenda v.
Ashcroft,
377 F.3d 89, 93 (1st Cir. 2004). "To reverse the BIA, we
must be persuaded that 'the evidence not only supports that
conclusion, but compels it.'" Khem v. Ashcroft,
342 F.3d 51, 53
(1st Cir. 2003) (quoting
Elias-Zacarias, 502 U.S. at 481 n.1).
Because the BIA adopted and affirmed the decision of the IJ, we
review the IJ's decision as part of the final decision of the BIA.
Hernandez-Barrera v. Ashcroft,
373 F.3d 9, 20 (1st Cir. 2004).
An application for asylum must be filed within one year
of the alien's arrival in the United States, absent changed
circumstances affecting eligibility for asylum or extraordinary
circumstances relating to the delay in filing. 8 U.S.C. §
1158(a)(2)(B), (D). Both the IJ and the BIA found that more than
a year had passed between the petitioners' respective entries in
1999 and 2000, and the filing of their application for asylum in
2005. The petitioners did not allege any changed circumstances or
otherwise explain their delay in filing, and indeed conceded the
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issue before the IJ, and we therefore have no jurisdiction to
review the determination that the one-year time limit had expired.
Id. § 1158(a)(3); see Sharari v. Gonzales,
407 F.3d 467, 473 (1st
Cir. 2005).
To qualify for withholding of removal, the petitioners
must show that their "life or freedom would be threatened in [the
removal country] because of [their] race, religion, nationality,
membership in a particular social group, or political opinion." 8
U.S.C. § 1231(b)(3)(A). "As a general rule, withholding is
mandatory if an alien 'establish[es] that it is more likely than
not that [he] would be subject to persecution on one of the
specified grounds.'" INS v. Aguirre-Aguirre, 526 U.S. 415, 419
(1999) (quoting INS v. Stevic,
467 U.S. 407, 429-30 (1984)); accord
Albathani v. INS,
318 F.3d 365, 372-73 (1st Cir. 2003) (applying
"more likely than not" standard). This is a tougher standard than
that for asylum, which requires only a "well-founded fear of
persecution." 8 U.S.C. § 1101(a)(42)(A); see Aguilar-Solis v. INS,
168 F.3d 565, 569 n.3 (1st Cir. 1999) (contrasting "well-founded
fear of persecution" with "clear probability of persecution").
The IJ and the BIA found that the petitioners' incidents
with the FARC did not establish that they would more likely than
not be persecuted on account of one of the five protected grounds.
Petitioners argue that Lopez was targeted because of his membership
in Convivir. However, the IJ found that the incidents Lopez
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testified to were examples of criminal conduct, not persecution
based on one of the five protected categories. The BIA held
further that the incidents themselves "were not so menacing and
immediate as to rise to the level of persecution." Our review of
the record supports the IJ's determination. Lopez testified that,
in each of the incidents in which he was harassed, the FARC members
were demanding that he give them information to aid in hijackings
and robberies, as they had when he first encountered them, and not
that he was being targeted because of his affiliation with
Convivir.2 Therefore, we cannot say that the evidence compels a
conclusion contrary to the IJ's.
To qualify for protection under the CAT, the petitioners
must show that it is "more likely than not that [they] would be
tortured if removed" to Colombia. 8 C.F.R. § 1208.16(c)(2); see
Settenda v. Ashcroft, 377 F.3d 89, 94 (1st Cir. 2004). "To
establish a prima facie showing of torture, a petitioner must offer
specific showings that he or she will be subject to 'severe pain or
suffering, whether physical or mental' by or at 'the instigation of
or with the consent or acquiescence of a public official or other
person acting in an official capacity.'" Guzman v. INS,
327 F.3d
11, 17 (1st Cir. 2003) (quoting 8 C.F.R. 208.18(a)(1)).
2
We do not reach the question of whether membership in
Convivir qualifies as "membership in a particular social group"
under the statute.
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The IJ found that there was no evidence that the
petitioners would be subject to future torture, and the BIA held in
addition that there was no evidence of government "acquiescence" in
the acts of the FARC such as would bring their actions under the
definition of torture cited above. While it may be that Lopez will
be subject to criminal pressures if removed to Colombia, the
petitioners did not present any evidence that they would be faced
with torture, particularly such as would be done "by or at the
instigation of or with the consent or acquiescence of a public
official." 8 C.F.R. 208.18(a)(1). Therefore, we cannot say that
the evidence compels an alternative result.
The petition for review is denied.
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