[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-10182
September 26, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency No. A95-264-583
LUCIO SILVA-SIEGER,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 26, 2005)
Before CARNES, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Lucio Silva-Sieger (“Silva”), a Colombian national proceeding through
counsel, petitions for review of the Board of Immigration Appeals’s (“BIA”)
affirming an Immigration Judge’s (“IJ”) order of removal and denial of his asylum
and withholding of removal claims. He argues that his due process rights were
violated and that substantial evidence supported his asylum claim based on past
persecution and well-founded fear of future persecution on account of his political
opinion. For the reasons set forth more fully below, we deny Silva’s petition.
According to his notice to appear, Silva entered the United States on May
20, 2000, as a non-immigrant visitor for pleasure with authorization to stay until
October 15, 2001, and was charged with removability under INA § 237(a)(1)(B), 8
U.S.C. § 1227(a)(1)(B), for being present in the United States for a longer time
than permitted. On May 31, 2002, Silva filed an application for asylum and
withholding of removal, alleging persecution on account of his political opinion,
religion, and membership in a particular social group. Silva stated that he feared
returning to Colombia because he believed that he would be harmed by “the
guerilla” or groups at the margins of the law for not sharing their ideology. He
indicated that he had been a member of the “Liberal Party” since January 1999, and
that his sister continued to participate in Liberal Party activism. Silva admitted that
his application for asylum was filed more than one year after his arrival in the
United States and explained that he was filing late “because of the radical changes
in human rights and country conditions in Colombia.”
Silva also submitted an addendum to his application stating the following.
Silva was born in Bucaramanga and, after his parents separated, lived with his
2
father and step-mother in Cucuta. After high school, his family moved back to
Bucaramanga, and two years later, Silva moved to Bogota to attend college. While
visiting his family on vacation to Bucaramanga, Silva became involved with the
“Tibet Movement” of the Liberal Party, participating in political campaigns and
community service. Beginning in July 1999, Silva began to receive threats from
the FARC 1 telling him not to visit his family ranch, but he ignored the threats and
continued to be active with the Liberal Party in Bucamaranga. Silva continued
receiving threats, through phone calls to his house or sent through employees of
the farm (ranch), until he was warned that, if he continued collaborating with the
Liberal Party, he would be assassinated like three of his uncles. These threats led
Silva to abandon his activities with the Party, but the threats continued, causing
him to flee to the United States. In August 2000, another uncle was assassinated.
Also submitted were several death certificates, all issued on April 16, 2002,
the first in the name of Gonzalo Martinez, whose cause of death was a cerebral
laceration on September 21, 1986. A second death certificate was included for
Jose Antonio Martinez, whose cause of death was cardiopulmonary stroke on
January 22, 1991. Third, a death certificate for Gustavo Martinez was included,
indicating that Martinez died of cardiopulmonary stroke/severe cerebral shock on
November 6, 1992. Finally, Victor Martinez was killed on August 21, 2000, due to
1
Revolutionary Armed Forces of Colombia
3
“violent death.”
The record also included the State Department’s Colombia Country Report
on Human Rights Practices for 2001. In it, the FARC and several other guerilla
movements are described as commanding an estimated total of 21,645 full-time
guerillas, operating in more than 100 semi-autonomous groups that took action in
nearly 1,000 of Colombia’s 1,097 municipalities. All of these groups, including
FARC, attack citizens through killings, forced disappearances, mutilation of
bodies, attacks on churches, attacks on hospitals, attacks on ambulances, and
executions of patients in hospitals. While the FARC’s activities tend to target
police officers, the military, and civilians at large, the report indicated that guerilla
groups, including the FARC, were responsible for 458 political killings from June
2000 to June 2001.
The FARC’s tactics also include kidnaping, tortures, and the forced
recruitment of children as young as 10 years old. The Colombian government did
report, however, capturing three times as many paramilitaries in 2001 as compared
to 2000, although these guerilla and paramilitary groups clearly remain a grave
threat to security.
