Cesar Augusto Cardona Toro v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4897
CESAR AUGUSTO CARDONA TORO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A096-257-420)
Immigration Judge: Honorable Eugene Pugliese
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 27, 2010
Before: AMBRO, CHAGARES and ALDISERT, Circuit Judges
(Opinion filed: March 23, 2010)
OPINION
PER CURIAM
Cesar Augusto Cardona Toro (“Cardona”) petitions for review of a decision by the

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Board of Immigration Appeals (“BIA”) rendered on December 8, 2008. For the reasons
that follow, we will deny the petition for review.
I. Background
Cardona is a native and citizen of Colombia. He entered the United States in
October 2002 and overstayed his visa. He was served with a Notice to Appear. In
August 2006, he conceded removability and applied for asylum, withholding of removal,
and protection under the Convention Against Torture (“CAT”), claiming he suffered past
persecution and fears future persecution and torture in Colombia on account of his
political opinion.
At his hearing before the Immigration Judge (“IJ”), Cardona testified to the
following: Cardona was an artist and art teacher in Colombia. In March 1999, he
displayed three paintings that were critical of Colombia’s revolutionary Armed Forces of
Colombia (“FARC”). A group of six men associated with the FARC entered the art
school, damaged the paintings, and threatened Cardona with a gun, stating that if Cardona
continued making such paintings, he “was going to die in the gutter” and they “would put
a bomb in the [art] school.” A.R. 135-36
The men returned several times and demanded payment of a “fine.” Although he
could have afforded it, Cardona refused to pay. During the last visit, one of the men hit
Cardona twice on the head with a gun and threw him to the ground. Shortly thereafter,

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Cardona also testified that, in November 1999, he was invited to paint a portrait for a1
church in another town. At the unveiling, Cardona heard shots and saw a man from the
FARC. Although someone was killed in the church shooting, Cardona was unharmed.
The IJ found that Cardona failed to demonstrate that this incident was directed at him.
Cardona has not offered anything to demonstrate that the finding is clearly erroneous.
Cardona did not appeal the IJ’s denial of his CAT claim to the BIA and he has not2
raised the issue in his petition for review. Accordingly, we conclude he has abandoned it.
3
Cardona left the art school and fled to his parent’s home in another city. Cardona1
became depressed. He went into hiding for nearly three years and eventually fled to the
United States in October 2002.
The IJ found that Cardona was not a credible witness because his first asylum
application omitted key details of his story, see A.R. 297-98, and because a report from
Cardona’s psychiatrist did not mention any fear of the FARC, see A.R. 215. The IJ also
concluded that even if Cardona had been credible, the events he described did not rise to
the level of persecution. In addition, the IJ concluded it was unlikely that the FARC was
still interested in Cardona because years had passed since the alleged acts of persecution.
Accordingly, the IJ denied relief.
Cardona appealed. The BIA concluded, inter alia, that the IJ’s adverse credibility2
findings were not clearly erroneous. In addition, the BIA affirmed the conclusion that,
even if he had been credible, Cardona failed to demonstrate past harm rising to the level
of persecution or a well-founded fear of future persecution. Although Cardona attempted
to present new evidence of country conditions in Colombia, the BIA declined to consider
the new evidence and also declined to remand the proceedings to the IJ for further

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To qualify for withholding of removal, Cardona was required to establish that his3
“life or freedom would be threatened” on the basis of the categories listed in the asylum
4
consideration. The BIA dismissed the appeal.
This timely counseled petition for review followed.
II. Analysis
We have jurisdiction to review final orders of removal pursuant to 8 U.S.C.
§ 1252(a)(1). We generally review only final orders of the BIA. See Li v. Att’y Gen.,
400 F.3d 157, 162 (3d Cir. 2005); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.
2001). However, where the BIA adopts the IJ’s reasoning and discusses the bases of the
IJ’s decision, we also review the IJ’s order. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.
2004). We review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 325 F.3d 396,
405 (3d Cir. 2003), and uphold factual determinations if they are “supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004). Ultimately, for Cardona to succeed
on his petition for review, this Court “must find that the evidence not only supports that
conclusion [that the application should have been granted], but compels it.” INS v. Elias-
Zacarias, 502 U.S. 478, 481 n.1 (1992) (emphasis in original).
To qualify for asylum, Cardona was required to establish that he is “unable or
unwilling to return to [Colombia] . . . 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. § 1101(a)(42)(A)]; INA3

