Petition for Writ of Certiorari — Sanchez-Ayala v. Gonzales (No. 06-1424)
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Supreme Court, U.S.
FILED -
061424 APR 23 2007
NO.
OFFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
CARLA SANCHEZ-AYALA and
JAMES CASTRO,
Petitioners
v.
U. S. ATTORNEY GENERAL
Respondent
On Petition for Writ of Certiorari
To the United States Court of Appeal for the Eleventh
Circuit
PETITION FOR WRIT OF CERTIORARI
GEORGIA B. GILLETT
Counsel of Record
THE GILLETT LAW FIRM, P.A.
3350 S.W. 148” Avenue, Ste. 110
Miramar, Florida 33027
Tel: (954) 822-1330
- 2 oes
QUESTION PRESENTED FOR REVIEW
Whether the 11" Circuit Court of Appeals abused its
discretion in denying the Petition for Review of the Motion
to Reopen where Petitioners have demonstrated changed
country conditions and that they have a prima facie case for
political asylum and Withholding Removal under the statute
and the Convention Against Torture.
CORPORATE DISCLOSURE STATEMENT
No parties are corporations. Sup. Ct. R. 29.6
TABLE OF CONTENTS
Question Presented for Review................cccceeesees i
Corporate Disclosure Statement....................000008 il
Se IE IN a oid discs cavevedendhacaccnaieunumea ae 11
TURE OR AIG iin cent decespnevcsentitacdiced il
Petition for a Writ of Certiorari...............22.. e000 ]
CE iss cide snsciesrandves dxesedurddbeeriaess cs |
PR vininncsadicdekusenvensndeteca aed neal
Constituuonal Provision and Statutes Involved......... ]
OIE OE Ge GI vivid sce nvecpecte wincavavsicatvoceass 2
Reason Sor Granstany Cle Wtih....as sc cacvsvesvecarescesvesers 2
I. The Decision Below Conflicts with
Established Case Law........ccccsccescoueres 2
SC 0 ong cnet nscceveracserees 4
li. Petitioners’ Prima Facie Case for
ies advo plnisaiiacel
0 Be BI 6 5 sceccxcescersyivecvesersers 5
Fit EL Gobcinduiidects denbiensddiiued 6
b. Withholding of Removal
oo 4} ees 10
1. Clear Probability of
and No Safety In Movung............... 1]
A. Clear Probability
SSIES AA 11
c. Withholding of Remova!
Under the Convention
I I gies i uidabesivdeschcepuccas 13
2. Torture by the FARC with the
Acquiescence of the Columbian
SIL, os ss cpccceupbakaadenneshiieei 14
Ros aconnynccesdpcacdnsiericcecubsiebusaiuiatekees 14
PIE daaieDusikccdnescepuckuintdessvadananwsinaanaianias la
TABLE OF AUTHORITIES
CASES
Adriano v. INS, 168 F.3d 497 (9" Cir. 1999)...000000.00..
Arteaga v. INS. 836 F.2d 1227, 1231 & 1232
Pr ee
dil
Cordon-Garcia v. INS. 204 F. 3d 985, 990
ag "Re Se IN UOTE.
Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9" Cir.
RD ROR SEP celine a eer 6, 10
Eftekharv v. Ashcroft, 77 Fed. Appx. 980
RR oe ee
Gonzalez v. INS, 82 F.3d 903, 907 (9" Cir. 1996)......... 8
INS v. Abudu, 485 U.S. 94, 104-105 (1988)............. 23
INS v. Dougherty, 502 U.S. 314, 323, 112 S.Ct. 719
“| _ > OBRINT arene Bae Cremeans Sita Crate rer ese 2
INS v. Elias-Zacarias, 502 U.S. 478, 481,
ES ee Or a a k 5
In re: Y-L, A-G, R-S-R, 23 L&N. Dec. 270, 283
RRR aR Este eect nan eae ras © 14
Kataria v. INS, 232 F.3d 1107. 1119
ree See ee 5,6. 10, 11
Ladha v. INS, 215 F.3d 889, 897 (9" Cir. 2000)............ 6
Leiva v. Morales, 165 F.3d 916 (9" Cir. 1998)......00..... 5
Li v. INS, 92 F.3d 985, 988 (9" Cir. 1996)..........c.ccseee 3
Lim v. INS, 224 F.3d 929, 935 (9" Cir. 2000).............. 7
Matter of A-S-, 21, I&N Dec. 1106 (BIA 1998)........7, 10
Matter of C-A-L-, 2] I&N Dec. 754 (BIA 1997)........... 7
Matter of E-P, 21 I&N Dec. 860 (BIA ij Or
Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).....7
Matter of S-V, 22 I.&N. Dec. 1306 (BIA 2000).......... 13
Mejia-Paz v. INS, 111 F.3d 720, 723 (9™ Cir. 1997).......6
Navas v. INS, 217 F.3d 646, 655 (9" Cir. 2000).......... 10
Ontunez-Tursios v. Ashcroft, 303 F.3d 341
"gl SRP ER ay eed een 14
Reves-Guerrero v. INS, 192 F.3d 1241, 1243-44
PP SI csiicdevsccdcetacacnchcctecacon 8, 9. 10, 11
Sanchez-Ayala v. U.S. Attorney General, Slip Copy,
I se Fee de EE ooeeknsnsvethaieenie coeuteieoncetecs J
Singh v. INS, 134 F.3d 962, 967 (9 Cir. 1998)........... 6
Watkins v. INS, 63 F.3d 844, 847 (9" Cir. 1995)........... 4
Zayas-Manini v. Immigration and Naturalization
Service, 785 F.2d 801 (9" Cir. 1986................... 7
Zheng v. Ashcroft, 332 F.3d 1186, 1195
gg. Ee. SAR RIE eee Pa Seve mo oP 13.
STATUTES
Section 101(a)(15) of the Immigration
And Nationality Act..................0ee08 1, App. la
Section 208(a) of the Immigration
and Nationality Act..................... 1, 14, App. 2a
Section 237(a)(1)(B) of the Immigration
And Nationality Act....................008 1, App. 3a
Section 241(b)(3) of the Immigration and
Py SN int vcde nindavecsctninnys 1, 14, App. 4a
BF Tie 6 Flee vn ic ccstintienceatisanetsncpeeeiion 3
8 C.F.R. § 208.13(b)(1)(i) Eeidesiadevetids 1, 6, App. 5a
fap Re SS ys eee 1, 13, 15, App. 7a
Ett ini oo) een
Bris BEE sancenbexcasdadeleceesenavaccevedecesaaes 14
8 U.S.C. § 1231 (b)(3)
CUI TE Bi vs ccbstsncvasccessxierea BOVIS FE
Bek Ge B- SeE E Perv cvetntaccnsntcesebaneddantuibaciaiehinnn J
OTHER SOURCES
Country Reports on Human Rights Practices -
TE Bos ne csc cuinckdaacpendcbvassheunans 4.5
Country Reports on Human Rights Practices -
Columbia (2005)....... SIREN AES P SORE ORE 4.5
Country Reports on Human Rights Practices -
I on aes deauaueuw ues 4,5
vi
PETITION FOR A WRIT OF CERTIORARI
Petitioners, Cala Ines Sanchez-Ayala and James Castro,
respectfully petition for a writ of certiorari to review the
judgment of the United States Court of Appeal for the 11"
Circuit.
OPINIONS BELOW
The opinion of the Court of Appeal, Sanchez-Ayala v. U.S.
Attorney General, Slip Copy, 2007 WL 177599 (11" Cir.
2007) (App. 36a) is not published. The opinion of the Board
of Immigration Appeals dated June 5, 2006 regarding their
denial of Petitioners’ Motion To Reopen (App. 31a) is not
reported. The opinion of the Board of Immigration Appeals
dated February 7, 2006 (App. 29a) is not reported. The
Opinion of the Immigration Judge (App. 10a) is not reported.
JURISDICTION
The judgment of the United States Court of Appeals for the
11" Circuit was issued on January 22, 2007. This Court has
jurisdiction over this petition under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISION AND STATUTES
INVOLVED
Section 101(a)(15) of the Immigration and National Act:
(App. la)
Section 208(a) of the Immigration and Nationality Act:
(App. 2a)
Section 237(a)(1)(B) of the Immigration and Nationality Act:
(App. 3a)
Section 241(b)(3) of the Immigration and Nationality Act:
(App. 4a)
8 C.F.R. § 208.13(b)(1)(1) (2000) (App. 5a)
8 C.F.R. § 208.16(c)(2) (App.6a)
l
8 C.F.R. § 208.16(c)(2} (App.6a)
8 C.F.R. § 1003.2(c)
8 U.S.C. § 1231 (b)(3) (Supp. I] 1996) (App. 6a)
STATEMENT OF THE CASE
Petitioners timely filed their asylum application. At the
conclusion of the Individua} Hearing on September 14, 2004,
the Immigration Judge denied Petitioners’ applications for
politica} asylum and withholding of removal under the
statute and the United Nations Convention Against Torture.
Petitioners then appealed the Immigration Judge's
decision to the BIA. On February 7, 2006, the BIA affirmed
the Immigration Judge’s decision and gave additional
comments. Petitioners then filed a motion to reopen that
decision but on June 5, 2006, the BIA denied their motion to
reopen. Petitioners filed their Motion To Grant Stay of
Removal with the 11" Circuit Court of Appeals. The 11"
Circuit Court of Appeals denied their motion. Petitioners
filed a Motion To Stay Removal with the United States
Supreme Court. The Supreme Court denied that motion on
August 28, 2006. Petitioners filed their Petition for Review
of the BIA’s decision denying their motion to reopen the
case. That Petition for Review was denied on January 22,
2007.