The 1997 State Department “Colombia Profile of Asylum Claims & Country
Condition” reported that “[t]hose fleeing guerrilla or police/military harassment or
threats in conflictive zones usually are able to find peaceful residence elsewhere in
4
the country.” Moreover, that same report indicated that guerrilla movements are
fragmented, with little organized cooperation among the groups, making internal
relocation a viable option for many candidates.
Silva also supplemented the record with a letter from Tiberio Villareal
Ramos, director of the “Tiberista Movement,” stating that, due to Silva’s
participation in campaigns, Silva had some conflicts with paramilitaries and
guerillas, forcing him to leave the country. Another letter, purporting to be from
his mother, Emely Martinez Cardozo, declared that, as of July 11, 2003, she
received phone threats against her son, Silva, who worked in the Liberal Party and
that, two years earlier, her brother, Victor Martinez Cardozo, had been removed
from a farm by an unknown group and assassinated.
Silva admitted to the allegations and conceded the charge of removability.
At his hearing, Silva argued that his application was filed late because he initially
came to the United States for a “wait and see” period, but after threats continued
and his uncle was killed, he became convinced that he would never be safe in
Colombia. He admitted, however, that he came to the United States on May 20,
2000, and his uncle was killed in August 2000, but his application was not filed
until nearly two years later, on April 3, 2002. He further argued that he received
an extension of his visa for six months, and that the regulations and/or law stated
that periods of time while a person is present and validly in the United States do
5
not count toward the filing deadline. Silva testified that he was waiting for the
situation to get better in Colombia, and then became ill, requiring hospitalization in
March 2002.
Prior to coming to the United States, Silva lived between Bogota and
Bucaramanga in Colombia, alternating time between living with his mother in
Bogota, and with his father and step-mother in Bucaramanga. Silva worked at a
bank and a hotel and received a degree in financial administration in 1997. In
1995, Silva joined the “Tiverista Movement,”led by Tiberio Villareal and affiliated
with the Liberal Party. Silva worked on political campaigns and social health
issues financed by the Tiverista Movement. Silva explained that, while in
Bucamaranga, he attended meetings to plan strategies for political candidates.
When there were no pending political campaigns, the meetings would focus on
social work and health. During one campaign for a Liberal candidate, Silva
publicized the candidate by distributing pieces of paper with the candidate’s name.
In 1997, Silva again helped a political candidate in his reelection campaign for a
local “state assembly” position. Silva’s involvement with the Liberal Party
continued until November 1999.
When asked why he joined the Liberal Party, Silva explained that he was
against allowing groups “outside the law” from taking power and was for the
6
spread of democracy. Specifically, he was against the FARC, ELN,2 and the
paramilitary. Silva then testified that, on July 4, 1999, while he was at his father’s
home, he received a threat communicated by telephone. Silva was not home at the
time of the call, and his father received the call, in which someone said that, if
Silva continued to work with Liberal movement, he would be kidnaped and killed.
Silva was in Bogota with his mother at the time, and his father called to inform him
of the threat, which made Silva afraid because three of his uncles had previously
been assassinated.
When asked to explain the deaths of his uncles, Silva testified that the first
one killed was Gonzalo Martinez who, in September 1986, was killed by the
FARC after he received threats. The next uncle, Jose Martinez, was assassinated in
January 1991 by the FARC, apparently for speaking out against the “guerillas” to
his students. The third uncle, Gustavo Martinez, was killed in November 1992
after being kidnaped and tortured. Gustavo was found with a bullet through his
head and he had been castrated, had his fingernails removed, and had his eyes
pulled out. After receiving the threatening phone call, Silva informed his leader
(Villareal) and continued to engage in political activity. Villareal told him to wait
and see if the threats became stronger.
