* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 17 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

MARIA DEL ROSARIO MOGOLLON; CAMILO ARMANDO GUTIERREZ,

Petitioners,

v. JOHN ASHCROFT,

Respondent. No. 03-9523 (BIA Nos. A79-475-243 & A79-475-244) (Petition for Review)

ORDER AND JUDGMENT *

Before BRISCOE and McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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.1 Petitioners also pursued claims before the agency f or restriction on removal under the Immigration and Nationality Act and for w ithholding of removal under the Convention Against Torture. They do not challe nge the denial of either of these claims before this court, however, so we need not consider them. See United States v. Abdenbi , 361 F.3d 1282, 1289 (10th Cir. 2004).

2 We note that respondent does not argue that petitio ners failed to preserve this issue before the agency. -2- Petitioner Maria del Rosario Mogollon and her husband, petitioner Camilo Armando Gutierrez, seek review of the denial of their asylum claim. 1 Petitioners, who are citizens of Colombia, contend they are enti tled to asylum because they have been persecuted and they fear future persecuti on on account of their political opinions and their membership in a particular socia l group. Petitioners were rather vague as to the nature of that group in thei r filings before the agency, but in their opening brief before this court, they argu e that the relevant social group is that of “successful business people.” 2Aplt. Amended Opening Br. at 8. Because the alleged persecution was aimed at Maria, Camilo’ s claim for asylum is dependent on Maria’s claim. After an evidentiary hearing, the immigration judge (IJ) determined that petitioners were removable and that they were not e ligible for asylum because they had failed to demonstrate past persecution or a well-founded fear of future persecution on account of any of the statutory base s. The Board of Immigration Appeals (BIA) summarily affirmed under 8 C.F.R. § 1 003.1(a), leaving the IJ’s decision as the final agency determination for review. See Tsevegmid v. Ashcroft ,-3-

336 F.3d 1231, 1235 (10 th Cir. 2003). We conclude that the IJ’s decision is supported by substantial evidence and we therefore deny the petition for review. Obtaining asylum is a two-step process. First, the applicant must establish that she is statutorily eligible for the relief by showing she meets the definition of a “refugee” under the Immigration and Nationality Act (INA). Krastev v. INS , 292 F.3d 1268, 1270 (10th Cir. 2002). Then the app licant must persuade the Attorney General to exercise his discretion to grant the requested relief. Id. at 1271. The IJ concluded that petitioners failed to establish that they qualified as “refugees” at the first step of the process. The INA defines a “refugee” as someone outside his or her native country “who is unable or unwilling to return to, and is un able or unwilling to avail himself or herself of the protection of, that count ry because of persecution or a well-founded fear of persecution on account of ra ce, religion, nationality, membership in a particular social group, or politic al opinion.” 8 U.S.C. § 1101(a)(42)(A). To make the required showing, anapplicant may establish that she suffered persecution in the past on a protectedground. If she makes a showing of past persecution, then a rebuttable pres umption 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).-4-

If the applicant fails to show past persecution, sh e may still be able to establish a well-founded fear of future persecution . This showing has two components: “a subjective ‘fear’ component and an objective ‘well-founded’ component.” Kapcia v. INS , 944 F.2d 702, 706 (10th Cir. 1991). The applicant must first establish the objective component, which“requires a showing, by credible, direct, and specific evidence in the reco rd, of facts that would support a reasonable fear that the [applicant] faces persec ution” on account of an enumerated ground. Id. (quotations omitted). If she establishes this component, then she must establish that her “fear is genuine.” Id. The IJ found that petitioners genuinely did not want to return to Col ombia, but he also found that they did not establish a well-founded fear of futur e persecution based on any of the enumerated grounds. The evidence before the IJ showed that Maria and he r husband Camilo lived in Bogota, where Camilo had a business with h is sister. Maria’s extended family had been active in the Liberal Party for sev eral generations. Maria herself was a member of the Liberal Party, though she was n ot particularly active. In 1992, Maria’s father and brother, who were campaign ing for a mayoral candidate in her parents’ hometown, began getting threatening phone calls from people who identified themselves as members of the Revolutionary Armed Forces of Columbia (“FARC”), a leftist guerrilla group. The callers warned them to stop-5-

