Wilmar Burgos Gonzalez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 24, 2023
• Docket: 22-10722
• Status: Unpublished

Opinion

USCA11 Case: 22-10722 Document: 18-1 Date Filed: 01/24/2023 Page: 1 of 13

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 22-10722 Non-Argument Calendar ____________________

WILMAR BURGOS GONZALEZ, JERONIMO BURGOS BALLESTEROS, JUAN J. BURGOS BALLESTEROS, MONICA R. BALLESTEROS CLAROS, Petitioners, versus U.S. ATTORNEY GENERAL,

Respondent.

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Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A202-175-189 ____________________

Before GRANT, LUCK, and ANDERSON, Circuit Judges. PER CURIAM:

Wilmar Burgos Gonzalez, the lead petitioner, 1 and his wife and two sons seek review of the Board of Immigration Appeals’ final order affirming the immigration judge’s denial of his applica- tion for asylum, withholding of removal, and relief under the United Nations Convention Against Torture and Other Cruel, In- human or Degrading Treatment or Punishment. We partly grant and partly dismiss Burgos Gonzalez’s petition. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Burgos Gonzalez and his family, natives and citizens of Co- lombia, entered the United States without inspection in October 2014. Because they lacked valid entry documents, the Department of Homeland Security charged them with inadmissibility and served them with notices to appear before the immigration judge. In February 2017, Burgos Gonzalez applied for asylum, withholding of removal, and relief under the Convention Against

1 Because Burgos Gonzalez’s wife and two sons are derivative beneficiaries on his asylum claim and do not assert their own claims for relief from removal, this opinion primarily addresses Burgos Gonzalez and his claims. USCA11 Case: 22-10722 Document: 18-1 Date Filed: 01/24/2023 Page: 3 of 13

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Torture, claiming he was persecuted on account of his political opinion and membership in a particular social group. In his appli- cation, Burgos Gonzalez stated that he feared kidnapping and tor- ture by the Revolutionary Armed Forces of Colombia, known as FARC, a Marxist–Leninist guerilla organization that had been ac- tive in Colombia since 1964. Burgos Gonzalez explained that, as an attorney, he’d advised a group of Colombian businessmen to form an association to col- lectively petition the authorities for protection against extortion by FARC. He participated in three meetings of the association be- tween December 2009 and January 2010. Then, Burgos Gonzalez began receiving anonymous calls demanding that he pay extortion and threatening to kill him and his family if he didn’t. In June 2010, upon leaving his home by car, he noticed two individuals on a mo- torcycle following him. He said the motorcycle passenger pointed a firearm in Burgos Gonzalez’s direction, and Burgos Gonzalez ac- celerated through traffic. The two men fled when he arrived at a nearby police station. For the next two weeks, the threatening phone calls continued; the callers identified themselves as FARC members and told Burgos Gonzalez in one call that he’d been lucky the motorcyclists hadn’t killed him. Because of the threats and the motorcycle incident, Burgos Gonzalez moved twice, changed his cell phone number, and sought protection from local police and the national attorney gen- eral’s office. The authorities initially told him to wait and see if the callers identified themselves. Later, the attorney general’s office USCA11 Case: 22-10722 Document: 18-1 Date Filed: 01/24/2023 Page: 4 of 13

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opened an investigation, but Burgos Gonzalez opted to leave the country. He came to the United States with his family after unsuc- cessfully seeking asylum in Canada. The immigration judge conducted a merits hearing on Bur- gos Gonzalez’s application in February 2019. Burgos Gonzalez confirmed the facts in the application and introduced numerous documents and affidavits to support his claims. Burgos Gonzalez told the immigration judge that he believed the motorcycle inci- dent was an attempt on his life because the actions of the two mo- torcyclists were consistent with a common tactic used for commit- ting homicides in Colombia. When the immigration judge noted that the motorcycle passenger didn’t fire his weapon at Burgos Gonzalez, Burgos Gonzalez testified that the man had been pre- vented from doing so only because Burgos Gonzalez escaped to the police station by accelerating through traffic. The immigration judge denied Burgos Gonzalez’s applica- tion for asylum, withholding of removal, and relief under the Con- vention Against Torture. The immigration judge found that Bur- gos Gonzalez was a credible witness and accepted the legal suffi- ciency of his proposed particular social group—namely, “profes- sionals in Colombia, specifically lawyers and businessmen, who re- fused to cooperate with . . . FARC.” But the immigration judge found that Burgos Gonzalez’s actions to help the extorted business- men didn’t constitute expression of an actual or imputed political opinion and that—even accepting all of his testimony as true—the facts were insufficient to establish that he experienced past USCA11 Case: 22-10722 Document: 18-1 Date Filed: 01/24/2023 Page: 5 of 13

