Adriana Patricia Hurtado v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

JUNE 23, 2005

No. 04-12220 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

BIA No. A79-467-192

ADRIANA PATRICIA HURTADO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of an Order of the

Board of Immigration Appeals

_________________________

(June 23, 2005)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

Petitioner Adriana Patricia Hurtado, a native and citizen of Colombia,

through counsel, petitions this court for review of the Board of Immigration

Appeals’s (“BIA”) order affirming without opinion the Immigration Judge’s (“IJ”)

decision denying her application for asylum and withholding of removal under the

Immigration and Nationality Act (“INA”) and relief under the United Nations

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishment (“CAT”). Hurtado argues that the IJ erred in concluding that she was

not entitled to asylum because the death threats she received from the

Revolutionary Armed Forces of Colombia (“FARC”), an established guerilla group

in Colombia known for its “barberic curriculum,” demonstrated that she was

persecuted and also established that she has a well-founded fear of persecution if

she returns to Colombia.1 Hurtado also asserts that the internal relocation

requirement is unconstitutional as it directly violates the Supremacy Clause of the

United States Constitution.

We review the IJ’s decision in this case, not the BIA’s, because the BIA

affirmed the IJ’s decision without opinion, thereby making that the final agency

determination. See 8 C.F.R. § 1003.1(a)(7); Mendoza v. U.S. Att’y Gen., 327 F.3d

1283, 1284 n.1 (11th Cir. 2003). The IJ’s factual determinations are reviewed

under the substantial evidence test, and we “must affirm the [IJ’s] decision if it is

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Hurtado does not argue on appeal that she should have been granted withholding of

removal or CAT relief, but only mentions it in passing in her conclusion. Claims not clearly outlined

on appeal are deemed abandoned, and thus will not be addressed. See Sepulveda v. U.S. Att’y Gen.,

401 F.3d 1226, 1228 n.2 (11th Cir. 2005); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1317 n.17

(11th Cir. 1999).

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supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Sepulveda, 401 F.3d at 1230 (quotation omitted)

(alteration in original), superseding 378 F.3d 1260 (11th Cir. 2004). Under this

highly deferential standard of review, the IJ’s decision must be deferred to as

supported by substantial evidence, unless the evidence would compel 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); see also INA § 242(b)(4)(B), 8

U.S.C. § 1252(b)(4)(B) (“administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary”).

Any alien who arrives in or is present in the United States may apply for

asylum, which the Attorney General (“AG”) has discretion to grant if the alien

meets the definition of a “refugee.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001). A “refugee” is:

[A]ny 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. . . .

Id. (emphasis added) (citing 8 U.S.C. § 1101(a)(42)(A)). The asylum applicant

carries the burden of proving statutory “refugee” status and thereby establishing

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asylum eligibility. Id. (citing 8 C.F.R. § 208.13(a)). If she meets that burden, the

AG may exercise his discretion to grant asylum. Id. Here, because the IJ

determined that Hurtado failed to establish eligibility for asylum, he did not

address whether he would exercise his discretion. Accordingly, we need only

address whether substantial evidence supports the finding that Hurtado failed to

show statutory eligibility for asylum.

To establish asylum eligibility, the alien must establish, with specific,

detailed, and credible evidence (1) past persecution on account of her political

opinion, membership in a particular social group, or other statutorily listed factor,

or (2) a “well-founded fear” that her political opinion, membership in a particular

social group, or other statutorily listed factor will cause future persecution. Al

Najjar, 257 F.3d at 1287; see also 8 C.F.R. § 208.13(a), (b). “[A]n applicant must

demonstrate that his or her fear of persecution is subjectively genuine and

objectively reasonable.” Sepulveda, 401 F.3d at 1231 (quotation omitted)

(alteration in original). Establishing a nexus between the statutorily listed factor

and the feared persecution “requires the alien to present specific, detailed facts

showing a good reason to fear that he or she will be singled out for persecution on

account of” the statutorily listed factor. D-Muhumed v. U.S. Att’y Gen., 388 F.3d

814, 818 (11th Cir. 2004) (emphasis in original) (quotation omitted).

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Neither the INA nor the regulations define “persecution.” “[P]ersecution is

an extreme concept, requiring more than few isolated incidents of verbal

harassment or intimidation, and . . . mere harassment does not amount to

persecution.” Sepulveda, 401 F.3d at 1231 (quotations omitted). Persuasive

authority indicates that, to be an act of persecution, the behavior must threaten

death, punishment, or the infliction of substantial harm or suffering. See Sharif v.

INS, 87 F.3d 932, 935 (7th Cir. 1996). “Threats alone generally do not constitute

actual persecution; only rarely, when they are so immediate and menacing as to

cause significant suffering or harm in themselves, do threats per se qualify as

persecution.” Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003). “To

qualify as persecution, a person’s experience must rise above unpleasantness,

harassment, and even basic suffering.” Nelson v. INS, 232 F.3d 258, 263 (1st Cir.

2000).

If the alien demonstrates past persecution, she is presumed to have a well-

founded fear of future persecution unless the government can rebut the

presumption. 8 C.F.R § 208.13(b)(1). If, however, the alien does not establish

past persecution, she bears the burden of demonstrating a well-founded fear of

persecution by showing that (1) she fears persecution based on her political

opinion, social group, or other statutorily listed factor; (2) there is a reasonable

possibility she will suffer persecution if removed to her native country; and (3) she

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could not avoid persecution by relocating to another part of her country, if under

all the circumstances it would be reasonable to expect relocation. See 8 C.F.R.

§ 208.13(b)(2), (3)(i).

In the case at bar, we conclude from the record that substantial evidence

exists to support the IJ’s conclusion that Hurtado did not suffer past persecution or

a well-founded fear of future persecution. Although she testified that she received

about 50 threatening telephone calls, mere harassment does not constitute

persecution. See Sepulveda, 401 F.3d at 1231. Further, despite these threats,

Hurtado was never physically harmed. As to future persecution, Hurtado’s son

remains in Colombia under his grandmother’s care without incident in the same

town where Hurtado had been threatened. See Tawm v. Ashcroft, 363 F.3d 740,

743 (8th Cir. 2004) (holding that an alien did not establish a well-founded fear

where, inter alia, the alien’s family continued to live in Lebanon without incident).

Based on this analysis, substantial evidence exists to support the IJ’s decision that

Hurtado failed to meet her burden of proving that she faced past persecution or had

a well-founded fear of persecution and, therefore, was ineligible for asylum. See 8

C.F.R. § 208.13(b)(2)(i).

In addition, since Hurtado failed to establish that she faced past persecution

or had a well-founded fear of persecution, regardless of whether she could have

relocated elsewhere in Colombia, we need not decide whether the internal

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relocation requirement is constitutional. See Alltel Communications, Inc. v. City of

Macon, 345 F.3d 1219, 1221 n.2 (noting principle that federal courts should decide

constitutional issues unless the court cannot avoid the question).

Based on the foregoing reasons, we deny the petition for review.

PETITION DENIED.

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