their political and community service activities be cause those activities were helping the government; the FARC wanted to undermin e the government. As a result of the threats, Maria’s parents and other me mbers of her extended family ceased their political and charitable activities, b ut her brother Carlos did not. Carlos was the manager of a bank in Venecia, a smal l village in the heart of the FARC’s stronghold. For many years, he helped the local people obtain loans for their crops and livestock through the bank and he was very active in community service. In February 1997, a band of FAR C guerillas attempted to raid Venecia, but they were repelled by the local p olice. When the guerillas left, they threatened to gather their forces and come bac k. Based on this threat, the mayor requested reinforcements from the military an d the national police, but none were forthcoming. In May 1997, a group of about thirty armed men came into Venecia at night. This time, only two policemen were in the v illage, and they lost their lives trying to fight off the men. The men went to Carlo s’ home and took him by force to the bank, where they tried to make him open the vault. When they discovered that Carlos had only half the code to the vault, th ey kidnaped the woman who had the other half and brought her to the bank as well. Even together, the two could not open the vault because it was on a time lock. The men then blew up the bank with dynamite to get the money. They let the woman go free, but not Carlos.-6-

Before they left Venecia, the men also blew up some government offices and another bank, they pillaged the stores, and the y fired many shots into the air. When the frightened townspeople finally emerged fro m their homes, they found Carlos’ body in the street. He had been stabbed an d shot numerous times. Shortly thereafter, the military arrived. They ass essed the damage and contacted Carlos’ family. Maria said the colonel who spoke w ith her told her the attackers were FARC guerillas. At least one newspaper account of the attack also identified the perpetrators as FARC guerillas. The next day, Maria and her parents traveled to Ven ecia, where they began asking questions about what had happened. Maria te stified that shortly after she returned from Venecia, she began getting threatenin g phone calls advising her to stop looking into her brother’s death. She and herfamily did not stop their investigation, however. In fact, they decided to f ile a lawsuit against the government for failing to come to the aid of the to wn when the mayor requested. Before the suit could be filed, the family had to g ather information for their lawyer. Because the suit was going to be filed in Bogota, Maria took the lead in gathering the necessary information. As Maria’s in vestigation continued, so did the threats–against her and against other members o f her family. Eventually, the fear and anxiety engendered by the threats led Mari a and Camilo to seek psychiatric counseling.-7-

Although the threats continued for several years, n o apparent attempt was made to carry them out. Maria was able to continue gathering information, and in March 1999, the lawyer was able to file the lawsuit . The suit named as plaintiffs: Maria’s parents, Maria, Maria’s sister (who lives i n the United States), Carlos’ wife at the time of his death, and his daughter by that wife. It named as defendants: the National Police Force, the Ministry of Defense, and the National Army. The suit sought damages against the defendants for Carlos’ death on the ground that the defendants failed to provide suffic ient protection to the people of Venecia. In December 1999, seeking an escape from the threat s, Maria, Camilo, and Maria’s parents came to the United States for a vac ation. Maria and Camilo returned to Colombia after about a month. Upon the ir return, the threats increased in frequency and Maria began to be follow ed when she went out. Again, though, no physical harm befell her. Maria testified that she believed members of the FA RC were responsible for the threats and the surveillance. She said the FARC wanted to stop her family from investigating Carlos’ death and from filing th eir lawsuit because the FARC feared that the family’s activities would bring to light the FARC’s involvement in3 Maria did not attempt to reconcile the motive she attributed to the FARC

with other evidence she presented showing that the public already knew the FARC was responsible for the raid.

4 Camilo’s visa shows that between his visit in Decem ber 1999 and his final entrance in May 2001, he also entered the United St ates in September 2000. Admin. R. at 537. -8- the raid on Venecia. 3 She also testified that she never notified the po lice of either the threats or the surveillance because she did notthink it would do any good and because the callers told her not to contact the aut horities. By June 2000, Maria had decided she could bear the strain no longer, so she left Colombia. Maria entered the United States on a six-month visitor’s visa, which she later extended for another six months. C amilo testified that after Maria left, he received phone calls asking him where Mari a had gone and what she was doing. When he told the callers that Maria had lef t the country, they told him that she should stay away because if she came back, she might be killed like her brother. Camilo testified that the callers identif ied themselves as members of the FARC. Camilo remained in Colombia for almost a year befor e joining Maria and seeking asylum in the United States. 4Maria’s mother also came to the United States and sought asylum, but her father and her ni eces and nephews–including Carlos’ five children–stayed in Colombia. Maria te stified that Camilo’s sister-9-

