John Fredy Ospina Hernandez v. U.S. Attorney Gen.

Filing 920101207


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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS F O R THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ N o . 09-16453 N o n -A rg u m en t Calendar ________________________ ELEVENTH CIRCUIT DECEMBER 7, 2010 JOHN LEY CLERK A g en cy Nos. A097-190-300, A097-190-301 JO H N FREDY OSPINA HERNANDEZ, PAULA ANDREA VELEZ YEPEZ, Petitioners, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ P etitio n for Review of a Decision of the B o ard of Immigration Appeals _________________________ (D ecem b er 7, 2010) B efo re EDMONDSON, MARCUS, and ANDERSON, Circuit Judges. PER CURIAM: Jo h n Fredy Ospina Hernandez, a native and citizen of Colombia, petitions fo r review of the order by the Board of Immigration Appeals ("BIA") affirming the d ecisio n of the Immigration Judge ("IJ"). The IJ's decision denied asylum and w ith h o ld in g of removal.1 No reversible error has been shown; we dismiss the p etitio n in part and deny it in part. H ere, we review only the decision of the BIA because the BIA did not ex p ressly adopt the IJ's decision. Mehmeti v. U.S. Attorney Gen., 572 F.3d 1196, 1 1 9 9 (11th Cir. 2009). We review legal determinations de novo. Id. And we rev iew fact determinations under the "highly deferential substantial evidence test" w h ereb y we "must affirm the BIA's decision if it is supported by reasonable, su b stan tial, and probative evidence on the record considered as a whole." Adefemi v . Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We "view the reco rd in the light most favorable to the [BIA's] decision and draw all reasonable in feren ces in favor of that decision"; and we may reverse the BIA's fact d eterm in atio n s "only when the record compels a reversal." Id. at 1027. Petitioner raises no challenge to the portion of IJ's decision denying relief under the Convention Against Torture; so that issue is abandoned. See Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). 2 1 The BIA concluded that Petitioner's asylum application was time-barred b ecau se he did not file it within one year of arriving in the United States, as req u ired by 8 U.S.C. 1158(a)(2)(B).2 Petitioner contends that we have ju risd ictio n to consider whether he established an exception to the one-year filing req u irem en t. But we have concluded that section 1158(a)(3) divests us of ju risd ictio n to review a time-bar decision. Mendoza v. U.S. Attorney Gen., 327 F .3 d 1283, 1287 (11th Cir. 2003). So, we dismiss the petition for review on the asylu m claim. W e have jurisdiction only over Petitioner's withholding of removal claim.3 T o establish eligibility for withholding of removal, an alien must show "that his life or freedom would be threatened on account of" a protected ground, including p o litical opinion and membership in a particular social group. Delgado, 487 F.3d at 860-61. Therefore, Petitioner bore "the burden of demonstrating that he morelik ely-th an -n o t would be persecuted or tortured upon his return to" Colombia. Id. at 861. Where, as here, Petitioner made no claim of past persecution, to meet this Petitioner entered the United States in April 1999 and filed his asylum application in March 2003. Petitioner included his wife as a derivative beneficiary in his application. But as a derivative petitioner, Petitioner's wife is ineligible for withholding of removal even if Petitioner is granted such relief. See Delgado v. U.S. Attorney Gen., 487 F.3d 855, 862 (11th Cir. 2007). 3 3 2 burden, he had to show a future threat to his life or freedom on a protected ground in Colombia. Id. In the absence of past persecution, an alien must demonstrate that his fear of p ersecu tio n is "subjectively genuine and objectively reasonable," and "establish a cau sal connection between the [protected ground] and the feared persecution." S ep u lv ed a, 401 F.3d at 1231. The alien must establish either that he would be sin g led out individually, or that there is a pattern or practice of persecution based o n a protected ground against the group with which he identifies. 