Filed: Aug. 16, 2010
Latest Update: Feb. 21, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-4662 _ JHON FREY CUBIDES GOMEZ, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A093-491-762) Immigration Judge: Dorothy Harbeck _ Submitted Pursuant to Third Circuit LAR 34.1(a) August 11, 2010 Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges (Opinion filed: August 16, 2010 ) _ OPINION _ PER CURIAM Jhon Frey Cub
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-4662 _ JHON FREY CUBIDES GOMEZ, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A093-491-762) Immigration Judge: Dorothy Harbeck _ Submitted Pursuant to Third Circuit LAR 34.1(a) August 11, 2010 Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges (Opinion filed: August 16, 2010 ) _ OPINION _ PER CURIAM Jhon Frey Cubi..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4662
___________
JHON FREY CUBIDES GOMEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A093-491-762)
Immigration Judge: Dorothy Harbeck
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 11, 2010
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed: August 16, 2010 )
___________
OPINION
___________
PER CURIAM
Jhon Frey Cubides Gomez (“Cubides”), a native and citizen of Colombia, petitions
for review of an order by the Board of Immigration Appeals (“BIA”) affirming an
immigration judge’s order denying his application for asylum, withholding of removal,
and protection under the Convention Against Torture (“CAT”). For the following
reasons, the petition for review will be denied.
I.
Cubides entered the United States without inspection in 2005. He married
Veronica Cubides, a United States citizen, in 2007. In 2008, Cubides was served a Notice
to Appear (“NTA”) and placed in removal proceedings. Cubides appeared in removal
proceedings and applied for asylum, withholding of removal, and protection under the
CAT. In the alternative, Cubides sought relief from removal in the form of voluntary
departure.
At his immigration hearing, Cubides testified that he came to the United States to
escape death threats, harassment, and extortion attempts by the Fuerzas Armadas
Revolucionarias de Colombia (“FARC”), a guerilla group in Colombia. The threats
began in 2003 when Cubides took over his father’s fuel transport business after his death.
(AR 223.) Cubides had not been involved with his father’s business prior to his death,
but was aware that the business was a target for guerillas:1 his father’s truck was
destroyed by a bomb in 2002 (AR 227), he once answered a telephone call in which he
heard threats directed at his father (AR 242), and he read a letter from the FARC
threatening his father’s business and criticizing him for supporting paramilitary groups.
(AR 228.) On another occasion, Cubides accompanied his father on a business trip and
1
Cubides believes that the FARC targeted his father because he gave assistance to
paramilitary organizations that were against the FARC. (AR 225-26.)
2
when they returned to their car they found it riddled with bullet holes. (AR 227.) In
1996, Cubides’ Uncle Alvaro, who was in the same business, was assassinated in front of
his home by unknown assailants believed to be guerillas. (AR 229.) However, Cubides
himself was shielded from his father’s business dealings and only began to receive threats
after his father’s death. (AR 244.)
The first threat Cubides received was from an unidentified caller who told him that
they needed to know everything about the business and that Cubides should meet with
them. (AR 244.) On two subsequent occasions, Cubides’ doorman told him that people
had come by asking for him when he was not at home. (AR 252.) He was also followed
on his motorcycle three times by a car full of armed men who he believed were guerillas.
(AR 261-67.) Cubides testified that no one else in his immediate family was bothered by
guerillas. (AR 233.) He believes that the FARC viewed Cubides as the successor to his
father’s fuel business and therefore became their new target.2 And although he has not
received any communications to indicate that the FARC are still looking for him, he is
afraid that if returned to Colombia, the guerillas would find him and torture him for
information about his father’s business. (AR 237-339.)
The immigration judge (“IJ”) granted voluntary departure, but denied Cubides’
asylum and withholding claims, finding that his asylum application was time-barred and
furthermore that he had failed to meet the standard of proof for withholding of removal or
2
However, unbeknownst to the FARC, his family sold the business prior to his father’s
death to pay for medical expenses. (AR 232, 244.)
