Julio Bedoya Guerra v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: June 14, 2022
• Docket: 20-3489
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

No. 20-3489 __________

JULIO CESAR BEDOYA GUERRA, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA __________

On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. BIA-1: A201-939-474) Immigration Judge: Pallavi S. Shirole __________

Submitted Under Third Circuit L.A.R. 34.1(a) on April 1, 2022

Before: RESTREPO, ROTH, and FUENTES, Circuit Judges

(Opinion filed: June 14, 2022)

__________

OPINION* __________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. FUENTES, Circuit Judge.

Julio Cesar Bedoya Guerra (“Bedoya”), a native and citizen of Colombia,

conceded his removability from the United States but applied for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). The

Immigration Judge (“IJ”) denied Bedoya’s applications for relief, and the Board of

Immigration Appeals (“BIA”) dismissed his appeal. Bedoya now petitions this Court for

review. Because we see no error in the BIA’s decision, we will deny the petition.

I.

Bedoya entered the United States in April 2019 on a temporary visitor visa. When

the visa expired six months later, he failed to leave the country. In January 2020, the

Department of Homeland Security (“DHS”) served Bedoya with a Notice to Appear

charging him as removable from the United States under 8 U.S.C. § 1227(a)(1)(B) for

“remain[ing] . . . for a time longer than permitted.”1 Bedoya appeared before an IJ and

admitted the charge. He expressed a fear of returning to Colombia, however, so the IJ

continued the hearing to allow him to apply for asylum, withholding of removal, and

CAT protection. Bedoya so applied and later testified in support of his application at an

evidentiary hearing. He testified that, in Colombia, he worked as a commercial advisor

for a car dealership. In November 2018, a man named Juan Perez approached him and

proposed that the two go into business together by opening a new dealership, which Perez

would finance. According to Bedoya, when he hesitated, Perez and his associates began

1 Certified Administrative Record (hereinafter “AR”) 200–01.

2 to threaten him and his family. Bedoya went to the police, who listened to his account

and told him to report any further intimidation. Sometime later, “the unthinkable

happened”: Bedoya was abducted by Perez and taken to an undisclosed location, where

he was bound, beaten, and placed in a tub of water.2 Perez’s associates threatened to kill

Bedoya and his family if he did not cooperate, and one suggested that they knew he had

gone to the police. Bedoya eventually agreed to cooperate and the men released him the

next day. He did not go back to the police because he feared that Perez would find out

again. Instead, he applied for an American visa and left Colombia a few months later.

After considering Bedoya’s testimony and several exhibits, the IJ denied his

applications for relief in an 11-page decision. The IJ found that, although Bedoya’s

testimony was credible, his claim lacked sufficient corroboration. The IJ also found that,

even if sufficiently corroborated, Bedoya’s applications failed on the merits. On asylum,

the IJ found that the harm Bedoya suffered did not rise to the level of persecution; he was

targeted for financial gain rather than a protected reason such as race, religion, or

membership in a particular social group; and it would be reasonable for him to internally

relocate within Colombia if he returned. Because withholding of removal requires a

higher showing than asylum, the IJ found that Bedoya’s application for that form of relief

also failed. Finally, on CAT protection, the IJ found that the harm Bedoya suffered in the

past did not meet the legal definition of torture; he has not shown that he is likely to face

harm rising to the level of torture in the future; and he has not shown that the Colombian

2 AR156–59.

3 government would acquiesce in any such harm. The IJ accordingly denied Bedoya’s

applications for relief and ordered him removed to Colombia. Bedoya appealed to the

BIA, but the BIA dismissed the appeal after finding no reversible error in the IJ’s

analysis. Bedoya then timely petitioned this Court for review.

II.3

Bedoya argues that the BIA erred in affirming the IJ’s denial of asylum,

withholding of removal, and CAT protection. We will address each argument in turn.

A.