In August 1999, Silva received a second threatening phone call, again at his
2
National Liberation Army
7
father’s home in Bucaramanga, telling him to abandon the Liberal Party or risk
being killed. He testified that he became afraid because he felt that he could not do
what he wanted to do and thought the “guerillas” would kill him. Silva told
Villareal about the call, and he told Silva to reduce the amount of his political
activity. Silva did not, however, tell the police about the calls because he did not
have a name and “the police in Colombia just [don’t] do anything.” Silva received
another threat in October 1999, this time communicated to him through a farm
worker, who called Silva’s father to inform him that the FARC had been at the
farm and threatened to kill Silva if he did not cease his Liberal Party activities.
The threat was made in Bucamaranga, but Silva was in Bogota at the time.
In November 1999, Silva traveled to Bucamaranga, discussed the threats
with his father, brothers, and step-mother, and decided to withdraw from political
activity altogether. Silva then returned to Bogota to live with his mother, where he
received no threats. His father, however, continued to receive one phone call from
the FARC per month in Bucamaranga, telling his father that they knew where Silva
was and wanted to ensure that Silva did not return to the Liberal Party. Eventually,
Silva decided to leave Colombia because he did not feel safe, and was concerned
that the FARC had been able to locate him in Bogota.
Silva feared being returned to Colombia because he believed that the FARC
would kill him. He testified that his father has continued to receive calls from the
8
FARC even though Silva has been in the United States, and that in August 2000,
another uncle, Victor Martinez, was killed by the FARC after receiving and
ignoring threats. Silva then testified that he had decided to file his application
before his visa expired, near the end of October 2001.
On cross-examination, Silva testified that he received his Colombian
passport in January 1996, and at that time, planned on traveling to Ecuador and
through South America. Silva also traveled to Bolivia, Peru. Silva returned to
Ecuador several times in 1997, and testified that he had friends there. In 1998, he
traveled to Argentina, and also spent brief amounts of time in Chile, Paraguay,
Uruguay, and Brazil. Silva obtained his visa to come to the United States in 1998
while traveling in Ecuador. After obtaining his visa, he traveled to Argentina,
Uruguay, and Paraguay before coming to the United States.
Silva then testified that he never received a phone call from the guerillas
while he was at his mother’s house in Bogota, nor had he been visited by guerillas
at his mother’s home there. Furthermore, he had never had a face-to-face
confrontation with the guerillas, the guerillas had never visited his father’s home in
Bucamaranga, and the telephone number at his father’s home was never changed.
No physical harm was inflicted on Silva by guerillas. Silva was aware that
Colombia had a national police, an army, an Administrative Department of
Security, and an anti-kidnaping force called Gaula, none of which he contacted
9
regarding the threats. Silva further testified that he had never been arrested in
Colombia or anywhere else, never been interrogated or detained, and had never
been convicted of a crime.
With respect to his uncles, Silva never participated in any activities with
Gonzalo Martinez, who was a member of the Conservative, not Liberal Party. The
guerillas had asked Gonzalo for a war tax. He also had never participated in any
activities with his uncle, Jose Cardoza, who also had been requested to pay a war
tax. Silva clarified that he had not been politically active at the time his uncles
were assassinated, and then testified that his uncle Gustavo Cardoza was required
to pay a war tax as well. The same was true for his uncle Victor Martinez.
The IJ then questioned Silva regarding his relationship with his biological
mother, who abandoned Silva when he was three years old, but rekindled the
relationship when Silva turned 18. Silva was also questioned regarding how, if he
was living in Bogota from 1994-1999, he was able to frequently engage in political
activities in Bucamaranga, which was at least a 10-hour bus ride away. Silva
testified that, Monday through Friday, he lived and worked in Bogota, but would
travel to Bucamaranga on Friday nights and return in the early morning hours to
begin work back in Bogota on Monday or Tuesday. He said that he traveled a
minimum of once every 15 days, and sometimes every weekend if the movement
required it. When there were no political campaigns nearby, Silva would use his
10
weekends and vacation time to travel to different countries and to undertake “social
geared activities.”
