Jaramillo v. Ashcroft, 10th Cir. (2004)
Jaramillo v. Ashcroft, 10th Cir. (2004)
Jaramillo v. Ashcroft, 10th Cir. (2004)
DEC 21 2004
PATRICK FISHER
Clerk
FERNANDO JARAMILLO;
CLAUDIA PALACIO; PAULA
JARAMILLO,
Petitioners,
v.
JOHN ASHCROFT, Attorney General
of the United States,
No. 03-9586
(Nos. A95-227-607, A95-227-613,
& A95-227-659)
(Petition for Review)
Respondent.
ORDER AND JUDGMENT
Before HARTZ , and BALDOCK , Circuit Judges, and
Judge.
BRIMMER , ** District
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Petitioners seek review of a decision by the Board of Immigration Appeals
(BIA) summarily dismissing their appeal and affirming the decision of the
immigration judge (IJ) that denied petitioners requests for asylum and restriction
on removal.
(10th Cir. 2003). Title 8 U.S.C. 1252(a) grants us jurisdiction to review final
orders of removal, such as a denial of withholding of removal.
Id. at 1235.
When the BIA summarily affirms an IJs decision, we review the determination of
the IJ in disposing of the appeal.
Id.
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Estrada-Escobar v. Ashcroft , 376 F.3d 1042, 1046 (10th Cir. 2004) (citations
omitted). We review legal questions de novo.
denied
petitioners request for asylum, all three petitioners appeared before an IJ,
renewing their requests for asylum. The IJ considered the applications for asylum
to also be applications for restriction on removal, under 8 U.S.C. 1231(b)(3),
and to also be applications for relief under the United Nations Convention
Against Torture.
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In support of his application, Mr. Jaramillo asserted that he and his family
were targeted by the Revolutionary Armed Forces of Columbia (FARC) because
of his association with an American company. In an affidavit, petitioner testified
that he received two letters from FARC threatening him because of his political
opinions and because of his high position in Philip Morris and ordering him to
leave the country. Mr. Jaramillo and his wife, Claudia Palacio, both testified that
members of her family had been killed or kidnaped by FARC. Other evidence
described the political climate in Columbia and the state of human rights practices
there. Finally, petitioner presented the testimony of a psychiatrist who had
examined him and found him to be suffering from post-traumatic stress disorder
and depression.
Petitioners primary evidence was copies of the two threatening letters,
described above, that were allegedly received by Mr. Jaramillo from FARC
demanding the familys departure from Columbia. Because the letters were not
originals and had not been authenticated, the IJ rejected them as proof that
Mr. Jaramillo had actually received them and that they had been sent by FARC.
He also concluded that the testimony about harm to Ms. Palacios family was not
significant support for the application because it was not mentioned in the
original asylum application, leading the IJ to doubt its authenticity.
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was not different and separate from that endured by the general population, and
that he erroneously discredited their reasons for failing to ask for help from the
Columbian government.
At the outset, we note that it was petitioners burden to establish that they
were refugees and thus eligible for asylum. 8 C.F.R. 208.13. We also note that
an applicants testimony, if credible, may be sufficient to sustain the burden of
proof without corroboration.
Id.
Due Process
Petitioners complain that they were denied due process when the IJ
discounted the credibility of the two threatening letters purportedly sent by
FARC. As mentioned above, the IJ rejected this evidence because the letters
petitioner produced in court were not originals. Further, there was no
authentication to support the letters as having come from FARC. Mr. Jaramillo
testified that the letters had been authenticated by someone who worked for
another company, but that that person was unable to produce written certification
because such an act would have conflicted with his current employment. Because
of these evidentiary shortcomings, the IJ concluded that there is nothing about
(...continued)
1101(a)(42)(A).
3
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the letters which the Court can recognize as being authentic, and I simply cannot
find that the respondent on this record has established that he actually received
such communication from the FARC. AR at 42.
Petitioners point out that there was no objection to the letters by opposing
counsel, that the judge had unconditionally admitted the letters into evidence, and
that, during the hearing, petitioners had offered to bring the originals to court via
courier. Under these circumstances, they argue, they were denied due process
when the IJ rejected their evidence. We disagree.
