                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS               May 12, 2009
                                                               Elisabeth A. Shumaker
                               FOR THE TENTH CIRCUIT
                                                                   Clerk of Court


    MARIA AMANDA
    CHARALAMBOS; CAROLINA
    CHARALAMBOS,

                Petitioners,

    v.                                                  No. 08-9560
                                                    (Petition for Review)
    ERIC H. HOLDER, JR., *
    United States Attorney General,

                Respondent.


                               ORDER AND JUDGMENT **


Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.



         Maria Amanda Charalambos and her daughter, Carolina, petition for review

of a Board of Immigration Appeals (“BIA”) decision affirming the denial of their

applications for asylum and restriction on removal. The narrow issue before this

*
     Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for
Michael B. Mukasey as the respondent in this appeal.
**
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
court is whether Ms. Charalambos’s demonstrated fear of returning to her native

Colombia stems from a threat of persecution on account of a statutorily protected

ground. 1 She claims her return would be met with persecution by the terrorist

group Revolutionary Armed Forces of Colombia (“FARC”) because of its

mistaken belief she once funded the paramilitaries, an opposing terrorist

organization. After a hearing, an Immigration Judge rejected her claim

concluding she was more likely targeted by the FARC because of her family’s

wealth rather than her political beliefs. The BIA affirmed, holding that one’s

support of the paramilitaries would not necessarily be an expression of a political

view, and that Ms. Charalambos had failed to show the FARC believed any of her

actions were politically motivated. Because the BIA employed the correct legal

reasoning and reached a decision supported by substantial evidence, see

Uanreroro v. Gonzales, 443 F.3d 1197, 1203-04 (10th Cir. 2006) (describing

standard of review), we exercise jurisdiction under 8 U.S.C. § 1252(a) to deny the

petition.

                                         I.

      Ms. Charalambos comes from Fusagasuga, Colombia, where her family

owned and operated a building materials supply company. The family lived in

relative peace until August 1995, when the FARC kidnaped her fourteen year-old


1
       Because Carolina’s claim is derivative of her mother’s, we need not address
it separately.

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nephew and held him for two months until her family paid $350,000 in ransom.

The FARC began bothering them again in 1998. In June of that year, members of

the local organization, FARC 52, began making threatening phone calls to the

family business, where Ms. Charalambos worked alongside her brother Guillermo

Acosta, whose son had been kidnaped. Ms. Charalambos testified that in the

beginning, the callers simply demanded money. But as time went on, the FARC

started accusing Guillermo of funding the paramilitaries. The family reported

some of these incidents to the police and were at times protected by the GAULA,

an elite government anti-kidnaping unit. By September 1998, however, Guillermo

had had enough and arranged to meet with members of FARC in hopes of

negotiating the family’s peace. Guillermo never returned from the meeting, and

about two weeks later his body was found. Members of FARC 52 claimed

responsibility for his murder in a radio address. They also called

Ms. Charalambos and told her they had killed Guillermo because of his support

for the paramilitaries.

      Ms. Charalambos testified that the threats continued even after Guillermo’s

death. In one incident, she claimed she and another brother were driven off the

road by members of FARC, who then demanded money. They managed to escape

unharmed after her brother told the guerillas he would make arrangements to pay

them. At times, they were also threatened by the paramilitaries, who likewise

demanded money to fund their operations. Ms. Charalambos claims these threats

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continued unabated until September 2000, when she fled to the United States.

According to her testimony, she has never been aligned with any political group

or given money to any terrorist organization. She still has five siblings living in

Colombia, one of whom is currently making payments to the FARC.

                                          II.

      To be eligible for asylum or restriction on removal, an alien must first

demonstrate that she is a refugee as defined in the Immigration and Nationality

Act (“INA”). She must then persuade the Attorney General to exercise his

discretion to grant the requested relief. The INA defines a “refugee” as someone

outside his or her native country “who is unable or unwilling to return to, and is

unable or unwilling to avail himself or herself of the protection of, that country

because of persecution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42)(A). To make the required showing, an

applicant may establish that she suffered persecution in the past on a protected

ground. If she makes a showing of past persecution, then a rebuttable

presumption arises that she has a well-founded fear of future persecution if she

were to return to her native country. Yuk v. Ashcroft, 355 F.3d 1222, 1233

(10th Cir. 2004).