In January 1999, Silva was not working, and received cash from the
“Tiverista Movement” in order to support himself. Silva was also asked about the
death certificates of his uncles which, despite Silva’s assertion that his uncles were
killed by bullets, listed such causes of death as “cerebral laceration.” Silva
explained that doctors in Colombia are pressured by guerilla members not to put
the actual causes of death. Jose Martinez’s death certificate listed cardiorespiratory
problems as the cause of death, but Silva explained that this was not true and a
doctor had informed Silva’s brother that “this is what I [had] to put in there.”
Gustavo Martinez’s death certificate, listing cardiopulmonary stroke and severe
cerebral shock was correct, although it did not list the “whole truth” because the
doctors feared becoming a target of the guerillas.
Next, the IJ challenged Silva to explain how it could accept these documents
as proof that Silva’s uncles were assassinated, and further asked why Silva had not
produced police reports, investigations, or news articles regarding the deaths of his
uncles and whether those deaths were attributable to the FARC. Silva’s response
was that “[e]verything in Colombia is based on the law of silence.” Silva was next
asked why he came to the United States instead of Ecuador, Brazil, Argentina,
Paraguay, or Uruguay, and he replied that he felt safer here. When presented with
11
his statement that he hadn’t originally come to the United States to seek asylum
and asked why he couldn’t “wait it out” in Ecuador or Argentina, Silva replied that
it was a known fact that the guerillas cross borders throughout countries in South
America.
Silva then argued that the time in which he needed to file his asylum
application should be tolled because of all the “disabilities” that occurred after his
arrival in the United States. Given all of extenuating circumstances, Silva argued
that his application was filed in a reasonable amount of time. The IJ responded
that the regulation on which Silva was purporting to rely dealt with claims of
ineffective assistance of counsel. In closing, Silva argued that his claim was one of
“imputed political opinion, perhaps direct political participation.” His objective
fear, he argued, was based on the threats he received as well as the fate of several
of his family members, who were killed in the same area in which he used to be
politically active. Finally, he requested that his health be taken into consideration.3
The government argued that Silva had not met his burden of showing past
persecution because several phone calls were insufficient proof. It argued that
there was not even evidence to suggest that his uncles had been killed by guerilla
members, as the death certificates contradicted Silva’s testimony. Silva was never
3
The record includes a letter from a “Dr. Campo,” indicating that Silva suffers from a
medical condition requiring extensive treatment.
12
harmed by any guerillas, and at no time did any guerilla member ever go to either
his mother’s home in Bogota or his father’s home in Bucaramanga. The
government also pointed out that Silva, upon arriving in the United States, did not
seek relief from INS because he was afraid, but chose instead to extend his visa to
remain a visitor. It further argued that Silva had never attempted to relocate and
traveled to numerous countries during the time in which Silva claimed to be
receiving threats and continued to return to Colombia. Finally, the government
argued that Silva’s family continues to live in the same area where his uncles were
supposed to have been assassinated, making Silva’s story implausible.
The IJ issued an oral decision and first determined that Silva’s application
for asylum should be overlooked because he failed to establish exceptional
circumstances to justify filing his application more than one year after his arrival in
the United States. It further rejected Silva’s argument that 8 C.F.R. § 208.4(a)(4)-
(5) applied to his case because Silva had not demonstrated ineffective assistance of
counsel as required. However, assuming that his application was timely, the IJ
found that Silva had failed to introduce sufficient evidence to show past
persecution or a well-founded fear of future persecution. If further found that “the
respondent’s testimony was not sufficiently detailed, consistent or believable.”
The IJ had “serious concerns with respect to the respondent’s credibility about the
means and manners of the deaths of [his] uncles,” in light of the inconsistency
13
between the death certificates and Silva’s testimony. Even if the uncles had been
killed by guerillas, the IJ found that there was no connection between Silva and his
uncles’ deaths because he had never engaged in any political activities with those
uncles and the reason for their killings might have been a refusal to pay a war tax,
which was not requested of Silva.