3
protection under the CAT. The IJ concluded that because the threats Cubides testified to
were unfulfilled and did not result in any physical harm, they were not imminent or
concrete enough to constitute persecution. See Li v. Att’y Gen., 400 F.3d 157, 164-65
(3d Cir. 2005). The IJ further concluded that Cubides failed to show that his fear of
persecution by the FARC, even if well-founded, was on account of “membership in a
particular social group, or political opinion.” 8 C.F.R. § 208.13(b)(2)(i)(A). In particular,
the IJ found that Cubides could not demonstrate persecution as a member of a group of
persons victimized by organized crime, because, “for purposes of fear of future
persecution” the social group has to “exist independently of the persecution suffered by
the applicant.” See Lukwago v. Ashcroft,
329 F.3d 157, 172 (3d Cir. 2003). Nor could
Cubides claim persecution on the basis of imputed political opinion because the threats he
received appeared to be attempts at extortion and there was no evidence that any of the
alleged threats were tied to any expressed or imputed political opinion. See Chavarria v.
Gonzales,
446 F.3d 508, 518 (3d Cir. 2006); INS v. Elias-Zacarias,
502 U.S. 478 (1992).
Thus, Cubides could not show a nexus between his fear of harm and a statutorily
protected ground. Accordingly, the IJ denied withholding of removal. The IJ denied
CAT protection because Cubides did not carry his burden of showing that it was more
likely than not that he would be tortured if returned to Colombia.
The BIA agreed with the IJ’s conclusion that the threats Cubides experienced over
this two-year period were not imminent or concrete, and thus did not place Cubides
within the small category of cases where threats alone establish persecution. The BIA
4
also found that Cubides was not eligible for withholding of removal because he had not
carried his burden of showing that he would more likely than not be persecuted in
Colombia. In reaching this conclusion, the BIA relied on the fact that members of
Cubides’ family have remained in Colombia unharmed, and the fact that there was no
evidence indicating that the FARC have continued to look for Cubides or threaten him.
The BIA also concluded that Cubides was not eligible for protection under the CAT
because he had not established that he would more likely than not be tortured. The instant
petition for review followed.
II.
We have jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a)(1).
Because the BIA issued its own opinion, we review its decision rather than that of the IJ.
See Li, 400 F.3d at 162. However, we also look to the decision of the IJ to the extent that
the BIA defers to or adopts the IJ’s reasoning. See
Chavarria, 446 F.3d at 515. Factual
findings are reviewed for substantial evidence and must be treated as “conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” Sioe Tjen
Wong v. Att'y Gen.,
539 F.3d 225, 230 (3d Cir. 2008) (citing 8 U.S.C. § 1252(b)(4)(B)).
We review the BIA’s legal determinations de novo, “subject to established principles of
deference.” Wang v. Ashcroft,
368 F.3d 347, 349 (3d Cir. 2004) (citations omitted). We
will uphold the BIA’s determinations as to whether the burden of proof was met if they
are supported by reasonable, substantial, and probative evidence on the record considered
as a whole. INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992). The Court will reverse only
5
if the evidence not only supports a contrary conclusion, but compels it. Guo v. Ashcroft,
386 F.3d 556, 561 (3d Cir. 2004).
III.
Cubides argues that the BIA erred in holding that he failed to meet his burden for
withholding of removal and protection under the CAT.3 He first argues that the BIA
erred in affirming the IJ’s determination that the various threats and extortion attempts he
endured failed to establish past persecution because the IJ failed to consider the violent
acts against his father’s property, his uncle’s killing in 1996, and the mental harm he
suffered as a result of the threats. Unfulfilled threats “must be of a highly imminent and
menacing nature in order to constitute persecution.” Li, 400 F.3d at 164 (noting that even
in cases where the petitioner had a friend or relative who was murdered, and the petitioner
was threatened with a similar fate, these unfulfilled threats were not imminent enough to
establish past persecution). In this case, there was no evidence that Cubides was ever
physically attacked or hurt, there was no indication that the callers ever attempted to carry
out the threats, and while he did suffer from anxiety and depression, his condition was not
severe enough to interfere with his everyday life. See
Chavarria, 446 F.3d at 518
(explaining that threats constituting persecution are limited to a small category of cases
where the threats are “so menacing as to cause significant actual ‘suffering or harm’”).
