Jose Antonio Silva v. U.S. Atty. General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13748 JUNE 29, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK

BIA Nos. A78-617-330 & A78-617-327

JOSE ANTONIO SILVA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

__________________________

Petition for Review of an Order of the
Board of Immigration Appeals
_________________________

(June 29, 2005)

Before TJOFLAT, DUBINA and CARNES, Circuit Judges.

PER CURIAM:
Jose Antonio Silva, a Columbian national, petitions this Court pro se for

review of the Board of Immigration Appeals’ decision denying his application for

asylum and withholding of removal. He also petitions us to review the BIA’s

denial of his motion to reconsider its decision. Because we conclude that the

BIA’s decision comported with the applicable law and is supported by substantial

evidence, we deny the petition.

In January 1999, Silva became a member of his neighborhood’s Community

Action Board. The Board supported youth sports programs and encouraged young

people not to join the guerillas. At board meetings, Silva, who was a member of

the Conservative Party, spoke out against the guerillas and in favor of human

rights. As soon as he joined the Community Action Board, he began receiving

threatening phone calls at his home in Bogota. The callers identified themselves

as members of the National Liberation Army (ELN), a guerilla organization. They

advised him to discontinue his membership with the Community Action Board and

the Conservative Party. Silva did not report the calls, which he described as

“constant[],” to the authorities, although he did change his phone number.

Later, Silva began speaking out against the “vacuna,” loosely translated as

“war tax,” which the guerillas collected from local businesses in order to fund

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their insurgency. Silva, who owned and operated two restaurants, was elected as

an “activist for the businessmen.” At this point, the calls from the ELN became

more frequent and more serious. Silva received death and kidnaping threats.

On January 8, 2000, Silva and his brother were kidnaped by the ELN while

driving from Bogota to Carmen de Jolilla. Armed members of the ELN

intercepted Silva’s car, blindfolded him and his brother, and drove them about

three hours into the mountains. The men then removed Silva and his brother from

the car, searched them, and confiscated their money and documents. They were

taken to a room where their blindfolds were removed and they were told to sleep.

In the morning, Silva met with a commander who asked him what type of political

activities he participated in and how to contact Silva’s family. The next day, Silva

was separated from his brother and told he would be taken “to the interior” six

hours away.

Silva testified that he was detained by the ELN for a total of thirty days. He

was not beaten, but he was often made to walk six or seven hours at night in the

mountains and was sometimes denied adequate food and water. In order to obtain

his release, Silva agreed to stop working with the Community Action Board and

the Conservative Party. He also promised to encourage local businesses to pay the

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vacuna and local youth to join the guerillas. His brother, who had been released

previously, also paid a ransom to secure Silva’s freedom.

After his release, Silva did not leave his house for three months. During

that time, he was not contacted by the ELN. After Silva returned to work,

however, he began receiving phone calls demanding that he honor his promise to

encourage businesses to pay the vacuna and youth to join the guerillas. At this

point, he decided to leave Columbia.

On August 15, 2000, Silva entered the United States as a nonimmigrant

visitor with permission to remain in the United States for six months. On

November 28, 2000, Silva applied for asylum, withholding of removal, and relief

under the Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment.1 On his application, Silva stated that he had been

persecuted by the ELN on account of his political opinion and activities. His

application reflected that, prior to coming to the United States, he had lived at the

same address in Bogota from 1995 until August 2000.

On September 11, 2002, the Immigration Judge held a hearing on Silva’s

application at which Silva was represented by counsel. At the conclusion of the

1
Silva filed these claims on behalf of himself, his wife, and his two minor children. The
claims of his wife and children were later severed from his claims and are not part of this appeal.

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hearing, the IJ rendered an oral decision denying the application and ordering

Silva to be removed to Columbia. Silva filed a pro se appeal with the BIA. On

January 2, 2004, the BIA entered a per curiam decision summarily adopting and

affirming the IJ’s decision.

On January 27, 2004, Silva filed a pro se motion asking the BIA to

reconsider its previous decision. In the motion, he reasserted his claims of

persecution. He also informed the BIA that his wife had divorced him and married

a lawful permanent resident of the United States, meaning that she and his children

would probably be allowed to stay here. Thus, his removal would cause him to be

separated from his minor children.

On June 29, 2004, the BIA vacated its January 2 decision in order to remove

the names of Silva’s wife and children from the caption. As it had done in its

January decision, the BIA again summarily adopted and affirmed the IJ’s decision.

The BIA also denied Silva’s motion to reconsider.

Silva then filed a pro se petition asking this Court to review the BIA’s

denial of his application for asylum and withholding of removal and its denial of

his motion to reconsider. He has not pursued his CAT claim on appeal.

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II.

We review the BIA’s legal determinations de novo. Mohammed v.

Ashcroft, 261 F.3d 1244, 1248 (11th Cir. 2001). We review the BIA’s factual

determinations under the substantial-evidence test, and we “must affirm the BIA’s

decision if it is supported by reasonable, substantial, and probative evidence on the

record considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283–84

(11th Cir. 2001) (internal quotation omitted). “When the BIA does not render its

own opinion but rather adopts the IJ’s opinion, then this court, in essence, reviews

the IJ’s decision.” D-Muhumed v. U.S. Attorney Gen., 388 F.3d 814, 818 (11th

Cir. 2004).

