Jesus David Garcia-Reina v. U.S. Atty. Gen.

147 F. App'x 898
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 8, 2005
Docket04-15476; BIA A95-898-589, A95-898-590
StatusUnpublished

This text of 147 F. App'x 898 (Jesus David Garcia-Reina 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
Jesus David Garcia-Reina v. U.S. Atty. Gen., 147 F. App'x 898 (11th Cir. 2005).

Opinion

PER CURIAM:

Petitioners Jesus David Gareia-Reina (“Garcia”), Mercedes Matiz (“Matiz”), David S. Garcia (“David”), and Maria P. Garcia (“Maria”), through counsel, petition for review of the final order of the Board of Immigration Appeals (“BIA”) decision dismissing their appeal and affirming the immigration judge’s (“IJ”) order finding them removable and denying their application for asylum, withholding of removal under section 241 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231, and the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c).

Petitioners argue that Garcia 1 was persecuted on account of his political opinion based on threats he received from Revolutionary Armed Forces of Colombia (“FARC”) members concerning his Liberal Party campaign activity. They contend that: (1) the BIA’s decision was insufficient to adopt the IJ’s reasoning; (2) the IJ erred in finding that Garcia failed to meet his burden of showing eligibility for withholding of removal under the INA; and (3) the IJ erred in finding that he faded to meet his burden of showing eligibility for CAT relief.

To the extent that the BIA’s decision was based on a legal determination, our review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.2001). 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.’” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir.2001) (quotation omitted). The substantial evidence test is “deferential” and does not allow “re-weigh[ing] the evidence from scratch.” Mazariegos v. Office of the U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir.2001). “To reverse the IJ’s fact findings, we must find that the record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir.2003) (considering withholding-of-removal claim). The fact that evidence in the record may also support a conclusion contrary to the administrative findings is not enough to justify a reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.2004) (en banc), cert. denied, U.S. -, 125 S.Ct. 2245, 161 L.Ed.2d 1063 (2005).

Garcia first argues the BIA’s decision was insufficient to adopt the reasoning of the IJ’s decision. We may review a final agency decision on removal. INA § 242, 8 U.S.C. § 1252. An order of deportation becomes a final order upon a determination by the BIA affirming it. INA § 101(a)(47)(B)(i), 8 U.S.C. *900 § 1101(a)(47)(B)(i). We review only the BIA’s decision, except to the extent that the BIA expressly adopts the IJ’s decision. Al Najjar, 257 F.3d at 1284.

An agency decision must be remanded if it is not sufficiently clear to conduct a review of that decision. See SEC v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575, 1577, 91 L.Ed.2d 1995 (1947). If an IJ clearly sets forth the reasons for a denial of an application for asylum, the Board “adequately explains its decision when it adopts a decision of the IJ.” Cuevas v. INS, 43 F.3d 1167, 1170 (7th Cir.1995).

The record demonstrates that the petitioners have cited no authority for the prospect that the BIA is limited to certain terminology when adopting the decision or reasoning of an IJ. The BIA’s agreement with the IJ’s findings concerning whether petitioners met their burden is not a statement of a mere legal conclusion, but a comment on the evidence produced before the IJ and the application of the law.

Next, petitioners argue that they met their burden in showing that Garcia was persecuted, or had a well-founded fear of persecution, on account of his political opinion and are thus entitled to withholding of removal under the INA. In a withholding of removal claim, an alien shall not be removed to a country if his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). The alien must show that it is “more likely than not that [he] will be persecuted or tortured upon being returned to [his] country.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir.2005). This standard is more stringent than the “well-founded fear” standard for asylum. Mazariegos, 241 F.3d at 1324 n. 2 (11th Cir.2001). Hence, an alien who is unable to meet the well-founded fear standard for asylum generally is unable to qualify for withholding of removal. See Al Najjar, 257 F.3d at 1292-93.

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) (quotation omitted). “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, and that persecution requires “more than a few isolated incidents of verbal harassment or intimidation.” Sepulveda, 401 F.3d at 1231 (quotation omitted); see also Nelson v. INS, 232 F.3d 258, 263 (1st Cir.2000) (persecution “must rise above unpleasantness, harassment, and even basic suffering”).

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