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

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