Blanca Hincapie-Cadavid v. U.S. Atty. Gen.

137 F. App'x 291
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 28, 2005
Docket04-15255; Agency Docket A79-098-152, A79-098-153
StatusUnpublished

This text of 137 F. App'x 291 (Blanca Hincapie-Cadavid v. U.S. Atty. 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
Blanca Hincapie-Cadavid v. U.S. Atty. Gen., 137 F. App'x 291 (11th Cir. 2005).

Opinion

PER CURIAM.

Blanca Hincapie-Cadavid, Juan Fernando Benavides Hincapié, and Sebastian Benavides Hincapié, 1 Colombian citizens ap *292 pearing pro se, petition for review of the Board of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of asylum and withholding of removal under the Immigration Nationality Act (“INA”) and the United Nations Convention Against Torture and other Cruel, Inhumane, and Degrading Treatment or Punishment (“CAT”). 2 The IJ’s decision held that Hincapie-Cadavid was not entitled to asylum because she failed to demonstrate that she was targeted by the guerillas on account of her membership in a social group-i.e., convenience shop owners — as opposed to being targeted because of monetary or economic reasons. We AFFIRM.

I. BACKGROUND

On 19 March 2001, the Immigration and Naturalization Service (“INS”) 3 served Hincapie-Cadavid with a notice to appear (“NTA”) that charged her with (1) being an alien who, by fraud or willful misrepresentation of a material fact, sought to procure a visa, other documentation, or admission into the United States 4 in violation of INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), and (2) being an immigrant who was not in possession of a valid entry document and a valid passport when she applied for admission into the United States, in violation of INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). Additionally, the INS conducted a credible fear interview in which Hincapie-Cadavid indicated she had been persecuted by a guerilla group she referred to as “criminal leftists” on the basis of her political opinion. She indicated the guerillas stole from her, threatened her family, and extorted money from her.

Hincapie-Cadavid subsequently applied for asylum and withholding of removal based on her membership in a social group. On her application, she claimed to be a small shopkeeper who was harassed by gangs of guerillas who demanded money from her. She claimed that another similarly situated shopkeeper who refused the demands of the gangs was killed in February of 2000 and that she feared the same fate if she returned to Colombia.

At the asylum hearing, Hincapie-Cadavid testified that she and her husband ran a small shop in Colombia for eight years. Further, she testified that they did not participate in any political, social, or labor groups. About two years before leaving Colombia, the guerillas began harassing her and her family by stealing her husband’s motorcycle, extorting money from her, and robbing her store. During one robbery, the guerillas appeared in her store with machine guns and took all the money in the store. After this incident, she testified that she decided to leave Colombia.

*293 In addition to her testimony, the 2002 State Department Country Report for Colombia was entered into the record at the asylum hearing. The report indicated that guerillas continued to target business owners and that kidnapping was a major source of revenue for the groups. Specifically, the Colombian Revolutionary Armed Forces (“FARC”) had a policy to require persons with more than $1 million in assets to pay money to FARC or risk kidnapping.

After reviewing the evidence, the IJ concluded that Hincapie-Cadavid was not entitled to asylum because she failed to demonstrate that she was targeted by the guerillas on account of her status as a convenience shop owner, as opposed to being targeted because of monetary or economic reasons. The BIA affirmed without opinion.

II. DISCUSSION

On appeal, Hincapie-Cadavid asserts that the IJ erred in concluding that she was not entitled to asylum on account of past persecution and a well-founded fear of persecution because the guerillas came into her store on several occasions and robbed her of her money, and had she not paid them, her children would have suffered. She also contends that the IJ erred in denying her withholding of removal claim.

A. Asylum Claim

On appeal, Hincapie-Cadavid argues that the IJ erred in concluding that she was not entitled to asylum because she failed to demonstrate that she was persecuted on account of her membership in a social group. The BIA’s factual determinations are reviewed under the substantial evidence test, and we “ ‘must affirm the [BIA’s] decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Sepulveda v. United States Attorney Gen., 401 F.3d 1226, 1230 (11th Cir.2005) (per curiam). We review only the BIA’s decision, except when it adopts the I J’s decision, such that a review of that decision is warranted. Id. Under this highly deferential standard of review, the IJ’s decision must be deferred to as supported by substantial evidence, unless the evidence compels a reasonable fact finder to find otherwise. Id.

An alien is eligible for asylum if she is a refugee within the meaning of INA § 101(a)(42)(A). INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” includes any person who is unwilling to return to, and is unable or unwilling to avail herself of the protection of, the country of her nationality or where she last habitually resided, 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. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The burden of proof is on the alien to establish that she is a refugee. 8 C.F.R. § 208.13(a). An alien may establish eligibility for asylum if she shows that she has suffered past persecution or has a well-founded fear of future persecution. § 208.13(b); Al Najjar v. Ashcroft, 257 F.3d 1262, 1287 (11th Cir.2001).

While the INA does not define persecution, courts have generally held that persecution is “punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate.” See, e.g. Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir.2000). “[Persecution encompasses more than threats to life or freedom; non-life threatening violence and physical abuse also fall within this category.” Id. We have stated that mere harassment is not persecution, *294 and persecution requires “‘more than a few isolated incidents of verbal harassment or intimidation.’ ” Sepulveda,

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