Helbert Urrea Gomez v. U.S. Attorney General, (11th Cir. 2006)
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[D O NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPT 29, 2006
THOMAS K. KAHN
N o . 06-10578
CLERK
N o n - A r g u m e n t Calendar
A g en cy Nos. A79-090-159
A 7 9 -0 9 0 -1 6 0
H E L B E R T URREA GOMEZ,
PAOLA ANDREA MONTOYA,
HELBERT ANDRES URREA MONTOYA,
RAQUEL ANDREA URREA MONTOYA,
MARGARITA MONTOYA PATINO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
P etitio n for Review of a Decision of the
B o ard of Immigration Appeals
(S ep tem b er 29, 2006)
B efo re BIRCH, BLACK and BARKETT, Circuit Judges.
P E R CURIAM:
H e lb e r t Urrea Gomez, Paola Andrea Montoya, Helbert Andres Urrea M o n to ya, Raquel Andrea Urrea Montoya, and Margarita Montoya Patino ("P etitio n ers"), natives and citizens of Colombia, through counsel, petition for rev iew of the Immigration Judge's ("IJ's") order of removal and denial of asylum, w ith h o ld in g of removal, 8U.S.C. §§ 1158, 1231(b)(3), and relief under the United N atio n s Convention Against Torture and Other Cruel, Inhuman, or Degrading T r ea tm e n t or Punishment ("CAT"),
I. BACKGROUND H e lb e r t Urrea Gomez and Paola Montoya, who are married, their children H elb ert and Raquel, and Paola's mother, Margarita Patino, are natives and citizens o f Colombia and sought admission to the United States on 23 January 2001. They w ere issued notices to appear ("NTA") by the INS,1 charging them with rem o v ab ility under 8U.S.C. § 1182(a)(6)(C)(i), as aliens who by fraud or willful m isrep resen tatio n , sought admission to the United States, and 8U.S.C. § 1 1 8 2 (a)(7 )(A )(i)(I), as aliens who, at the time of their admission, did not possess v alid entry documents.
O n 2 October 2001, Urrea filed an application for asylum and withholding of r em o v a l.2 Urrea claimed that he had been threatened by the Army of National L ib eratio n ("ELN") on account of his membership in a social group and his p o litical opinion. Urrea then explained that he had worked as a driver for the C o lo m b ian Army from 1992 until 25 December 2000. On 20 November 2000, he w as driving soldiers when his truck encountered an ELN roadblock. A sergeant on h is truck ordered the soldiers to attack. Many soldiers were wounded in the firefig h t, and Urrea drove four of them to a hospital. He later learned that many so ld iers had been captured by the ELN.
On 10 December 2000, while he was filling an army truck at a city gas s ta tio n , armed men abducted him and ordered him to drive outside the city. After th e y had driven several miles, more men boarded the truck. Later, the men ordered h im to stop and get out of the truck. He heard them talk about using the truck to m o v e people to another camp. However, while they were not looking, he escaped in to the jungle. He ran to a shop, called his battalion, and told the battalion the lo catio n of the guerillas. The army fought the guerillas and rescued some captives.
The ELN declared Urrea a military target because it knew that he was responsible fo r informing the military of its position. ELN members came to his home on 13 D e ce m b e r 2000 and threatened Paola and Patino when they learned he was not at h o m e.
Urrea's asylum application included: (1) a map of Colombia showing the g u erilla presence; (2) a United States State Department report on foreign terrorist o rg an izatio n s report that mentioned the ELN as an armed group responsible for a ss au lts , extortion, abductions, and bombings; (3) a 2001 Human Rights Watch a rtic le noting that guerilla groups in Colombia were responsible for 14 deaths a day in 2000, up from 12 a day in 1999; and (4) a February 2001 Human Rights Watch article noting that the ELN participated in abductions and killings.
O n 23 January 2001, the INS conducted a "credible fear" interview with U rrea. In that interview, Urrea stated: In November about the 20th, we were sent to kilometer 18 to take so m e soldiers and we were stopped by the guerilla and the shooting s ta rte d . I had soldiers in my truck who were shot and I took them b ack . Nothing happened to me. Then they were threatening us at our h o m e and were putting pamphlets under our door. They threatened to k ill my whole family. A d m in is tr ativ e Record ("AR") at 468, 475. He further stated that he did not have a v is a to enter the United States. The report found that Urrea had established cred ib le fear.
Patino also filed an asylum application on 2 October 2001. She stated that sh e had been threatened by the ELN because of Urrea's actions against them.
D u r in g Patino's credible fear interview, she stated her family had planned, before le av in g Colombia, to remain in the United States despite the fact that they p u rch ased tickets for Spain.
