           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                          FILED
                                                                         July 16, 2008
                                     No. 07-60618
                                   Summary Calendar                 Charles R. Fulbruge III
                                                                            Clerk

MAURO ANTONY ARBOLEDA-JARAMILLO;                               MARLON         SEBASTIAN
ARBOLEDA-JARAMILLO

                                                  Petitioners

v.

MICHAEL B MUKASEY, US ATTORNEY GENERAL

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A97-746-083
                                BIA No. A97-746-084


Before HIGGINBOTHAM, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Mauro       Antony       Arboleda-Jaramillo          and     Marlon       Sebastian
Arboleda-Jaramillo petition for review of an order of the Board of Immigration
Appeals (BIA) dismissing their appeal from the Immigration Judge’s (IJ) denial



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

                                              1
                                        No. 07-60618

of asylum, withholding of removal, and request for relief under the Convention
Against Torture (CAT).
       The Secretary of Homeland Security or Attorney General is authorized, in
his discretion, to grant asylum to aliens who qualify as refugees.1 An alien is a
refugee when he is outside of his country and “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.”2       To show a well-founded fear of persecution, an alien must show
either past persecution, in which case the alien is entitled to a presumption of
a well-founded fear of persecution subject to rebuttal by an asylum officer’s or
IJ’s findings,3 or a “‘subjective fear of persecution, and that fear must be
objectively reasonable.’”4 Specifically, the alien must demonstrate “that harm
or suffering will be inflicted upon [him] in order to punish [him] for possessing
a belief or characteristic a persecutor sought to overcome.”5
       The IJ orally determined that the petitioners were “harassed because they
[the FARC] want them to join them, but that does not form a basis for the Court
to find that” they were persecuted. The IJ found that petitioners had not
established that they were refugees “as defined by the statute” and had not


       1
           8 U.S.C. § 1158(b)(1).
       2
           8 U.S.C. § 1101(a)(42)(A).
       3
         8 C.F.R. § 208.13(b)(1) (“An applicant who has been found to have established such
past persecution shall also be presumed to have a well-founded fear of persecution on the basis
of the original claim. That presumption may be rebutted if an asylum officer or immigration
judge makes one of the findings described in paragraph (b)(1)(i) of this section.”).
       4
        Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005) (quoting Eduard v. Ashcroft, 379
F.3d 182, 189 (5th Cir. 2004)).
       5
         Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994) (internal quotation marks and
citation omitted).

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                                          No. 07-60618

“been persecuted by anyone for any of the five reasons [‘race, religion,
nationality, membership in a particular social group, or political opinion’6] set
forth above.” The BIA agreed. The petitioners challenge the BIA’s denial of
their request for asylum, urging that substantial evidence does not support the
determination that they did not suffer past persecution or did not have a well-
founded fear of future persecution on account of political opinion.                           The
petitioners maintain that neither the BIA nor the IJ addressed their claim of a
well-founded fear of future persecution. Finally, they contend that the IJ’s
reference to the Colombian terrorist guerrilla group, the Revolutionary Armed
Forces of Colombia or “the FARC,” as a gang problem was a fundamental flaw
and not mere harmless error.
       In INS v. Elias-Zacarias,7 the Court held that forced recruitment by
guerillas was not persecution based on political opinion because the alien’s
refusal to join the movement was not based on his political opinion but on his
fear of retaliation by the Government if he joined. This court, in reliance on
Elias-Zacarias, has held that persecution because of a refusal to fight with a
particular group, absent demonstration of persecution based on a petitioner’s
political opinion or membership in a social group, is not persecution on account
of political opinion.8 To persuade us that the FARC’s alleged persecution was a
result of the petitioners’ political opinion or membership in a social group, the
petitioners must point to some evidence of the FARC’s motives in targeting them




       6
           8 U.S.C. § 1101(a)(42)(A).
       7
           502 U.S. 478, 482-83 (1992).
       8
         See Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994) (“Jukic has failed to demonstrate
that he will be persecuted by either people based on his political opinion or social group, ‘rather
than because of his refusal to fight with them.’”).

