Stanley Sierra Granados, et al v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioners Margoth Martiza Martinez Caballero, Stanley Sierra Granados, Bryan Farid Sierra Martinez and Heiner Steven Sierra Martinez. Decision: Affirmed. Petition Dismissed in part, Denied in part. Opinion type: Non-Published. Opinion method: Per Curiam.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13184
Non-Argument Calendar
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Agency No. A087-504-490

STANLEY SIERRA GRANADOS,
MARGOTH MARTIZA MARTINEZ CABALLERO,
HEINER STEVEN SIERRA MARTINEZ,
BRYAN FARID SIERRA MARTINEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 22, 2014)
Before TJOFLAT, JORDAN, and FAY, Circuit Judges.
PER CURIAM:

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Stanley Sierra Granados, a native and citizen of Colombia, seeks review of
the final order of the Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and
protection under the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (“CAT”). We deny the petition
for review in part and dismiss in part.
I. BACKGROUND
A. Factual Background
Sierra Granados joined the Colombian army in 1988 and became an
intelligence officer after six years. His duties involved obtaining information about
terrorist groups in Colombia, including the Revolutionary Armed Forces of
Colombia (“FARC”). During one of his operations, Sierra Granados obtained
incriminating information about one of FARC’s financial leaders, Robinson de la
Cruz Obregon Sanguino. Although it was not part of his duties, Sierra Granados
presented a complaint to the Colombian Attorney General against Sanguino,
because he recognized this was an opportunity to inflict an ideological blow to
FARC. Sierra Granados’s complaint and testimony contributed to the capture of
Sanguino in 2004. Sanguino later was released, but Sierra Granados also testified
in 2007, and Sanguino again was incarcerated.

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In 2008, FARC began threatening Sierra Granados and ordering him not to
testify against Sanguino at trial. He received several threatening telephone calls
warning him that if he were to testify, FARC “would make attempts against [him]
or his family.” ROA at 36. In January 2009, the Colombian military also
intercepted a radio communication in which FARC revealed plans to attack Sierra
Granados. Upon learning about the radio communication, Sierra Granados
immediately withdrew from the Colombian army. Following his withdrawal, he
received a letter threatening to attack him and his family. Sierra Granados left
home with his family, went into hiding, and then moved to his wife’s parents’
home. Shortly thereafter, Sierra Granados fled to the United States with his
family. Sierra Granados, his wife, and their two sons entered the United States on
May 12, 2009, as non-immigrant visitors for pleasure with authorization to remain
until November 11, 2009.
B. Procedural Background
In July 2009, Sierra Granados filed an application for asylum pursuant to the
Immigration and Nationality Act (“INA”) § 208(a), 8 U.S.C. § 1158(a), and
withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and alleged
he would be subject to persecution based on political opinion if he returned to
Colombia. 1 On July 14, 2010, the Department of Homeland Security (“DHS”)

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Sierra Granados, the lead petitioner, filed an asylum application that included as
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issued Notices to Appear to Sierra Granados and his family and charged them as
removable under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as nonimmigrants, who had remained in the United States for a longer time than
permitted.
At a master calendar hearing, Sierra Granados conceded removability and
expressed his intent to pursue his July 2009 application for asylum and
withholding of removal. The IJ conducted a merits hearing on the asylum claim,
and Sierra Granados testified to the facts described above. He argued he had a
well-founded fear FARC would persecute him based on (1) imputed political
opinion, and (2) membership in a particular social group. Sierra Granados argued
FARC had imputed an anti-FARC political opinion to him, when he chose to file a
complaint against Sanguino. Sierra Granados also asserted he feared persecution
based on his membership in a particular social group of former members of the
military, who had testified as civilians in the successful investigation and
prosecution of illegal armed groups. Sierra Granados conceded FARC’s threats
did not rise to the level of past persecution.
The IJ denied Sierra Granados’s application for asylum, withholding of
removal, and CAT relief. The IJ found Sierra Granados’s testimony credible but
derivative beneficiaries his wife, Margoth Martiza Martinez Caballero, and their two sons,
Heiner Steven Sierra Martinez and Bryan Farid Sierra Martinez. References in this opinion to
Sierra Granados’s claims or arguments encompass his family’s synonymous claims and
arguments.
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noted Sierra Granados’s application would be denied. The IJ found the threatening
telephone calls, letter, and radio communication, separately or cumulatively, were
not past persecution; therefore, Sierra Granados did not have a well-founded fear
of persecution because of any protected basis. Since there was no showing FARC
was aware of Sierra Granados’s political opinion or that Sierra Granados had ever
expressed a political opinion, the IJ concluded there was no evidence Sierra
Granados had been or would be persecuted, because of his political opinion.
The IJ further found Sierra Granados had not been persecuted for his
membership in a particular social group, since protected social groups did not
include former police or military officers who were singled out for their roles in
disrupting particular criminal activity. The IJ recognized individuals, who engaged
in risks similar to those of the police or the military, regardless of motive, did not
receive protection as a particular social group. The IJ also determined Sierra
Granados’s fear of persecution was not objectively reasonable. Because Sierra
Granados had not met his burden for asylum, the IJ concluded he necessarily failed
to meet the higher burden for withholding of removal. Additionally, Sierra
Granados had not presented any evidence to support relief under CAT. The IJ
denied Sierra Granados’s application and ordered removal to Colombia on the
charge contained in the Notice to Appear.