      The BIA concluded Ms. Charalambos was not a refugee because she failed

to establish a well-founded fear of persecution based on an enumerated ground.

                                          -4-
That is, she failed to show that any mistreatment she suffered (or fears) at the

hands of the FARC constituted persecution on account of her political opinion.

This holding is mandated by Ustyan v. Ashcroft, 367 F.3d 1215 (10th Cir. 2004).

The petitioner in that case was an ethnic Armenian and Georgian citizen who had

been persecuted by Abkhazian forces for refusing to take sides in a civil war. He

argued that after resisting the Abkhazians’ recruitment efforts, they imputed a

hostile political opinion to him and accused him of collaborating with the other

side. Making a similar argument here, Ms. Charalambos insists the FARC

imputed a hostile political opinion to her because she refused to fund its

operations. But as we held in Ustyan, to accept this argument “would eviscerate

the central tenet” of Immigration and Naturalization Service v. Elias-Zacarias,

502 U.S. 478 (1992). Ustyan, 367 F.3d at 1218.

      That is, when a refusal to fight for a group–which, per
      Elias-Zacarias, is not in itself enough to attribute a political
      character to attendant coercive or punitive acts by that group–is the
      only predicate for an alleged imputation of a political stance (loyalty
      to an opposing group), acceptance of an imputed-opinion claim
      would effectively elevate the refusal to fight into an actionable basis
      for asylum.

Id.

      Ms. Charalambos’s claim obviously is not based on her refusal to take up

arms for the FARC, but the holdings of Ustyan and Elias-Zacarias nonetheless

apply to her situation. The consequences borne out of one’s refusal to take sides

in a civil war do not alone give rise to a claim of political persecution. See

                                          -5-
Ustyan, 367 F.3d at 1218. To reverse the BIA, the record must compel the

conclusion that Ms. Charalambos has a well-founded fear that the FARC will

persecute her because of her actual political beliefs and not simply because she

refused to fund their operations. Elias-Zacarias, 502 U.S. at 483. The record

does not compel this conclusion. In fact, Ms. Charalambos offers nothing to

explain why the FARC allegedly believed she supported the paramilitaries other

than her resistance to their own extortion attempts. She specifically testified to

having no political affiliations whatsoever, see Admin. R. at 117, and there is no

evidence she was politically outspoken or ever donated to any political cause.

      Moreover, even if we accept that the FARC persecuted Ms. Charalambos

because it believed she supported the paramilitaries, we cannot assume the FARC

imputed a political opinion to her based on such support. See Elias-Zacarias,

502 U.S. at 482 (noting that support of a guerilla movement is not synonymous

with a political motive). As the BIA noted, “the FARC could have believed that

the respondent’s family provided financial support to the paramilitary simply out

of personal motivation to protect their business interests.” Admin. R. at 3. And

given Ms. Charalambos’s testimony concerning threats she received from the

paramilitaries, the FARC could have believed she was motivated to support the

opposition purely out of fear. “Of course, the motives of the asylum seeker are

relevant only to the extent that they illuminate the motives of the alleged

persecutors.” Adhiyappa v. INS, 58 F.3d 261, 267 (6th Cir. 1995). The point is

                                         -6-
there is simply nothing in the record that leads us, let alone compels us, to

conclude the FARC targeted Ms. Charalambos because of her political beliefs.

We therefore agree with the BIA’s rejection of her claim because she has not tied

her allegations of persecution to an actionable statutory basis. This failure

“necessarily constitutes a failure to meet the more stringent burden of proof for

restriction on removal,” Ba v. Mukasey, 539 F.3d 1265, 1271 (10th Cir. 2008),

which requires the alien to show “a clear probability of persecution on one of the

specified grounds,” Krastev v. INS, 292 F.3d 1268, 1271 (10th Cir. 2002).

      The petition for review is DENIED.

                                                Entered for the Court



                                                Bobby R. Baldock
                                                Circuit Judge




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