Furthermore, the IJ found that all of the threats, to the extent they occurred
(because of Silva is little, if any, corroborative evidence), all occurred in
Bucaramanga, Silva’s political activities were not significant, consisting of
meetings and distributing pamphlets, and did not present any testimony indicating
that the leader of the movement had suffered harm or been targeted for any form of
persecution or threats. It further found it implausible that, after Silva had
discontinued his political activities, he continued to receive threatening phone calls
at his father’s home. Next, the IJ found that Silva had failed to establish country-
wide persecution and that Silva testified that he had no calls or visits from guerillas
while living in Bogota and, therefore, could not understand why Silva could not
live outside the Bucamaranga area of Colombia. Because Silva could not meet his
burden for asylum, the IJ found that he could not meet his burden for withholding
of removal either. Finally, the IJ denied Silva CAT relief, but granted him
voluntary departure.
Silva appealed the decision to the BIA, arguing that the IJ improperly (1)
14
denied him withholding of removal; (2) determined that his asylum application was
not timely filed and that he did not meet an exception to the filing deadline; and (3)
found that he had not been persecuted. The BIA issued a per curiam opinion
dismissing Silva’s appeal. It found that, even if Silva’s application was timely
filed, Silva had failed to show past persecution. For the same reasons as the IJ, it
found that Silva had failed to show that internal location was unreasonable given
the location of the threats and the level of his political involvement. Therefore,
Silva failed to meet his burden for either asylum or withholding of removal. Silva
filed a motion to reconsider arguing, inter alia, that the BIA had failed to address
the IJ’s errors regarding the one-year filing deadline, which the BIA denied. No
petition for review was filed for that decision.
We will review only the Board's decision, except to the extent that it
expressly adopts the IJ's opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001) (citation omitted). Insofar as the Board adopts the IJ's reasoning, we
will review the IJ's decision as well. Id. (citation omitted).
I. Silva’s Due Process Claim
On appeal, Silva first argues that the BIA violated his due process rights by
failing to correct the IJ’s misstatement of law regarding exceptional circumstances
sufficient to justify filing a late asylum application. In particular, he challenges the
IJ’s determination that, in order to show extraordinary circumstances, Silva had to
15
show ineffective assistance of counsel. He further argues that the IJ’s error
prejudiced Silva’s case because the IJ assumed early in the proceedings that Silva’s
asylum application would be denied. Next, Silva argues that his due process rights
were violated because the BIA’s opinion was not reasoned and amounted to a
single-member “rubber stamp” of the IJ’s decision. He also argues that his appeal
should have been assigned to a three-judge panel of the BIA.
We conclude that Silva’s due process argument is without merit. We review
constitutional challenges de novo. Lonyem v. U.S. Attorney Gen., 352 F.3d 1338,
1341 (11th Cir. 2003). “To establish due process violations in removal
proceedings, aliens must show that they were deprived of liberty without due
process of law, and that the asserted errors caused them substantial prejudice.” Id.
at 1341-42. With respect to Silva’s first argument, the gravamen of his complaint
is that the BIA’s opinion was unreasoned and amounted to affirmance without an
opinion in violation of his due process rights. First, Silva mischaracterizes the
BIA’s opinion, which was not an affirmance without opinion. See 8 C.F.R.
1003.1(e)(4)(ii) (describing the procedure for issuing an affirmance without
opinion). Second, for the reasons discussed more fully in part II of this opinion,
even if Silva had proven a due process violation, we conclude that he cannot show
substantial prejudice because, as both the BIA and the IJ found, even if Silva’s
application had been timely filed, he still could not meet his burden of proving he
16
qualified for asylum.
Lastly, to the extent that Silva argues that the BIA merely “rubber-stamped”
the IJ’s decision and that the case was improper for a single BIA member to affirm,
the argument is without merit. Pursuant to 8 C.F.R. § 1003.1(e)(5), if a “Board
member to whom an appeal is assigned determines, upon consideration of the
merits, that the decision is not appropriate for affirmance without opinion, the
Board member shall issue a brief order affirming, modifying, or remanding the
decision . . . unless the Board member designates the case for decision by a three-
member panel.” 8 C.F.R. § 1003.1(e)(5). A case may only be assigned to a three-
member panel if the case presents one of the circumstances listed in 8 C.F.R. §§
1003.1(e)(6)(i)-(vi). Silva purports to rely on §§ 1003.1(e)(6)(iv)-(v), which
permits a three-member panel to review cases raising issues of either national
import or the need to review a clearly erroneous factual determination by an
immigration judge. See 8 C.F.R. §§ 1003.1(e)(6)(iv), (v). However, for the
reasons set forth below, in part II, the IJ’s factual findings were not clearly
erroneous, and Silva fails to demonstrate the national importance of his case.