To establish eligibility for asylum, an applicant must show that they are “unable or

unwilling to return” to their home 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.”4 A fear of persecution is “well-founded” when it is both

“subjectively genuine and objectively reasonable.”5 A person is persecuted “on account

of” a protected ground when that ground is at least “one central reason” for the

persecution.6 The applicant bears the burden of establishing their entitlement to asylum.7

Bedoya argues that the BIA erred in denying him asylum because he was and will

again be persecuted by Perez for a protected reason: his membership in the particular

3 The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). Arreaga Bravo v. Att’y Gen., 27 F.4th 182, 185 (3d Cir. 2022). We have jurisdiction under 8 U.S.C. § 1252(a). Id. 4 Nsimba v. Att’y Gen., 21 F.4th 244, 247 (3d Cir. 2021) (quoting 8 U.S.C. §§ 1101(a)(42)(A) and 1158(b)(1)(B)). 5 Nsimba, 21 F.4th at 247 (citations omitted). 6 Thayalan v. Att’y Gen., 997 F.3d 132, 138 (3d Cir. 2021) (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). 7 8 U.S.C. § 1158(b)(1)(B)(i).

4 social group of “associate at a small business.”8 Bedoya never made this argument

before the BIA, however, so we lack jurisdiction to consider it.9 And even if we had

jurisdiction to consider the argument, we are unpersuaded. The IJ found that Perez

targeted Bedoya for criminal and financial reasons rather than statutorily-protected ones.

More specifically, the IJ found that Bedoya was a “pawn in [Perez’s] scheme” to launder

money.10 The BIA affirmed this finding on appeal, and we have no grounds to disturb it

because it is supported by substantial evidence in the record.11 Bedoya testified that

Perez repeatedly asked him about the “process of acquiring new vehicles” and offered to

finance a new car dealership if Bedoya would sell the cars, an arrangement ripe for

money laundering.12 Bedoya also testified that he had to flee Colombia because a group

of drug traffickers wanted him to engage in “money laundering activities through [his]

work.”13 Bedoya’s own testimony thus confirms what the IJ found: that Perez’s aim was

to make money and advance a criminal enterprise, not to persecute Bedoya on the basis

of his membership in a particular social group.

8 Petitioner’s Opening Br. at 8. 9 See AR4 (BIA discussing Bedoya’s failure to identify a particular social group to which he belonged); Xie v. Ashcroft, 359 F.3d 239, 245 n.8 (3d Cir. 2004) (explaining that the administrative exhaustion requirement in 8 U.S.C. § 1252(d)(1) divests this Court of jurisdiction over issues raised for the first time on appeal). 10 AR72. 11 See Matter of N-M-, 25 I. & N. Dec. 526, 532 (B.I.A. 2011) (“A persecutor’s actual motive is a matter of fact to be determined by the Immigration Judge.”); Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 106 (3d Cir. 2010) (“We affirm any findings of fact supported by substantial evidence and are bound by the administrative findings of fact unless a reasonable adjudicator would be compelled to arrive at a contrary conclusion.” (internal quotation marks and citations omitted)). 12 AR151–53. 13 Id. at 150 (emphasis added).

5 Nor has Bedoya established a well-founded fear of future persecution on account

of a protected ground. He submits that, if he were returned to Colombia, Perez would

likely attack him again “in retaliation for [him] leaving the country.”14 Though we are

not unsympathetic to Bedoya’s situation, “[c]onflicts of a personal nature and isolated

criminal acts do not constitute persecution on account of a protected characteristic.”15

Bedoya has therefore failed to establish his entitlement to asylum, as determined by the IJ

and the BIA.16

B.

To qualify for withholding of removal, an applicant must show that removal

would cause his or her “life or freedom [to] be threatened . . . because of [his or her] race,

religion, nationality, membership in a particular social group, or political opinion.”17 The

applicant must show “a clear probability of persecution,” meaning that it is “more likely

than not that [they] would suffer persecution upon returning home.”18 “Since this

14 Petitioner’s Opening Br. at 9. 15 Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 685 (3d Cir. 2015); see also Thayalan, 997 F.3d at 143–44 (finding that the BIA properly denied the petitioner’s application for asylum because the extortion he faced in his home country was motivated by money rather than a protected ground). 16 Because Bedoya’s arguments for asylum fail on the factual and jurisdictional grounds just discussed, we do not reach other issues related to his asylum claim, including whether “associate at a small business” qualifies as a “particular social group” under 8 U.S.C. § 1101(a)(42)(A). 17 8 U.S.C. § 1231(b)(3)(A). 18 Blanco v. Att’y Gen., 967 F.3d 304, 315 (3d Cir. 2020) (internal quotation marks and citations omitted) (cleaned up).

