Sindicue-Herrera v. Attorney General of the United States
Sindicue-Herrera v. Attorney General of the United States
Opinion of the Court
OPINION
Hernán Sindicue-Herrera, a native and citizen of Colombia, entered the United States in 1998 with his wife and two children on visitor visas, which they subsequently overstayed. In 2005, he was served with a Notice to Appear and con
Although the IJ concluded that Sindi-cue-Herrera’s testimony was credible, she denied relief, concluding that he had not carried his burden of proving that his experience with the FARC guerillas in his hometown constituted persecution and that the record did not show that he more likely than not faced a likelihood of persecution or torture if he returned to Colombia. On appeal, the Board of Immigration Appeals (BIA) affirmed. As to his withholding of removal claim, the BIA agreed that the FARC forcing him to attend lectures did not satisfy the statutory definition of persecution. The BIA also rejected Sindicue-Herrera’s claim that “those the FARC believes have something of worth” constituted a “social group” under the withholding of removal regulations. Finally, the BIA concluded that Sindicue-Herr-era’s fear of persecution is not countrywide, pointing to his relocation to Bogota, where he faced no encounters with the FARC for nine years.
The BIA also concluded that Sindieue-Herrera did not carry his burden of proving his entitlement to CAT relief. It observed that even if he had shown that the Colombian government is “willfully blind” to the FARC’s conduct, Sindieue-Herrera had not demonstrated that he will more likely than not face torture at the hands of FARC if returned to Colombia, pointing again to his safe relocation to Bogota.
We have jurisdiction under 8 U.S.C. § 1252. We uphold the BIA’s determinations if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir. 2008). Under the substantial evidence standard, the BIA’s determinations “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
To be eligible for withholding of removal, Sindieue-Herrera must demonstrate that “there is a greater-than-fifty-percent chance of persecution” in Colombia based on one of the protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8 U.S.C. § 1231(b)(3). For relief under the CAT, Sindieue-Herrera must demonstrate that it is more likely than not that he would be tortured if removed to Colombia. See 8 C.F.R. § 208.16(c)(2). The torturous acts must be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).
The BIA’s determinations are supported by substantial evidence. SindieueHerrera devotes much of his appellate brief to arguing that the government of Colombia is “willfully blind” to the activities of the FARC. See Silva-Rengifo v.
For similar reasons, the BIA’s determination as to withholding of removal is also supported by substantial evidence. Sindicue-Herrera argues that males who are actively recruited by FARC constitute a “particular social group” under 8 U.S.C. § 1231(b)(3)(A). The BIA, however, held that even accepting Sindicue-Herrera’s argument, he failed to establish that the FARC persecuted him. As the BIA noted, Sindicue-Herrera was forced to attend lectures and perform errands for the FARC and that he was a victim of a robbery.
Finally, Sindicue-Herrera’s due process claim is without merit. The claim amounts to a contention that the BIA and IJ failed to consider all of the evidence he submitted. A review of the detailed opinions of the BIA and the IJ reveals that both considered all the evidence, found it credible, and denied Sindicue-Herrera’s claims based on his failure to prove persecution or a likelihood that he would be tortured in Colombia. See Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003) (citations omitted) (“In the context of an immigration hearing, due process requires that ‘aliens threatened with deportation are provided the right to a full and fair hearing’ that allows them ‘a reasonable opportunity to present evidence’ on their behalf.”)
For these reasons, we will deny Sindi-cue-Herrera’s petition for review.
. Sindicue-Herrera also testified to an incident where guerillas put a gun to his head and threatened to kill him and his father. However, he further testified that the guerillas explained that they mistook him for another person they were looking for. (Administrative Record 108-09).
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