Aland Gilberto Portillo-Sierra v. US Attorney Gen.

270 F. App'x 859
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 24, 2008
Docket07-12520
StatusUnpublished
Cited by1 cases

This text of 270 F. App'x 859 (Aland Gilberto Portillo-Sierra v. US Attorney Gen.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aland Gilberto Portillo-Sierra v. US Attorney Gen., 270 F. App'x 859 (11th Cir. 2008).

Opinion

PER CURIAM:

Petitioners, Aland Gilberto Portillo-Sier-ra and Maria Josefina Suarez-Paredes, are husband and wife, and natives and citizens of Columbia, S.A. The only issue their petition for review presents is whether substantial evidence supports the Board of Immigration’s (“BIA”) rejection of their asylum claim on the ground that they failed to establish past persecution or a well-founded fear of persecution if returned to Columbia. We conclude that substantial evidence does support the BIA’s finding, and therefore dismiss their petition.

This case has been here before. In Portillo-Sierra v. U.S. Att’y Gen., 200 *860 Fed.Appx. 925, 927 (11th Cir.2006) (unpublished), petitioners sought review of the BIA’s affirmance of the Immigration Judge’s (“IJ”) decision denying their application for asylum, withholding of removal under the Immigration and Nationality Act (“INA”), and protection under the Convention Against Torture (“CAT”). The IJ had found against petitioners on the ground that their testimony was not credible, and the BIA, in dismissing petitioners’ appeal, had affirmed the IJ’s adverse credibility finding. We held that substantial evidence supported the adverse credibility finding, but because the BIA had not considered all of the evidence in the record, we remanded the case to the BIA “for consideration of the evidence of [petitioner Suarez-Paredes’s] uncle’s murder.” On remand, the BIA again dismissed petitioners’ appeal, finding that petitioners had failed to establish a well-founded fear of persecution if removed to Columbia. The case is now back before us. 1

Petitioners argue that they are eligible for asylum because the totality of the evidence shows they suffered past persecution when (1) Portillo-Sierra was kidnapped, (2) Suarez-Paredes’s uncle was murdered, and (3) Portillo-Sierra received threatening telephone calls, all because Portillo-Sierra refused to join the National Liberation Army’s (“ELN”) political movement. Petitioners also argue that they have a well-founded fear that they will be persecuted if returned to Columbia because they continued to receive threatening telephone calls after Suarez-Paredes’s uncle was killed, and Suarez-Paredes’s aunt wrote a letter indicating that the aunt had been identified as a future kidnap victim.

We review the BIA’s decision, but where the BIA expressly adopts the IJ’s reasoning, we also review the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). Here, we review the BIA’s decision because it did not expressly adopt the IJ’s reasoning.

The BIA’s factual determinations are reviewed under the highly deferential substantial evidence test; we “must affirm the BIA’s decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. (quotation omitted). We can reverse a finding of fact by the BIA “only when the record compels a reversal; the mere fact that the record may support a contrary conclusion is not enough to justify a reversal of the administrative findings.” Adefe-mi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.2004) (en banc). The BIA’s legal determinations are reviewed de novo. Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir.2007).

The Attorney General has discretion to grant asylum to an alien if the Attorney General determines that the alien is a refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A). A “refugee” is defined as

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 or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion ...

8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the burden of proving that he qualifies as a “refugee.” 8 C.F.R. § 208.13(a). In order to meet this burden, “the applicant must, with specific and credible evidence, establish (1) past persecution *861 on account of a statutorily protected ground or (2) a well-founded fear of future persecution on account of a protected ground.” Mejia v. U.S. Att’y Gen,., 498 F.3d 1253, 1256 (11th Cir.2007).

“Persecution” is not defined in the INA, but we have indicated that it is “an extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir.2005) (quotations omitted). We have also stated that “mere harassment does not amount to persecution.” Id. (quotation and alteration omitted).

“An applicant who has demonstrated past persecution is presumed to have a well-founded fear of future persecution.” Mejia, 498 F.3d at 1257; 8 C.F.R. § 208.13(b)(1). The presumption can be rebutted by a showing that “there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution” or the “applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality.” 8 C.F.R. § 208.13(b)(l)(i).

The law of the case doctrine holds that “a court should not reopen issues decided in earlier stages of the same litigation.” Agostini v. Felton, 521 U.S. 203, 236, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997). “Under the ‘law of the case’ doctrine, the findings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the same case in the trial court or on a later appeal.” This That and the Other Gift and Tobacco, Inc. v. Cobb County, Georgia, 439 F.3d 1275, 1283 (11th Cir.2006) (quotation omitted). The law of the case doctrine will not bar reconsideration of an issue when “(1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to that issue, or (3) the prior decision was clearly erroneous and would work manifest injustice.” Joshi v. Florida State Univ. Health Ctr., 763 F.2d 1227, 1231 (11th Cir.1985). In addition to these exceptions, the doctrine does not bar consideration of “an issue ... outside the scope of the prior appeal.”

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270 F. App'x 859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aland-gilberto-portillo-sierra-v-us-attorney-gen-ca11-2008.