FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 6, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-14640

Non-Argument Calendar

________________________

BIA Nos. A78-584-998 & A78-584-999

AUGUSTO GARCIA-VALDERRAMA, 

MARIA ELVIRA MATIZ, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL,

Respondent. 

________________________

Petition for Review of an Order of the

Board of Immigration Appeals

_________________________

 (May 6, 2005)

Before TJOFLAT, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
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Petitioners Augusto Garcia-Valderrama and Maria Elvira Matiz, his wife,

citizens and residents of Colombia, S. A., entered the United States as

nonimmigrant visitors on August 5, 2000; they had the right to remain here until

February 4, 2001. They stayed beyond that date, however, and, on September 10,

2002, were served with Notices to Appear for removal proceedings. Prior to being

served, Valderrama filed applications for asylum and withholding of removal on

behalf of himself and Matiz. He asked for asylum because he had been persecuted

in Colombia by the FARC, a guerrilla faction known for violence, and feared

further persecution at their hands if returned to Colombia.

An Immigration Judge (IJ) held a hearing on the applications on March 10,

2003. After considering the evidence presented, including testimony from

Valderrama, the IJ ordered petitioners deported to Colombia. The IJ found what

Valderrama said to be credible but insufficient to make out a claim for asylum.

The testimony was insufficient, the IJ held, because the part relating to his

political activities was not specific enough and, moreover, failed to establish a

nexus between his political opinion and the FARC*s harassment. Petitioners

appealed the IJ*s decision to the Board of Immigration Appeals (BIA); it affirmed

the decision on August 13, 2004. They now petition this court for review.

Because the petitioners* removal proceedings commenced after April 1,
As a preliminary matter, aside from checking the box in his asylum application, 1

Valderrama failed to mention, during the administrative proceedings, that petitioners* asylum

claim was based on membership in a particular group. Under 1NA § 242(d)(l), 8 U.S.C. §

1252(d)(l), “{a] court may review a final order of removal only if. . . the alien has exhausted all

administrative remedies available to the alien as of right.” This exhaustion requirement is

jurisdictional, and precludes review of a claim that has not been presented to the JJ or the BIA.

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1997, the effective date of the Illegal immigration and Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), this case is governed by the permanent

provisions of the Immigration and Nationality Act (INA), as amended by IIRIRA.

Because the BIA, in affirming the IJ*s decision, expressly adopted the IJ*s

reasoning, our review focuses on the IJ*s decision. Al-Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001).

We review the IJ*s application of the law de novo. Mohammed v. Ashcroft,

261 F.3d 1244, 1247-48 (11th Cir. 2001). We review IJ*s findings of fact under

the highly deferential substantial evidence test, however, which means that we

view the record in the light most favorable to the [IJJ*s decision and draw all

reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d

1022, 1026-27 (11th Cir. 2004) (en banc) petition for cert. filed, (U.S. Oct. 28,

2004) (No. 04-7944). In other words, we “must affirm the [IJ]*s 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 (quoting Lorisme v. INS,

129 F.3d 1441, 1444-45 (11th Cir. 1997)). We are precluded from weighing the 1
See e.g., Fernandez-Bernal v. Attorney Gen. of the United States, 257 F.3d 1304, 1317 n.13 (11th

Cir. 2001). Accordingly, the claim that petitioners were members of a particular social group is

unexhausted, and we are precluded from reviewing it. See Al Naj jar, 257 F.3d at 1293 (refusing

to consider a claim that was not raised before the JJ or BIA).

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evidence. And we may not reverse the IJ*s findings of fact unless the record

compels a contrary conclusion. Farquaharson v. United States Attorney Gen., 246

F.3d 1317, 1320 (llthCir. 2001).

An alien who arrives in, or is present in, the United States may apply for

asylum. INA § 208(a)(1), 8 U.S.C. § 1 158(a)(1). The Attorney General has

discretion to grant asylum if the alien meets the INA*s definition of a “refugee.”

INA § 208(b)(1), 8 U.S.C. § 1 158(b)(1). A “refugee” is defined as:

any person who is outside any country of such person*s nationality..., and

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

INA § 101(a)(42)(A), 8 U.S.C. § 1 101(a)(42)(A). The asylum applicant carries the

burden of proving statutory “refugee” status. Al Najjar, 257 F.3d at 1284. To

establish asylum eligibility, the alien must, with specific and credible evidence,

establish (1) past persecution on account of a statutorily listed factor, or (2) a

“well-founded fear” that the statutorily listed factor will cause such future

persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287.
5

We agree with the Second and Ninth Circuits that there is no requirement

that persecution be based solely on account of a protected ground. See Borja v.

INS, 175 F.3d 732, 735-36 (9th Cir. 1999) (en banc); Osorio v. INS, 18 F.3d 1017,

1028 (2nd Cir. 1994)(”The plain meaning of the phrase ‘persecution on account of

the victim*s political opinion,* does not mean persecution solely on account of the

victim*s political opinion.”). If the applicant can show that the persecution was, at

least in part, motivated by a protected ground, then the applicant can establish

eligibility for asylum. See Borja, 175 F.3d at 736 (holding that evidence compelled

the conclusion that persecution was on account of both political opinion and

attempts at extortion, and that such a “mixed motives” case satisfied applicant*s

burden); see also In re S-P-, 21 I & N Dec. 486 (BIA 1996) (noting that, in a

mixed motive case, “the standard for review is whether the applicant has produced

evidence from which it is reasonable to believe that the harm was motivated by a

protected ground”).

Additionally, an asylum applicant may qualify as a refugee based on an

imputed political opinion not actually held by the applicant. Al Najjar, 257 F.3d at

1289 (“An imputed political opinion, whether correctly or incorrectly attributed,*

may constitute a ground for a ‘well-founded fear* of political persecution within

the meaning of the INA.”) (quoting Morales v. INS, 208 F.3d 323, 331 (1st Cir.
6

2000)). In the case of an imputed political opinion, the inquiry is not whether the

applicant held a particular political opinion, but whether his alleged persecutors,

either correctly or incorrectly, attributed a particular political opinion to the

applicant. Vera-Valera v. INS, 147 F.3d 1036, 1038-39 (9th Cir. 1998). 

The record in this case compels the conclusion that the FARC targeted

Valderrama, in part, because of his political opinion. The IJ*s holding that he

failed to show that his harm was linked to his political opinion was therefore

erroneous. Additionally, because the IJ failed to determine whether the petitioners

suffered past persecution or established that they have a well-founded fear of

future persecution, we must remand the case to allow the agency to decide the

issue in the first instance. Accordingly, the petition is granted, and the case is

remanded to the BIA for further proceedings.

 PETITION GRANTED.