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statute. INA § 241(b)(3)(A) [8 U.S.C. § 1231(b)(3)(A) ]. “To meet this test, the alien
must demonstrate that there is a greater-than-fifty-percent chance of persecution upon his
or her return.” Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998).
The IJ based his adverse credibility determination on certain differences between4
Cardona’s initial asylum application and his amended application. See A.R. 285-98
(initial application); A.R. 264-84 (amended application). The I.J. noted that the initial
application omitted significant details that appeared in the amended application. A.R. 98-
99. These “inconsistencies” served as the primary basis of the I.J.’s adverse credibility
determination. A.R. 99. However, the I.J.’s analysis downplayed a material difference
between the two applications. Cardona is a non-English speaker. While his initial
application was prepared with the help of his relatives, his amended application was
prepared with the assistance of counsel. Although the I.J. recognized that “an individual
can certainly do a better job with an attorney . . . than without an attorney,” he did not
adequately address the quality of the assistance that Cardona actually received from his
relatives. A.R. 98. Indeed, on its face, Cardona’s initial application is riddled with
grammatical errors that call into question the quality of this assistance. See e.g., A.R.
291, 297-98. Given this, we conclude that the alleged “inconsistencies” in Cardona’s
successive applications, by themselves, do not support an adverse credibility
determination. See Cao v. Att’y Gen., 407 F.3d 146, 160 (3d Cir. 2005) (“‘[A]n
applicant’s testimony is not per se lacking in credibility simply because it includes details
that are not set forth in the asylum application.’”) (quoting Lopez-Reyes v. INS, 79 F.3d
908, 911 (9th Cir. 1996)). Therefore, we reverse the I.J.’s adverse credibility
determination as unsupported by substantial evidence.
5
§ 208 [8 U.S.C. § 1158]. Here, the IJ denied relief on two independent grounds: (1) that
Cardona was not a credible witness; and (2) even if credible, Cardona did not establish
past persecution or a well-founded fear of future persecution. The BIA affirmed both
conclusions. Because it is dispositive of the petition for review, we will limit our primary
discussion to the holding that Cardona failed to establish past persecution or a well-
founded fear of future persecution.4
A.
Persecution encompasses “threats to life, confinement, torture, and economic

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restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12
F.3d 1233, 1240 (3d Cir. 1993). The most egregious acts of alleged persecution to which
Cardona testified were the FARC’s death threats against him, which were made at
gunpoint.
While such threats are abhorrent, they are not necessarily persecution. We have
held that not all forms of unfair, unjust, or even unlawful treatment qualify as persecution.
Id. Indeed, unfulfilled threats constitute persecution in only a very narrow set of
circumstances. In order to qualify, the threats must be of a highly imminent and
menacing nature. Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir. 2005). Even if made at
gunpoint, not all death threats are sufficiently imminent and menacing. See Gomez-
Zuluaga v. Att’y Gen., 527 F.3d 330, 342 (3d Cir. 2008) (incidents in which applicant
was “rounded up . . . at gunpoint,” without physical injury or robbery, were oblique and
not imminent and did not constitute persecution).
Here, the record reflects that Cardona did not suffer any serious physical injury and
the FARC members never made any real attempt to follow through with their threats. See
A.R. 156-57 (Hrg. Tr. at 35-36) (testifying that, although Cardona did not pay the “fine,”
the FARC never put a bomb in his art school as threatened). Generally, situations
involving threats with little or no accompanying physical harm do not rise to the level of
persecution. See Gomez-Zuluaga, 527 F.3d at 342; cf. Chavarria v. Gonzalesz, 446 F.3d
508, 518-20 (3d Cir. 2006) (incident in which applicant was robbed at gunpoint and

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threatened with death was sufficiently concrete and menacing to constitute persecution).
We are given some pause because, in addition to the death threats, Cardona
testified that the FARC members hit him with a gun and demanded a “fine.” These
additional incidents, of themselves, are not sufficiently extreme to qualify as persecution.
See Fatin, 12 F.3d at 1240. However, when considered together, these incidents at least
arguably increase the sense of imminence of the danger that Cardona faced when the
FARC members brandished guns and threatened his life.
On balance, we cannot conclude that these events compel the conclusion that
Cardona experienced harm rising to the level of persecution. See Elias-Zacarias, 502
U.S. at 481 n.1; Gomez-Zuluaga, 527 F.3d at 342 (threats coupled with relatively brief
detentions at gunpoint are not past persecution); Li, 400 F.3d at 165-70 (3d Cir. 2005)
(threats coupled with actual economic hardship are not past persecution). While the
FARC’s actions are reprehensible, we cannot say that they necessarily fall within the
“small category of cases” where the threats “are so menacing as to cause significant
actual suffering or harm.” Id. at 164. Accordingly, we conclude that the finding that
Cardona did not experience harm rising to the level of past persecution rests upon
substantial evidence.
B.
Because Cardona did not establish past persecution, he was not entitled to a
rebuttable presumption that his “life or freedom would be threatened in the future. . . .” 8