REASON FOR GRANTING THE WRIT
The Decision Below Conflicts with Established Case Law
The Court of Appeals abused its discretion in
denying Petitioners’ Motion to Reopen. See LN.S. v.
Doherty, 502 U.S. 314, 315, 112 S.Ct. 719 U.S., 1992, citing
INS v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L..Ed.2d
90. (1988).
tJ
In Eftekhary v. Ashcroft, 77 Fed. Appx. 979, 980 (9"
Cir. 2003), the Court stated:
The Board did not abuse its discretion by
determining that Eftekhary's motion did not
furnish new evidence of changed country
conditions sufficient to satisfy 8 C.F.R.
§3.2(c)(3)(ii). Under section 3.2(c) (now 8
C.F.R. § 1003.2), new evidence of changed
country conditions only justifies reopening
deportation proceedings if Eftekhary can
establish a prima facie case for asylum. INS
v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct.
904, 99 L.Ed.2d 90 (1988). Fear of criminal
prosecution does not constitute a prima facie
case for asylum unless the record shows that
prosecution will likely result in
"disproportionately severe punishment."
Liv. INS, 92 F.3d 985, 988 (9th Cir.1996).
Eftekhary submits as new evidence
the 2001 State Department Country Report
for Human Rights Practices for Iran
(Country. Report), available at
http://www.state.gov/g/drl/rls/hrrpt/2001/nea
/8251.htm, and an Iranian newspaper article.
The Country Report does not support a
prima facie case for asylum and withholding
of deportation because it merely indicates
that Iranian citizens returning from abroad
are "subject to search and extensive
questioning by government authorities for
evidence of regime activities abroad." /d.
Government officials may search and
question returning nationals without
committing politically motivated
3
"persecution" for purposes of the
Immigration and Nationalization Act.
Eftekhary's newspaper article reports
that Iranian authorities executed an Iranian
national after he confessed that he "returned
to Iran ... under thedirection of the CIA
to commit treason and espionage." Siavash
Bayani Is Executed for Spving for America,
SALAAM NEWSPAPER. Sept. 2, 1997.
This text does not compel the conclusion
that Iranian authorities would bring
espionage charges or impose capital
punishment simply because Eftekhary
deserted the military, departed the country
illegally, and spent considerable time
abroad. Eftekhary's new evidence does not
demonstrate that the Board's decision to
deny his motion was "arbitrary, irrational, or
contrary to law." Watkins v. INS, 63 F.3d
844. 847 (9th Cir. 1995).
. Countrv Conditions
The Court of Appeals for the 11" Circuit states that
the March 27, 2006 letter from the local president of the
Liberal Party only made references to general threats to
members of the Liberal Party. However, the Columbian
government has been unable and unwilling to contro! the
activities of the FARC guerillas. The U.S. Department of
States Country Reports for Human Rights Practices for
Columbia for 2001 is replete with information of the
lawlessness of the guerillas. The 2005 and 2006 Country
Reports evidence the failure of the Columbian government to
fully control such lawlessness to date.’ The 2006 Country
Report shows the activities of the FARC has increased since
the 2005 report was issued. For example, forced
disappearances and the unlawful killings of teachers, human
rights activists and religious teachers increased 2005 and
2006. The Liberal Party’s letter together with The Country
Reports are sufficient to satisfy a reopening pursuant to 8
C.F.R. § 1003.2(c).
Since the Petitioners show, infra, that they have a
prima facie case for political asylum, their case should be
reopened.
ii. Petitioners’ Prima Facie Case for Political
Asylum
a. Political Asylum
Tc establish eligibility for asylum, an applicant must
prove that he or she is a refugee. Kataria v. INS, 232 F.3d
1107, 1119 (9" Cir. 2000), Citing Cordon-Garcia v. INS, 204
F. 3d 985, 990 (9" Cir, 2000). An asylum applicant must
demonstrate “persecution or a well-founded fear of
persecution on account of [one of five grounds]: race,
religion, nationality, membership in a particular social group,
or political opinion. 8 U.S.C. §1101(a)(42(A). The asylum
applicant bears the burden of establishing past persecution
and a well-founded fear of future persecution based upon one
of the five protected grounds of the Act. INS vy. Elias-
Zacarias, 502 U.S. 478,481, 112 S. Ct. 812 (1992).
' We ask the Court to take judicial notice of the two most current Country
Reports on Human Rights Practices for Columbia for 2005 and 2006,
located at http;//www.state,gov/g/dri/ris/hrrpt/2006/78885.him_and
http: www, state, gov/g/drl/rls/hrrpt/2005/78885.htm pursuant to Lising v.
INS, 124 F.3d 996 (9" Cir. 1997) since they go to the heart of this case.
See also Gafoor v, INS, 231 F.3d 645 (9" Cir. 2000).
5
Persecution is defined as “the infliction of suffering
or harm upon those who differ (in race, religion, or political
opinion) in a way regarded as offensive.” Kataria 232 F.3d
at 1119, citing Cordon-Garcia, 204 F. 3d at 991 (quoting
Singh v. INS, 134 F.3d 962, 967 (9" Cir. 1998). Threats can
rise to the level of persecution. Leiva Morales v. I.N.S., 165
F.3d 916 (9" Cir. 1998), citing Arteaga v. INS. 836 F.2d
1227, 1231 & 1232 (9th Cir.1988). -
To establish a well-founded fear of persecution, an
applicant must demonstrate both a subjective and an
objective fear of persecution. Kataria, 232 F.3d at 1119,
citing Mejia-Paz_ v. INS, 111 F.3d 720, 723 (9" Cir. 1997).
An applicant can satisfy the subjective component by
credibly testifying that he genuinely fears persecution. An
applicant can satisfy the objective component in two ways.
Kataria, 232 F.3d at 1119, citing Ladha v. INS, 215 F.3d
889, 897 (9" Cir. 2000). The first way is to prove
persecution in the past, giving rise to a rebuttable
presumption of a well-founded fear of future persecution.
Citing 8 C.F.R. § 208.13(b)(1)(i) (2000). The second way is
to “show a good reason to fear future persecution by
adducing credible, direct, and specific evidence in the record
of facts that would support a reasonable fear of persecution.”
Kataria, 232 F.3d at 1119, citing Ladha, 215 F. 3d at 897
(quoting Duarte de Guinac, 179 F.3d 1156, 1159 (9 Cir.
1999). The objective requirement can be met “either through
the production of specific documentary evidence or by
credible and persuasive testimony. Id.
I. Credibility
The Immigration Judge found that Lead Petitioner
was not credible and the BIA affirmed that decision stating
that the Petitioners failed to present a credible claim for
relief and made additional comments as to credibility. The
6
BIA stated that the Petitioners’ story was implausible and
inconsistent and cited Matter of A-S-, 21, I&N Dec. 1106
(BIA 1998). It went on to state that the Petitioners failed to
provide testimony that was believeable, consistent, and
sufficiently detailed to provide a plausible and coherent
account of the basis for their fear and cited Matter of
Mogharrabi, 19 I&N Dec. 439 (BIA 1987). The Board said
that the Lead Petitioner asserted that her life was threatened
by the FARC, and that she was able to flee to the United
States, but returned to Columbia to care for her sick mother.
According to the Board, the Lead Petitioner stated that after
her mother healed, she decided to continue her work with the
Liberal Party, providing literacy programs to farmers,
knowing that she would be returning to the zone of danger.
The BIA stated that the Lead Petitioner testified that on
many occasions while meeting with farmers, she was
surprised by the FARC, and barely escaped by literally
running out the back door, as the FARC entered the front
door. The BIA then said, it noted that Lead Petitioner was
able to jive unmolested in Columbia while she cared for her
mother and cited Matter of C-A-L-, 21 I&N Dec. 754 (BIA
1997).
In Zayas-Marini v. Immigration and Naturalization
Service, 785 F.2d 801 (9" Cir. 1986), Marini’s return to his
country more than once after fleeing in fear was not held
against him. In Lim v. INS, 224 F.3d 929, 935 (9" Cir.
2000), Melencio Lim served as a police officer in the
Philippines from 1972 to 1987. In 1985, he testified in open
court against some subversive leaders, including Mario
Subona. (Lim, 224 F.3d at 932). Shortly thereafter, he
appeared on the NPA death list and began receiving death
threats. In 1987, to escape the threats, Lim left the police
department began practicing law in the Philippines. (Lim,
224 F.3d at 933). From 1990-91, three of Lim’s former
colleagues in the Subpoena investigation were murdered
one-by-one. Although neither Lim nor his family were ever
7
confronted or attacked, in Mav of 1991. Lim began to notice
that he was being followed by unidentified men. In August
of 1991, Lim left his wife and four children in the
Philippines and fled to the United States. (Lim, 224 F.3d at
933).
The Lim Court held that Lim’s failure to leave the
Philippines for six years after the first death threat does not
render his fear unreasonable. The Court stated that although
relevant, a post-threat harmless period need not vanquish an
asylum claim, particularly where significant evidence
suggests that the threats are becoming more menacing.
Citing Cf. Reves-Guerrero v. INS, 192 F.3d 1241, 1243-44
(9" Cir, 1999) (granting asylum to petitioner who endured
death threats for seven years prior to fleeing).
Similarly, In Adriano v. INS, 168 F.3d 497 (9" Cir.