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Sierra Granados appealed to the BIA, which dismissed his appeal. It held
Sierra Granados had failed to meet his burden of proof for asylum, because he had
(1) conceded before the IJ that he had not suffered past persecution, and (2) failed
to demonstrate a nexus between his fear of persecution and an actual or imputed
protected ground. The BIA determined no evidence demonstrated FARC was
aware of Sierra Granados’s political motivation or political opinion. FARC had
threatened Sierra Granados in retaliation for his refusal to comply with their
warnings and for testifying against a leader of the group. The BIA acknowledged
Sierra Granados voluntarily had decided to file a complaint against Sanguino as a
civilian based on knowledge that he had obtained as an army intelligence officer.
It held, however, Sierra Granados essentially had acted as a noncriminal informant
for the government, and noncriminal informants are not a particular social group
under the INA. The BIA affirmed the IJ’s determination that Sierra Granados had
failed to establish his fear was objectively reasonable, because FARC had not
harmed or threatened Sierra Granados’s parents, who remained in Colombia, nor
had it damaged or harmed Sierra Granados’s home, while he had been in the
United States.
On appeal, Sierra Granados challenges the BIA’s determination that he was
not entitled to asylum based on a well-founded fear of future persecution, because

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of an imputed political opinion or membership in a particular social group.2 For
the first time, he also argues the threats he received from FARC amount to past
persecution.
II. DISCUSSION
When the BIA issues a decision, our review is limited to that decision,
unless the BIA expressly adopts the IJ’s decision. Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). When the BIA adopts the IJ’s reasoning, we review
the decisions of both the IJ and the BIA. Id. Because the BIA agreed with the IJ’s
findings, and made additional observations, we review both decisions. See id.
We review the BIA and IJ’s legal determinations de novo and their factual
determinations under the substantial-evidence test. Kazemzadeh v. U.S. Att’y Gen.,
577 F.3d 1341, 1350 (11th Cir. 2009). We lack jurisdiction to consider a claim
raised in a petition for review, unless the petitioner has exhausted that claim before
the BIA. 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d
1247, 1250 (11th Cir. 2006) (per curiam).
The Attorney General or Secretary of DHS has discretion to grant asylum if
an alien meets the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C.
§ 1158(b)(1). A “refugee” is:
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Because Sierra Granados does not challenge the denial of his applications for
withholding of removal and CAT relief, he has abandoned those issues. See Imelda v. U.S. Att’y
Gen., 611 F.3d 724, 727 (11th Cir. 2010) (recognizing a petitioner abandons claims not raised in
his appellate brief).
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any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and 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 persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion . . . .
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the
burden of proving statutory “refugee” status. 8 C.F.R. § 208.13(a); Najjar, 257
F.3d at 1284. To show eligibility with specific and credible evidence, an alien
must establish (1) past persecution because 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).
A. Past Persecution
Sierra Granados argues FARC’s verbal and written threats constituted past
persecution. Sierra Granados conceded before the IJ that he had not suffered past
persecution, and he did not provide any argument regarding past persecution in his
appeal to the BIA. Because Sierra Granados failed to exhaust his claim of past
persecution before the BIA, we lack jurisdiction for this claim and dismiss that part
of the petition. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga, 463
F.3d at 1250-51 (recognizing we lack jurisdiction to consider a claim raised in a
petition for review unless the petitioner has exhausted that claim before the BIA).

