Diego Alexander Campino Giraldo v. U.S. Atty. Gen., (11th Cir. 2006)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

November 13, 2006

N o . 06-12133 T H O M A S K. KAHN

N o n - A r g u m e n t Calendar CLERK

B IA Nos. A97-636-037 & A97-636-038

D IE G O ALEXANDER CAMPINO GIRALDO,

MAUREN DALILA CASTRO ALVAREZ,

MARIA JOSE CAMPINO CASTRO,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

P etitio n for Review of a Decision of the

B o ard of Immigration Appeals

(N o v em b er 13, 2006)

B efo re WILSON, PRYOR and FAY, Circuit Judges.

P E R CURIAM:

C o lo m b ian natives and citizens Diego Alexander Campino Giraldo ("C am p in o "), his wife, Mauren Dalila Castro Alvarez, and their seven-year old d au g h ter, Maria Jose Campino Castro, seek review of the Board of Immigration A p p ea ls' ("BIA") decision affirming, without opinion, the Immigration Judge's ("IJ") order finding them removable and denying their application for asylum, w ith h o ld in g of removal, and relief under the United Nations Convention Against T o rtu re and Other Cruel, Inhuman or Degrading Treatment or Punishment ("C A T ").1 On appeal, Campino argues that the IJ erred in denying asylum and w ith h o ld in g of removal because he demonstrated past persecution and a wellf o u n d e d fear of persecution based on his political opinion, imputed or otherwise.2 F o r the reasons set forth more fully below, we deny the petition.

We review factual determinations using the substantial evidence test.

Forgue v. U.S. Att'y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). We will affirm if the decision "is supported by reasonable, substantial, and probative evidence on th e record considered as a whole." Id. (citation and quotation marks omitted). We rev iew the record evidence in the light most favorable to the agency's decision and d r a w all reasonable inferences in favor of that decision. Id. To conclude that the IJ s h o u ld be reversed, we "must find that the record not only supports that co n clu sio n , but compels it." Fahim v. U.S. Att'y Gen., 278 F.3d 1216, 1218 (11th C ir . 2002) (citation and quotation marks omitted). "[T]he mere fact that the record m ay support a contrary conclusion is not enough to justify a reversal of the a d m in is tr ativ e findings." Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2 0 0 4 ) (en banc), cert. denied, 544 U.S. 1035 (2005). To the extent the IJ's d ecisio n was based on a legal determination, review is de novo. Mohammed v. A s h c ro f t, 261 F.3d 1244, 1247 (11th Cir. 2001).

T h e 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 8U.S.C.

§ 1158(b)(1)(A); INA § 208(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 u n w illin g to avail himself or herself of the protection of, that country b ecau se of persecution or a well-founded fear of persecution on a cc o u n t of race, religion, nationality, membership in a particular so cial group, or political opinion . . . .

8U.S.C. § 1101(a)(42)(A); INA § 101(a)(42)(A). The asylum applicant carries the b u rd en of proving statutory "refugee" status. Al Najjar v. Ashcroft, 257 F.3d 1 2 6 2 , 1284 (11th Cir. 2001). In order to carry this burden, the alien must 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); Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1230-31 (11th Cir. 2 0 0 5 ). The applicant must present "specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution on account of" a protected g ro u n d . Al Najjar, 257 F.3d at 1287 (citation and quotation marks omitted). The p ersecu tio n must be on account of Campino's political opinion, whether actual or im p u ted , and not the beliefs or opinions of his persecutors. See I.N.S. v. EliasZ acarias, 502 U.S. 478, 482, 112 S.Ct. 812, 816, 117 L.Ed.2d 38 (1992) (holding th at persecution on account of political opinion is "persecution on account of the v ictim 's political opinion, not the persecutor's"); Sanchez v. U.S. Att'y Gen., 392 F .3 d 434, 438 (11th Cir. 2004) (holding that the petitioner must establish past or fu tu re persecution because of his actual or imputed political opinion). "It is not e n o u g h to show that [he] was or will be persecuted or tortured due to [his] refusal to cooperate . . . ." Sanchez, 392 F.3d at 438. "`[A]n imputed political opinion, w h e th e r correctly or incorrectly attributed,' may constitute a ground for a `w ell-fo u n d ed fear' of political persecution within the meaning of the INA." Al N ajjar, 257 F.3d at 1289 (citations omitted). "An asylum applicant may prevail on a theory of `imputed political opinion' if he shows that the `[p]ersecutor falsely a ttr ib u te [d ] an opinion to [him], and then persecute[d] [him] because of that m is ta k e n belief about [his] views.'" Id. (citations and quotation marks omitted).