The substantial evidence test is “deferential” and does not allow us to “re-

weigh the evidence from scratch.” Mazariegos v. U.S. Attorney Gen., 241 F.3d

1320, 1323 (11th Cir. 2001) (internal quotations omitted). “To reverse the IJ’s

fact findings, we must find that the record not only supports reversal, but compels

it.” Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).

The Attorney General has discretion to grant asylum to an alien who meets

the statutory definition of “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is

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any 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). An asylum applicant carries the burden of proving

“refugee” status. 8 U.S.C. § 1158(b)(1)(B)(i). To establish a “well-founded fear

of persecution,” “an applicant must demonstrate that his or her fear of persecution

is subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289.

Silva argues that he is eligible for asylum because he was persecuted by

Colombian guerillas on account of his political opinion and activities.

Specifically, Silva claims he has suffered past persecution in the form of

threatening phone calls and abduction by the ELN. Silva claims the ELN

undertook these activities to dissuade him from his continued involvement in the

Community Action Board and the Conservative Party. Silva does not claim any

basis for a well-founded fear of future persecution apart from the alleged past

persecution he suffered.

Substantial evidence supports the IJ’s decision that Silva was not entitled to

asylum. It is not enough for an asylum applicant to show merely that he has a

political opinion. Instead, the applicant must show that he was persecuted because

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of that opinion. Immigration and Naturalization Serv. v. Elias-Zacarias, 502 U.S.

478, 483, 112 S. Ct. 812, 816 (1992). Silva did not show that he was persecuted,

or that he has a well-founded fear of future persecution, because of his political

opinion.

Although Silva claims he was abducted because of his political activities,

substantial evidence supports the IJ’s determination that the reason for the

abduction was not Silva’s political opinion but the possibility of extorting both

financial and other assistance from him. Silva testified before the IJ that the

commander of the band of guerillas who kidnaped him had asked him what

political activities he was involved in. This is information the commander already

would have possessed if Silva had been targeted for abduction because of his

political opinion.

Furthermore, at his immigration hearing, Silva introduced a copy of the

denunciation he had filed with the Columbian Security Administration after his

abduction. In the denunciation, he had answered questions before the Columbian

authorities “[u]nder the gravity of being under oath.” In the denunciation, Silva

had stated that his abductors had told him not to be frightened, that they wouldn’t

kill him, and that this was merely an “economic abduction.” Finally, in both the

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denunciation and in his testimony before the IJ, Silva admitted that his brother had

given money to his captors before he was released.

All of this constitutes substantial evidence to support the determination that

the ELN kidnaped Silva to further its own political objectives, not to punish him

for his political views. Persecution on account of the persecutor’s political

opinion is not a permissible basis for refugee status. Elias-Zacarias, 502 U.S. at

482, 112 S. Ct. at 816 (“The ordinary meaning of the phrase ‘persecution on

account of . . . political opinion’ in § 101(a)(42) is persecution on account of the

victim’s political opinion, not the persecutor’s.”). Though Silva has established

both that he held a political opinion and that he suffered persecution, the evidence

does not compel a finding that he was persecuted because of his political opinion.

Second, “the menacing telephone calls and threats . . . do not rise to the

level of past persecution that would compel reversal of the IJ’s decision.”

Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (per

curiam). “[V]erbal harassment or intimidation” is the type of “mere harassment”

that “does not amount to persecution.” Id. (internal marks and citations omitted).

Upon careful review of the record, we conclude that nothing in it compels

us to reverse the IJ’s determination. The IJ’s decision that Silva is not eligible for

asylum is supported by substantial evidence.

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B.

To qualify for withholding of removal, an alien must show that, if he

returned to his country, it is more likely than not that his life or freedom would be

threatened on account of race, religion, nationality, membership in a particular

social group, or political opinion. 8 U.S.C. § 1231(b)(3). An alien who is unable

to establish eligibility for asylum will also be unable to establish a claim for

withholding of removal because withholding of removal carries a higher

evidentiary burden. Al Najjar, 257 F.3d at 1293. Thus, because Silva’s

application for asylum fails, his claim for withholding of removal does too.

III.

Silva also argues that the BIA erred in denying his motion for

reconsideration. The motion was based on the same arguments asserted in his

appeal to the BIA and on the fact that his recent divorce would prevent him from

seeing his children if he were removed. We review the BIA’s denial of a motion

for reconsideration for an abuse of discretion. Assa’ad v. U.S. Attorney Gen., 332

F.3d 1321, 1341–42 (11th Cir. 2003).

We conclude that the BIA did not abuse its discretion in denying Silva’s

motion to reconsider. A motion for reconsideration “shall specify the errors of law

or fact in the previous order and shall be supported by pertinent authority.”

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8 U.S.C. § 1229a(c)(6)(C). Silva points to no such errors of law or fact in the

BIA’s opinion. The fact that he is now divorced and would be separated from his

children if removed does not mandate a ruling that he is eligible for asylum or

withholding of removal.

PETITION DENIED.