1999), Carmencita Padilla Adriana, a native and citizen of
the Philippines, and like the petitioner in Gonzalez v. INS,
82 F.3d 903, 907 (9" Cir. 1996), had lived in her region for
many years and received escalating threats, which finaliy
drove her to flee, and leave behind her country and family.
Adriano testified that she took the third death threat by the
NPA extremely seriously, unlike the two earlier threats,
because NPA members told her that this was her final
warning to discontinue her religious ministry and that her
name had been placed on a NPA hit list. It was soon after
this “final” threat that she left the country. The Adriano
Court reversed the BIA’s decision and granted Adriano
political asylum.
In 1984, Carlos and Judge Guillermo Cruz-Cruz
began getting death threats, warning them against pursuing
the investigation. Twice in 1989, Carlos was approached and
offered suitcases full of cash as a bribe to drop the case. He
requested and was provided protection by the national
security agency. Reves-Guerrero v. LN.S., 192 at 1243.
8
After the White Collar defendants were found guilty in 1989,
and until he fled Columbia in 1991, Carlos continued to
receive threats over the phone and in person. The individuals
involved told Carlos that he was not going to get away with
the damage he caused the Liberal Party. Carlos was told that
he was responsible for the convictions and that he was a
stooge for the Conservative Party. Reyes-Guerrero v. I.N.S.,
192 F.3d at 1244. He was warned against playing politics,
and told that he would be in trouble if the convictions were
affirmed on appeal. Although he changed vehicles,
residences, offices, and phone numbers, and although he had
asked for protection from the government, those perpetrating
the threats always managed to find petitioners. Afraid for
their lives, Graciela and Carlos came to the United States in
September, 1990 and June, 1991 respectively. Reyes-
Guerrero v. I.N.S., 192 F.3d at 1244.
The Immigration Judge stated the article (regarding
the death of Lead Petitioner’s boss) indicates that he was
killed but it is not known the motivation for the crime or the
type of cases Mr. Rubianes Herrera was handling. The IJ
further states that Lead Petitioner seeks to connect the death
of Mr. Rubianes to the activities being done by the
foundation in those areas but the article does not lead one to
that conclusion.
However, the Court in Reyes-Guerrero, 192 F.3d at
1245 stated:
The BIA erred when it reduced the actions
against Carlos Reyes to nothing more than
attempts by criminal defendants to disrupt
the criminal process: The BIA's mistake was
to focus on one motive of the persecutors-
which was to disrupt the investigation of the
White Collar Scandal-while ignoring
substantial evidence in the record that the
9
persecutors saw Carlos as their political
enemy. The criminal justice and political
systems in Columbia are closely intertwined.
As in the Reyes-Guerrero case, the possibility of
mixed motives exists here in the killing of Mr. Rubianes.
While he may have defended M-19 and guerillas in the past,
he was actively working for the foundation at the time he
was killed.
The Court shovid find Petitioners credible since there
are no significant discrepancies and omissions and
Petitioners have offered convincing explanations to the
immigration Judge’s queries. See Matter of A-S-, 21 1. & N.
Dec. 1106 (BIA 1998). A finding of credible testimony is
essential, Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998), but
it is not necessarily dispositive; the specific content of the
testimony, and any other reievant evidence in the record, is
also considered. Matter of E-P, 21 I&N Dec. 860 (BIA
1997).
b. Withholding of Removal under the
Statute
An alien is entitled to withholding of removal “if the
evidence demonstrates a clear probability that the applicant
would be persecuted were he to be deported to his home
country.” Kataria, 232 F.3d at 1120, citing Duarte de
Guinac, 179 F.3d at 1159. “In order to demonstrate a clear
probability of persecution, a petitioner must prove that “‘it is
more likely than not that he would be persecuted on account
of a statutorily-protected ground.” Kataria, 232 F.3d at
1120, Citing Navas v. INS, 217 F.3d 646, 655 (9" Cir. 2000).
An alien seeking withholding of removal to any country
must show that his life or freedom would be threatened in
that country on account of one of the enumerated grounds.
10
Kataria, 232 F.3d at 1120, Citing 8 U.S.C. § 1231 (b)(3)
(Supp. I 1996).
l. Clear Probability of Persecution and No Safety in
Moving
A. Clear Probability of Persecution
According to Kataria, 232 F.3d at 1127-28, citing 8
C.F.R. 208.16(b)(2) (2000); Navas, 217 F.3d at 657 (“A
showing of past persecution gives rise to a presumption that
the applicant has shown a clear probability of future
persecution so as to entitle him to withholding of
deportation”), if the applicant is determined to have suffered
persecution in the past such that his or her life or freedom
was threatened in the proposed country of removal on
account of race, religion, nationality, membership in a
particular social group, or political opinion, it shall be
presumed that his or her life or freedom would be threatened
on return to that country unless a preponderance of the
evidence establishes that conditions in the country have
changed to such an extent that it is no longer more likely
than not that the applicant would be so persecuted there.
Adriano and Reyes-Guerrero, discussed supra, were
granted withholding of removal. Like the Petitioners in
Adriano and Reyes-Guerrere, the Petitioners here warrant a
grant of withholding of removal because they suffered past
persecution and there exists a clear probability that they will
suffer future persecution were they to be returned to
Columbia.
B. No Safety in Moving
An individualized analysis would show that
Petitioners could not safely move to another part of
Colombia. Ms. Sanchez testified that she worked for a
\]
foundation where she trained peasants/farmers in the rural
areas of Miranda, Corinto, and Caloto. Ms. Sanchez
testified that she campaigned with the Liberal Party and also
told the farmers in her literacy program about the Liberal
Party. And at the foundation, besides teaching the farmers,
she would help them to obtain their property title, through
the Regional Columbia Institute of Agriculture, so that they
could own their land and the FARC guerillas could not get
them out of their land.
Ms. Sanchez testified that she had problems in
Columbia. Ms. Sanchez stated that they (the guerillas) were
calling her house in 1998, January 23, 1998 and she reported
those calls to the police. She returned home from visiting
the U.S. in May 1998 and she received calls after returning
home but the maid would answer and say that Ms. Sanchez
was not home.
Ms. Sanchez also testified of two times that the
FARC almost got to her in person. The first time was on
February 1, 2001. She was in a store in Miranda. A farmer
that was a student of hers told her that it was better if she left
because the FARC was looking for her. So, she left. She
took her car and went home to Cali. On February 9, 2001,
she went to the school in Miranda. She was in the classroom
when a female farmer, Carmen, came in and told her that the
FARC was getting close. Ms. Sanchez stated that she looked
through the window and she saw about 15 people from the
6" Front of the FARC. She knew they were from the FARC
because they were wearing camouflage attire and had rifles.
Ms. Sanchez stated that she escaped through another door
and she immediately went down a hill and asked for help
from a jeep. She was then taken to her home in Cali. The
next morning, she received a call from the 6" Front of the
FARC at her house. They said to her “we are warning you,
this is an ultimatum we’re giving you teacher. We’re
looking for you. Whenever we find you, you know what's
12
going to happen to you.” After that, Ms. Sanchez left to
hide at a relative’s house in Cali while preparing to come to
the U.S. She came to the U.S. on April 10, 2001 and has not
returned to Columbia since then.
The Lead Petitioner testified that if she were to go to
Columbia, she would be killed because the 6" Front of the
FARC is located all over Columbia. She further testified that
the proof of that happening to her is that Dr. Jesus Rubianes,
her former boss at the foundation, was killed by the 6” Front
of the FARC on June 5, 2003, right in front of some farmers.
She stated that they are looking for-her to kill her.
Under current country conditions the Petitioners
would not be safe were they to be returned to Columbia.
e. Withholding of Removal Under the
Convention Against Torture
Article 3 of the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment prohibits it signatory states from removing “a
person to another state where there are substantial grounds
for believing that he would be in danger of being subjected
to torture.” The United States is a signatory to the
Convention and therefore, pursuant to 8 C.F.R. 208.16(c)(2),
an applicant for relief under the Convention against Torture
may not be removed to the stated country if the applicant can
establish that it is more likely than not that he would be
tortured if he were to be removed to that country.
In Zheng v. Ashcroft, 332 F.3d 1186, 1195 (9" Cir.
2003), the Court disapproved of the Board of Immigration
Appeals’ (BIA) decision in Matter of S-V, 22 L.&N. Dec.
1306 (BIA 2000). In Matter of S-V, the BIA en banc denied
relief under the Convention Against Torture to a Appellant
who asserted that if he were removed to Columbia, he would
13 |
be tortured by non-governmental guerillas, narco-trafficking
and paramilitary groups. The Court went on to state at page
1196 that under a narrowed interpretation of acquiescence,
the BIA stated that “the relevant inquiry under the
Convention Against Torture ...is whether governmental
authorities would...’ willfully accept’ atrocities committed
against persons in the persons position.” Quoting In re: Y-L.
A-G, R-S-R, 23 I].&N. Dec. 270, 283 (BIA 2002). The
correct inquiry, said the Court, as intended by the Senate, is
whether a Appellant can show that public officials “would
turn a blind eye to torture.” Quoting Ontunez-Tursios v.
Ashcroft, 303 F.3d 341 (5" Cir. 2002).
y & Torture by the FARC with the Acquiescence of the
Co ian Government
The Immigration Judge stated that the Petitioners
have not shown that it is more likely than not that they would
be tortured if returned to Columbia.
