The opinion
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 21, 2006
No. 05-15875 THOMAS K. KAHN
________________________ CLERK
BIA No. A97-185-014
JAVIER MAURICIO MARTINEZ RUIZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 21, 2006)
Before PRYOR, FAY and REAVLEY,* Circuit Judges.
FAY, Circuit Judge:
*Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth Circuit, sitting
by designation.
Javier Mauricio Martinez Ruiz (“Ruiz”), a Colombian citizen, appeals the
Board of Immigration Appeals’ (“BIA”) denial of his application for asylum as
well as his request for withholding of removal. Because Ruiz filed his application
for asylum 21 days after the one-year deadline, we hold that this Court does not
have jurisdiction to review the denial of his asylum application pursuant to 8
U.S.C. § 1158(a)(3). We also hold that Ruiz’s kidnapping, physical assaults, and
threatening phone calls rise to the level of persecution. For the reasons set out
below, we grant Ruiz’s request for reconsideration of his petition for withholding
of removal and remand for further proceedings consistent with this opinion.
BACKGROUND
Ruiz is a citizen of Colombia. He testified before the Immigration Judge
(“IJ”) as follows. He joined the Colombian Liberal Party in 1994. Ruiz was
involved in numerous activities for the party, such as delivering food, medicine,
and working in voting drives.
In September of 2001, the Revolutionary Armed Forces of Colombia
(“FARC”) began to harass him. The first incident occurred when the FARC
interrupted a meeting which he was attending with some local peasants. The
FARC physically assaulted him and accused him of acting on behalf of
“politicians from Bogota.” They also took several of the young peasants with
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them, shooting one when he tried to escape. As they left, the FARC warned him
that they would kill him if he continued to participate in politics. Ruiz filed a
police report about the incident. A few days later, the FARC called him and
demanded that he stop his political activities.
Ruiz testified that the next incident occurred when he was returning to
Bogota from delivering food for the Liberal Party. As his group was returning,
members of the FARC stopped the bus, ordered everyone off, and set it on fire.
They also took some of the female passengers with them. They beat Ruiz with
their weapons and told him it was his last chance to cease his political activities.
On December 1 and 2, 2001, the FARC telephoned Ruiz and again
threatened his life. Taking these warnings more seriously, he went into hiding on
a farm where his friend, Victor, was the caretaker. On January 5th, the FARC
went to the farm, kidnapped Ruiz and Victor, and raped Victor’s wife. According
to Ruiz’s testimony, the FARC’s plan was to trade him and Victor for imprisoned
guerillas. The FARC believed they could do this because of Ruiz’s place within
the Liberal Party. Since he was active in politics, the FARC believed Ruiz’s life
would be of sufficient value to arrange such a trade. After 18 days of being held
against his will, Ruiz managed to escape when the Colombian Army skirmished
with the FARC on January 23, 2002. On February 3, 2002, 11 days later, he
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arrived in the United States. In February 2003, Victor was found dead in a
common grave.
COURSE OF PROCEEDINGS
Ruiz came to the United States on February 3, 2002, on a six-month visa.
More than a year later, the federal government (“respondent”) instituted
preliminary deportation proceedings against him. On February 24, 2003, Ruiz
filed an I-589 application requesting asylum. In the alternative, he also requested
withholding of removal under 8 U.S.C. § 1231(b)(3). He presented multiple
pieces of evidence in support of his testimony, such as a Colombian police
statement from Victor’s wife which recounted her rape and the kidnapping of
Victor and Ruiz. Ruiz also submitted a medical report and a prescription he
received to treat injuries received while held captive. He also submitted a police
report concerning the September 12 beating he received. Furthermore, Ruiz filed
a letter from the Campaign Coordinator of the Liberal Party, stating that he was an
active member in the party. Finally, he filed Victor’s death certificate, which
corroborated that Victor was shot and found in a common grave.
