GLORIA ARCIBELLY LOPEZ v. U.S. ATTORNEY GENERAL
No. 06-12907
United States Court of Appeals, Eleventh Circuit
October 25, 2007
Agency No. A97-204-149
Petition for Review of a Decision of the Board of Immigration Appeals
(October 25, 2007)
ON PETITION FOR REHEARING
CARNES, Circuit Judge:
We grant the government‘s petition for rehearing, withdraw our previous opinion dаted July 6, 2007, and published at 490 F.3d 1312, and substitute the following opinion in its place:
In April 1999, Lopez returned to Colombia after sрending six months in the United States with her mother. She resumed her Liberal Party activities, and in September of that year, after leaving a community event, she was approached by a man and a woman who identified themselves as FARC members, insulted her, and told her that she should resign from the Liberal Party and not come back to the area. Lopez continued her work. On November 27, 1999, she was confronted by a man and two women.1 They told her: “We are from FARC revolutionary militias and we already warned you that you should not return to these places.” Then they began hitting her about the face and arms, eventually throwing her to the ground. Nothing was stolen from Lopez, but as a result of the attack she was forced to seek medical attention. The medical report found: “[c]onclusive trauma on [her] face, thorax and arms,” lacerations on her forearm and elbow, and at least some bruising. Again, Lopez did not file a police report.
After that attack, Lоpez withdrew from her political activities for some time. Then in June 2001, Lopez resumed her humanitarian work. Even though she tried to be more discrete, local residents warned her that members of the FARC were asking about her. The FARC made threatening phone calls both to Lopez‘s place of work and to a rental property she owned, which resulted in Lopez once more stopping her community involvement for a while. Again, she made no police report.
In August 2002 Lopez and her mother began conducting training workshops, which were supported by the Liberаl Party, to teach local women how to manage their household finances. She was warned by her students on October 12, 2002 that she needed to be careful, and on October 19, 2002, at the end of a session, three armed men burst into the classroom and told Lopez: “We are members of FARC‘s urban militia[;] we sent you a message last week with one of our students. We don‘t want any shit workshops in our tеrritory because what you are doing is trying to brainwash our people and buy votes for those SOB politicians.” Lopez left Colombia and arrived in the United States on November 8, 2002.
On July 15, 2003, the Depаrtment of Homeland Security issued Lopez, who had overstayed her visa, a notice to appear. At a hearing in October 2003 Lopez appeared and conceded her removability. She sought asylum, withholding of removal, and relief under the Convention Against Torture. Although the IJ failed to make an explicit credibility finding, she stated: “we are to take everything that she has told the Court today at face value.” Even though she accepted Lopez‘s testimony as true, the IJ found that she had failed to meet her burden of proof in establishing refugee status and denied all three of her requests.
Lopez timely appealed the IJ‘s decision to the BIA, challenging the denial of her asylum and withholding of removal claims but abandoning her CAT claim. The BIA adopted and affirmed the IJ‘s decision “as desсribed herein.” The BIA stated it agreed with the IJ “that because the respondent did not seek protection from law enforcement authorities in Colombia after her encounters with the [FARC] . . . she failed to demonstrate that the Colombian government is unable or unwilling to protect her.” This appeal followed.
Lopez now contends that the BIA erred (1) in finding that she did not suffer past persеcution sufficient to merit asylum and (2) in denying her petition for relief on the ground that she had failed to seek help from the Colombian authorities, which she claims would have been futile.
I.
When the BIA issues a decision, we review only that decision, except to the extent the BIA expressly adopts the IJ‘s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). The BIA‘s legal determinations are reviewed de novo. D-Muhumed v. United States Att‘y Gen., 388 F.3d 814, 817 (11th Cir. 2004). However, any factual determinations are reviewеd under the substantial evidence test, and we “must affirm the . . . decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Al Najjar, 257 F.3d at 1283–84 (quotаtion marks omitted). That means a finding of fact will be reversed “only when the record compels a reversal; the mere fact that the record may support a contrary conclusion is not enough to justify a reversal. . . . ” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
II.
Lopez first contends that the IJ erred in finding that she did not suffer past persecution in Colombia. We will not address this contention becausе the IJ‘s finding that it concerns was not adopted by the BIA in its decision and therefore does not form any part of the order currently under review. We can review only the final administrative order, which is the decision of the BIA. Chen v. United States Att‘y Gen., 463 F.3d 1228, 1230 (11th Cir. 2006) (“Where the BIA issues a decision, we review that decision, except to the extent that it expressly adopts the IJ‘s opinion.“); Al Najjar, 257 F.3d at 1284 (“We review only the Board‘s decision, except to the extent that it expressly adopts the IJ‘s opinion.“).
The only conclusion of the IJ that the BIA adopted and affirmed was the one that Lopez‘s asylum and withholding of removal claims were deficient because she did not first seek the protection of the Colombian government. Because this is all that we are permitted to review, we deny Lopez‘s petition to the extent that it asks us to review the past persecution part of the IJ decision.
III.
Lopez also contends that the IJ erred in denying her asylum and withholding of removal claims because she had failed to seek help from the Colombian authorities, which she argues would have been futile. The BIA did adopt the IJ‘s decision that by failing to seek protection from law enforcement authorities in Colombia after her encounters with FARC, Lopez failed to demonstrate that the Colombian government was unable or unwilling to protect her. We can аnd will review that part of the decision.
We have said that “[a]s a matter of immigration policy, a government may expect that an asylum seeker be unable to obtain protectiоn anywhere in his own country before he seeks the protection of another country.” Mazariegos v. United States Att‘y Gen., 241 F.3d 1320, 1327 (11th Cir. 2001). As a result, in order to satisfy her burden of establishing asylum eligibility, Lopez must show not оnly past persecution or a well-founded fear of future persecution, but also that she is unable to avail herself of the protection of her home country. Id.
The BIA ruled that becаuse Lopez did not “seek protection from law enforcement authorities in Colombia after her encounters with the [FARC] . . . she failed to demonstrate that the Colombian government is unable or unwilling to protect her.” Although it is not entirely clear, the ruling appears to be that the failure to seek protection without more is enough to defeat a claim for asylum. If so, that dеcision is not fully consistent with In re S-A-, 22 I. & N. Dec. 1328, 1335 (BIA 2000). Although the failure to report persecution to local government authorities generally is fatal to an asylum claim, Mazariegos, 241 F.3d at 1327, the BIA in S-A- held that it would be excused where the petitioner convincingly demonstrates that those authorities would have been unable or unwilling to protect her, and for that reason she could not rely on them. 22 I. & N. Dec. at 1335.
Lopez contends that through hеr testimony and the country reports she has convincingly made the showing required by S-A-, and that is a contention which neither the IJ nor the BIA addressed. It should be addressed on remand. See Gonzalez v. Thomas, 547 U.S. 183, 186 (2006) (per curiam) (“A сourt of appeals ‘is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.’ Rather, ‘the рroper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.‘” (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam))).
Accordingly, we DENY in part and GRANT in part the petition for review and REMAND this proceeding to the BIA for further considеration consistent with this opinion.
