Fernando Arias-Losada v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2202
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FERNANDO ARIAS-LOSADA;
ROCIO HERNANDEZ-JIMENO;
NATALI ARIAS HERNANDEZ;
FERNANDO DANIEL ARIAS-HERNANDEZ,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
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On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A96 251 965; A96 251 966; A96 251 967; A96 251 968)
Immigration Judge: Honorable Eugene Pugliese
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Submitted Pursuant to Third Circuit LAR 34.1(a)
August 12, 2009
Before: BARRY, SMITH AND HARDIMAN, Circuit Judges
(Opinion filed : August 19, 2009)
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OPINION
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PER CURIAM
Fernando Jose Arias-Losada, a native and citizen of Colombia, was admitted to the

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Arias-Losada’s wife and children were derivative applicants.1
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United States in December 1997. His wife and two children joined him here in June
1998. The petitioners were charged with removability under Immigration and Nationality
Act (“INA”) § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B)], for overstaying their admission
period. They admitted the allegations in the Notice to Appear and conceded the charge of
removability.
In January 2003, Arias-Losada applied for asylum, withholding of removal, and
protection under the United Nations Convention Against Torture (“CAT”). He testified1
that, beginning in 1989, members of the Colombian Revolutionary Armed Forces (“the
FARC”) threatened him because he refused to help recruit “needy people.” Although
Arias-Losada altered his work schedule to avoid the FARC, he continued to receive
threatening phone calls at home. Based on these threats, Arias-Losada changed his work
schedule, quit his job, and moved with his family to another city in Colombia.
Nevertheless, the FARC discovered his whereabouts and, because he owned his own
business, forced him to pay an extortion fee of approximately $400. Despite these
incidents, Arias-Losada voluntarily returned to Colombia after traveling to the United
States as a tourist in 1993 and 1995. On May 15, 1997, Arias-Losada was assaulted, a
gun was put to his head, and he was told that he would be killed if he did not help the
FARC recruit new members. After receiving medical treatment for a shoulder injury and
broken teeth, Arias-Losada reported the incident to the police, who cautioned that they

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could not guarantee his safety. He traveled to the United States in December 1997. The
FARC then began to call Arias-Losada’s wife, seeking his whereabouts. According to
Arias-Losada’s brother, who is still in Colombia, the FARC continues to look for him.
The Immigration Judge (“IJ”) denied Arias-Losada’s application for asylum as
untimely, and found that he did not establish exceptional or changed circumstances to
excuse the filing delay. See INA § 208(a)(2)(B) [8 U.S.C. § 1158(a)(2)(B)] (requiring
filing within one year of arrival). The IJ also denied the application for withholding of
removal, finding that Arias-Losada’s experiences did not rise to the level of persecution.
With respect to his CAT claim, the IJ found that Arias-Losada failed to establish that he
more likely than not would be tortured upon his return to Colombia. Arias-Losada
appealed.
The Board of Immigration Appeals (“BIA”) dismissed the appeal. The BIA
agreed that the asylum application was time-barred and found no clear error in the IJ’s
determination that Arias-Losada failed to meet the burdens of proof on his withholding
and CAT claims. The BIA also refused to consider additional evidence submitted by
Arias-Losada on appeal, and concluded that the evidence did not warrant remanding to
the IJ. Arias-Losada filed a timely petition for review of the BIA’s decision.
We exercise jurisdiction to review the BIA’s final order of removal under INA

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To the extent that Arias-Losada challenges the timeliness determination, we lack2
jurisdiction. See INA § 208(a)(3) [8 U.S.C. § 1158(a)(3)]. In addition, we will not
consider the denial of CAT relief because Arias-Losada failed to raise the issue in his
brief. See In re Surrick, 338 F.3d 224, 237 (3d Cir. 2003) (recognizing that if a party fails
to raise an issue in his opening brief, the issue is waived).
Arias-Losada argues that the Board essentially issued an affirmance without opinion3
and urges us to review the IJ’s decision rather than the BIA’s. We decline to do so.
Because our review is confined to the administrative record, INA § 242(b)(4)(A) [84
U.S.C. § 1252(b)(4)(A)], we will not consider the new evidence submitted by Arias-
Losada in Appendix II.
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§ 242(a) [8 U.S.C. § 1252(a)]. Because the BIA “invoke[d] specific aspects of the IJ’s2
analysis and factfinding in support of [its] conclusions,” we review both the decisions of
the IJ and the BIA. See Voci v. Gonzales, 409 F.3d 607, 612-13 (3d Cir. 2005). We3
review the BIA’s legal conclusions de novo. See Briseno-Flores v. Att’y Gen., 492 F.3d
226, 228 (3d Cir. 2007). Our review of the factual findings in these decisions is for
substantial evidence, considering whether they are supported by reasonable, substantial,
and probative evidence on the record considered as a whole. See Yusupov v. Att’y Gen.,4
518 F.3d 185, 197 (3d Cir. 2008). The decisions must be affirmed “unless the evidence
not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d
463, 471 (3d Cir. 2003) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001)).
For withholding of removal to a particular country under the INA, an applicant
must prove that his “life or freedom would be threatened in that country because of [his]
race, religion, nationality, membership in a particular social group, or political opinion.”
INA § 241(b)(3). “To meet this test, the alien must demonstrate that there is a greater-

