                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-15-2004

Ocampo-Montes v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4144




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                                                                   NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-4144


                             SARA OCAMPO-MONTES,

                                                      Petitioner

                                          v.

                          JOHN ASHCROFT, ATTORNEY
                        GENERAL OF THE UNITED STATES,

                                                      Respondent


                        On Petition for Review of a Final Order
                         of the Board of Immigration Appeals
                                  (No. A79-101-929)


                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 28, 2004

              Before: NYGAARD, AM BRO, and GARTH, Circuit Judges

                          (Opinion filed November 15, 2004)




                                      OPINION


AM BRO, Circuit Judge

      Petitioner Sara Ocampo-Montes (“Ocampo”) seeks review of an order of the

Board of Immigration Appeals (“BIA”). That order affirmed the decision of the
Immigration Judge (“IJ”) denying Ocampo’s applications for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252 and deny the Petition for Review.

                           I. Factual and Procedural History

       Ocampo is a native and citizen of Colombia. She has two daughters who reside in

Norwalk, Connecticut, one of whom is a United States citizen. In March 2001, Ocampo

attempted to enter the United States without possessing valid entry documentation, and an

immigration inspector determined that Ocampo was inadmissible. She sought asylum

and, several days after her arrival, an asylum officer interviewed her. The asylum officer

determined that Ocampo had a credible fear of persecution.

       In April 2001, the Immigration and Naturalization Service (“INS”) 1 charged

Ocampo with removability on the ground that she did not possess valid entry

documentation. In removal proceedings, Ocampo admitted the factual allegations of the

charges. Ocampo, however, requested asylum, withholding of removal, and protection

under CAT.

       In April 2002, Ocampo appeared before the IJ for an individual hearing. Because

we write solely for the benefit of the parties, only a summary of Ocampo’s testimony

before the IJ is necessary. She testified that she fears returning to Colombia, as she
       1
        On March 1, 2003, the INS ceased to exist as an agency within the Department of
Justice and the INS’s functions were transferred to the Department of Homeland Security.
See Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451 & 471, 116 Stat.
2135.


                                             2
believes she will again be targeted by guerrillas in retaliation for her political activities.

In 1997, Ocampo worked on the successful mayoral campaign of Ricardo Cobo in Cali,

the city in which Ocampo then resided. In 1999, she participated in demonstrations

against guerrillas and collected signatures for petitions urging the government not to

negotiate with guerrillas who had kidnapped large numbers of people. Following a

demonstration in June 1999, she expressed her opposition to guerrilla forces by hanging a

banner that read “No More” in front of her home.

       After this followed events that caused Ocampo to believe she was being threatened

by guerrillas, specifically the National Liberation Army (or ELN), which is one of

Colombia’s significant guerilla groups known to have committed a host of human rights

violations. For example, dead birds and frogs were thrown around her home, her garden

and home were vandalized, her two cats died apparently from poisoning, and her daughter

was followed by a suspicious man. Additionally, beginning in 2000, Ocampo received

approximately ten telephone calls late at night or early in the morning from an

unidentified caller. During several of the telephone calls the caller referred to death or

killing. On two occasions, Ocampo sought police protection without avail.

       Although Ocampo was at least initially uncertain about who instigated these

incidents, she began suspecting members of a guerrilla organization. This was

corroborated by Ocampo’s daughter, Claudia, who testified that Ocampo had been

politically active and that “strange things” began happening after Ocampo hung the “No



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More” banner in front of the family home.

       At the conclusion of the hearing, the IJ issued an oral decision denying the

applications for asylum, withholding of removal, and protection under CAT. Among

other things, the IJ found that Ocampo was not credible and that she had not established

eligibility for asylum.