T o establish eligibility for withholding of removal under the INA, the ap p lican t must show that his life or freedom would be threatened based on a p ro tected ground. Ruiz v. U.S. Att'y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).

"The burden of proof for withholding of removal, however, is `more likely than n o t,' and, thus, is `more stringent' than the standard for asylum relief." Id.

(citatio n omitted). An applicant who fails to establish eligibility for asylum on the m e rits necessarily fails to establish eligibility for withholding of removal. Forgue, 4 0 1 F.3d at 1288 n.4.

C am p in o , who was a cashier at a bank, applied for asylum and withholding o f removal, alleging that members of the Revolutionary Armed Forces of C o lo m b ia ("FARC") sought to obtain information about bank customers from him.

Campino testified regarding a series of threats and other incidents directed at h im self and his family by the FARC, beginning about four months after his wallet, w h ich contained a card certifying that he worked at the bank, was stolen.

Campino described the following events: On September 8, 2002, he received a th reaten in g letter from the FARC, signed by a Commander Padilla, requesting co n fid en tial information about bank clients. The letter informed him that if he did n o t cooperate things would go "very badly" for himself and his family. On S ep tem b er 26, 2002, upon leaving the bank, Padilla confronted him, asked him if h e had decided to cooperate, and threatened to hurt his daughter if he refused. On O cto b er 25, 2002, as he was picking up his daughter from school, Padilla again ap p ro ach ed him, asked about his daughter, and again told Campino that, for the g o o d of his family, Campino had to "do the work," which he understood meant to g iv e them the requested bank information. On November 5, 2002, he removed his d au g h ter from school because people unconnected to his family were asking q u estio n s about his daughter. On December 27, 2002, he received a threatening p h o n e call. Finally, on January 9, 2003, as he was driving home from the bank, P ad illa began following him on a motorcycle and, as Padilla passed him, Padilla fired two shots into the hood of his car. He received another threatening phone call th at night. Campino then took his family to his mother-in-law's house, where he stayed without incident until he left Colombia in April 2003.

A m o n g other reasons, the IJ denied asylum on the ground that Campino fa iled to establish any nexus to any of the protected grounds because the FARC's o n ly motivation was to obtain financial information about the bank's clients. The IJ further found that Campino did not submit adequate evidence from which he c o u ld find that the FARC's interest was on account of Campino's imputed political o p in io n . Because Campino did not establish asylum eligibility, the IJ found that h e, therefore, did not meet the higher standard for withholding of removal.

Campino contends that the denial of his claims was in error, arguing that his refu sal to provide the FARC with access to bank records imputed to him an anti F A R C political opinion, and that the FARC targeted him because of it.

The IJ's finding that Campino failed to establish persecution on account of a p r o te cte d ground is supported by substantial evidence. Campino's testimony that th e FARC initially approached him about the bank records and threatened him if he w o u ld not cooperate, as well as his belief that he was an enemy of the FARC b ecau se he did not do what they wanted, provide substantial evidence in support of th e IJ's finding that the FARC's only motivation was to obtain financial in fo rm atio n about the bank's clients. Persecution due to Campino's refusal to c o o p e ra te with the FARC is not persecution on account of a protected ground. See R u iz, 440 F.3d at 1258 ("[E]vidence that . . . is consistent with . . . the petitioner's failu re to cooperate with guerillas . . . does not constitute evidence of persecution b ased on a statutorily protected ground"); Sanchez, 392 F.3d at 438.

Nor does the record compel the conclusion that the FARC believed that C am p in o 's refusal to cooperate was politically based as no mention was made of C am p in o being perceived as anti-FARC, and the only reason Campino gave for his b elief that he was an enemy of the FARC was his refusal to cooperate.

Accordingly, the IJ's denial of asylum is supported by substantial evidence. As a resu lt, Campino also failed to establish eligibility for withholding of removal.

Forgue, 401 F.3d at 1288 n.4. In light of the foregoing, the petition for review is D E N IE D .

1 Campino's wife and daughter are derivative beneficiaries of Campino's claims for relief. Accordingly, only Campino is mentioned in reference to these claims.

2 Because the BIA summarily affirmed the IJ without an opinion, we review the IJ's decision. See Yang v. U.S. Att'y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). Campino does not argue that the IJ erred in denying relief under the CAT. Accordingly, he has abandoned the issue. Huang v. U.S. Att'y Gen., 429 F.3d 1002, 1007 n.2 (11th Cir. 2005).

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