In the case at Bar, the Columbian government has
turned a blind eye to the activities of the FARC where the
guerillas act with impunity. Since Petitioners face torture at
the hands of the FARC with the acquiescence of the
Columbian Government, they should be granted withholding
of removal under the Convention Against Torture.
CONCLUSION
For all of these reasons, Petitioners respectfully
request that the Court of Appeals for the 11" Circuit's
decision be reversed and that their Motion to Reopen their
case for Political Asylum, Withholding of Removal! under
the Statue and Withholding of Removal under Article 3 of
the Convention Against Torture pursuant to 208(a).
241(b)(3) of the Immigration and Nationality Act, 8 U.S.C.
i4
§§ 1158(a), 1231 (b)(3), and 8 C.F.R. § 208.16(c)(2) be
granted.
Therefore, the petition for a writ of certiorari should
be granted.
Respectfully submitted,
Georgia B. Gillett, Esq.
2 Counsel of Record
THE GILLETT LAW FIRM, P.A.
| 3350 S.W. 148" Avenue, Ste. 110
4 Miramar, FL 33027
# Tel: 954-822-1330
15
APPENDIX
Section 101(a)(15) of the Immigration and Nationality
Act: .
(a) As used in this Act:
(15) The term "immigrant" means every alien
except an alien who is within one of the following
classes of nonimmigrant aliens
(A) (1) an ambassador, public minister, or
career diplomatic or consular officer who has
been accredited by a foreign government
recognized de jure by the United States and
who is accepted by the President or by the
Secretary of State, and the members of the
alien's immediate family;
(ii) upon a basis of reciprocity, other officials
and employees who have been accredited by a
foreign government recognized de jure by the
United States, who are accepted by the
Secretary of State, and the members of their
immediate families; and
(iii) upon a basis of reciprocity, attendants,
servants, personal employees, and members
of their immediate families, of the officials
and employees who have a nonimmigrant
status under (i) and (ii) above[.]
la
oe Ps
~~ 7
Ee ce UN ae Le OP ee i oe
Section 208(a) of the Immigration and Nationality Act:
Authority to Apply for Asylum. —
(1) In general. - Any alien who is physically present in
the United States or who arrives in the United States
(whether or not at a designated port of arrival and including
an alien who is brought to the United States after having
been interdicted in international or United States waters),
irrespective of such alien's status, may apply for asy!um in
accordance with this section or, where applicable, section
235(b).
(2) Exceptions. —
--(A) — Safe third country. - Paragraph (1) shall not
apply to an alien if the Attorney General determines
. that the alien may be removed, pursuant to a bilateral
or multilateral agreement, to a country (other than the
country of the alien's nationality or, in the case of an
alien having no nationality, the country of the alien's
last habitual residence) in which the alien's life or
freedom would not be threatened on account of race,
religion, nationality, membership in a particular
social group, or political opinion, and where the alien
would have access to a full and fair procedure for
determining a claim to asylum or equivalent
temporary protection, unless the Attorney General
finds that it is in the public interest for the alien to
receive asylum in the United States.
(B) Time limit. - Subject to subparagraph (D),
paragraph (1) shall not apply to an alien unless the
alien demonstrates by clear and convincing evidence
that the application has been filed within | year after
the date of alien's arrival in the United States.
2a
(C) Previous asylum applications. - Subject to
subparagraph (D), paragraph (1) shall not apply to an
alien if the alien has previously applied for asylum and
had such application denied.
(D) Changed conditions. - An application for
asylum of an alien may be _ considered,
notwithstanding subparagraphs (B) and (C), if the
alien demonstrates to the satisfaction of the Attorney
General either the existence of changed
circumstances which materially affect the applicant's
eligibility for asylum or extraordinary circumstances
relating to the delay in filing the application within
the period specified in subparagraph (B).
(3) Limitation on judicial review. No court shall have
jurisdiction to review any determination of the Attorney
General under paragraph (2).
7(a)(1)(B) 0 igrati tionality
Act:
(a) Classes of Deportable Aliens.-Any alien (including
an alien crewman) in and admitted to the United
States shall, upon the order of the Attorney General,
be removed if the alien is within one or more of the
following classes of deportable aliens:
(1) Inadmissible at time of entry or of adjustment
of status or violates status.
(B) Present in violation of law.- Any alien
who is present in the United States in
violation of this Act or any other law of the
United States, or whose nonimmigrant visa
3a
(or other documentation authorizing
admission into the United States as a
nonimmigrant) has been revoked under
section 221(i) is deportable.
Section 241(b)(3) of the Immigration and Nationality Act:
(b) Countries to Which Aliens May Be Removed.-
(3) Restriction on removal to a country where
_alien's life or freedom would be threatened.-
(A) In general .- Notwithstanding
paragraphs (1) and (2), the Attorney General
may not remove an alien to a country if the
Attorney General decides that the alien's life or
freedom would be threatened in that country
because of the alien's .race, religion,
nationality, membership in a particular social
group, or political opinion.
(B) —Exception.-Subparagraph (A) does not
apply to an alien deportable under section
237(ay(4)(D) or if the Attorney General
decides that-
(i) the alien ordered, incited,
assisted, or otherwise participated in
the persecution of an individual
because of the individual's race,
religion, nationality, membership in a
particular social group, or political
opinion;
4a
(il) the alien, having been
convicted by a final judgment of a
particularly serious crime, is a danger
to the community of the United States;
(iii) there are serious reasons to
believe that the alien committed a
serious nonpolitical crime outside the
United States before the alien arrived
in the United States; or
(iv) ere are reasonable grounds to
believe that the alien is a danger to the
security of the United States.
For purposes of clause (ii), an alien who has been convicted
of an aggravated felony (or felonies) for which the alien has
been sentenced to an aggregate term of imprisonment of at
least 5 vears shall be considered to have committed a
particularly serious crime. The previous sentence shall not
preclude the Attorney General from determining that,
notwithstanding the length of sentence imposed, an alien has
been convicted of a particularly serious crime. For purposes
of clause (iv), an alien who is described in section
237(a)(4)(B) shall be considered to be an alien with respect
to whom there are reasonable grounds for regarding as a
danger to the security of the United States.
8 C.F.R. § 208.13(b)(1)(i) (2000)
(b) Eligibility. The applicant may qualify as a refugee
either because he or she has suffered past persecution or
because he or she has a well-founded fear of future
persecution.
Sa
(1) Past persecution. An applicant shall be
found to be a refugee on the basis of past
persecution if the applicant can establish that
he or she has suffered persecution in the past
in the applicant's country of nationality or, if
stateless, in his or her country of Jast habitual
residence, on account of race, religion,
nationality, membership in a particular social
group, or political opinion, and is unable or
unwilling to return to, or avail himself or
herself of the protection of, that country
owing to such persecution. An applicant who
has been found to have established such past
persecution shall also be presumed to have a
well-founded fear of persecution on the basis
of the original claim. That presumption may
be ‘rebutted if an asylum officer or
immigration judge makes one of the findings
described in paragraph (b)(1)(i) of this
section. If the applicant's fear of future
persecution is unrelated to the past
persecution, the applicant bears the burden of
establishing that the fear is well-founded.
(i) Discretionary -referral or
denial. Except as provided in paragraph
(b)(1)(4ii) of this section, an asylum
officer shall, in the exercise of his or
her discretion, refer or deny, or an
immigration judge, in the exercise of
his or her discretion, shall deny the
asylum application of an alien found to
be a refugee on the basis of past
persecution if any of the following is
found by a preponderance of the
evidence:
6a
(A) There has been a fundamental change in
(B)
circumstances such that the applicant no longer has a
well-founded fear of persecution in the applicant's
country of nationality or, if stateless, in the
applicant's country of last habitual residence, on
account of race, religion. nationality, membership in
a particular social group, or political opinion; or
The applicant could avoid future persecution by
relocating to another part of the applicant's country of
nationality or, if stateless, another part of the
applicant's country of last habitual residence, and
under all the circumstances, it would be reasonable to
expect the applicant to do so.
8 C.F.R. Section 208.16(c)(2):
(c)
Eligibility for withholding of removal under the
Convention Against Torture.
(2) The burden of proof is on the appiicant for
withholding of removal under this paragraph to
establish that it is more likely than not that he or she
would be tortured if removed to the proposed country
of removal. The testimony of the applicant, if
credible, may be sufficient to sustain the burden of
proof without corroboration.
8 U.S.C. § 1231 (b)(3) (Supp. I 1996)
Countries to which aliens may be removed
(3)
Restriction on removal to a country where alien’s
life or freedom would be threatened
Ta
(A) In general
Notwithstanding paragraphs (1) and (2), the Attorney
General may not remove an alien to a country if the Attorney
General decides that the alien’s life or freedom would be
threatened in that country because of the alien’s race,
religion, nationality, membership in a particular social group,
or political opinion.
(B) Exception
Subparagraph (A) does not apply to an alien deportable
under.section 1227 (a)(4)(D) of this title or if the Attorney
Genera! decides that—
(i) the alien ordered, incited, assisted, or
otherwise participated in the persecution of an
individual because of the individual’s race,
religion, nationality, membership in a
particular social group, or political opinion;
(ii) the alien, having been convicted by a final
judgment of a particularly serious crime is a
danger to the community of the United States;
(iii) there are serious reasons to believe that the
alien committed a serious nonpolitical crime
‘outside the United States before the alien
arrived in the United States; or
(iv) there are reasonable grounds to believe that the
alien is a danger to the security of the United
States.