                                                3
                                         No. 07-60618

for recruitment,9 and that the “reasonable, substantial, and probative evidence
on the record, considered as a whole,” fails to support “the decision’s factual
findings.”10 If petitioners establish a political opinion or membership in a social
group, they must also show “that the record also compels the conclusion that .
. . [they have] a ‘well-founded fear’” of persecution “because of that political
opinion” or membership in a group, “rather than because of [their] refusal to
fight” with the FARC.11
       The petitioners potentially showed that they held a political opinion, but
the record evidence does not compel a conclusion that they were recruited
because of their political opinion. Mauro, speaking for himself and his younger
brother, testified that he “did not want to be a part of them [the FARC]” because
“this is a terrorist group and my aspirations are very different from the
aspiration of a terrorist group.” This, to some extent, distinguishes him from the
petitioner in Elias-Zacarias who testified only about fear of recruitment –
stating that he “did not want to join the guerrillas because the guerrillas are
against the government and he was afraid that the government would retaliate
against him and his family if he did join the guerrillas.”12            However, even if
petitioners’ testimony about holding different aspirations from the FARC is
sufficient to establish that petitioners have a political opinion, they have not
produced evidence that the FARC knew of or targeted petitioners as a result of


       9
        See Elias-Zacarias, 502 U.S. at 483. Petitioners must provide “some evidence of . . .
[motive], direct or circumstantial.” Id.
       10
         See also Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994) (Under the substantial evidence
standard, “the alien must show that the evidence was so compelling that no reasonable
factfinder could conclude against it”).
       11
            Elias-Zacarias, 502 U.S. at 483.
       12
            Id. at 480.

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                                         No. 07-60618

their opinion.13 The evidence shows that petitioners never communicated with
the FARC, aside from receiving letters under their door and hearing someone,
whom they believed to be from the FARC, yelling outside of their door and
banging on the door.
       Petitioners may also have presented evidence that they were members of
a social group, assuming children who resist recruitment by the FARC14 can be
defined as a “social group” under § 1101,15 and not simply individuals who do not
wish to join a guerrilla group. Petitioners presented paper evidence that the
FARC has targeted children, and that children have resisted the FARC’s
recruitment efforts or turned themselves in to authorities after being recruited.
Petitioners were young – ages 17 and 15 – when they began receiving the FARC
recruitment letters. But even if petitioners have presented evidence that the
FARC’s motivation in targeting them was because of their status in a social
group – a conclusion that is not compelled based on the evidence – the BIA found
that petitioners had not established a well-founded fear of persecution, and this
was not in error. The BIA’s determination “can be reversed only if the evidence
presented by . . . [petitioners] was such that a reasonable factfinder would have
to conclude that the requisite fear of persecution existed.”16




       13
         See id. at 483 (holding that “since the statute makes motive critical,” a petitioner
“must provide some evidence of it, direct or circumstantial”).
       14
           Petitioners argued in their appeal to the BIA, “Respondent has showed that the fear
is out of political difference. Respondents are also ones of the group of people in Columbia [sic]
who refused to join the guerrilla but who was facing recruitment from the FARC” and then
cited articles about the FARC’s recruitment and abuse of children.
       15
         We need not decide this issue, as we deny the petition based on the BIA’s
determination that there was no evidence of a well-founded fear of persecution.
       16
            Elias-Zacarias, 502 U.S. at 481.

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                                        No. 07-60618

       The BIA agreed with the IJ’s “conclusion that the respondent does not
have a well founded fear of a clear probability of persecution if returned to
Colombia,” finding that “attempted forced recruitment does not constitute
persecution.” This finding buries the subtler point that forced recruitment on
account of affiliation with a social group could, with a showing of the requisite
well-founded fear, constitute persecution. Petitioners on appeal point to the
strong language in the letters, such as “this is not a game,” “this is the last
opportunity,” “you are making us lose our patience for the last time we’ll be
waiting for you,” and “you will regret it for not paying attention.” They also
argue that “the FARC multiplied its threat with mid-night home-visiting and
door banging in [a] threatening manner.” But more is needed for reversal.
       “Because the IJ credited . . . [petitioners’] testimony, . . . [their] subjective
fear of persecution is not at issue and our review focuses on the objective
reasonableness of . . . [their] fear.”17 “The well-founded fear standard does not
require an applicant to demonstrate that he will be persecuted if returned to his
native country, but rather, requires that he establish persecution as a
‘reasonable possibility.’”18        To establish the objective reasonableness of a
well-founded fear of persecution, an applicant must prove that
       (1) he possesses a belief or characteristic a persecutor seeks to
       overcome by means of punishment of some sort; (2) the persecutor
       is already aware, or could become aware, that the alien possesses
       this belief or characteristic; (3) the persecutor has the capability of




