United States Court of Appeals
For the First Circuit
No. 05-2736
ALVARO SALIM SILVA,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.
Kathleen M. Gillespie and Law Offices of Jeffrey B. Rubin,
P.C. on brief for petitioner.
I. Glenn Cohen, Attorney, Appellate Staff, Civil Division,
United States Department of Justice, Peter D. Keisler, Assistant
Attorney General, and Thomas M. Bondy, Attorney, Appellate Staff,
Civil Division, United States Department of Justice, on brief for
respondent.
September 15, 2006
LYNCH, Circuit Judge. The petitioner, Alvaro Salim
Silva, a native and citizen of Colombia, seeks review of the denial
of his application for asylum and withholding of removal. An
Immigration Judge (IJ) found Silva's application for asylum
pretermitted, and also concluded that Silva failed to carry the
burden of proof with respect to his withholding of removal claim.
The Board of Immigration Appeals (BIA) adopted and affirmed the
IJ's decision. We affirm the BIA and deny the petition for review.
I.
Silva lawfully entered the United States on February 7,
2000. As a non-immigrant F-1 student, he was authorized to remain
for the duration of his status. However, starting on or about
December 23, 2000, Silva stopped attending Massachusetts Bay
Community College.
On February 12, 2002, Silva filed an application for
asylum and withholding of removal. In his application, Silva
described various incidents of intimidation in his home country of
Colombia. Silva recounted how, in August 1997, the guerrilla
organization known as the Revolutionary Armed Forces of Colombia
(FARC) bombed one of his family's properties in retaliation for
their political views. He also noted how his support of a "youth
group" whose "purpose was to orientate and guide . . . kids"
angered the FARC because it made it difficult for the guerrillas to
recruit new members. According to Silva, in June 1998, a FARC
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commandant visited the family hacienda in Cumaral and spoke with
the foreman about the family's political activities, suggesting
that the family should leave the country. The family at that point
moved to Bogota "to protect [their] lives." Silva reported that in
September of the same year, the FARC paid another visit to the
hacienda, this time to express displeasure at the Silvas' failure
to leave Colombia. The next day, five dead cows were found on the
farm with the initials of the FARC written over the animals'
carcasses. After this incident, Silva's parents asked Silva and
the older of his two sisters to move to the United States, and on
September 9, 1998, they did so.
In December 1999, Silva returned to Colombia, hoping that
a recent "peace amnesty" had changed the situation there. However,
Silva noted that guerrillas "tried to take over [his] town" on
January 10, 2000, and that this prompted his final return to the
United States on February 7, 2000. In his asylum application,
Silva conceded that he was filing more than one year after his last
entry into the United States, but he explained that he "didn't know
about the regulation of the law about this matter."
On October 23, 2002, the Immigration and Naturalization
Service (INS)1 initiated removal proceedings against Silva for
1
On March 1, 2003, the functions of the INS were
transferred to the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, § 471(a), 116 Stat.
2135, 2205 (codified at 6 U.S.C. § 291(a)).
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failing to maintain his non-immigrant F-1 student status. Silva
admitted the factual allegations in the government's amended Notice
to Appear. He also applied for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT), or, in the
alternative, voluntary departure.
At the removal hearing on July 9, 2004, Silva testified
to many of the same incidents listed in his original application
for asylum. When asked why he waited just over two years after
last entering the United States to apply for asylum, Silva stated,
"I never thought that I was going to end up staying here. Things
got worse and worse and that was my only choice." Silva further
explained: "[P]eople [are] getting killed by[] the guerrillas all
over the place. They are all over the country. You do not know
where they actually are. They can just come out, out of the blue,
and kill you for no reason." Silva's brother also testified at the
hearing as to the events of June 1998.
In an oral opinion, the IJ denied Silva's application for
asylum on grounds that he had failed to apply for asylum within one
year after the date of his arrival in the United States, and had
failed to establish either changed or extraordinary circumstances.
The IJ next rejected Silva's application for withholding of
removal, finding that Silva had not suffered persecution in
Colombia, and noting in passing that the hearsay testimony about
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the five slain cows2 was "the kind of thing that could be
substantiated by photographs if it had occurred." The IJ also
denied the request for relief under the CAT, observing that Silva
had not established fear of torture by, at the instigation of, or
with the acquiescence of Colombian officials. The IJ did, however,
grant Silva's application for voluntary departure.
Silva timely appealed the denial of his asylum and
withholding of removal claims.3 The BIA adopted and affirmed the
IJ's decision, noting briefly that Silva's "failure to produce
photographic evidence . . . [was] not, in itself, fatal to his
claim," but ultimately agreeing with the IJ that Silva failed to
meet his burden of proof for withholding of removal. Silva timely
petitioned for review by this court.
II.
Silva raises three claims on appeal. First, he argues
that the IJ erred in finding his asylum application pretermitted.
Second, he argues that the IJ erred in finding that he did not
suffer past persecution. Third, he argues that the IJ violated his
due process rights by requiring photographic evidence to
corroborate his testimony. We address each claim in turn.
2
At the hearing, Silva testified that he did not see the
cows himself. The foreman had called Silva's father to report the
news.
3
Silva did not appeal the IJ's denial of relief under the
CAT.
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A. Asylum
In order to qualify for asylum, an applicant must
establish that he is a "refugee." See 8 U.S.C. § 1158(b)(1)(A);
8 C.F.R. § 1208.13(a). A refugee is someone who is unable or
unwilling to return to his home country due to persecution or a
well-founded fear of future persecution "on account of race,
religion, nationality, membership in a particular social group, or
political opinion." 8 U.S.C. § 1101(a)(42)(A); see also Rodriguez-
Ramirez v. Ashcroft, 398 F.3d 120, 124 (1st Cir. 2005).