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Because we have accepted Cardona’s credibility for purposes of our analysis, we also5
accept that he established a subjective fear of future persecution. See Guo v. Ashcroft,
386 F.3d 556, 565 (3d Cir. 2004) (“A primary means of showing that fear is genuine is
with credible testimony.”). We therefore focus only on the requirement that Cardona had
to establish an objectively reasonable fear of future persecution. To prevail, Cardona was
required to show either that he would be individually singled out for persecution, or that
“there is a pattern or practice . . . of persecution of a group of persons similarly situated. .
. .” 8 C.F.R. § 208.13(b)(2)(iii)(A). Because Cardona never argued that there is a “pattern
or practice” of persecution of similarly-situated individuals in Colombia, we consider
only his individualized claim.
8
C.F.R. § 1208.16(b)(1)(i). Cardona therefore was required to demonstrate that he “has a
genuine fear, and that a reasonable person in [his] circumstances would fear persecution
if returned to [his] native country.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.
2003).
Although the FARC’s threats against Cardona do not constitute past persecution,
they are nevertheless relevant to whether Cardona has an objectively reasonable fear of
future persecution. Li, 400 F.3d at 165 n.3 (unfulfilled threats may be indicative of a
danger of future persecution). Even considering the threats, however, there is substantial
record evidence supporting the conclusion that a reasonable person in Cardona’s
circumstances would not fear future persecution in Colombia.5
According to Cardona, the FARC will continue to pursue him based exclusively
upon the events of the Spring of 1999, when he “defied them with my paintings and by
not giving them the money.” A.R. 144 (Hrg. Tr. at 23). The IJ doubted the
reasonableness of this fear because this isolated incident took place so many years ago:
“[t]he respondent has never had any political involvement that we are aware of prior to

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Cardona contends that his three years “in hiding” do not undermine his claim because6
the law “does not demand that a person become a hermit.” Cardona is correct that, under
certain circumstances, a need to go into hiding may support a persecution claim. See
Toure v. Att’y Gen., 443 F.3d 310, 319 (3d Cir. 2006). However, where going “into
hiding” merely means relocation to another part of the country to avoid persecution, this
may undermine the asylum claim. Id. at 319 n.3. Here, Cardona testified that he
relocated to his parents’ home and the FARC never made any attempt to find him there.
See A.R. 147-48 (Hrg. Tr. at 26-27). There is nothing to support his claim that he was
required to become a “hermit.” Based upon the record, we conclude that Cardona’s move
to his parents’ home is appropriately viewed as a relocation.
9
these two or three paintings that he painted, or since the two or three paintings.” See A.R.
97 (IJ Decision at 11). We agree. The record is devoid of evidence that Cardona
continues to be involved in any remotely political activity of concern to the FARC.
Indeed, Cardona himself testified that “if [the FARC] did not see any more paintings like
this, my life would be safe.” A.R. 149 (Hrg. Tr. at 28). He then went on to concede that
“I stopped making those paintings” after the 1999 incident. See id. Particularly in light
of this testimony, we see nothing in the record to demonstrate that the FARC would have
any continued interest in pursing Cardona.
In addition, the IJ found that the reasonableness of Cardona’s fear was undercut by
his testimony that he had not experienced any trouble with the FARC during the three
years he lived in Colombia prior to departing for the United States. Although Cardona
claimed to have been “hiding” during those years, he testified that he was living at his
parents’ home. A.R. 147 (Hrg. Tr. at 26). He acknowledged that the FARC never6
looked for him at his parents’ home and “they did not know that my family lived there.”
A.R. 148 (Hrg. Tr. at 27). Such testimony casts serious doubt upon Cardona’s testimony

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that he cannot live safely anywhere in Colombia because the FARC’s “computer system”
will be able to track and find him no matter where he lives. See A.R. 162 (Hrg. Tr. at 41).
Cardona argues that the IJ and BIA erred in denying his future persecution claim
because they “ignored” a 2006 State Department Report, which demonstrates that his fear
of the FARC is objectively reasonable. We disagree. Even if the IJ or BIA arguably
erred by failing to discuss the report in detail, the error was harmless. Reviewing the
record as a whole, Cardona failed to establish the objective reasonableness of his fear that
he would be individually singled out for future persecution by the FARC. There is
nothing in the State Department Report compelling a contrary conclusion.
C.
Cardona has moved to expand the record to include the 2008 State Department
Report on Country Conditions and Human Rights Practices for Colombia. The BIA did
not consider this report and it does not appear in the administrative record. Accordingly,
we may not consider it. See INA § 242(b)(4)(A) [8 U.S.C. § 1252(b)(4)(A)]; Berishaj v.
Ashcroft, 378 F.3d 314, 328 (3d Cir. 2004) (“It is a salutary principle of administrative
law review that the reviewing court act upon a closed record.”). While we have
specifically called upon the BIA to consider current country information where possible
so that we may avoid review of administrative records “so out-of-date as to verge on
meaningless,” we have not adopted the approach of considering reports if they were not
considered by the BIA in the first instance. See Berishaj, 378 F.3d at 331. Cardona’s

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motion is therefore denied.
III. Conclusion
In sum, we conclude that substantial evidence supports the denial of Cardona’s
asylum application. In addition, because “[t]he standard for withholding of removal is
higher than, albeit similar to, the standard for asylum. . . . If [Cardona] is unable to
satisfy the standard for asylum, he necessarily fails to meet the standard for withholding
of removal. . . .” Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003).
For all of the foregoing reasons, we will deny the petition for review.

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