For purposes of clause (ii), an alien who has been convicted
of an aggravated felony (or felonies) for which the alien has
been sentenced to an aggregate term of imprisonment of at
Jeast 5 years shall be considered to have committed a
particularly serious crime. The previous sentence shall not
8a
preclude the Attorney General from determining that,
notwithstanding the length of sentence imposed, an alien has
been convicted of a particularly serious crime. For purposes
of clause (iv), an alien who is described in section 1227
(a)(4)(B) of this title shall be considered to be an alien with
respect to whom there are reasonable grounds for regarding
as a danger to the security of the United States.
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
Miami, Florida
Files A 95 264 423 September 14, 2004
A 95 264 424
In the Matters of
CLARA INES SANCHEZ-AYALA, ) IN REMOVAL
) PROCEEDIN
JAMES CASTRO, )
)
Respondents )
CHARGE:
APPLICATIONS:
ON BEHALF OF RESPONDENTS: ON BEHALF
DEPARTMENT
OF HOMELAND
SECURITY:
Juan Saborio, Esquire Lisa Schultz, Esquire
DECISION OF THE IMMIGRATION JUDGE
Each of the respondents where issued Notices
to Appear and they are in their respective records of
proceedings as Exhibit 1. The Government indicates that
James Castro is not a citizen of national of the United States
10a
but a native and citizen of Colombia who was admitted at
Miami, Florida, July 5, 1998, as a visitor for pleasure and
who remained beyond the 4th of August, 1998, without
authorization from the Immigration and Naturalization
Service. The respondent has, through counsel, admitted to
the allegations and conceded to his removability as charged
in his Notice to Appear. Based on admissions andconcession,
the Court finds that James Castro is removable under Section
237(a) (1) (B) of the Immigration and Nationality Act.
Although James Castro claimed that he was
being persecuted by the revolutionary armed forces of
Colombia while he was there, he never filed an asylum
application on his own behalf. He claimed that he was
waiting for his spouse to come to the United States before he
filed asylum. His wife did not return to the United States
until 3 years later.
Clara Ines Sanchez-Ayala has her Notice to
Appear marked as Exhibit 1 and the Government alleges that
she's not a citizen or national of the United States but a
native and citizen of Colombia who was admitted to the
United States at Orlando, Florida, April 10, 2001, as a visitor
for pleasure. The Government states that she remained
beyond October 9, 2001, without authorization from the
Immigration and Naturalization Service.
The respondent has, through counsel,
admitted to those allegations and conceded to removability
as charged in her Notice to Appear. Based on the admissions
and concessions, the Court finds that Clara Ines Sanchez-
Ayala is also removable under Section 237(a) (1) (B) of the
Immigration and Nationality Act.
Clara Ines Sanchez-Ayala will also be
referred to by the Court as Clara She did tender an asylum
application to the Government on April 8, 2001, just a couple
days shy of her one year presence in the United States. The
Reports on Human Practices for Columbia dated March 4,
2002, are in the record of proceedings of Clara as Exhibit 3.
lla
Counsel: for the respondents tendered additional materials
consisting of a medical report relating to Clara and it's in her
record of proceedings as Exhibit 4. On the 18th of July,
2003, counsel for th respondents tendered a newspaper
article from the Internet and letters and they're all composite
Exhibit 5. The Court only has what is purported to be a letter
from the Revolutionary Armed Forces of Colombia and the
letter's purportedly dated June 5, 2003. The respondents'
counsel on Sentember 5, 2003, tendered another newspaper
article along with a letter indicating that the foundation had
as it's director and representative a Doctor Rubianes who had
been killed. And there's a translation of a death certificate
and it's all composite Exhibit 6. On the 8” of September,
2004, the respondent tendered an addendum to her asylum
application as well as proof of the existence of a non profit
organization and it's all composite Exhibit 7. Both of the
respondents have testified and there are no other witnesses
nor documents for consideration by the Court.
CLAIMS FOR ASYLUM, WITHHOLDING OF
REMOVAL AND TREATMENT UNDER THE
CONVENTION AGAINST TORTURE
Asylum may be granted to an individual under Section 208
of the Act if the person qualifies as a refugee within the
meaning of Section 101(a) (42) of the Act which defines that
term to include any person who is outside any country of
such person’s nationality and who is unable or unwilling to
return to, and is unable or unwilling to avail himself 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 a
political opinion.
The asylum request is also viewed as an
application for withholding of removal under Section 241(b)
(3) of the Act which places restrictions on the removal of an
12a
alien to a country where the alien's life or freedom would be
threatened; an alien may not be removed to a country if th
Attorney General decides that the alien's life or freedom
would be threatened in that country because of the alien's
race, religion, nationality, membership in a particular social
group, or a political opinion. Section 241(b} (3) of the Act
would require that the respondent demonstrate a clear
probability of persecution on account of one of the five
grounds enumerated in the Act; the clear probability standard
requires a showing that it's more likely then not that the
respondent would be subject to persecution. See INS
v.Stevic, 467 U.S. 407 (1984).
The Court also examined if either of these
respondents might be eiigible for treatment under the
Convention Against Torture and to qualify they must prove
that he or she will be tortured if he or she returns to
Colombia and that the act will be instigated by or with the
acquiescence of the public official or other person acting in
an Official capacity. The respondents must prove it's more
likely then not that he or she would be tortured if returned to
Colombia.
ANALYSIS AND CONCLUSION
With reference to the respondent James
Castro, he entered the United States .in July 1998. He stated
that he was fleeing persecution but he never filed an asylum
application. On his own, he is not entitled to asylum in as
much as he did not file his asylum within one-year. 8 C.F.R.
208.4 indicates that the individual has the burden of proving
by clear and convincing evidence that he filed for asylum
within one-year of arriving or that they qualify for .an
exception to the one-year deadline.
In this case, James Castro indicated that he
came to the United States fleeing persecution but did not file
for asvlum as he was waiting for his wife to join him. His
13a
wife did not come to the United States until almost 3 years
after James Castro left Colombia. Indeed, with the one-year
deadline staring him in the face he should have filed and he
did not do so. The Court would find that on his own he is not
entitled to asylum.
. James Castro is, thru included in the asylum
application filed by his spouse, Clara Ines Sanchez-Ayala.
She tendered her asylum application to the Government on
April 8, 2002, almost one-year after her entry into the United
States. Within the asylum application in answering Part C,
Question 1, Clara states that she started working with a
foundation in January 1996 developing education and labor
training. programs, well as, social and community
organization program in three different municipalities in the
department of Cauca. She also: states that she was active
member of the Colombia Liberal Part in Corinto from 1996
to 2001 developing social and political services in the
community, | |
She relates that the 6th Front of the
Revolutionary Armed Forces of Colombia was in>
disagreement with the way that Clara was conducting her
work. She asserts that she was told to “leave the area or else"
and that her superiors advised her to get out of there. She
continues that after that she got married and 9 days later
came the United States at the invitation of a friend. Although
she planned to remain in the United States 60 days she said
she changed her plans because of her mother's illness and
returned to Colombia 20 days earlier then planned.
Clara explains that while she was in the
United States her husband started having problems with the
FARC guerrillas because of the work he was doing in the
same areas where Clara had been working. Two months after
Clara returned to Colombia the husband came to the United
States because of “messages” received from the FARC.
Clara claimed that she would come with her
husband but she decided to stay to assist her ill mother with
14a
whom Clara was living and she indicates that she was the
only daughter there in Colombia. Clara claimed that when
her mother got better from her illness she decided to return to
work in the year 2002 doing the same type of work as she
did prior to her travel to the United States.
She relates that in February of 2001 FARC
started threatening her and that on two occasions she had to
escape from FARC search squads because she was declared
a military objective. She states that it added to a deterioration
of her mental health because of her stress and that her
superiors and her brothers suggested that she abandon
Colombia fearing that the harm would harm her badly or
kidnap her. Clara gave this information in answering Part C,
Question 1, of her asylum application. She did not attach
anymore detailed information within the asylum application
proper. She does include an addendum at Exhibit 7.
She indicates therein that she started receiving
threatening calls in January 1998 at her residence and the
calls were from the 6th Front of FARC and she was told not
to go back to work. She explains that in February 15, 1998,
she received another call from the FARC and again told not
to return to the lands of Corinto, Miranda and Caloto.
She explains that she did come to the United
States on March 29, 1998, but only remained here for a
month and a half because her mother was ill.
She asserts that on August 5th, 2000, she went back to work
for the foundation and that in February of 2001 she was
approached by a farmer at a store and told that she was being
sought out by the FARC and she should leave. She claims
that she thus got in her car and left for Colombia. She
continues that on February 9th, 2001, she again at a school in
Miranda when a farm girl told her that the 6th Front of
FARC was coming and as the respondent Jooked out the
window she saw 15 people in uniform with weapons walking
toward the school. Clara claims that she left on foot through
a shortcut and got a ride to Cali in a jeep. She told her
l5a
superior who advised her not to travel there anymore. She
states that on the following day she received a ultimatum
from the FARC telling her not to go near that area and that
she had been warned about that and had she not listened to
them she would be killed. She states that she thus left the
country. She claims that her boss Jesus Rubianes was killed
by guerrillas and this occurred on the 5th of June, 2003.
With reference to the death of the supervisor,
Mr. Rubianes, there is an article included within Exhibit 6 as
to the death of Jesus Rubianes Herrera. The article indicates
that Mr. Rubianes was a defender of guerrilla members.