The record included the 2003 State Department Country Report for C o lo m b ia. According to the country report, internal armed conflict between the g o v e r n m e n t and the ELN had continued through 2002. The ELN had threatened a n d attacked human rights activists, and it and the Colombian Revolutionary A rm ed Forces ("FARC") were responsible for most of the civilian deaths attrib u tab le to internal armed conflict. The ELN announced it would work with the F A R C and continued its policy of threatening and killing urban officials, jo u rn alists, labor union members, religious leaders, and members of the police.
The ELN kidnaped civilians to help finance subversion and tortured its victims.
The ELN had a standing policy of kidnaping individuals for political reasons as w ell, and it used hostages to demand political concessions. It also caused massive d isp lacem en ts and engaged in random terrorist bombings. The record also in clu d ed the Country Reports for 2000 and 2002, which were similar to the 2003 C o u n tr y Report, and the 1997 Colombia Profile of Asylum Claims and Country C o n d itio n s, which stated that the majority of claims from Colombia are based on p o litical opinion, and most of the claims allege mistreatment by the guerilla g ro u p s.
Two Colombian police reports were placed in the record. The first police rep o rt was dated 15 December 2000. According to the report, Urrea returned home o n 13 December 2000, at 12:30 A.M., and Paola and Patino reported to him that th e ELN threatened them and asked for him. The ELN told them to leave the co u n try within eight days. Urrea believed that the ELN threatened him because of h is involvement in the firefight. Further, the report noted that he had been taken h o s ta g e by the ELN a few days after the firefight and was able to escape and alert th e army as to the guerillas' and their captives' whereabouts. The second police r ep o r t was dated 22 December 2000 and noted that Urrea had previously made a rep o rt against the ELN.
The record contained other documents, including: (1) an amendment to U r re a's application noting that he had served in the Colombian army from March 1 9 9 1 to March 1992, and then worked for the army as a truck driver; (2) a letter fro m Lieutenant Colonel Arnulfo Trujillo Ortiz stating that Urrea was a motorist w ith the Third Brigade; (3) a letter from University Hospital stating that Urrea ar riv ed with two soldiers wounded in combat on 20 November 2000; (4) Urrea's m ilita ry ID; (5) a report from Donna Eisenberg, a document expert, who noted that U r re a's military ID was probably authentic but that the letter from the military was fab ricated and that the letter from the hospital was probably not authentic; and (6) a n o th e r report from Eisenberg in which she stated that the authenticity of the police rep o rts was suspect.
A t Petitioners' removal hearing, they conceded removability for seeking ad m issio n to the United States without documentation but did not admit to the frau d allegation. The IJ dismissed the fraud charges against the children.
At the asylum hearing, Donna Eisenberg testified as an expert concerning th e authenticity of documents that Urrea submitted. Urrea stipulated to E isen b erg 's qualifications as an expert. Eisenberg testified that the government ask ed her to authenticate five documents. She could not definitively refute the p o lice report but found that it was probably not authentic. Police reports in the f o r en s ic document library are typically drafted on paper with a preprinted le tte rh e a d . The letterhead is printed using offset lithographic printing. However, th e letterhead on Urrea's police report was photocopied and contained marks that su g g ested it had been reproduced several times. She had never seen a genuine p o lice report created in the same manner as Urrea's report. She also stated that the s ec o n d police report was also probably not authentic as its letterhead had been created with a typewriter, not offset lithographic printing.
Eisenberg testified that Urrea's letter from the Colombian military was f ab r ic ate d . It did not contain a preprinted letterhead but had been printed co m p letely from an inkjet printer. Further, the wet seal and signature had also b een printed by the inkjet printer.
On cross-examination, Eisenberg testified that she had reviewed letters from th e Colombian military but not the Third Brigade. She stated that it was possible th e military could have updated the letterheads, but it was illogical to use p h o to co p ied signatures and seals because those parts of the letter were used for au th en ticatio n . She then testified that she was suspicious of the letter from the h o sp ital because the letterhead had been preprinted with a photocopier, but the b o d y had been added with a typewriter. She admitted that she could not refute or a u th e n tic ate seals because none were on file. She admitted that Urrea's military ID w as probably authentic. On examination by the IJ, Eisenberg testified that if the sig n atu re and seal are preprinted, it is possible to lift them from one document and u se them on another. U rrea testified that he was a motorist for the Military Forces of Colombia f ro m 1992 until 2000. He applied for the motorist position after he finished a year o f military service. He lived at the base, drove a truck with military markings, and tr an s p o r te d soldiers. At his request, his mother obtained a letter from the military attestin g to his service, which she sent to him. He testified that his mother did not h av e a computer.