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persecution. The immigration judge observed that, “other than a series of threatening phone calls and one incident involving an armed individual on a motorcycle who did not fire on [Burgos Gon- zalez’s] car,” no evidence showed that he or his family had been physically harmed or suffered other mistreatment that rose to the level necessary to show past persecution. Regarding a well-founded fear of future persecution, the im- migration judge found that Burgos Gonzalez’s fear of returning to Colombia was subjectively genuine. But the immigration judge said he was unable to find that Burgos Gonzalez had an objectively genuine fear of return because he had been outside the country for nine years and his family members in Colombia remained un- harmed. The immigration judge noted that extortion victims bear the burden of showing that the extortion was motivated by reasons be- yond criminality. Finding no clear evidence that Burgos Gonzalez would be targeted upon returning to Colombia for reasons other than FARC not receiving the demanded extortion money, the im- migration judge reasoned that “it would seem by extension that [Burgos Gonzalez would be] unable to satisfy the burden of show- ing that any targeting would be beyond that of a criminal nature.” The immigration judge also found no clear evidence that Burgos Gonzalez was unable to relocate within Colombia. Consequently, the immigration judge concluded that Burgos Gonzalez failed to meet the burden for establishing eligibility for asylum or the higher burden to qualify for withholding of removal. USCA11 Case: 22-10722 Document: 18-1 Date Filed: 01/24/2023 Page: 6 of 13

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Regarding relief under the Convention Against Torture, the immigration judge found no evidence establishing that Burgos Gonzalez would (more likely than not) be subject to torture by or with the consent or acquiescence of government officials or indi- viduals acting in an official capacity. He noted that Burgos Gonza- lez had succeeded in convincing the authorities to issue reports and act in some capacity to protect members of the business associa- tion. Burgos Gonzalez appealed to the board. He asserted that he’d suffered past persecution, and had an objectively reasonable fear of future persecution, based on the death threats and the mo- torcycle incident, arguing that attempted murder was sufficient ev- idence of past persecution even without physical injury. He also argued that the immigration judge erred in concluding that he failed to relocate and that FARC’s nationwide operation precluded the possibility of relocation. Burgos Gonzalez raised no argument concerning the immigration judge’s findings on the Convention Against Torture. The board adopted and affirmed the immigration judge’s decision. STANDARD OF REVIEW We review only the decision of the board, except to the ex- tent that the board expressly adopted the immigration judge’s de- cision. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 956 (11th Cir. 2005). Where the board adopted the immigration judge’s de- cision, we review the immigration judge’s decision as well as the board’s. Id. We review factual determinations under the USCA11 Case: 22-10722 Document: 18-1 Date Filed: 01/24/2023 Page: 7 of 13

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substantial evidence test, Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009), which requires us to “view the record evidence in the light most favorable to the agency’s decision and draw all reasonable inferences in favor of that decision,” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). We “must affirm the [board’s] decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. (quotation omitted). The mere fact that the record may support a different conclusion is insufficient to justify a rever- sal of administrative findings. Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1230 (11th Cir. 2007). Rather, the record must com- pel a contrary conclusion to warrant reversal. De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1006 (11th Cir. 2008). DISCUSSION As to his asylum and withholding of removal claims, Burgos Gonzalez argues that the immigration judge and the board erred in finding that: (1) he had not met his burden to show past persecu- tion; (2) he had not met his burden to show a well-founded fear of future persecution; and (3) he had not met his burden to show he could reasonably relocate within Colombia. Burgos Gonzalez also challenges the finding that he failed to show he’s eligible for relief under the Convention Against Torture. A. Asylum