Although the IJ did not explicitly consider what had happened to Cubides’ father or
3
Cubides does not challenge the BIA’s conclusion that, because his application was
filed outside of the 1-year filing deadline, he is not eligible for asylum. See 8 U.S.C. §
1158(a)(2)(B).
6
uncle, the record as a whole supports the IJ’s conclusion that the unfulfilled threats
directed at Cubides did not rise to the level of persecution.
Cubides next argues that the BIA erred in upholding the IJ’s conclusion that it was
not more likely than not that he would be subjected to future persecution if he were to
return to Colombia. See 8 C.F.R. § 208.16(b)(2); see also Lukwago, 329 F.3d at 182. He
argues that the BIA’s reliance on the fact that Cubides has family members who have
remained in Colombia unharmed is wrong, because his family members had no
association with his father’s fuel business and are therefore not similarly situated to him.
He submits that the more salient question would be whether the purchaser of his father’s
company has experienced such threats. Nevertheless, as Cubides acknowledges, there is
nothing in the record indicating that anyone associated with Cubides or his father’s
business faces ongoing threats from guerillas. Furthermore, the BIA also based its
determination on Cubides’ failure to provide any compelling evidence that the FARC
have tried to track him down or threaten him after his departure. While Cubides provided
evidence showing that FARC members targeting paramilitary sympathizers, and extortion
by guerillas, are country-wide problems, he produced no evidence that guerillas would
target him in particular or seek him out for persecution upon his return. Thus, the BIA’s
conclusion, that Cubides failed to sustain his burden of showing that it is more likely than
7
not that he would be persecuted if he were to return to Colombia, is supported by
reasonable, substantial, and probative evidence on the record considered as a whole.4
Finally, Cubides argues that the BIA erred in affirming the IJ’s analysis of his
CAT claim. In order to be eligible for CAT protection, the petitioner must demonstrate
that it is more likely than not that he would be tortured if removed, and that the torture
would be inflicted “by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1); see
Tarrawally v. Ashcroft, 338 F.3d 180, 187 (3d Cir. 2003). The IJ denied CAT relief in
this case because she found that the evidence supporting his claim was “inconclusive.”
(AR 189). The BIA affirmed. Although Cubides argues that his CAT claim was not
thoroughly analyzed or supported by citations to the record, Cubides has not identified
any evidence in the record that would compel a contrary result. Cubides refers to country
reports documenting rampant violence and killing by the FARC and against paramilitary
groups, but there is no evidence that the government has acquiesced or is willfully blind
4
Cubides also argues that the BIA erred in failing to examine the country conditions
more closely for a pattern of persecution targeted towards business owners who are
perceived or actual paramilitary collaborators. He further argues that business owners
who are perceived or actual paramilitary collaborators are a social group that meets the
requirements set forth by the BIA in Matter of Acosta, 19 I.&N. Dec. 211, 233-34 (BIA
1985) (explaining that “[p]ersecution on account of membership in a particular social
group” refers to persecution that is directed toward “a group of persons all of whom share
a common, immutable characteristic” that is “fundamental to their individual identities or
consciences”). The BIA did not reach the question of whether Cubides met his burden of
showing that the alleged persecution alleged was on account of membership in a
particular social group. Because substantial evidence supports the BIA’s determination
that Cubides did not establish a likelihood of persecution, like the BIA, we need not
address whether that alleged persecution was on account of a protected ground.
8
to these events. Nor is there any evidence, other than his own testimony, that guerillas
would target Cubides for torture if returned to Colombia. The IJ’s determination that the
evidence supporting his claim for relief under the CAT was “inconclusive” is supported
by the record.
IV.
For the foregoing reasons, we will deny the petition for review.
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