II. Whether Substantial Evidence Supported Silva’s Asylum Claim
Silva argues that he provided evidence of both past persecution and a well-
founded fear of future persecution and his application for asylum and withholding
17
of removal should have been granted.4
To the extent that the IJ’s decision was based on a legal determination,
review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001). The IJ’s factual determinations are reviewed under the substantial evidence
test, and 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 (citation omitted). Thus, factual determinations “may
be reversed by this court 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 of the administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022,
1026 (11th Cir. 2004).
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of Homeland
Security or the Attorney General has discretion to grant asylum if the alien meets
the INA’s definition of a “refugee.” See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1).5
A “refugee” is:
4
Silva does not raise any challenge in his brief to the denial of relief under the CAT and,
thus, that issue is deemed abandoned. Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1228,
n.2 (11th Cir. 2005).
5
Pursuant to the REAL ID Act of 2005, INA § 208(b)(1), 8 U.S.C. § 1158(b)(1), was
amended to add “The Secretary of Homeland Security or the Attorney General” as if enacted on
March 1, 2003. See Pub. L. 109-13, 119 Stat 231 (May 11, 2005), Division B, Sec. 101, 8
U.S.C. § 1158(b)(1) and note (1).
18
[A]ny person who is outside any country of such person’s nationality
or, in the case of a person having no nationality, is outside any
country in which such person last habitually resided, 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. . . .
8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving
statutory “refugee” status. See 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, in this case group membership, will cause such
future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. The
INA does not expressly define “persecution” for purposes of qualifying as a
“refugee.” See INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). However, we have
discussed other circuits’ holdings that “persecution” is an “extreme concept,”
requiring more than “a few isolated incidents of verbal harassment or
intimidation,” or “[m]ere harassment.” Sepulveda v. U.S. Attorney Gen., 401 F.3d
1226, 1231 (11th Cir. 2005). “[A]n applicant must demonstrate that his or her fear
of persecution is subjectively genuine and objectively reasonable.” Al Najjar, 257
F.3d at 1289.
A showing of past persecution creates a presumption of a “well-founded
19
fear,” subject to rebuttal by the INS. 8 C.F.R. § 208.13(b)(1). A “well-founded
fear” of persecution may also be established by showing a reasonable possibility of
personal persecution that cannot be avoided by relocating within the subject
country. 8 C.F.R. § 208.13(b)(2)(i) & (ii). It is “well-established” that the well-
founded fear inquiry contains both an objective and subjective component, i.e., the
petitioner must be genuinely afraid and that fear must be objectively reasonable.
Al Najjar, 257 F.3d at 1289. Furthermore, it is the petitioner’s burden to present
“specific, detailed facts showing a good reason to fear that he or she will be singled
out for persecution.” Id. at 1287 (quotation and citation omitted).
We have further stated that “where the alleged persecutors are not affiliated
with the government, it is not unreasonable to require a refugee who has an internal
resettlement alternative in his own country to pursue that option before seeking
permanent resettlement in the United States, or at least to establish that such an
option is unavailable.” Mazariegos v. Office of U.S. Attorney General, 241 F.3d
1320, 1327 (11th Cir. 2001).
First, to the extent that Silva is arguing that his application for asylum was
filed within the one-year deadline or subject to an exception found in 8 C.F.R.
§ 208.4(a)(4)-(5), we lack jurisdiction to review that determination. See Fahim v.
