Birambi v. Department of Homeland Security

134 F. App'x 488
CourtCourt of Appeals for the Third Circuit
DecidedDecember 9, 2004
Docket03-4086
StatusUnpublished

This text of 134 F. App'x 488 (Birambi v. Department of Homeland Security) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Birambi v. Department of Homeland Security, 134 F. App'x 488 (3d Cir. 2004).

Opinion

OPINION OF THE COURT

ALDISERT, Circuit Judge.

John Ricardo Birambi and Irene Birambi, both natives and citizens of the Republic of Suriname, seek review of a final order of removal issued by the Board of Immigration Appeals (“BIA”) on September 15, 2003. The order affirmed the Immigration Judge’s (“IJ’s”) decision to deny the Birambis’ request for asylum, withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252. We will deny the petition.

I.

Because we write only for the parties, who are familiar with the facts, procedural history and contentions presented, we will not recite them except as necessary to the discussion.

II.

For petitioners to establish that they are a refugees eligible for asylum, they must demonstrate that they are unable or unwilling to return to their country of origin “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) (2000). Petitioners for asylum bear the burden of supporting their claim through credible testimony. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). To qualify for withholding of removal petitioners must establish that a clear probability exists that their life or freedom would be threatened in Suriname on account of race, religion, nationality, membership in a particular social group or political opinion. Dia v. Ashcroft, 353 F.3d 228, 233 n. 1 (3d Cir.2003). In asserting a claim under CAT, applicants must establish “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2) (2002).

A.

Here, there is substantial evidence to support the BIA’s determination that Petitioners failed to prove a well-founded fear of persecution on account of their political opinions. Nothing in the record demonstrates that John Birambi held any particular political opinion or, even if he did, that he made the Toekajana aware of it such that the Toekajana would persecute him because of it. Birambi claimed that the Toekajana would retaliate against him for disagreeing with the cause of his brother’s death and independently investigating it. But he did not claim or submit evidence that this disagreement was a manifestation of his political opinion rather than anger over the loss of his brother. The record does not compel or even suggest the conclusion that such retaliation would be on account of his political opinion. See Zayas-Marini v. INS, 785 F.2d 801 (9th Cir.1986) (denying petition where claim of persecution was supported by evidence that two government officials who threatened applicant with death did so only after alien’s opposition to their corrupt practices). Retaliation for simply uncovering criminal activity does not amount to persecution on account of a political opinion. Id.

*490 To the extent that John Birambi relies on the Toekajana’s purported attempts to recruit him, he has pointed to no evidence in the record that would compel a finding that the group targeted him because of his political opinion. Absent some evidence that the Toekajana’s efforts were motivated by the applicant’s political opinion or other protected ground, recruitment efforts are insufficient to compel a finding of persecution on account of political belief. See INS v. Elias-Zacarias, 502 U.S. 478, 483-484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Velasquez-Valencia v. INS, 244 F.3d 48 (1st Cir.2001) (ruling that an alien was not entitled to asylum based on evidence that Guatemalan guerillas sought to recruit him to their side in a civil war and later sought to punish him for evading their “draft” since there was no indication that his political beliefs had anything to do with efforts to recruit him); Tecun-Florian v. INS, 207 F.3d 1107, 1108-1109 (9th Cir.2000) (ruling that recruitment was not on account of a protected basis, even where guerrillas knew the applicant was a practicing Catholic). John Birambi himself denied that the Toekajana targeted him for his political opinion.

Q. Did they tell you why they wanted to recruit you?
A. Yes, because I tried to find the truth about my brothers [sic] death. And to stop me from that they want to come to join them to forget what happened with my brother.

(A.R. at 150.)

John Birambi testified that he declined the Toekajana’s recruitment because of his “philosophical belief and also, [his] religious belief,” (A.R. at 150), and not because of any particular political opinion; indeed he never claimed that he had ever directly or indirectly expressed a political opinion to the group. See, e.g., Tecun-Florian, 207 F.3d at 1109 (denying asylum where petitioner offered no compelling evidence that guerrillas’ actions were based on any knowledge of their political opinion); Sangha v. INS, 103 F.3d 1482, 1487-1490 (9th Cir.1997) (denying petition for review because petitioner failed to establish that he had a political opinion or that his persecutors imputed his father’s opinion to him).

Persecution “on account of’ political opinion means that, even if John Birambi could point to evidence in this record that he had a political opinion, which he cannot, he “still has to establish that the record also compels the conclusion that he has a ‘well-founded fear’ that the guerillas will persecute him because of that political opinion, rather than because of his refusal to fight with them.” Elias-Zacarias, 502 U.S. at 483, 112 S.Ct. 812. John Birambi testified that rather than directly refusing he simply told the Toekajana that he would “think about” its recruitment offer, without giving it any reason. (A.R. at 150.) The record contains no evidence that they retaliated against him or even tried to recruit him again.

John Birambi’s claim fails because of the absence of evidence sufficient to compel the finding that the Toekajana would be motivated by his political opinion to persecute him if he were to return to Suriname.

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134 F. App'x 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birambi-v-department-of-homeland-security-ca3-2004.