       In support of his finding that Ocampo was not credible, the IJ emphasized two

“major” inconsistencies. First, in her airport statement to the immigration inspector,

Ocampo stated that she had left Colombia as a result of telephone calls she received and

because a group of persons that she believed to belong to a guerilla organization had sent

her letters in support of their cause. At the hearing, however, the only note Ocampo

referred to was the one she found around the time her cats died, and she did not refer to

any other notes or writings from any guerilla groups. Thus, the reference in the airport

statement suggests Ocampo had left Colombia because guerrillas were soliciting her

support, rather than because they had threatened her and her daughters in retaliation for

their anti-guerrilla activities. Second, in testimony before the IJ, Ocampo stated that her

younger sister had been kidnapped by guerrillas. No mention of the kidnapping appears

in the airport statement, credible fear interview summary, or asylum application.

       Regarding Ocampo’s failure to meet her burden of proof, the IJ explained that

Ocampo had not shown, among other things, that the guerrillas were responsible for the

vandalism or threats. The link between the vandalism and Ocampo’s political



                                             4
involvement, the IJ found, was attenuated at best. Moreover, the IJ was troubled by the

lack of corroborating evidence (other than the testimony of Ocampo’s daughter) that

showed Ocampo was an activist. The IJ also questioned, among other things, whether the

alleged threats even rose to the level of persecution, as opposed to mere harassment.

Finally, the IJ concluded that Ocampo could relocate to another part of Colombia to avoid

persecution.

                                     II. Discussion

       Where, as here, the BIA affirms the IJ’s decision without opinion, the opinion of

the IJ constitutes the final agency determination for purposes of our review. 8 C.F.R. §

1003.1(e)(4) (2003); Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir. 2003) (en banc).

Whether an asylum applicant has demonstrated past persecution or a well-founded fear of

future persecution is a factual determination reviewed under the substantial evidence

standard. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Under this standard, the

decision of the BIA may be reversed “only if the evidence presented by [the applicant]

was such that a reasonable factfinder would have to conclude that the requisite fear of

persecution existed.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). In other words,

“the BIA’s finding 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).

       The Attorney General may grant asylum to an alien who demonstrates that she is

unable or unwilling to return to her native land because of a “well-founded fear” of



                                             5
persecution. Abdille, 242 F.3d at 482. A “well-founded fear” must be both subjectively

genuine and objectively reasonable. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.

2003).

         Ocampo argues that the IJ’s adverse credibility finding was unwarranted, primarily

because he relied too heavily on the airport statement. Ocampo correctly points out that

we have cautioned against placing too much emphasis on an airport statement,

particularly where that statement may not be reliable. See Balasubramanrim v. INS, 143

F.3d 157, 162-64 (3d. Cir. 1998). Her argument is misplaced, however, because the IJ

did not rely solely on the airport statement in making his adverse credibility

determination. See id. at 164 (explaining that some inconsistencies between the airport

statement and a petitioner’s testimony before the immigration judge are “not sufficient,

standing alone,” to support an adverse credibility finding). Here, the IJ’s credibility

determination also rested on Ocampo’s failure to mention that her sister had been

kidnapped, despite the fact that the asylum application included a question that directed

Ocampo to identify mistreatment of family members. In view of the inconsistencies

between the airport statement and the failure even to mention her sister’s kidnapping, we

cannot say that no reasonable factfinder could fail to find Ocampo credible. Elias-

Zacarias, 502 U.S. at 483-84. For these reasons, substantial evidence supports the IJ’s

adverse credibility finding.




                                              6
                                     III. Conclusion

       We conclude, after reviewing the record as a whole, that it does not compel a

contrary conclusion to that of the IJ. Withholding of removal was also properly denied.

See Lukwago, 329 F.3d at 182 (“If [a petitioner] is unable to satisfy the standard for

asylum, he necessarily fails to meet the standard for withholding of removal under [the

INA].”) In this context, we need not consider whether the IJ erred in alternatively finding

that Ocampo’s relocation elsewhere in Colombia would be reasonable.2

       Accordingly, we will deny the Petition for Review.




  2
    On appeal, Ocampo does not challenge the IJ’s denial of relief under CAT. In any
event, under the relevant regulations, “torture” means “severe pain or suffering” inflicted
“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. 208.18(a)(1). Ocampo does not allege
that the Colombian government, public official, or other person acting in an official
capacity has acquiesced to the guerrillas.


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