Liliana Orozco v. U.S. Attorney General

323 F. App'x 734
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 15, 2009
Docket08-12937
StatusUnpublished

This text of 323 F. App'x 734 (Liliana Orozco v. U.S. Attorney General) 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
Liliana Orozco v. U.S. Attorney General, 323 F. App'x 734 (11th Cir. 2009).

Opinion

PER CURIAM:

Liliana Orozco, a native and citizen of Colombia, through counsel, seeks review of the Board of Immigration’s (BIA’s) order dismissing her appeal of the Immigration Judge’s (IJ’s) order denying her application for asylum and withholding of removal under the Immigration and Nationality Act (INA), and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), pursuant to INA §§ 208, 241, 8 U.S.C. §§ 1158, 1231; 8 C.F.R. § 208.16(c).

Orozco argues that she established a nexus between her claim and a protected ground by showing that the harm she suffered was the result of her unwillingness to collaborate with the Revolutionary Armed Forces of Colombia (FARC), which constitutes persecution based on her political opinion or social group. Orozco asserts that she suffered threats, mistreatment, and the kidnaping of her brother for defying the FARC, and the newspaper article she submitted corroborated her testimony. She argues that her brother’s kidnaping was evidence of her imputed political opinion and established that she had a well-founded fear of persecution. Moreover, she argues that the IJ and the BIA erred in finding that it was unreasonable for her and her family to leave Colombia after her brother’s kidnaping because they reacted to the situation as any reasonable family *735 would have. According to Orozco, the IJ failed to articulate any decisional standard in reference to her persecution claim. Or-ozco claims that she showed that a reasonable person in her circumstance would fear persecution if returned to Colombia. Accordingly, Orozco asserts that the IJ erred in not granting her asylum, withholding of removal, and CAT relief.

When the BIA issues a decision, we review only that decision, except to the extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). Here, the BIA did not explicitly adopt the IJ’s findings, and thus we will review only the BIA’s decision.

To the extent that the BIA’s decision was based on a legal determination, 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, 257 F.3d at 1283-84 (citation omitted). The substantial evidence test is “deferential” and does not allow “re-weigh[ing] the evidence from scratch.” Mazariegos v. 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). 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).

The Attorney General or the Secretary of Homeland Security has discretion to grant asylum if an alien meets the INA’s definition of a “refugee.” See INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). A “refugee” is:

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.

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving statutory “refugee” status. Al Najjar, 257 F.3d at 1284. In order to carry this burden, the applicant must, with specific and credible evidence, establish “(1) past persecution on account of a statutorily listed factor, or (2) a ‘well-founded fear’ that the statutorily listed factor will cause future persecution.” 8 C.F.R. § 208.13(a), (b); Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).

In the case of persecution on account of political opinion, the political opinion must be held by the victim, not the persecutor. INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 816, 117 L.Ed.2d 38 (1992). In Elias-Zacañas, the Supreme Court held that persecution due to the refusal to cooperate with a guerilla group is not persecution on account of political opinion. Id. at 483, 112 S.Ct. at 816. Rather, the persecution must occur because the persecutor knows that the victim’s refusal to cooperate was due to political beliefs. Rivera v. U.S. Att’y Gen., 487 F.3d 815, 822 (11th Cir.2007). Persecution based on failure to cooperate with an alleged persecutor is not sufficient to show this nexus. See Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir.2004) (addressing withholding of removal political opinion claim based on FARC’s actions against Sanchez). *736 Additionally, persecution based purely on retribution is also not persecution on account of political opinion. Id. (quoting Grava v. INS, 205 F.3d 1177, 1181 n. 3 (9th Cir.2000)).

To establish eligibility for withholding of removal under the INA, the applicant must show that his life or freedom would be threatened based on a protected ground. Ruiz, 440 F.3d at 1257. “The burden of proof for withholding of removal, however, is ‘more likely than not,’ and, thus, is ‘more stringent’ than the standard for asylum relief.” Id. (citation omitted). An applicant who fails to establish eligibility for asylum on the merits necessarily fails to establish eligibility for withholding of removal. Forgue v. U.S. Att’y Gen.,

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