According to the news article Mr. Rubianes was among a
group of ‘attorneys, who in the 1980's were in the defense of
individuals who were captured and accused of belonging to a
guerrilla group. Mr. Rubianes mainly defended members
active in the -19 guerrillas groups but he also represented
members of the FARC and members of the ELN. According
to the article several members of that group of defense
attorneys had received death threats and abandoned but Mr.
Rubianes continued his career in that area. The article
indicates that he was killed but it is not known the
motivation for the crime or the type of cases Mr. Rubianes
Herrera was handling.
Clara seeks to connect the death of Mr.
Rubianes to the activities being done by the foundation in
those areas but the article does not lead one to that
conclusion. Clara Ines Rubianes had an opportunity to
testify on two different occasions. She started her testimony
on August 24th, 2004, but the matter was reset to this 14th of
September, 2004, to allow her more time to present her
claim. Moreover, it was obvious after the start of the
testimony by Clara that she would need more time to present
her asylum claim.
Clara claimed that she was active with the
Social Advancement Foundation since January 1996. She
asserted that the purpose of this foundation was to help out
l6a
among the work she did was trying to partition lands for
cultivation in the towns of Corinto, Miranda and Calete. She
said that land was being parceled out to pheasants to live
there. She explained that she did this in conjunction with a
government agency which was giving lands to the pheasants.
On this 14th of September, 2004, Clara said
that her first problem was in February of 2001 but in her
asylum application she points out that she had previously
encountered difficulties. in Colombia. She claimed that she
had been receiving calls from FARC to leave or else. She
indicated that she thus carne to the United States. She
testified that she entered the United States on the 29th of
March, 1998. She did not seek asylum when she entered the
United States in March 1998. Indeed, by this time she had
already been involved in the foundation and she had already
been the subject of threats and she did not stay to file an
asylum application. Instead, she returned to Colombia.
James Castro claimed that he had been active
since the middle of 1966 in preaching in the rural areas. He
claimed to have been involved in social and evangelical
work in the areas on the weekends. He asserted that the
guerrillas considered him a spy. He relates’ that a threatening
call was made to him on June 1, 1998, while he was at his
mother's house. He had said that the caller identified himself
as being a member of the Revolutionary Armed Forces of
Colombia and he was warned not to give his back to them or
he would be killed. James Castro did not receive any other
calls or have any other problems. However, the comments
scared him enough where he came to the United States in
July 5th, 1998. By this time Clara had already returned to
Colombia from her visit to the United States.
James Castro did not tell Clara, his wife,
about the threatening call that he received from the FARC in
1998. He said he didn't want to worry her about that. This
Court can hardly find that credible. After all, Clara had come
to the United States in March 1998 in order to escape the
17a
threats being made against by the FARC. Logic would
dictate that if he was also targeted he would have informed
her about that and plans would have been made for the two ©
of them to leave. Logic would dictate that steps would have
been taken by him to assure that their safety is taken care of.
That he would not inform her just simply is not credible. He
said that he came to the united States on July Sth, 1998, as he
feared he would be killed. That he did not inform Clara
stretches the outer limits of (indiscernible) when one
considers that she had already purported come to the United
States in March 1998 out of threats made by her previously.
: Clara indicated that. she was caring for her
mother and her testimony was rather confusing as to whether
or-not she received any threats after she returned to
‘Colombia to care. for her mother. She indicated that she
returned to Colombia because her mother was il] and stated
that she returned roughly in June1998. She was asked if she
had any threatening calls between April '98 and August
2000, and she indicated that it was because they had changed
their residence. She was asked if she received any.
threatening calls after her return to Colombia in May 1998
and she claimed that calls were received but the maid
answered the phone and indicated that the respondent was
out of the country. She claimed that when the maid or her
mother answered the phone they would deny that Clara was
at home. She claimed that she stayed living at her mother's
house.
Clara claimed to have returned to work with
the foundation. That she would have returned to work with
the foundation when she was still receiving threatening calls
simply is not credible. She stated then in February of 2001 a
farmer told her to leave when she had gone to Miranda to
conduct her training in literacy to the farmers. Clara said
that she was telling the farmers that they should not be
growing the cocaine or the marijuana which the FARC was
giving them. She said that the farmer told her that it would
18a
be best if she left and she thus did leave on February 1, 2001.
By this point, Clara has been warned by the farmer to leave
and supposedly by this time she's receiving threatening calls
at home. Logic would dictate that she would cease her
activities immediately but that is her case. She claims that
she again returned 9 days later and that in February 9, 2001,
she had gone to a classroom and a female farmer told her to
leave because the FARC was coming. She claims that she
say 15 individuals in camouflage and so she ran through
another door and down a hill and managed to get help in
getting a ride to Cali in a jeep that was passing by. She states
that her bosses told her not to return to those areas. She
testified that on the 10th of February, 2001, she received a
threatening call. She indicates that it was from the
Revolutionary Armed Forces of Colombia and she was told
that she had been warned and given an ultimatum and that
when they found her she would know what would happen to
her. She said that she had gone to hid at relative's house. The
threatening call was received on February 10th, 2001, but
she did not leave until 2 months later. She claims to be in
hiding. She had a visa. She has a passport and clearly she
could have left immediately but did not do so. That she
would have delayed 2mqnths belies any claim of fear of
harm.
The whole issue is whether or not Clara has
presented a credible claim to asylum. In this case, she
asserts that she had been threatened guerrillas and it was the
cause of her leaving to the United States in March 1998 just
9 days after she married. She did not stay after she entered
on March 1998. Instead, she returned in June 1998. That she
returned belies any claim of fear of persecution in her
country.
_ When she returned to Columbia, she claimed
that she was caring for her mother and. supposedly
threatening calls where being made to her mother's house
while she was there taking care of the mother. The guerrillas
19a
where just told that she was out of the country and nothing
ever happened to Clara during that time span of a. year and a
half that she was supposedly taking care of her ill mother.
That she would remain in there for so without any action
being taken against her again belies any claim of persecution
in her country.
She claims to have returned to teaching in the
same towns that had created. problems. That she would
engage again in those same activities belies any claim of
being persecuted in the past. She stated that on the first
occasion on February | she was told that it would be best if
she left and she did so. That she would return again on
February 9, 2001, to again engage in the same activities
belies any claim of fear of harm at these individuals.
She related that she had to run away on
February 9th, cause FARC guerrillas where looking for her
and that on the 10th of February she got a threatening call
from FARC. She did not leave right away. She waited 2
months before leaving although she had a passport and a
visa. And that she would have returned a second time to
engage in the same activities and then remain 2 months after
she got the threatening’ call the next day belies any claim of
fear of persecution in her home country.
The Court finds that in this case Clara has not provided
credible testimony. Her actions belie any claim of
persecution. The respondents here failed to show past
persecution or a well-founded fear of persecution within the
meaning of the Immigration and Nationality Act and failed
to meet their burden of proof that anyone in Colombia is
interested in either of them due to any of the five enumerated
grounds necessary to a grant of asylum. See Matter of Chen,
20 I&N Dec. 16 (BIA 1989); Matter of Mogharrabi, 19 1&N
Dec. 439 (BIA 1987).
The Court finds in this case that the
respondent has tendered evidence of her being involved in an
organization and this Court does not doubt that. The
20a
respondent provided proof that the director of that
organization was killed and the Court does not doubt that. At
issue is whether or not indeed this respondent was indeed the
subject of persecution at the hands of Revolutionary Armed
Forces of Colombia. Her actions belie any claim of past
persecution or a well-founded fear of persecution where she
to return there.
The Court finds that the respondents herein
failed to satisfy the lower burden of proof required for
asylum, it follows they fail to satisfv the clear probability
standard of eligibility required for withholding of removal.
See INS v. Stevic, 467 U.S. 407 (1984). The evidence does
not establish if either of these respondents has to return to
Colombia it's more likely then not that they would be subject
to persecution on Account of one of the five grounds
specified in section 24] (b) (3) of the Act.
Likewise. the respondents have not shown it’s
more likely then not that they would be tortured if returned
to Colombia.
The respondents have declined to designate a
country of removal so pursuant to Section 241(b) (2) of the
Act, the Court is designating Colombia if it becomes
necessary to remove the respondents from the United States.
In light of the foregoing after considering all
the testimony and documentary evidence of record, the
following order will be entered:
ORDER
IT IS ORDERED that the application for
asylum under Section 208 of the Act, the application for
withholding of removal under Section 241(b) (3) of the Act,
and the application for treatment under the Convention
Against Torture’ of Clara Ines Sanchez-Ayala and of James
Castro be denied.
2la
IT 1S ORDERED that the respondents, Clara
Ines Sanchez Ayala and James Castro be removed from the
United States to Colombia. ,
IT IS ORDERED that the respondents, Clara
Ines Sanchez Ayala and James Castro be removed from the
United States to Colombia.
/S/
September 14, 2004 TEOFILA CHAPA
ee Immigration Judge
~-[ hereby certify that the attached proceeding before
TEOFILA CHAPA, in the matters of:
CLARA INES' SANCHEZ-AYALA
JAMES CASTRO
A 95 264 423
A 95 264 424
Miami, Florida
was held as herejn appears, and that this is the original
transcript thereof for the file of the Executive Office for
Immigration Review.
22a
IMMIGRATION COURT
333 SOUTH MIAMI AVE., STE.700
MIAMI, FL 33130-1904
In the Matter of
Case No.: A95-264-423
SANCHEZ-AYALA, CLARA INES
Respondent
IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUDGE
This is a summary of the oral decision entered on Sep 14,
2004. This memorandum is solely for the convenience of the
parties. If the proceedings should be appealed or reopened.
the oral decision will become the official opinion in the case.