Urrea admitted that he did not belong to a political party, and he had visited th e United States three times prior to his present visit. He came to the United S tates with his family because he was threatened by the ELN after he informed on th e group. He repeated the details of his encounters with the ELN on 20 November an d 10 December 2000 but added new information concerning a guerilla camp in th e jungle during his 10 December 2000 escape.
W ith regard to the incident on 13 December 2000, Urrea stated that Paola a n d Patino told him that ELN members came to their home and threatened them w h ile he was at work. The men wanted to put Urrea on trial. The men came to the h o m e at 8:30 P.M., and Urrea came home an hour later. Urrea testified that they r ep o r te d the threats to the police and his supervisors at the battalion, but neither said that they could do anything. Urrea testified that they left and went to live with h is parents, but he continued working until 25 December 2000. U rrea admitted that he waited two days to report the ELN threats at his home o n 13 December 2000. He also did not attempt to relocate outside of Cali. He req u ested a transfer from his position, but the military did not accommodate him.
Urrea testified that he mentioned the 10 December 2000 abduction and the ELN p a m p h le ts during his 23 January 2001 interview. He insisted that the police erred in drafting the report that indicated that he did not return home until 12:30 A.M.
A d d in g new details, Urrea testified that on 10 December 2000, thirty g u erillas took him on a 45 to 50 minute hike to an isolated camp in the jungle, but n o n e fired on him when he fled. Urrea stated that when he called the battalion after his abduction, he told them that he had been taken to kilometer 18. He testified that he was abducted at 1:00 P.M. He dropped off the truck in the jungle a t 3:00 P.M. and arrived at the guerillas' camp at around 4:00 P.M. He escaped h alf an hour later and was able to get to the store to call his battalion by 6:00 P.M.
Patino testified that she lived with her daughter in the United States and has a son in Colombia. She came to the United States with her daughter because the E L N threatened her because she lived with Paola and Urrea. On 13 December 2 0 0 0 , men knocked loudly on her door and said Urrea was a "stool pigeon." AR at 2 0 3 . Patino and Paola did not answer the door but instead stayed in the living r o o m . Patino knew that they were guerillas because they were aggressive and wore E L N armbands. She testified that Urrea came home at 9:30 P.M. after the incident.
On cross-examination, Patino stated that some of the ELN members who th reaten ed her had come into the house. She also stated that the family remained in th e home for a month and ten days, and the ELN slipped pamphlets under the door d u rin g that time. On questioning by the IJ, Patino stated that the family was on its w ay to Spain when it decided to get off the plane in the United States.
The IJ denied Petitioners' applications for asylum, withholding of removal, an d CAT relief. The IJ sustained the fraud charge as to Urrea, Paola, and Patino.
The IJ cited to numerous inconsistencies in the record, including: (1) that Urrea did n o t mention his abduction on 10 December 2000 during his 23 January 2001 in te rv ie w ; (2) that Urrea did not mention receiving pamphlets during that in terv iew ; (3) that the police report filed on 15 December 2000 did not mention p am p h lets; (4) that the asylum application and police report do not mention U rrea's 45-to-50 minute hike through the jungle with his abductors to the guerilla cam p ; (5) that the police report indicated that Urrea arrived home at 12:30 A.M. after the ELN threatened his family, not 9:30 P.M., as he testified; (6) that the h o sp ital report indicated that he transported two soldiers, not four, as he testified; an d (7) that Urrea claimed that the family stayed in their home for only three days after the 13 December 2000, incident, while Patino stated they stayed for a month a n d a half.
T h e IJ concluded that Urrea's testimony was not credible. The IJ found in co n sisten cies between the testimony, application, and corroborating documents.
Additionally, the IJ found Urrea's military ID valid but concluded that his letters fro m the military and hospital were fraudulent. The IJ opined that Urrea should h av e submitted other documents with more corroborative value. The IJ also found it implausible that Urrea could be led through an unfamiliar jungle without a path fo r 45 to 50 minutes, then escape and find a phone an hour later, and alert his b attalio n to the guerillas' location. The IJ found that Urrea did not establish a n e x u s between the threats and a protected ground as he was not politically active, b u t was threatened because he was a witness reporting criminal activity. Further, th e IJ found that the conduct did not constitute persecution, that Urrea and his fam ily failed to try to relocate within Colombia, and that Urrea did not establish th at the threat was country-wide.