The IJ found that Ruiz’s asylum application was time-barred by 8 C.F.R. §
208.4(a)(2) because it was not filed within the one year deadline. The IJ
determined that even if the asylum application were not time-barred, it would still
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be denied based on a lack of credibility in Ruiz’s testimony and because he had
failed to establish that he was persecuted based on any of the five statutory
grounds outlined in 8 U.S.C. § 1101(a)(42)(A). Those grounds are race, religion,
nationality, membership in a particular social group, or political opinion. The IJ
also concluded that even if these instances qualified as persecution, Ruiz could be
relocated within Colombia under 8 C.F.R. § 208.16(b)(1)(i)(B), which would also
serve to deny his asylum application. The IJ further concluded that because he did
not show a “well-founded fear of persecution” as required for asylum, Ruiz had
also failed to establish a “clear probability of persecution,” the higher burden of
proof required for withholding of removal.
Ruiz appealed to the BIA. The BIA, like the IJ, held that Ruiz’s asylum
application was time-barred. However, the BIA assumed Ruiz’s credibility, and
respondent concedes his credibility on this appeal. Even though it accepted his
testimony as credible, the BIA found that Ruiz did not demonstrate a clear
probability of persecution if returned to Colombia, as required for withholding of
removal. This appeal followed.
STANDARD OF REVIEW
There are two issues on appeal:
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I. Whether this Court has subject-matter jurisdiction to review the BIA’s finding
that Ruiz’s asylum application was time-barred.
II. Whether the BIA erred when it denied Ruiz’s request for withholding of
removal.
We review subject-matter jurisdiction de novo. See Brooks v. Ashcroft, 283
F.3d 1268, 1272 (11th Cir. 2002); Jairath v. Dyer, 154 F.3d 1280, 1281-82 (11th
Cir. 1998).
When the BIA issues a decision, we review the BIA’s decision, except to
the extent that the BIA has expressly adopted the IJ’s decision. Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (citing Garrovillas v. INS, 156
F.3d 1010, 1013 (9th Cir. 1998)). In that instance, we review the IJ’s decision as
well. Id. See also Predo-Gonzalez v. INS, 75 F.3d 631, 632 (11th Cir. 1996).
This Court “must affirm the BIA’s decision ‘if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.’” Al
Najjar, 257 F.3d at 1284 (citing Lorisme v. INS, 129 F.3d 1441, 1444-45 (11th
Cir. 1997)). To conclude the BIA’s decision should be reversed, we “must find
that the record not only supports the conclusion, but compels it.” Fahim v. U.S.
Attorney Gen., 278 F.3d 1216, 1218 (11th Cir. 2002) (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 480 n.1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
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ANALYSIS
I. Jurisdiction Over the Denial of Asylum
Pursuant to 8 U.S.C. § 1158(a)(2)(B), an application for asylum must be
filed within one year of entering the United States. However, 8 U.S.C. §
1158(a)(2)(D) allows applications to be untimely in the event of extraordinary
circumstances relating to delay in filing the asylum application. See also 8 C.F.R.
§ 208.4(a)(5) (identifying events that qualify as extraordinary circumstances). 8
U.S.C. § 1158(a)(3) provides that “[n]o court shall have jurisdiction to review any
determination of the Attorney General under paragraph (2).” This Court has
decided that this section divests us of jurisdiction to review decisions of whether
an alien complied with the one-year time limit, or whether extraordinary
circumstances were present to justify untimely filing of the asylum application.
Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir. 2003) (citing
Fahim v. U.S. Attorney Gen., 278 F.3d 1216, 1217-18 (11th Cir. 2002)). Thus,
regardless of whether Ruiz’s application was timely or whether extraordinary
circumstances existed, it is not within this Court’s jurisdiction to review a denial
of asylum on those grounds.
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II. Withholding of Removal
Ruiz also appeals the IJ and BIA’s denial of withholding of removal. 8
U.S.C. § 1231(b)(3)(A) provides that an alien is entitled to withholding of removal
if removal would threaten his life or freedom on account of his race, religion,
nationality, membership in a particular social group, or political opinion.
Respondent does not dispute that the record compels a finding that Ruiz was
harassed by the FARC on account of his political opinion, one of the five
protected grounds as per 8 U.S.C § 1231(b)(3)(A). His participation in Liberal
Party activities precedes every FARC encounter, and the phone calls make clear
that Ruiz drew the FARC’s ire because of his political participation. Furthermore,
the FARC telephoned Ruiz about a month before his kidnapping and threatened
him once again, because he had not stopped his political activities. After seeking
sanctuary with his friend, Victor, the FARC kidnapped him and Victor and
attempted to trade them for imprisoned guerillas. The FARC would not have
thought the trade was possible if it weren’t for Ruiz’s political position. Thus, the
FARC was persecuting Ruiz for his political opinion, one of the five protected
grounds under 8 U.S.C. § 1231(b)(3)(A).