       17
          Chen v. Gonzales, 470 F.3d 1131, 1135 (5th Cir. 2006). The IJ found, “In this
particular case, the respondent is found to be credible as a witness, who has testified in a
truthful and forthright manner and, therefore, there are no issues regarding credibility and
the Court accepts all of the testimony that the respondent has provided as true.”
       18
            Id. (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987)).

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      punishing the alien; and, (4) the persecutor has the inclination to
      punish the alien.19

Petitioners did not show that the FARC targeted them because of their political
opinions, and the evidence presented by petitioners does not compel a finding
that the FARC is or has become aware that they are children who resist
recruitment by the FARC. Petitioners are no longer “children”20 and have
presented insufficient evidence to compel a conclusion that they now possess “a
belief or characteristic a persecutor seeks to overcome by means of punishment
of some sort.”21 Nineteen and twenty-two year olds may still be considered as
targets for FARC recruitment, but petitioners’ age and the FARC’s attempted
recruitment of petitioners in Colombia does not compel a conclusion that “it is
more likely than not that . . . [petitioners’] ‘life or freedom would be threatened
. . . because of . . . [their] race, religion, nationality, membership in a particular
social group, or political opinion’” upon return.22 In sum, petitioners have not
shown that they “will be persecuted . . . based on . . . [their] political opinion or
social group, ‘rather than because of . . . [their] refusal to fight with’” the FARC.23
      The petitioners further argue that the IJ and the BIA failed to address the
issue of whether they established a well-founded fear of future persecution if




      19
           Id. at 1135-36.
      20
           Mauro was born on August 29, 1986, and Marlon was born on October 23, 1988.
      21
           Chen, 470 F.3d at 1135.
      22
         Mwembie v. Gonzales, 443 F.3d 405, 410 (5th Cir. 2006) (quoting 8 U.S.C. §
1231(b)(3)(A)).
      23
           Jukic, 40 F.3d at 749 (quoting Elias-Zacarias, 502 U.S. at 483).

                                               7
                                         No. 07-60618

returned to Colombia. Both the IJ and BIA addressed the issue.24 Finally, the
petitioners have not shown that the BIA erred in determining that the IJ’s single
reference to “gang” problems in Columbia was “merely semantic and therefore
a harmless error.” The IJ’s decision reflects that she was aware that the FARC
was a terrorist organization. The IJ discussed, for example, “threats he [Mauro]
received from the guerrillas, the FARC, which is the Revolutionary Armed
Forces of Colombia” and referred to the FARC as a “terrorist group.”
       The petitioners, who are represented by counsel, do not challenge the
denial of their request for withholding of removal or relief under CAT. These
issues are deemed abandoned.25
       PETITION DENIED.




       24
          The IJ in her oral decision stated, “In order to qualify for relief, the respondent would
have to show that he is a refugee and that means that he must show that he has been
persecuted in the past or has [a] well-founded fear of persecution . . . . Witholding is mandatory
if the respondent meets his burden and shows that it is more likely than not that he would be
persecuted for one of the reasons set forth above . . . .” She also stated, “The respondent
testified that he is afraid to return because he refused to join the group. . . . The respondent
nor his brother ever [sic] had any personal contact with the FARC members, just the letters
that he talked about being left under his door.” The BIA held, “We agree with the Immigration
Judge’s conclusion that the respondent does not have a well founded fear or a clear probability
of persecution if returned to Colombia.”
       25
        See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Calderon-Ontiveros v. INS,
809 F.2d 1050, 1052 (5th Cir. 1986).

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