Petitioners filed a notice of appeal with the BIA. In a separately filed brief, U rrea argued that the ELN imputed the military's opinion to him. He stated that he h ad a well-founded fear of persecution because the ELN has the capability and in c lin a tio n to punish him for his actions against them. He also asserted that the IJ e rr ed in relying on the forensic examiner's opinion concerning his documentary ev id en ce. The BIA affirmed the IJ's decision without opinion.
II. DISCUSSION T h e r e are three main issues on appeal:3 (1) whether substantial evidence su p p o rts the IJ's conclusion that Petitioners' corroborative documents were not reliab le; (2) whether substantial evidence supports the IJ's adverse credibility d eter m inatio n ; (3) whether substantial evidence supports the IJ and BIA's c o n c lu s io n that Petitioners failed to establish a nexus between their alleged p ersecu tio n and an enumerated ground to support a claim for asylum and, relatedly, th a t Petitioners failed to establish a well-founded fear of persecution. After co n firm in g our standard of review, we address these issues in turn.
A . Standard of Review W h en the BIA issues a decision, we review only that decision, "except to the ex ten t that [the BIA] expressly adopts the IJ's decision." Al Najjar v. Ashcroft, 2 5
B. Reliability of Documents P etitio n ers argue that the testimony of the government's document expert, D o n n a Eisenberg, was not sufficient for the IJ to find that some documents that th ey submitted in support of their claim were unreliable. In Pasha v. Gonzales, the S e v e n th Circuit held that an IJ should not have accepted the testimony of a d o cu m en t expert who examined an Albanian document when the expert did not s p e ak Albanian, did not have access to comparable documents, and was "co n fessed ly ignorant" of the Albanian government's resources. 433 F.3d 530, 5 3 2 , 535 (7th Cir. 2005). The Seventh Circuit held that the "spirit" of the rule co n cern in g the admission of scientific evidence announced in Daubert v. Merrell D o w Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), applied to im m ig r a tio n proceedings. Pasha, 433 F.3d at 535. No other circuit has considered D au b ert's effect on immigration cases.
W e need not decide whether to adopt the rationale in Pasha because Urrea stip u lated that Eisenberg was qualified to testify as an expert. Moreover, though E isen b erg admitted that she did not have documents from Urrea's specific b a tta lio n , she was familiar with documents from the Colombian military and had ex em p lars from the military to which to compare Urrea's documents.
Further, Eisenberg did not base her conclusion on aspects of the Spanish lan g u ag e, but instead on the manner in which the documents were produced. She testified that letterheads were typically preprinted using an offset lithographic p ro cess, but Urrea's documents had photocopied or typewritten letterheads. For e x a m p le , in one case, the letterhead appeared to have been reproduced several tim e s. In addition, she opined that the seal and signature on the military letter had b een copied as well, and that it was illogical that such security features would be p h o to co p ied . Thus, substantial evidence supports the IJ's conclusion that Urrea's c o r ro b o r a tin g documents were unreliable, and Urrea has put forth no evidence that co m p els reversal.
C. Adverse Credibility Determination A n alien's testimony, if credible, may be sufficient to sustain the burden of p ro o f for asylum or withholding of removal without corroboration.
The IJ also found the evidence concerning the shooting to be inconsistent b e c au s e Urrea's statements and testimony contradicted documentary evidence that h e submitted concerning how many soldiers he drove to the hospital after the start o f the firefight. The inconsistencies concern Urrea's contact and mistreatment by th e ELN on account of his political opinion, so they are specific and cogent reasons fo r the adverse credibility finding. However, as the IJ did not consider the adverse cred ib ility decision to be dispositive, the analysis continues.
D. Eligibility for Asylum A n alien who arrives in or is present in the United States may apply for a sy lu m . 8U.S.C. § 1158(a)(1). The Attorney General or the Secretary of DHS has d is cr etio n to grant asylum if the alien meets the INA's definition of a "refugee." Id. § 1158(b)(1). A "refugee" is defined in the INA as any person who is outside any country of such person's nationality . . . an d 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 p e r se cu tio n or a well-founded fear of persecution on account of race, relig io n , nationality, membership in a particular social group, or p o litical opinion.
I d . § 1101(a)(42)(A). The asylum applicant carries the burden of proving statutory "refu g ee" status. Al Najjar, 257 F.3d at 1284.
To establish asylum eligibility, the alien must, with specific and credible ev id en ce, establish (1) past persecution on account of a statutorily listed factor, or ( 2 ) a "well-founded fear" that the statutorily listed factor will cause such future p e r se cu tio n .