An alien seeking withholding of removal must show that it is “more likely
than not” he will be subject to persecution based upon one of the five protected
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categories if returned to his country.1 INS v. Stevic, 467 U.S. 407, 429-30, 104
S.Ct. 2489, 2501, 81 L.Ed.2d 321, 337 (1984). A showing that an alien has
suffered past persecution in the proposed country of removal creates a rebuttable
presumption that the alien’s life or freedom would again be threatened upon
removal to the proposed country. Antipova v. U.S. Attorney Gen., 392 F.3d 1259,
1264 (11th Cir. 2004) (citing 8 C.F.R. § 208.16(b)(1)(i)). This Court has held that
“persecution” is an “extreme concept” requiring “more than a few isolated
incidents of verbal harassment or intimidation... [m]ere harassment is not
persecution.” Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1231 (11th Cir.
2005) (citing Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000) (internal
quotes omitted). Even “light beatings” have been found not to rise to the level of
persecution. Cenolli v. U.S. Attorney Gen., 2006 WL 3422341 (11th Cir.
November 29, 2006) (affirming BIA’s finding of no persecution where alien was
beaten for refusing to change his vote, when alien suffered only a split lip and did
not require nor did he seek treatment for his injuries).
Respondent argues that the record does not compel the conclusion that Ruiz
suffered past persecution when it indicates that the FARC beat him on two
1. This is a more stringent standard than the “well-founded fear of persecution” standard used
with regard to applications for asylum. See Mazariegos v. Office of the U.S. Attorney General,
241 F.3d 1320, 1324, n.2 (11th Cir. 2001).
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occasions, telephoned threats to him, and held him against his will for 18 days.
We disagree.
We hold that the BIA erred when it found that the cumulative effect of the
beatings, the threatening phone calls, and the kidnapping did not amount to
persecution. Being held against one’s will for such an extended time is clearly
persecution, and respondent submits no authority holding otherwise. The record
compels the conclusion that these events amount to past persecution, and that this
persecution was on account of his political opinion. The record compels such a
conclusion because the BIA and the respondent accepted Ruiz’s testimony as
credible, as well as the corroborative evidence he filed. Therefore, Ruiz has a
rebuttable presumption that his life or freedom would be threatened upon removal
to Colombia.2
An alien that has experienced past persecution may still be removable if the
alien could avoid a future threat to his life or freedom by relocating to another part
of the proposed country of removal, as long as it would be reasonable to expect
him to do so. Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir.
2003) (citing 8 C.F.R. § 208.16(b)(1)(i)(B)).
2. Counsel for respondent concedes that if kidnapping qualifies as persecution, Ruiz is entitled
to relief. We have no difficulty in concluding that kidnapping certainly amounts to persecution.
We appreciate the candor of counsel.
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The only information in the record indicates that relocation within Colombia
was not a possibility. The U.S. Citizenship and Immigration Services report on
the possibility of relocation within Colombia that appears within the record states
that: “the FARC has a presence in virtually all of the nation’s 32 departments and
urban centers and has a country-wide capability to harm...” Based on the FARC’s
far-reaching presence in Colombia, the report concludes that relocating within
Colombia would not be sufficient to escape FARC persecution. Based on this
record, we are compelled to find that the INS failed to establish by a
preponderance of the evidence that Ruiz could reasonably relocate within
Colombia. See Arboleda v. U.S. Att’y. Gen., 434 F.3d 1220 (11th Cir. 2006).
CONCLUSION
We hold that this Court does not have jurisdiction to review the BIA’s
denial of Ruiz’s asylum application as untimely, but we grant in part Ruiz’s
petition for reconsideration of his claim for withholding of removal. Therefore,
we vacate the BIA’s order and remand for proceedings not inconsistent with this
opinion.
PETITION DENIED IN PART AND GRANTED IN PART.
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