The government has discretion to grant asylum to an other- wise removable alien. 8 U.S.C. § 1158(b); Mazariegos v. U.S. Att’y USCA11 Case: 22-10722 Document: 18-1 Date Filed: 01/24/2023 Page: 8 of 13

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Gen., 241 F.3d 1320, 1323–24 (11th Cir. 2001). But that discretion can be exercised only if the alien qualifies as a refugee, Mazariegos, 241 F.3d at 1324, which is defined as a person “who is unable or unwilling to return to, and is unable or unwilling to avail . . . him- self of the protection of,” his home country due to “persecution or a well-founded fear of persecution on account of race, religion, na- tionality, membership in a particular social group, or political opin- ion,” 8 U.S.C. § 1101(a)(42)(A). The applicant bears the burden of proving eligibility for asy- lum. Id. § 1158(b). A showing of past persecution creates a pre- sumption of a well-founded fear of future persecution, subject to rebuttal by the department. Sanchez Jimenez, 492 F.3d at 1232. To overcome this presumption, the department bears the burden to show by a preponderance of the evidence either that conditions in the country have changed, such that the applicant no longer has a well-founded fear of future persecution notwithstanding the past persecution, or that the applicant could avoid future persecution by relocating within the country if, under all the circumstances, it would be reasonable to expect the applicant to do so. Id. An applicant who fails to establish past persecution can still prove eligibility for asylum by showing (1) a subjectively genuine and objectively reasonable fear of future persecution that is (2) on account of a protected ground. 8 C.F.R. § 208.13(b)(2)(i); De San- tamaria, 525 F.3d at 1316. The applicant can satisfy the subjective component by providing credible testimony that he genuinely fears persecution. De Santamaria, 525 F.3d at 1316. And he can satisfy USCA11 Case: 22-10722 Document: 18-1 Date Filed: 01/24/2023 Page: 9 of 13

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the objective prong by providing evidence establishing that he has a good reason to fear future persecution. Id. Although the statute doesn’t define persecution, we’ve said that it “is an extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation, and . . . mere har- assment does not amount to persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (cleaned up). “[O]nly in a rare case does the record compel the conclusion that an applicant for asylum suffered past persecution or has a well-founded fear of future persecution.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1239 (11th Cir. 2006). This is one of the rare cases where the record compels a con- clusion that Burgos Gonzalez suffered past persecution. The only evidence available to the immigration judge and the board was from Burgos Gonzalez, and that evidence was found to be credible and corroborated. That same undisputed, credible, and corrobo- rated evidence showed that FARC members tried to murder Bur- gos Gonzalez. First, a family friend of Burgos Gonzalez, William Aguirre Cifuentes, averred that he overheard a cassette recording in which Burgos Gonzalez was threatened with a bomb. After Burgos Gon- zalez left Colombia, Cifuentes went to get his friend’s mail. As Cifuentes was leaving, two armed men approached him, said they were members of FARC, asked where Burgos Gonzalez was, and told Cifuentes to tell Burgos Gonzalez that he would be killed when he returned to the country. USCA11 Case: 22-10722 Document: 18-1 Date Filed: 01/24/2023 Page: 10 of 13

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Second, one of Burgos Gonzalez’s coworkers, Javier Torres Garcia, swore that a man called at work asking for Burgos Gonza- lez. The man on the phone asked for 250 million pesos and threat- ened to kill Burgos Gonzalez if he didn’t pay. After Burgos Gonza- lez left Colombia, armed men came looking for him. The men threatened to kill Burgos Gonzalez if they saw him again. Third, Burgos Gonzalez testified that, starting in February 2010, he received anonymous calls at his home and work demand- ing that he pay 200 million pesos or he would be killed. Then, in June, as Burgos Gonzalez was on his way to work, he was followed by two people on a motorcycle. The passenger had a weapon and pointed it at Burgos Gonzalez. Burgos Gonzalez sped away and drove straight to the police station. Soon after, callers identifying themselves as FARC members called Burgos Gonzalez at work and said he was “lucky [to have] survived the motorcycle incident.” Burgos Gonzalez testified that murders in Colombia were nor- mally committed by people on a motorcycle with the person in the back acting as the shooter. So, the immigration judge and the board had undisputed, credible, and corroborated testimony that: Burgos Gonzalez was threatened with murder if he didn’t pay money; a motorcycle rider pulled a gun and pointed it at Burgos Gonzalez, but he got away by speeding up and driving to a police station; this was how mur- ders were normally committed in Colombia; FARC members took responsibility for the motorcycle incident; and, after Burgos Gon- zalez left Colombia, FARC members threatened to kill him when USCA11 Case: 22-10722 Document: 18-1 Date Filed: 01/24/2023 Page: 11 of 13