"Demonstrating such a connection requires the alien to present specific, detailed facts showing a good reason to fear that he or she will be singled out for p ersecu tio n on account of [a statutory factor]." Al Najjar, 257 F.3d at 1287 (q u o tatio n s omitted). It is not enough for an asylum applicant to show that he or h is alleged persecutors have a political opinion; he must show that he was p ersecu ted "on account of" that opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 4 8 2 , 112 S. Ct. 812, 816 (1992).
While the INA does not define persecution, we have held that it is "an ex trem e concept, requiring more than a few isolated incidents of verbal harassment o r intimidation, and that mere harassment does not amount to persecution." Zheng v . U.S. Att'y Gen., 451 F.3d 1287, 1290 (11th Cir. 2006) (per curiam) (quotations o m itted ). We have held that: (1) receiving a "condolence note," expressing sym p ath y for the petitioner's death, even if linked to a protected ground, co n stitu ted harassment, and not persecution; and (2) receiving anonymous threats o v er the telephone, without more, also did not qualify as persecution. Silva v. U.S.
A tt'y Gen., 448 F.3d 1229, 1237-38 (11th Cir. 2006). However, we declined to d e c id e whether an incident during which the petitioner's car was shot at constituted p ersecu tio n because the record did not compel the conclusion that there was a n ex u s between the shooting and the protected ground. Id. at 1238-39. We c o n c lu d e d that "only in a rare case does the record compel the conclusion that an ap p lican t for asylum suffered past persecution." Id. at 1239.
If the alien establishes past persecution, it is presumed that his life or freed o m would be threatened upon a return to that country unless the government sh o w s by a preponderance that the country's conditions have changed such that the a p p lic an t's life or freedom would no longer be threatened upon his removal or that th e alien could relocate within the country and it would be reasonable to expect h im to do so.
Substantial evidence supports the IJ's decision that Urrea and Patino did not su ffer past persecution on account of a protected ground. As such, the derivative claim s of Urrea's family also fail. Substantial evidence supports the IJ's findings th a t Urrea's testimony was not credible and that the letter from the Colombian arm y, the letter from the hospital, and the police report concerning the ELN threats at his home were not reliable. Thus, Urrea has not introduced any credible e v id e n c e showing that he was involved in a shooting with the ELN, was later ab d u cted by the ELN, or was then threatened by the ELN. Accordingly, Urrea and P a tin o have not shown that evidence exists that would compel a finding that they h ad been persecuted on account of a protected ground. As they have not e sta b lis h e d past persecution, they are not entitled to a presumption of a w ell-fo u n d ed fear of future persecution. As stated above, the evidence is in su fficien t to compel a finding that Urrea was abducted and threatened on account o f his political opinion. Thus, that evidence does not compel a conclusion that he h as a well-founded fear of persecution in Colombia. Accordingly, Petitioners have n o t established a reasonable probability of future persecution on account of a p ro tected ground and thus a well-founded fear of future persecution.
III. CONCLUSION W e conclude that substantial evidence supports the IJ's conclusions reg ard in g the corroborative documents and the adverse credibility determination.
Moreover, we conclude that substantial evidence supports the IJ and BIA's co n clu sio n that Petitioners failed to establish their eligibility for asylum.
PETITION DENIED.
1 On 25 November 2002, President Bush signed into law the Homeland Security Act of 2002 ("HSA"), Pub. L. No. 107-296, 116 Stat. 2135. The HSA created a new Department of Homeland Security ("DHS"), abolished the INS, and transferred its functions to the new department. However, because this case was initiated while the INS was still in existence, this opinion refers to the agency as the INS rather than the DHS.
2 Paola, Helbert, and Raquel are derivative claimants on Urrea's application.
3 Petitioners did not raise any arguments concerning the denial of their claims for withholding of removal under the INA or CAT relief. Accordingly, these issues have been abandoned. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam).
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This document cites
- U.S. Supreme Court - Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
- U.S. Supreme Court - INS v. Elias-Zacarias, 502 U.S. 478 (1992)
- U.S. Court of Appeals for the Seventh Circuit - Klodiana Pasha, Petitioner, v. Alberto R. Gonzales, Respondent., 433 F.3d 530 (7th Cir. 2005)
- U.S. Court of Appeals for the Eleventh Circuit - Anibal S. Mazariegos, Petitioner, v. Office of the U.S. Attorney General, Immigration and Naturalization Service, Respondents., 241 F.3d 1320 (11th Cir. 2001)
- U.S. Court of Appeals for the Eleventh Circuit - Hamid B. Mohammed, Petitioner, v. John Ashcroft, U.S. Attorney General, Immigration and Naturalization Service, Respondents., 261 F.3d 1244 (11th Cir. 2001)
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