Despite petitioners offer to produce the original letters, there was no offer
by petitioners to provide authentication of those letters. It was not the courts
responsibility to pursue authentication in a situation where petitioners bore the
burden of proving their eligibility for asylum. We find that the reasons advanced
by the IJ for discounting this evidence are specific and cogent.
F.3d at 1150. As for petitioners argument that the testimony of Mr. Jaramillo
alone is sufficient to establish the persecution claim, we note that Mr. Jaramillo,
while he could testify to receipt of the letters and their effect on him, was not
qualified to testify as to their authenticity. On this record, we are unable to hold
that any reasonable adjudicator would be compelled to reach a contrary
conclusion. See Tsevegmid , 336 F.3d at 1235.
-7-
Petitioners argue that they should have been given more time during the
hearing to develop their evidence about the murders and kidnapping of members
of Ms. Palacios family. Although the IJ urged the participants to stay within a
two-hour time frame and assured them that he would not penalize petitioners for
being less than completely detailed, he noted in his decision that [t]he testimony
about these episodes were [sic] fairly generalized. AR at 37. Petitioners cite
this as another example of the denial of due process.
A full reading of the IJs decision, however, reveals that the generalized
nature of this testimony was not the main reason cited by the IJ for refusing to
give this evidence significant weight. The IJ primarily discounted the evidence of
the harm suffered by Ms. Palacios family because it had not been included in
Mr. Jaramillos asylum application. That fact led the IJ to conclude that [t]he
application would seem to call for that type of information, and the fact that the
information does not appear on the asylum application causes the Court to have
some question as to the authenticity of those reports.
specific and cogent reason for discounting the evidence.
1150. In conclusion, we find that neither the treatment of the alleged FARC
letters nor the time allotted for the hearing denied petitioners due process.
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claimed persecution on account of his status as a former police officer and not
because of his political opinion. In rejecting petitioners attempts to distinguish
Fuentes , this court explained that the key is not the type of threat encountered,
but whether the threat was encountered because of ones employment rather than
because of ones political opinion.
Estrada-Escobar , if an applicants
Id. at
1047. Similarly, here, there is no evidence in the record, other than the
unauthenticated letters, that FARC imputed any political opinion to petitioner.
While petitioner is correct that this court has not explicitly defined the
components of an asylum claim based on imputed political opinion, we are
confident that the circumstances presented here would not suffice. In
Ustyan v.
Ashcroft , 367 F.3d 1215 (10th Cir. 2004), we considered a claim for asylum by an
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ethnic Armenian and citizen of Georgia who argued that the Abkhazians imputed
to him a pro-Georgian political opinion because of his resistance to Abkhazian
recruitment efforts . Id. at 1217.
In analyzing this claim, this court first noted the principle announced in
INS
v. Elias-Zacarias , 502 U.S. 478 (1992), that the refusal to take sides in a civil war
could not be the basis for an asylum claim. We then went on to observe that,
[w]hile it may generally be true, as some circuits have held, that imputed
political opinion is still a valid basis for relief after
Elias-Zacarias , 4 accepting
Mr. Ustyans argument for asylum based on the type of imputed political opinion
he espoused would elevate the refusal to fight into an actionable basis for
asylum. Ustyan , 367 F.3d . at 1218 (quotation omitted). Similarly, here,
accepting petitioners argument based on imputed political opinion would elevate
employment in a foreign multi-national corporation to an actionable basis for
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Because we agree with the IJ that petitioner has failed to establish a wellfounded fear of persecution on account of either membership in a particular social
group or because of political opinion, imputed or otherwise, he is unable to
establish his status as a refugee, and is therefore ineligible for asylum. Since
petitioner has failed to meet the standard for asylum, [he] also [has] failed to
establish the higher and more difficult standard for withholding of deportation,
which requires that [he] establish a clear probability of persecution on one of the
specified grounds.
Krastev v. INS,
See id.