[X] The respondent was ordered removed from the
United States to Colombia
[ ] Respondent's application for voluntary departure was
denied and respondent was ordered removed to alternative to
| | Respondent’s application for voluntary departure was
granted until upon posting a bond in the amount of
$
With an alternate order of removal to
[X] Respondent's application for asylum was (3
granted (x) denied ¢+-withdrawn.
[X] Respondent's application for withholding of
removal was ¢+}-eranted (x) denied (}+withdrawn.
[ ] Respondent’s application for cancellation of removal
under section 240A(a) was ( ) granted { ) denied ( )
withdrawn.
{ } Respondent’s application for cancellation of removal
{ ) granted under was ( ) granted under section 240A(b)(2) ( )
denied ( ) withdrawn. If granted. it was ordered that the
respondent be issued all appropriate documents necessary to
give effect to this order.
23a
[ ] Respondent’s application for a waiver under section
of the INA was ( ) granted ( ) denied ()
withdrawn or ( ) other.
{ ] Respondent’s application for adjustment of status
under section _—_ of the INA was ) granted ( ) denied
( ) withdrawn. If granted, it was ordered that the respondent
be issued all appropriate documents necessary to give effect
to this order.
[ ] Respondent’s status was rescinded under section 246.
[ ] Respondent is admitted to the United Statesasa_
until ) ,
{ ] ° Asa condition of admission, respondent ts to post a
‘ $ bond. ;
3». .» [ ]°Respondent knowingly filed a frivoless asylum
r. application after proper notice.
y [ ]..Respondent was advised of the limitation on
discretionary relief for failure to appear as ordered in the
Immigration Judge’s oral decision.
[ ] Proceedings were terminated.
[X] . Other: CAT-DENIED
Date: Sep 14, 2004
Appeal: Waived/served Appeal Due by:
icles cai ogame a
TROP TL O Hears
“Cott S ima ,
000071
24a
ALIEN NUMBER: 95-26A4-KBINT N AME:
SANCHEZ-AYALA, CLARA INES’
CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY:
MAIL (M) PERSONAL SERVICE (P)
TO: [ ] ALIEN [ ] ALIEN C/O custodial officer [ |]
ALIEN’S ATT/REP [X] INS
DATE: 14 SEP 2004 BY: COURT STAFF
Xx/
Attachmentst EDIR-33 EQIR-20 Legal [ |
Service List [ ] Other
Q6
000072
ALIEN NUMBER: 95 -26B EAM
CASTRO, JAMES
NAME:
CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY:
MAIL (M) PERSONAL SERVICE (P)
TO: [ ] ALIEN [ ] ALIEN C/O custodial officer [ ]
ALTEN’S ATT/REP [X] INS
DATE: 14 SEP 2004 BY: COURT STAFF
Xx/
Attachmentsf EDIR-33 EQIR-20 Legal
Service List [ ] Other
28a
Q6
000337
[
U.S. Department of Justice
Decision of the Board of Immigration Appeals
Executive office for Immigration Review
Falls Church Virginia 33041
File. A95 264 423 -Miami Date FEB 07 2006
A95 264 424
In re: SANCHEZ-AYALA, CLARA INES
CASTRO, JAMES
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS: Anthony Alvarez.
Esquire
ORDER:
PER CURIAM We adopt and affirm the Immigration Judges
decision and the appeal! will be dismissed with the following
additional comments. Matter of Burbano, 20 I&N Dec.
872,874 (BIA 1994)(noting that adoption or affirmance of a
decision of an Immigration Judge, in whole or in part, ts
“simply a statement that the Board’s conclusions upon
review of the record coincide with those with the
{I]mmigration [Jjudge articulated in his or her decision”).
We agree with the Immigration Judge that the respondents
failed to present credible claim for relief. The respondents’
story was implausible and inconsistent. See generally Matter
of A-S-, 31 I&N Dec. 1106 (BIA 1998)(discussing credibility
and credibility related issued). The respondents’ failed to
provide testimony that was believable, consistent, and
sufficiently detailed to provide a plausible and coherent
29a
IMMIGRATION COURT
333 SOUTH MIAMI AVE., STE.700
MIAMI, FL 33130-1904
In the Matter of
Case No.: A95-264-424
JAMES CASTRO
Respondent
IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUDGE
This is a summary of the oral decision entered on Sep 14,
2004. This memorandum is solely for the convenience of the
parties: If the proceedings should be appealed or reopened,
the oral decision will become the official opinion in the case.
[X] The respondent was ordered removed from the
United States to Colombia
[ ] Respondent’s application for voluntary departure was
denied and respondent was ordered removed to alternative to
[ ] Respondent’s application for voluntary departure was
granted until upon posting a bond in the amount of
$
With an alternate order of removal to
[X] Respondent’s application for asylum was (4
granted (x) denied ()-withdrawn.
[X] Respondent’s application for withholding of
removal was ¢}-¢ranted (x) denied (-withdrawn.
{ ] Respondent’s application for cancellation of removal
under section 240A(a) was (.) granted ( ) denied ( )
withdrawn. |
[ ] Respondent’s application for cancellation of removal
( ) granted under was ( ) granted under section 240A(b)(2) ( )
26a
denied ( ) withdrawn. If granted, it was ordered that the
respondent be issued all appropriate documents necessary to
give effect to this order.
{[ } Respondent’s application for a waiver under section
of the INA was ( ) granted ( ) denied ( )
withdrawn or ( ) other.
[ ] Respondent’s application for adjustment of status
under section ___ of the INA was ( ) granted ( ) denied
( ) withdrawn. If granted, it was ordered that the respondent
be issued all appropriate documents necessary to give effect
to this order.
{ ] Respondent’s status was rescinded under section 246.
[ ] Respondent is admitted to the United Statesasa__
until )
{ ] As acondition of admission, respondent is to post a
$ bond.
[ ] Respondent knowingly filed a frivoless asylum
application after proper notice.
[ ] Respondent was advised of the limitation on
discretionary relief for failure to appear as ordered in the
Immigration Judge's oral decision.
[ } Proceedings were terminated.
[X] Other: CAT-DENIED
Date: Sep 14, 2004
Appeal: Waived/served Appeal Due by:
Bi Sl hy
Geta ¥ a :
000336
account of the basis for their fear Matter of Mogharrabi, 19
I&N Dec. 439 (BIA 1987). The lead respondent asserted
that her life was threatened by the FARC, and that she was
able to flee to the United States, but returned to Colombia to
care for her sick mother (Tr. At 45). The respondent stated
that after her mother healed, she decided to continue her
work with the liberal party, providing literacy programs to
farmers, knowing that she would be returning to the zone of
danger. The respondent testified that on many occasions
while meeting with farmers, she was surprised by the FARC,
and barely escaped by literally running out the back door, as
the FARC entered the front door (Tr. At 41-42). Finally, we
noted that the respondent was able to live unmolested in
Colombia while she cared for her mother (Tr. At 46-47). See
Matter’ of. C-A-L-, 21 I&N Dec. 754 (BIA 1997).
Accordingly, the appeal is dismissed.
[Sh
FOR THE BOARD
000055
30a
U.S. Department of Justice
Decision of the Board of Immigration Appeals
Executive office for Immigration Review
Falls Church Virginia 33041
File. A95 264 423 -Miami Date JUN 05 2006
A95 264 424
In re: SANCHEZ-AYALA, CLARA INES
CASTRO, JAMES
IN REMOVAL PROCFEDINGS
MOTION
ON BEHALF OF RESPONDENTS: Pro se
ORDER:
PER CURIAM. The respondents move the Board
pursuant to 8 C.F.R. § 1003.2 to reopen our decision dated
February 7, 2006. We dismissed the respondents’ appeal
from the Immigration Judge's decision which denied their
applications for asylum, withholding of removal, and
protection under the Convention Against Torture. The
motion will be denied.
We find that the respondents’ evidence is not likely to
change the resuit in the case. See Matter of Coelho, 20 I&N
Dec. 464 (BIA 1992). The March of 2006 letter from the
lead respondent's cousin and the April of 2006 letter from the
"male respondent's friend do not present any new facts which
are material to theirs applications for relief and protection
from removal. The March of 2006 letter from a medical
center to the lead respondent does not contain any new facts.
31a
A December 27, 2001, letter from a doctor at the medical
center (Exh. 2) contains essentially the same information. A
March 27, 2006, letter from the local president of the Liberal
Party does not discuss any threats specific to the respondents.
Finally, a September of 2002 letter from a social foundation
to the respondents was previously available and could have
been presented for the hearing below. See 8 C.F.R.§
1003.2(c)(1).
Accordingly, the motion is denied.
~ f a oF
he a ae | i é
a I t+ ety Ne fi P| J 3 fi te
hoes i
FOR THE ROARD
000002
32a
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 06-13657-G
CLARA INES SANCHEZ-AYALA,
JAMES CASTRO,
Petitioners,
Versus
U.S. ATTORNEY GENERAL,
Respondent.
On Appeal from the United States District Court for the
Southern District of Florida
BEFORE: DUBINA, BLACK and PRYOR, Circuit Judges.
BY THE COURT:
Petitioners’ motion to stay their removal pending disposition
of this petition is DENIED, as Petitioners have failed to
meet the "clear and convincing evidence" standard in 8
D.S.C. § 1252(f)(2). See Weng v. Attorney General, 287
F.3d 1335 (11 Cir. 2002) (per curiam). We also note that
Petitioners wou!d not satisfy the traditional test for granting
injunctive relief. See Dorelien v. U.S. Attorney General,
33a
317 F.3d 1314 (11" Cir. 2003); cf. Kenyeres v. Ashcroft,
538 U.S. 1301,123 S.Ct: 1386, 155 L.Ed.2d 301 (Kennedy,
Circuit Justice, March 21, 2003).