was running the business in Camilo’s absence. She also testified that as far as she knew, the lawsuit was still proceeding. In his oral ruling, the IJ found that some of petit ioners’ testimony was credible, but he did not believe all of it. He dis cussed the State Department country reports, which showed that Colombia has bee n in a state of great civil unrest for more than thirty years and indicated that sometimes common criminals masqueraded as members of the FARC or other guerill as groups. Even if the men who killed Carlos were FARC guerillas, however, the IJ found that it was not clear that Carlos was killed because of his politic al opinions; the men may just have been after the bank’s money. “In Colombia,” t he IJ noted, “the guerillas don’t care who it is, they kill whenever they feel like killing. They bomb whenever they feel like bombing, and that’s strictl y for purposes of disrupting the government.” Admin. R. at 107-08. The IJ did not believe that the family’s lawsuit wo uld motivate the FARC to single out Maria and Camilo for persecution, bec ause the suit was against the government, and the FARC encouraged disruption of the government. “In fact,” he said, “it would seem to me, that they would be h appy with that situation, indicating that, in fact, they’re disrupting the government . . . .” Id. at 107. The IJ also noted that Maria and Camilo lived in Bogota , which is a very large city and is not under the control of the FARC. Finally, the IJ found that Maria and-10-

Camilo did not have any particular stature in the L iberal Party such that the FARC would single them out for persecution. The IJ ther efore concluded that petitioners had not shown either past persecution or a well-fou nded fear of future persecution on account of their political opinions or any otherstatutory factor. Because the IJ found that petitioners failed to est ablish their status as refugees, we review only that initial determination. See Vatulev v. Ashcroft , 354 F.3d 1207, 1209 (10th Cir. 2003). We apply a s ubstantial evidence standard to the IJ’s determination. Yuk , 355 F.3d at 1233. Under that deferential standar d, we may not reweigh the evidence, and we may reverse the IJ’s findings only if “the record demonstrates that any reasonable adjudi cator would be compelled to conclude to the contrary.” Id. (quotations omitted); see also 8 U.S.C. § 1252(b)(4)(B). In their opening brief, petitioners state that theydo not dispute the IJ’s credibility findings. Instead, they point to the v olume of evidence showing that they received repeated threats when they began inve stigating Carlos’ death, that the threats had a detrimental effect on Maria, and that members of the FARC routinely harass, torture, and kill people and cond uct raids similar to the one on Venecia. Petitioners argue that this evidence esta blishes that Maria was persecuted by the FARC and that she has a well-foun ded fear of being persecuted by them in the future if she returns to Colombia. But petitioners do not address-11-

the IJ’s determination that they failed to demonstr ate a well-founded fear of persecution on account of their political beliefs or their membership in a particular social group. To show persecution on account of their political o pinions, petitioners had to show that they held political opinions of which their persecutors were aware, that they had been persecuted or had a well-foundedfear of future persecution, and that the persecution had been or would be becau se of their political opinion. See Sangha v. INS , 103 F.3d 1482, 1487 (9th Cir. 1997). The persecution had to derive from petitioners’ own political beliefs, not those of their persecutors, INS v. Elias-Zacarias , 502 U.S. 478, 482 (1992), and petitioners had to show “something more than violence plus disparity of views,” Sangha , 103 F.3d at 1487. In their opening brief, however, petition ers make little attempt to show that the IJ erred in finding no past or future pers ecution on account of their political beliefs, and they fall far short of showi ng that a reasonable factfinder would be compelled to conclude to the contrary. Petitioners’ failing is even greater with respect t o their claim of persecution on account of their membership in a particular soci al group. Even if “successful business people” qualified as the kind of social gr oup to which the INA was meant to give refuge, a matter we need not decide, see Castellano-Chacon v. INS , 341 F.3d 533, 546-48 (6th Cir. 2003) (discussing ho w agency and circuits have-12-

defined concept of particular social group), petiti oners point to no evidence that they were persecuted, or that they have a well-foun ded fear of future persecution, on account of their membership in that group. Under our deferential standard of review, we must a ffirm the denial of petitioners’ asylum claim. The petition for review is therefore DENIED.

Entered for the Court

Mary Beck Briscoe Circuit Judge