Herrera v. Attorney General of the United States
Opinion of the Court
OPINION
Lead petitioner Nancy Herrera, a native and citizen of Colombia, petitions for review of an order by the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s order denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).
I.
Herrera’s applications for asylum, withholding of removal, and protection under the CAT are predicated on her claim that she was threatened by guerillas in Colombia on account of her involvement with the “Partido Conservativo” (the Conservative Party) in Colombia and has a well-founded fear of persecution if returned. She testified that as an active party member she spent time handing out food, clothing, and books in rural communities, and recruiting new members to the party. (AR 156.) Around May 2000, Herrera started receiving threatening phone calls from anonymous sources she believed to be guerillas,
The IJ denied relief on the grounds that Herrera’s testimony was not credible and that she did not meet her burden of proving past persecution or a well-founded fear of future persecution. The BIA dismissed Herrera’s appeal without addressing the IJ’s adverse credibility determination, concluding that Herrera had failed to establish eligibility for asylum on the merits. The BIA also concluded that Herrera did not carry her burden of proving her entitlement to withholding of removal, or relief under CAT. This appeal followed.
II.
We have jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a)(1). Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, we also look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). The BIA’s factual findings are reviewed for substantial evidence and must be treated as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 230 (3d Cir. 2008) (citations omitted). The BIA’s conclusions of law are subject to plenary review. See id. at 231. BIA determinations as to whether the burden of proof was met will be upheld if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The Court will reverse only if the evidence not only supports a contrary conclusion, but compels it. Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004). In reviewing the BIA’s decision, this Court must assume Herrera’s credibility because the BIA neither adopted the IJ’s adverse credibility determination nor made one of its own. See Kayembe v. Ashcroft, 334 F.3d 231, 234-35 (3d Cir. 2003).
III.
The BIA agreed with the IJ that the record was insufficient to support a finding of past persecution or a well-founded fear of future persecution on account of a protected ground. The evidence in this case does not compel a contrary conclusion. The BIA explained that because Herrera was never physically threatened or harmed while in Colombia, and had received no specific threat of harm if she returned, she failed to meet her burden of establishing past persecution or a well-founded fear of future persecution. This conclusion is “grounded in the record” and consistent with cases holding that asylum may be denied where threats “failed to
IV.
Because substantial evidence supported the BIA’s decision to deny Herrera’s application for asylum, it follows that the denial of her application for withholding of removal was also supported by substantial evidence. Accordingly, we will deny the petition for review.
. Herrera’s husband and daughter, Hernando and Estefania Villegas, respectively, are also citizens of Colombia and are included in her application for asylum and withholding of removal.
Reference
- Full Case Name
- Nancy HERRERA Hernando Villegas Estefania Villegas v. ATTORNEY GENERAL OF the UNITED STATES
- Status
- Published