Sepulveda v. U.S. Attorney General

378 F.3d 1260, 2004 U.S. App. LEXIS 15633, 2004 WL 1689239
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 29, 2004
DocketNo. 03-14932
StatusPublished
Cited by20 cases

This text of 378 F.3d 1260 (Sepulveda 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
Sepulveda v. U.S. Attorney General, 378 F.3d 1260, 2004 U.S. App. LEXIS 15633, 2004 WL 1689239 (11th Cir. 2004).

Opinion

PER CURIAM:

Joana C. Sepulveda, a Colombian national, petitions for review of the final order of the Board of Immigration Appeals (BIA) affirming without opinion the Immigration Judge’s (IJ’s) denial of her requests for asylum and withholding of removal under the Immigration and Nationality Act (INA).1 8 U.S.C. §§ 1158, 1231(b)(3). Sepulveda argues the- BIA’s affirmance of the IJ’s denial of her application demonstrates an adversarial tone and a unilaterally-heightened standard of adjudication for Colombian asylum claims, in violation of the Supreme Court’s decision in INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Sepulveda asserts she established a well-founded fear of persecution on account of her political opinion and activity. Sepulve-da also challenges the IJ’s finding that internal relocation was a viable option. Substantial evidence supports the IJ’s decision. We deny the petition.

I. BACKGROUND

Sepulveda and her husband entered the United States on September 11, 2000, as visitors with permission to remain until March 10, 2001. On August 16, 2001, the INS served Sepulveda with a notice to appear, charging her with removability for having remained in the United States beyond the time allowed. Sepulveda admitted the allegations of the notice to appear and conceded removability. Sepulveda requested asylum, withholding of removal, and relief under the CAT on behalf of herself and her husband.

Sepulveda testified her pro-democracy ideology conflicted with that of the ELN guerilla group,2 which advocated class struggle, Marxism, and dictatorship. Se-pulveda, a resident of Cali, Colombia, belonged to a group at her university that initially organized political debates, and later organized marches and peace demonstrations. Sepulveda participated in approximately ten peace marches. When the “La Maria” massive kidnaping occurred,3 Sepulveda and group members cooperated with a priest to negotiate between the kidnapers and the hostages’ families. After becoming involved in the kidnaping negotiations, Sepulveda received three threatening telephone calls at her home, and the group received similar calls at the office. The callers, identifying themselves as ELN members, called Sepulveda by name, used profanity, directed her to stop her peace activities, and made death threats. Many of the group members quit, [1263]*1263and the group’s membership ultimately dwindled from 35 to 5. The group also placed “mailboxes” within restaurants to facilitate communication between the kidnapers, their hostages, victims’ families, and the public. One of the mailboxes was located in the restaurant where Sepulveda was employed, and a bomb placed in that mailbox exploded just after she finished her shift. Sepulveda believed the bomb was related to her political activities. Before coming to the United States, Sepulve-da relocated to her parents’ home in Ha-mondi, Colombia, and her in-laws’ home in Cali, Colombia.

Sepulveda testified she feared the ELN guerilla group would kill her or her family if they returned to Colombia. Thirteen years earlier, Sepulveda’s uncle, a judge, received death threats related to a drug trafficking case. The uncle’s wife was killed when the couple disregarded the threats.4 Sepulveda believed the Colombian authorities would not assist her unless she had money or the names of the specific individuals issuing the threats.

In support of her application for relief, Sepulveda submitted an asylum application setting forth the basis of her claim generally consistent with her testimony. Se-pulveda particularly noted in her application that her brother received threats from ELN members with regard to her political activity.

The record before the IJ also included the State Department’s 1999 Country Report on Human Rights Practices for Colombia. The 1999 Country Report stated that Colombia’s two major guerilla groups, FARC and ELN, exercised significant influence in nearly 1,000 of the country’s 1,085 municipalities. It described the abduction of 170 people from La Maria church by the ELN, and a demonstration in Cali by 70,000 to 250,000 people protesting the mass kidnaping. The 1999 Country Report also noted that as many as six million people marched in antiwar protests in October of that year.

The State Department’s 2000 Country Report on Human Rights Practices for Columbia described the ELN’s common abuse of noncombatants, including the use of kidnaping as a primary source of money, and employment of bombs to destroy facilities and intimidate targeted individuals. The 2000 Country Report indicated that as many as one million people have been displaced within Colombia since 1996, and noted the flood of displaced persons has overwhelmed the capacity of smaller municipalities and larger cities to provide services, leaving displaced individuals without health care, education, or employment.

The IJ denied Sepulveda’s application for asylum, withholding of removal and CAT relief. The IJ found the following: (1) neither Sepulveda nor her husband had suffered past persecution, (2) Sepulveda failed to establish she suffered past mistreatment on account of any protected ground, or that anyone had the inclination to persecute her, and (3) Sepulveda failed to meet her burden to show that internal flight alternatives were unavailable to her. Having determined that she failed to meet the lower burden of proof for asylum eligibility, the IJ concluded that Sepulveda was ineligible for withholding of removal. Finally, the IJ rejected Sepulveda’s CAT relief claim on the grounds she failed to show she would likely suffer torture upon her return to Colombia, or that the Colombian authorities acquiesced to the guerilla action. Sepulveda appealed the BIA’s decision, which affirmed the IJ’s decision without opinion.

[1264]*1264II. STANDARD OF REVIEW

When the BIA summarily affirmed the IJ’s decision without an opinion, the IJ’s decision became the final removal order subject to review. See Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1284 n. 1 (11th Cir.2003). The IJ’s findings of fact are reviewed under the substantial evidence test, and we “must affirm the [IJ’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, 1284 (11th Cir.2001) (quotation marks and citation omitted). Under this highly deferential standard of review, the IJ’s decision can be reversed only if the evidence “compels” a reasonable fact finder to find otherwise. INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 815 n. 1, 117 L.Ed.2d 38 (1992).

III. ASYLUM

An alien who arrives in or is present in the United States may apply for asylum, which the Attorney General has discretion to grant if the alien meets the INA’s definition of a “refugee.” 8 U.S.C. § 1158(a)(1), (b)(1). A “refugee” is

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Bluebook (online)
378 F.3d 1260, 2004 U.S. App. LEXIS 15633, 2004 WL 1689239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sepulveda-v-us-attorney-general-ca11-2004.