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B. Well-Founded Fear of Future Persecution
Sierra Granados argues he has a well-founded fear of persecution because of
imputed political opinion and membership in a particular group. A well-founded
fear of future persecution must be both subjectively genuine and objectively
reasonable. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (per
curiam). To establish eligibility for asylum based on a petitioner’s fear of future
persecution for a political opinion, a petitioner must prove “he has a well-founded
fear that his political opinion will cause him to be persecuted.” Carrizo v. U.S.
Att’y Gen., 652 F.3d 1326, 1331 (11th Cir. 2011) (per curiam) (citation and
internal quotation marks omitted). Refugee status can be shown by an imputed
political opinion, whether correctly or incorrectly attributed to the petitioner. Id.
The BIA has held a “particular social group” refers to persons who “share a
common, immutable characteristic . . . such as sex, color, or kinship ties, or in
some circumstances . . . a shared past experience such as former military
leadership or land ownership.” Matter of Acosta, 19 I. & N. Dec. 211, 233-34
(BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec.
439 (BIA 1987); see also Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190,
1196-97 (11th Cir. 2006) (holding BIA’s definition reasonable). Furthermore, the
group must have sufficient “social visibility” and should not be defined so broadly

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that it becomes “a catch-all for all groups who might claim persecution.”
Castillo-Arias, 446 F.3d at 1194, 1197.
Sierra Granados claims a well-founded fear of persecution based on imputed
political opinion, but substantial evidence supports the IJ and the BIA’s
determination that FARC has not imputed a political opinion to him. The record
indicates FARC actually threatened Sierra Granados in retaliation for his role in
the capture of Sanguino and to prevent him from testifying against Sanguino in the
future, not because FARC attributed any political beliefs to him. Sierra Granados
has failed to demonstrate he has a well-founded fear that an imputed political
opinion will cause him to be persecuted. Carrizo, 652 F.3d at 1331 (recognizing a
petitioner has the burden to prove an imputed political opinion will cause him to be
persecuted).
Sierra Granados argues he belongs to a particular social group consisting of
former military members who have testified as civilians in the successful
investigation and prosecution of illegal armed groups. Former military members,
who have testified as civilians against FARC undeniably share immutable
characteristics, in that their prior testimony and status as former military members
are historical facts that cannot be undone. See Acosta, 19 I. & N. Dec. at 233-34.
There is no evidence in the record that the proposed social group is highly visible
and recognizable by Colombian society, and Sierra Granados testified that criminal
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proceedings before the Attorney General are private. Castillo-Arias, 446 F.3d at
1196-98 (recognizing those who stay anonymous are not visible enough to be
considered a “particular social group”).
By testifying against a FARC leader in a civilian role, Sierra Granados
essentially acted as a noncriminal informant for the government. The underlying
purpose of his testimony was to have a warrant issued for Sanguino’s arrest based
on Sanguino’s criminal conduct. Following our reasoning in Castillo-Arias,
noncriminal informants against FARC do not constitute a particular social group
under the INA. In Castillo-Arias, we held noncriminal informants working against
the Cali drug cartel did not warrant an exception to the general rule that those, who
engage in risks similar to those of the police or military, do not receive protection
as a particular social group. 446 F.3d at 1198. We also determined such
noncriminal informants did not constitute a particular social group, because there
was no evidence the drug cartel would treat informants differently from any other
person the cartel perceived to have interfered with its activities. Id. Noting that
“virtually the entire population of Colombia is a potential subject of persecution by
the cartel,” we concluded the risk of persecution alone does not create a particular
social group within the meaning of the INA. Id.
There is no evidence in this case FARC treats or would treat former military
members who had testified as civilians against FARC differently from any other
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person FARC perceived to have disrupted its activities. Like the Cali drug cartel,
the entire population of Colombia is a potential subject of persecution by FARC.
This is evidenced by FARC’s subornation and intimidation of judges, prosecutors,
and witnesses; recruitment of child soldiers; violence against women; and attacks
against teachers and trade unionists. The BIA did not err in concluding Sierra
Granados had not established a well-founded fear of persecution based on his
membership in a particular social group.
Substantial evidence supports the BIA’s finding that Sierra Granados’s fear
of persecution is not objectively reasonable. See Ruiz, 440 F.3d at 1257. FARC
did not harm Sierra Granados or his family, when he lived in Colombia, and no
evidence shows FARC is still looking for Sierra Granados or it has made additional
threats on his life. Although Sierra Granados’s parents remain in Bogota, FARC
has not contacted, threatened, or harmed them. Moreover, FARC has taken no
action against Sierra Granados’s home in Bogota. Because Sierra Granados has
not met his burden of proof for asylum, we deny his petition for review.
PETITION DISMISSED IN PART, DENIED IN PART.

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