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than-fifty-percent chance of persecution upon his or her return.” Senathirajah v. INS, 157
F.3d 210, 215 (3d Cir. 1998). “[I]f an alien fails to establish the well-founded fear of
persecution required for a grant of asylum, he or she will, by definition, have failed to
establish the clear probability of persecution” standard for withholding of removal.
Zubeda, 333 F.3d at 469-70. Significantly, “persecution connotes extreme behavior,
including threats to life, confinement, torture, and economic restrictions so severe that
they constitute a threat to life or freedom.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d
Cir. 2003) (quotations omitted). It “does not include all treatment that our society regards
as unfair, unjust, or even unlawful or unconstitutional.” Id.
We conclude that substantial evidence supports the BIA’s determination that
Arias-Losada failed to show that it was more likely than not that he would be persecuted
upon returning to Colombia. Arias-Losada testified that he was repeatedly threatened by
the FARC, was forced to pay an extortion “fee,” and was assaulted one time, all because
he refused to cooperate with the FARC’s efforts to recruit new members. These incidents
occurred between 1989 and 1997. During this period, Arias-Losada traveled to the
United States on three occasions, each time voluntarily returning to Colombia. This
significantly weakens his claim that he fears persecution. See Jean v. Gonzales, 461 F.3d
87, 91 (1st Cir. 2006) (“[Jean’s] willingness to return voluntarily to Haiti on multiple
occasions undermines the contention that Jean experienced persecution and has a
well-founded fear of persecution there.”).

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Furthermore, we agree that Arias-Losada’s experiences in Colombia do not rise to
the level of persecution or demonstrate a likelihood of future persecution. According to
Arias-Losada, FARC members repeatedly threatened to kill him and his family. As a
result, Arias-Losada quit his job and moved to another city. But, aside from one incident
in which Arias-Losada was assaulted on the street, there is no indication in the record that
the FARC attempted to carry out the threats. See Li v. Att’y Gen., 400 F.3d 157, 164 (3d
Cir. 2005) (holding that “unfulfilled threats must be of a highly imminent and menacing
nature in order to constitute persecution.”) (internal quotation marks and citations
omitted). Furthermore, the assault itself, while certainly a criminal act, was a one-time
incident that did not result in any particularly serious injury. See Lie v. Ashcroft, 396
F.3d 530, 536 (3d Cir. 2005) (holding that petitioner’s “account of two isolated criminal
acts, perpetrated by unknown assailants, which resulted only in the theft of some personal
property and a minor injury, is not sufficiently severe to be considered persecution.”). In
addition, the record does not demonstrate that the FARC’s extortion of $400 from Arias-
Losada imposed a “severe economic disadvantage which threaten[ed] [his] life or
freedom.” Li, 400 F.3d at 168. Finally, Arias-Losada’s testimony concerning the
FARC’s inquiries into his whereabouts does not constitute substantial evidence sufficient
to establish an objectively reasonable fear of future persecution.
Arias-Losada argues that the IJ erred by requiring him to establish his withholding
of removal claims under the “clear and convincing” standard, rather than the “clear

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probability” standard. We disagree. There is simply no indication that the IJ applied the
“clear and convincing” standard in evaluating Arias-Losada’s withholding of removal
claim. Arias-Losada also asserts that the IJ failed to properly consider that the “FARC
was able to track people and target them,” as reported in the 2005 State Department’s
Report for Human Rights Practices and Country Conditions. We have held that “[i]f the
administrative record fails to reveal that [material] evidence has been fairly considered,
the proper course is to remand the case . . . so that the [IJ] may evaluate such evidence
and consider its effect on the application as a whole.” Thu v. Att’y Gen., 510 F.3d 405,
412 (3d Cir. 2007) (quoting Sotto v. INS, 748 F.2d 832, 837 (3d Cir. 1984)). Here,
however, the IJ did discuss the Country Report, noting that it indicated that Colombia “is
in a virtual state of civil war with various criminal groups, as well as political groups
engaged in murders, abductions, and other forms of human rights violations.” We see no
error in the failure to specifically mention the FARC’s ability to “track” and “target”
people. See Toussaint v. Att’y Gen., 455 F.3d 409, 416-17 (3d Cir. 2006) (concluding
that “the BIA did not err in failing to mention specifically” country reports and
documentary evidence). Finally, we reject Arias-Losada’s request to remand the case
“back to the Immigration Court to permit [his] wife and children to file” new applications
for protection.
For the foregoing reasons, we will deny the petition for review.

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