U.S. Attorney Gen., 278 F.3d 1216, 1217 (11th Cir. 2002) (holding that federal
courts are without jurisdiction to review the Attorney General’s decision as to
20
timeliness of an asylum request); see also Vasile v. Gonzalez, No. 03-3337 (7th
Cir. Aug. 9, 2005) (persuasively holding that, even in light of the REAL ID Act’s
jurisdictional review provisions, the decision whether to extend the deadline for
filing asylum claims is discretionary and, therefore, not subject to review).
However, as the BIA and the IJ found, even were Silva’s application timely, he
could not meet his burden of proving he qualified for either asylum or withholding
of removal. Their decisions are supported by substantial evidence.
Silva’s own testimony indicated that he had never had any direct contact
with any guerillas. The only threats he received were phone calls to his father’s
home in Bucamaranga, and at no point was he ever visited or called in Bogota. A
handful of phone calls threatening Silva without more does not rise to the “extreme
concept” required to demonstrate past persecution. Persuasive authority from other
circuits indicates that “[t]hreats alone generally do not constitute actual
persecution; only rarely, when they are so immediate and menacing as to cause
significant suffering or harm in themselves, do threats per se qualify as
persecution.” Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2004); see also
Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869 n.6 (9th Cir. 2003); Boykov v.
I.N.S., 109 F.3d 413, 416 (7th Cir. 1997). Silva was never harmed, nor was he
ever personally confronted by anyone claiming to be a FARC member. We,
therefore, conclude that the record supports the BIA’s and IJ’s determination that
21
Silva failed to prove that he suffered past persecution.
As to a well-founded fear of future persecution, Silva’s testimony failed to
establish that his fear was objectively reasonable. Even when he was participating
in political activities, his activity was limited to low-profile activity such as
distributing papers with a candidate’s name on them. He had never been
personally confronted by the guerillas and, notably, there was no testimony
suggesting that the leader of the movement to which Silva was a member had been
threatened or otherwise harmed by anyone claiming to be a guerilla. Moreover,
Silva stopped participating in politics and, therefore, it would seem anomalous for
anyone to want to persecute him on the basis of his political activity once that
activity ceased. To the extent he relies on the deaths of his uncles, even if Silva
had properly proved that the deaths were the result of assassinations by guerillas,
Silva failed to demonstrate any connection between the political beliefs and
activities of those uncles and the activities of his own. Silva admitted not having
associated with the uncles in their political activities and, therefore, Silva lacked
any detailed, specific evidence to show he would be singled out for persecution
because his uncles were. Where the applicant’s testimony is weak, there is a
greater need for corroborative evidence. See Yang v. U.S. Attorney Gen., 03-
16068, manuscript op. at 6 (11th Cir. July 29, 2005), citing In re Y-B-, 21 I&N
Dec., 1136, 1139 (BIA 1998).
22
Finally, Silva failed to demonstrate that internal relocation was not an
available option. His own testimony established that he was never contacted in
Bogota, and that all of the threats occurred in Bucamaranga at his father’s home.
Thus, we conclude that the BIA’s and IJ’s conclusion, that Silva’s low-profile
political activity coupled with the localized nature of the threats made internal
relocation a reasonable option, is supported by substantial evidence in the record.
Lastly, an alien seeking withholding of removal under the INA must show
that his life or freedom would “more likely than not” be threatened upon return to
his country because of, among other things, his political opinion or membership in
a particular social group. See Mendoza v. U.S. Attorney Gen., 327 F.3d 1283,1287
(11th Cir. 2003); INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). This standard is more
stringent than the “well-founded fear” standard for asylum; thus, because Silva was
unable to meet the well-founded fear standard for asylum, he is unable to qualify
for withholding of removal.
In sum, we conclude that the BIA and IJ’s opinions finding that Silva was
unable to meet his burden of proof for asylum or withholding of removal are
supported by substantial evidence. We further conclude that Silva, to the extent he
even raised a due process claim, cannot show substantial prejudice and, therefore
his due process claim is meritless. Accordingly, we deny the petition.
PETITION DENIED.
23