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he returned. The only conclusion compelled by these undisputed facts was that FARC members tried to kill Burgos Gonzalez in June 2010. This means that Burgos Gonzalez suffered past persecution. “Put simply, attempted murder is persecution.” Sanchez Jimenez, 492 F.3d at 1233. Having established past persecution, Burgos Gonzalez was entitled to a rebuttable presumption that he had a well-founded fear of future persecution. See id. at 1232. But because the immi- gration judge and the board found that Burgos Gonzalez hadn’t es- tablished past persecution, they neither gave Burgos Gonzalez the benefit of this presumption, nor held the department to its corre- sponding burden of rebutting it. We grant Burgos Gonzalez’s pe- tition for the board to apply the presumption and to determine whether the department overcame it with record evidence. 2 See id.

2 The immigration judge and the board found that Burgos Gonzalez didn’t show that his fear of returning to Colombia was “objectively genuine” and “there was insufficient evidence to establish why [he] would not be able to relocate elsewhere in the country.” But these findings are not enough to over- come the presumption. Once the presumption applies, it wasn’t Burgos Gon- zalez’s burden to show that his fear of return was well-founded or that he could avoid persecution by reasonably relocating to another part of Colombia. Rather, when the presumption applies, the department has the burden to overcome the presumption by showing that conditions in Colombia have changed such that Burgos Gonzalez’s fear of return is no longer reasonable or that he could avoid future persecution by relocating within the country if it would be reasonable to do so. See Sanchez Jimenez, 492 F.3d at 1232. But the immigration judge and the board didn’t make either of these findings. USCA11 Case: 22-10722 Document: 18-1 Date Filed: 01/24/2023 Page: 12 of 13

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B. Withholding of Removal

Because the immigration judge and the board determined that Burgos Gonzalez was ineligible for withholding of removal only because he was ineligible for asylum, granting his petition as to his asylum claim also requires that we grant his petition as to his withholding of removal claim. See id. at 1239 (explaining that be- cause “the [immigration judge] denied [the] application for with- holding of removal based upon his conclusion that [the applicant] would not have established the less stringent standard for asylum,” our decision vacating the denial of the asylum claim also required vacating the denial of the withholding of removal claim). C. Convention Against Torture

We’re “obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.” Morales v. U.S. Att’y Gen., 33 F.4th 1303, 1307 (11th Cir. 2022) (cleaned up). We con- sider our subject-matter jurisdiction de novo. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We may review a final order of removal only if “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). This requirement is jurisdictional and precludes review of a claim that wasn’t presented to the board. Amaya-Artunduaga, 463 F.3d at 1250. Although not a burdensome requirement, exhaustion requires that the applicant “previously ar- gued the core issue now on appeal before the [board].” Indrawati USCA11 Case: 22-10722 Document: 18-1 Date Filed: 01/24/2023 Page: 13 of 13

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v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015) (quotation omitted). Burgos Gonzalez argues that he’s under a threat of death or kidnapping at the hands of FARC if he’s returned to Colombia and that death and kidnapping fall under the Convention’s meaning of torture. He also argues that he repeatedly sought help from the authorities in Colombia but was never offered any real protection, and, thus, he had no choice but to leave the country. Finally, he argues that the authorities’ failure to provide him with meaningful protection serves as evidence that FARC operates with impunity and that the Colombian government is unwilling and unable to do anything about its crimes. Because Burgos Gonzalez didn’t raise these arguments on appeal to the board, the claim is unexhausted and we’re precluded from reviewing the finding that he wasn’t eli- gible for relief under the Convention Against Torture. Accord- ingly, we dismiss Burgos Gonzalez’s petition with respect to this issue. PETITION GRANTED IN PART AND DISMISSED IN PART.