Filed U.S. Court of Appeals 11" Circuit JUL 24 2006
Thomas K. Khan Clerk
34a
Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001
William K. Suter
Clerk of the Court
(202) 479.3011 —
August 28, 2006
Ms. Georgia B. Gillett
The Gillett Law Firm, P.A.
19620 Pines Blvd
Suite 202A
Suite 200-32
Pembroke Pines, FL 33029
Re: Clara I. Sanchez-Ayala et al.
v. Alberto R. Gonzalez, Attorney General
Application No. 06A220
Dear Ms. Gillett:
The Application for a stay of removal in the above-
entitled case has been presented to Justice Thomas, who on
August 28.2006 denied the application.
This letter has been sent to those designated on the attached
notification list.
Sincerely,
William K. Suter, Clerk.
By /S/
Cindy Rapp
Deputy Clerk
35a
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH FILED
CIRCUIT U.S COURT OF
AAPPEALS
No. 06-13657 ELEVENTH
Non-Argument Calendar CIRCUIT
January 22, 2007
THOMAS | K.
KAHN CLERK
BIA Nos.
A95-264-423 & A95-264-424
CLARA INES SANCHEZ-AYALA, JAMES CASTRO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of a Decision of the Board of
Immigration Appeals
(January 22, 2007)
Before WILSON, PRYOR and KRA VITCH, Circuit Judges.
36a
Clara Ines Sanchez-Avala and her husband, James Castro,
petition this court for review of the Board of Immigration
Appeals's ("BIA") decision denying their motion to reopen
the BIA's affirmance of the Immigration Judge's ("IJ") order
of removal. Sanchez-Ayala also argues that she established
her prima facie eligibility for relief from removal. Because
we conclude that we lack jurisdiction to review the merits of
the asylum and withholding claims, we dismiss the petition
in part. Because the BIA did not abuse its discretion in
denying Sanchez-Ayala's motion to reopen, we deny the
petition as to the motion to reopen.
1. Background
Sanchez-Ayala and her husband James Castro, Colombian
citizens, were admitted to the United States on non-
immigrant visas and remained beyond the expiration period.
The INS issued notices to appear, charging them with
removability. Sanchez-Ayala submitted an application for
asylum on behalf of herself and Castro, stating that she
sought asylum because she feared persecution from
Revolutionary Armed Forces of Colombia ("F ARC") based
on her political opinion and membership in the Liberal Party.
She further alleged that FARC twice had sent search parties
to find her and that relocation was not an option. She later
supplemented her application with an article showing that
her supervisor had been killed by an unidentifted party.
At the removal hearing, Sanchez-Ayala conceded
removability and both she and her husband testified to the
threats and persecution they allegedly suffered, as a result of
Sanchez-Ayala's work with the Social Advance Foundation
and her participation in the Liberal Party, and Castro's work
with the National Advanced Movement. Sanchez-Ayala
testified to threatening phone calls she had received and
37a
2 ate ae Skee mee
warnings to leave the area. Castro testified to similar threats,
although he admitted that he had not told his wife about the
threats because he did not want to frighten her.
The government submitted the 2001 State Department
Country Reports acknowledging FARC's presence
throughout the country and its frequent attacks on civilians,
teachers, and female political leaders. The IJ concluded that
it was unlikely Sanchez-Ayala would have continued her
work after receiving threats and that it was unbelievable that
Castro would have found the threats serious enough to force
him to leave the country and yet not tell his wife about them.
Accordingly, the IJ found the testimonies lacked credibility,
and that the two were not entitled to relief from removal.
Sanchez-Ayala appealed to the BIA, and on February 7,
2006, the BIA dismissed the appeal.
On May 2, 2006, Sanchez-Ayala filed a motion to reopen
arguing that she recently received previously unavailable
documents from Colombia proving she and Castro would be
killed if they returned to Colombia. She attached the
following evidence: (1) a April 15, 2006, letter from a friend
stating that Colombia remained unstable and it was not safe
for them to return because of possible persecution, (2) a
March 18, 2006, letter from a psychologist who treated
Sanchez Ayala for post-traumatic stress, stating that
Sanchez-Ayala should avoid returning to Colombia, (3) a
March 16, 2006, letter from Sanchez-Ayala's cousin stating
that groups had attacked farmers and invaded a town named
Cordoba, (4) a September 2002 certificate detailing Sanchez-
Ayala's work with human rights of indigenous communities,
and Castro's work to educate people in religious programs,
and (5) a letter from the Liberal Party certifying Sanchez-
Ayala's and Castro's party membership and advising them to
stay out of Colombia because party members were in danger.
38a
The BIA denied Sanchez-Avala's motion stating that the
evidence she submitted was not likely to change the result in
her case because the letters dated March 16 and 18 and April
15 did not present any new facts that were material to
Sanchez-Ayala's application for relief, and the party letter,
which was available at the time of the hearing, did not
discuss specific threats. Sanchez-Ayala now petitions this
court for review.
Il. The Petition for Review
1. Jurisdiction
We review subject matter jurisdiction de novo. Ortega v.
Att'y Gen.. 416 F.3d 1348, 1350 (11"™ Cir. 2005). A petition
for judicial review of a BIA order must be filed no later than
30 days after the date of the final order of removal. 8 U.S.C.
§ 1252(b)(1). Time limits for judicial review are mandatory
and jurisdictional and are not tolled by the filing of a motion
to reopen. Dakane v. V.S. Atty. Gen., 399 F.3d 1269, 1272 n.
3 (11th Cir. 2005) (citation omitted).
Sanchez-A yala's arguments that she was credible and entitled
to relief from removal are barred by her failure to file a
timely petition for review of those claims. The BIA
dismissed her appeal on February 7, 2006, but Sanchez-
Ayala did not petition this court for review until June 30,
2006. Thus, this petition for review was untimely as to her
claims for relief from removal. 8 U.S.C. § 1252(b)(1).
Moreover, Sanchez-Ayala's motion to reopen did not toll the
time limit for her to file a petition for review of those claims.
Dakane. 399 F.3d at 1272 n. 3. Therefore, our review is
limited to the June 5, 2006, order denying the motion to
reopen.
39a
DEE 0.008 wits cess.
2. Motion to Reopen
Sanchez-Ayala asks this court to take judicial notice of a
2005 State Department Country Report on Colombia
attached to her brief. She asserts that the party letter and
Country Report provide evidence of her prima facie
eligibility for relief and require that her claims be reopened.
We review the BIA's denial of a motion to reopen for abuse
of discretion. Mejia Rodriguez v. Reno, 178 F.3d 1139, 1145
(11th Cir. 1999). Motions to reopen are disfavored in removal
proceedings because "as a general matter, every delay works
to the advantage of the deportable alien who wishes merely
to remain in the United States." INS v. Doherty, 502 U.S.
314, 323,112, S.Ct. 719,116 L.Ed.2d 823 (1992). An
applicant seeking to reopen proceedings bears a heavy
‘burden. Al Naijar v. Ashcroft, 257 F.3d 1262, 1302-03 (J1th
Cir. 2001).
The regulations provide that a motion to reopen "shall not be
granted unless it appears to the Board that evidence sought to
be offered is material and was not available and could not
have been discovered or presented at the former hearing. 8
C.F.R. § 1003.2(c). The BIA may deny a motion to reopen
if: (1) the movant did not establish a prima facie case for the
underlying substantive relief; (2) the movant did not
introduce previously unavailable material evidence; and (3)
the movant, despite being eligible, is not entitled to the
discretionary grant of relief. Al Najjar, 257 F.3d at 1302.
The BIA did not abuse its discretion in denying Sanchez-
Ayala's motion to reopen. As an initial matter, we cannot
consider the 2005 Country Report because it was not
previously considered by the BIA. See Ruiz v. U.S. Att'y
Gen., 440 F.3d 1247,1255 (iith Cir. 2006) (quotations and
40a
citation omitted). Moreover, in her appellate brief, Sanchez-
Ayala only refers to the party letter as evidence in support of
her motion to reopen. Thus, she has abandoned all arguments
related to the other evidence she presented in her motion to
reopen. Sepulveda v. U.S. Att'y Gen,, 401 F.3d 1226, 1228
n.2 (11th Cir. 2005).
The letter, however, was dated before the removal hearing
and did not present any new information that was
unavailable at the time of the hearing. The record contained a
copy of the Country Reports indicating FARC's country-
wide activities. Moreover, the letter only made references to
general threats to members of the Liberal Party and was not
specific to Sanchez-Ayala or Castro. Al Najjar, 257 F.3d at
1302.
Finally, even if the letter was considered, it would not
compel a conclusion that the IJ erred because it would have
no impact on the IJ's adverse credibility determination with
respect to the denial of relief from removal. Therefore,
Sanchez-Ayala could not establish her prima facie eligibility
for relief, and the BIA did not abuse its discretion in denying
the motion to reopen.
Tif. Conclusion
Based on the foregoing, we conclude that we lack
jurisdiction to review the merits of the asylum and
withholding claims, and DISMISS the petition in part.
Because the BIA did not abuse its discretion in denying
Sanchez-Ayala's motion to reopen. we DENY the petition as
to the motion to reopen.
4lia
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.