Furthermore, an alien must "demonstrate[] by clear and
convincing evidence that the application [was] filed within 1 year
after the date of the alien's arrival in the United States."
8 U.S.C. § 1158(a)(2)(B). If the one-year filing deadline is not
satisfied, "the government may consider an application only if 'the
alien demonstrates to the satisfaction of the Attorney General
either the existence of changed circumstances which materially
affect the applicant's eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application.'"
Sharari v. Gonzáles, 407 F.3d 467, 472 (1st Cir. 2005) (quoting
8 U.S.C. § 1158(a)(2)(D)).
Silva did not file his application for asylum until
February 12, 2002, more than two years after his last entry into
the United States on February 7, 2000. Silva does not dispute this
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fact, but rather argues that changed circumstances excuse his late
filing.
Fatal to Silva's argument, however, is our lack of
jurisdiction to review determinations of this nature. 8 U.S.C.
§ 1158(a)(3) states that "[n]o court shall have jurisdiction to
review any determination of the Attorney General under paragraph
(2)." Paragraph (2) of § 1158(a), in turn, addresses both the
timeliness of asylum applications and the existence of changed or
extraordinary circumstances that may excuse failures to file within
one year. Id. § 1158(a)(2); see also Sharari, 407 F.3d at 473;
Njenga v. Ashcroft, 386 F.3d 335, 339 (1st Cir. 2004); Haoud v.
Ashcroft, 350 F.3d 201, 204-05 (1st Cir. 2003). Here, the IJ found
that Silva's asylum application was untimely; he also found that
Silva failed to demonstrate changed circumstances. Because these
determinations fall within the ambit of 8 U.S.C. § 1158(a)(2), we
have no jurisdiction to review the matter.
B. Past Persecution
To obtain withholding of removal, an applicant must prove
that upon return to his home country, "he is more likely than not
to face persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion."
See Salazar v. Ashcroft, 359 F.3d 45, 52 (1st Cir. 2004) (emphasis
omitted). We have previously stated that "persecution encompasses
more than threats to life or freedom, but less than mere harassment
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or annoyance." Aguilar-Solis v. INS, 168 F.3d 565, 570 (1st Cir.
1999) (citations omitted).
Silva argues that the IJ erred in finding no past
persecution. We review factual findings and credibility
determinations under the deferential substantial evidence standard
of review. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Singh
v. Gonzales, 413 F.3d 156, 159 (1st Cir. 2005). We must uphold the
BIA's decision "unless any reasonable adjudicator would be
compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
However, we may review a final order of the BIA only if
"the alien has exhausted all administrative remedies available to
the alien as of right." Id. § 1252(d)(1). Under the exhaustion of
remedies doctrine, theories insufficiently developed before the BIA
may not be raised before this court. See Olujoke v. Gonzáles, 411
F.3d 16, 22-23 (1st Cir. 2005); Makhoul v. Ashcroft, 387 F.3d 75,
80 (1st Cir. 2004). Silva is barred from advancing his past
persecution claim. Although he included in his BIA appeal a
heading titled, "The IJ erred in finding that respondent had not
suffered past persecution in Colombia," Silva failed to put forward
a developed argument along these lines. Instead, he focused the
BIA's attention on the IJ's statement that the testimony about the
five slain cows could have been corroborated with photographic
evidence. Silva's narrow argument in his appeal to the BIA is not
sufficient to allow a broader inquiry now into the IJ's factual
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determination that Silva did not suffer past persecution. In any
event, even if we were to reach the merits of Silva's claim, he
would not prevail under the substantial evidence standard of
review.
C. Due Process
Silva argues that his due process rights were violated
because the IJ placed "unreasonable demands" on him to "corroborate
particular experiences." In essence, Silva reasserts his claim
that the IJ erroneously discounted testimony about the five cows
killed on his family's hacienda.
Again, we review factual findings and credibility
determinations under the substantial evidence test. See Elias-
Zacarias, 502 U.S. at 481; Singh, 413 F.3d at 159. With respect to
the slain cows, the IJ stated that Silva's and his brother's
testimony was "unconvincing" because it was "based upon the
statement of a FARC guerrilla to a foreman of [Silva's] father's
ranch, the statement then of the foreman of the ranch to the
respondent's father and then the statement of [Silva's] father to
[Silva]." The IJ noted that, although hearsay evidence is
admissible in immigration hearings, "this sort of triple hearsay
evidence is not very probative and is unreliable." Furthermore,
the IJ observed that Silva's father, mother, and younger sister all
continued to live unharmed on the family's properties in Colombia.
The IJ also thought it was curious that Silva claimed to be afraid
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to return to Colombia ever since his last entry into the United
States on February 7, 2000, even though his older sister, who was
subject to similar treatment by the FARC, "returned to Colombia in
November of 2000 and then again at some point in time in 2001
according to the testimony of [Silva's] brother."
Based on these observations, the IJ discounted the
testimony regarding the slain cows and ultimately did not find that
Silva had suffered persecution in Colombia. The BIA affirmed this
decision, noting that even without considering the absence of
photographic evidence, Silva failed to meet his burden of proof.
We cannot say that "any reasonable adjudicator would be compelled
to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also
Rodriguez-Ramirez, 398 F.3d at 123.
The petition for review is denied.
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