6 standard is more demanding than that governing eligibility for asylum, an alien who fails

to qualify for asylum is necessarily ineligible for withholding of removal.”19

Here, the IJ found that, because Bedoya failed to qualify for asylum, he also failed

to qualify for withholding of removal. We agree. Because Bedoya has failed to connect

any persecution he has faced in the past, or will face in the future, to a protected ground,

his claims for asylum and withholding of removal necessarily fail.

C.

To qualify for CAT relief, an applicant must establish that it is “more likely than

not that he or she would be tortured if removed to the proposed country of removal.”20

“Torture” is defined as: “(1) an act causing severe physical or mental pain or suffering;

(2) [that is] intentionally inflicted; (3) for an illicit or proscribed purpose; (4) by or at the

instigation or acquiescence of a public official who has custody or physical control of the

victim; and (5) not arising from lawful sanctions.”21 Public officials acquiesce to torture

when they are aware of it and breach their legal responsibility to intervene and prevent

it.22 Evidence of willful blindness can also establish an official’s acquiescence.23

In Myrie v. Attorney General, we laid out the framework immigration courts must

use when analyzing claims for CAT protection.24 The IJ must answer two questions:

19 Id. 20 Arreaga Bravo, 27 F.4th at 186 (quoting 8 C.F.R. § 1208.16(c)(2)). 21 Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017) (quoting Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005)). 22 Myrie, 855 F.3d at 516. 23 Id. 24 Id. at 509.

7 “(1) what is likely to happen to the petitioner if removed; and (2) does what is likely to

happen amount to the legal definition of torture?”25 The first question is a factual one

that the BIA reviews for clear error.26 The second question is a legal one that the BIA

reviews de novo.27 Determining whether a public official will acquiesce to torture also

requires a two-step analysis.28 First, the IJ must make a factual determination about “how

public officials will likely act in response to the harm the petitioner fears.”29 Next, the IJ

must determine “whether the likely response from public officials qualifies as

acquiescence.”30 Again, the BIA reviews the first question for clear error and the second

de novo.31

The IJ denied Bedoya’s application for CAT protection because the IJ found,

among other things, that Bedoya had failed to show that any harm he will face if returned

to Colombia will be “at the consent or acquiescence of a public official.”32 The IJ found

that Bedoya went to the police when Perez initially threatened him and could do so again

if needed. The IJ also found that, although Bedoya is afraid Perez will find out if he goes

to the police again, that does not amount to governmental acquiescence. On appeal, the

BIA confirmed the IJ’s analysis under the Myrie framework. It saw no clear error in the

IJ’s finding that the police would try to protect Bedoya if he was threatened by Perez

25 Id. at 516 (internal quotation marks and citations omitted). 26 Id. 27 Id. 28 Id. 29 Id. 30 Id. 31 Id. at 516–17. 32 AR74.

8 again. And, it found that the government’s likely response—attempting to protect

Bedoya—does not constitute acquiescence as a matter of law.

Bedoya contends that the BIA erred in denying him CAT protection because the

police are “friends of [] Perez” and would leave him to “fight off [] Perez and his gang”

on his own if he is returned to Colombia.33 Bedoya is arguing, in other words, that the IJ

and BIA misinterpreted the evidence in the record about how the police are likely to

respond to the harm he would face upon returning to Colombia. But it is not our role to

“re-weigh evidence or . . . substitute [our] own factual determinations for those of the

agency.”34 Our mandate is instead to “affirm any findings of fact supported by

substantial evidence” even if “there is more than one way to view the record before us.”35

Bedoya’s view of the record has some support, most notably his testimony that when he

was abducted by Perez and his men, one of them seemed to know that he had gone to the

police. However, it is unclear whether that information came from within the police,

whether Perez’s men found out some other way, or whether they inferred it from the time

it was taking Bedoya to respond to their offer. And Bedoya testified that when he went to

the police, they “acknowledge[ed] what [he was] telling them” and instructed him to let

them know of any further intimidation because they would “consider[] it a formal

threat.”36

33 Petitioner’s Opening Br. at 10. 34 Thayalan, 997 F.3d at 143. 35 Espinosa-Cortez, 607 F.3d at 106; Gonzalez-Posadas, 781 F.3d at 688. 36 AR155.

9 Given this testimony, there is substantial evidence to support the determination of

the IJ and BIA that the Colombian police will likely try to protect Bedoya if he seeks

their help in the future. And because this response would not amount to governmental

acquiescence in any harm Bedoya faces, he has failed to establish his entitlement to CAT

relief.

III.

For these reasons, we will deny the petition for review.