8 C.F.R. 2 0 8 .1 6 ( b ) ( 2 ) ( i) . P etitio n er sought relief because he feared future persecution in Colombia by g u erilla and paramilitary groups based on his membership in a particular social g ro u p of educators and because of his involvement with the Liberal Party. Petitioner served as a sports coordinator in the campaigns of certain Liberal Party can d id ates in the late 1990s. He obtained this job after approaching the Liberal P arty and asking for its support. As a sports coach, Petitioner helped to expand the L ib eral Party's voting base through the parents and relatives of the children p articip atin g in the sports programs. Petitioner worked in a small town in the mountains and often traveled with h is teams to other small towns for sports competitions. In traveling, Petitioner 4 would occasionally have contact with the guerillas and members of paramilitary g ro u p s that controlled the town and other nearby towns, including some members w h o were on his adult sports teams. He eventually left the town because he felt lik e his life was in danger because of these groups. He feared persecution upon retu rn to Colombia because he was involved in education and those involved in ed u catio n were not respected and often were attacked by the guerilla and p aram ilitary groups. The IJ concluded that Petitioner showed no clear probability of persecution b ecau se of his membership in a particular social group of educators or because of h is support of the Liberal Party. The BIA agreed with the IJ, concluding that P etitio n er's coaching did not place him within a particular social group because em p lo ym en t was not based on a common, immutable characteristic and that P etitio n er showed no clear probability of being persecuted based on his support of L ib eral Party candidates because he presented no evidence that any of the can d id ates or their supporters had been targeted. And Petitioner could avoid future th reats by relocating to a more urban area. On appeal, Petitioner argues that he showed that, as a member of a particular so cial group of educators and because of his involvement in the Liberal Party, he w o u ld be singled out for persecution by guerillas and paramilitary groups and, 5 thus, qualified for withholding of removal.4 He also argues that he demonstrated a p attern or practice of persecution against Liberal Party supporters to qualify for relief. We disagree. Even if Petitioner's job as a sports coordinator places him in the role of an ed u cato r, he still has not shown that he is part of a particular social group. Because P etitio n er could change jobs, his position as a sports coach is not an immutable ch aracteristic that is fundamental to his identity. See Castillo-Arias v. U.S. A tto rn ey Gen., 446 F.3d 1190, 1196 (11th Cir. 2006); Matter of Acosta, 19 I. & N. D ec. 211, 234 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 1 9 I. & N. Dec. 439 (BIA 1987) (concluding that taxi workers were not a "p articu lar social group" under the INA because "the internationally accepted co n cep t of a refugee simply does not guarantee an individual a right to work in the jo b of his choice"). The BIA's determination that educators did not constitute a p articu lar social group was not unreasonable so we must accept the BIA's in terp retatio n . See Castillo-Arias, 446 F.3d at 1196. Petitioner also demonstrated no objectively reasonable fear of being singled o u t for future persecution because of his political opinion. His activities with the Contrary to Petitioner's assertion, the BIA did not apply the incorrect standard to Petitioner's asylum claim. The BIA concluded that Petitioner's asylum claim was time-barred and applied the correct "more-likely-than-not" standard to his remaining withholding of removal claim. 6 4 Liberal Party were limited to his activities with sports; and he had never been targ eted , threatened, or harmed by guerillas or paramilitary groups because of his p arty associations, even while working in an area with strong guerilla and p aram ilitary activity. He occupied no significant post in the Liberal Party and he d id not show that any notoriety he had with the Party would outlast his decadelo n g absence. See Sepulveda, 401 F.3d at 1231-32. And, as the BIA noted co rrectly, Petitioner could avoid a future threat by relocating to a less rural area of C o lo m b ia, where these militant groups had less of a presence. See Mendoza, 327 F .3 d at 1287. Petitioner also demonstrated no pattern or practice of persecution against L ib eral Party supporters. Documents submitted by Petitioner indicated that v io len ce by paramilitary and guerilla groups was meted out without regard to p o litical affiliation. And Petitioner testified that he knew of no Liberal Party m em b ers who had been threatened or attacked by paramilitary groups. V iew in g the evidence in the light most favorable to the BIA's decision, P etitio n er did not show that he would more likely than not suffer persecution b ecau se of his role as an educator or involvement in the Liberal Party. And we are n o t compelled to reverse the BIA's conclusions. P E T IT IO N DISMISSED IN PART AND DENIED IN PART. 7

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