Luz Marina Silva v. U.S. Attorney General

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 5, 2006
No. 04-10351 THOMAS K. KAHN
________________________ CLERK

BIA No. A79-344-105

LUZ MARINA SILVA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(May 5, 2006)

Before CARNES, HULL and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

The main issue presented in this petition is whether evidence, viewed in the

light most favorable to the fact findings of the Immigration Judge, that two
unknown persons for unknown reasons fired shots at the car of Luz Marina Silva, a

Colombian citizen, soon after she had received a single written threat about her

political activity and several threatening, but not political, telephone calls,

compelled the conclusion that Silva suffered past persecution or has a well-

founded fear of future persecution on account of her political opinion. Silva

applied for asylum and alleged that she was persecuted in Colombia by the

Revolutionary Armed Forces (FARC). Because Silva’s testimony at her asylum

hearing failed to establish that the threats she received were more than mere

harassment and she failed to establish that the shooting incident was based on her

political opinion, the record does not compel the conclusion that she suffered past

persecution or has a well-founded fear of future persecution. We deny Silva’s

petition.

I. BACKGROUND

Silva was admitted to the United States as a nonimmigrant visitor on March

8, 2000, and was authorized to remain in the United States until March 12, 2001.

One year later, just before she was scheduled to depart, Silva sought asylum. In

her application for asylum and withholding of removal, filed on March 5, 2001,

Silva contended that, because of her political activity, she was persecuted in

Colombia by the FARC, a Marxist paramilitary group. Silva stated in her

application that, while working on a political campaign in September 1999, she
2
received a written death threat that was signed by the FARC. The application

stated that, after Silva received the written death threat, the FARC started calling

her daily at her house and restaurant, and, on October 9, 1999, two men shot at her

car while she was driving and hit the rear window. Silva’s application stated that

after the shooting she decided to leave the country, which she did on March 8,

2000. The application also stated that the FARC continued calling Silva daily until

she left the country and that on the last call she was told that she was missed on

October 9 but would not be missed again. Relevant portions of Silva’s asylum

application are attached as Appendix A to the dissenting opinion.

The Immigration and Naturalization Service issued Silva a notice to appear

on May 30, 2001, and charged Silva with removability for remaining in the United

States for a longer time than permitted. See 8 U.S.C. § 1227. Silva appeared pro

se before Immigration Judge Pedro Miranda in August 2001 and was granted a

continuance to obtain an attorney. On February 26, 2002, Silva again appeared pro

se before Judge Miranda and admitted the facts alleged in the notice to appear. At

Silva’s request, Judge Miranda scheduled Silva’s removal hearing for September

16, 2002, to allow Silva time to prepare her case and locate an attorney. The

removal hearing was finally held on December 13, 2002. Silva appeared pro se

and stated that she had been unable to secure an attorney. Silva declined another

continuance and stated that she was prepared to represent herself. Silva was the
3
only witness at the hearing.

Silva testified that she had lived her entire life in Balta, Colombia, and she

and her family had always been politically active. Silva testified that, although her

family is known for its association with the Conservative party, she had

participated in the mayoral and presidential campaigns of Antanas Mockus, a

member of the Visionary party, since 1994. Silva worked for Mockus on a

successful campaign for mayor of Bogotá in 1994 and an unsuccessful bid for the

presidency in Colombia in 1997. Silva explained that the Visionary party drew its

members from both the traditional Conservative and Liberal parties.

During Mockus’s campaigns, Silva participated in “health brigades,” or

“help brigades,” which were groups of people that traveled into neighborhoods and

offered the residents of those neighborhoods health services to encourage support

of the Visionary Party. Silva stated that she spoke on behalf of Mockus to people

around her but never in front of an audience. Silva offered no evidence that she

was threatened in any way during her work with the Mockus campaigns in 1994

and 1997.

In June 1999, Silva came to the United States on a tourist visa. She stayed

for one month and then returned to Colombia. After her return to Colombia, Silva

again worked for Mockus in his second successful campaign for mayor of Bogotá.

In September 1999, while Silva was participating in one of the “health brigades,”
4
she was handed a “condolence note” that said “Luz Marina Silva rest in peace for

doing what she shouldn’t be doing in the wrong place.” Silva stated that the note,

which she neither reported to authorities nor kept, was signed by the FARC. Silva

stated that, after she received the “condolence note,” she received anonymous

telephone calls. On one occasion, an anonymous caller told Silva that she was a

target because her family “had always exploited the Colombian people.” Another

caller said Silva was a target because she, unlike other members of her family, did

not have a bodyguard. Silva did not testify that any of the calls mentioned her

politics.

On October 9, 1999, about three weeks after Silva received the “condolence

note,” two men on motorcycles followed Silva home from the restaurant she

owned, and during the trip, they fired gun shots into her car. The shots hit the back

window of Silva’s car, but she was not injured. That night, Silva received a

telephone call and the caller warned her not to report the shooting to the

Colombian authorities. The caller did not identify himself.

Although Silva first speculated that the FARC was responsible for the

shooting, Silva later admitted that she did not know who fired the shots or made

the phone call or why the shots were fired. Silva testified that the last time she

participated in politics was a few days before the October 9, 1999, shooting. Silva

testified that she had no further threats, calls, or other problems after October 9,
5
1999, until she came to the United States in November 1999.

Silva stayed in the United States from November 1999 until January 2000,

but did not seek asylum. Silva then chose to return to Colombia to visit a dying

relative. Silva testified that she “thought enough time had elapsed and that [she]

could go back, that things might be different.” After her return to Colombia, Silva

again began receiving anonymous telephone calls “daily,” in which the callers said,

in an apparent reference to the shooting of Silva’s car, “we missed already once,

don’t provoke us again” and “we are not going to miss a second time, we’re going

to kill you.” Silva speculated that by “provoke” the anonymous callers meant that

she should not be in Colombia or return to Colombia from the United States.

Silva did not testify that any of the new anonymous telephone calls

referenced her political activity, and there is no evidence that Silva engaged in any

political activity in 2000. Apart from the anonymous telephone calls, Silva did not

have any problems in Colombia after she returned. Silva did not report the calls in

2000 to the police. She testified that her cousin, who was secretary to Mockus,

also received anonymous telephone calls and that people in all of Colombia

received letters and telephone calls calculated to terrorize them. She speculated

that people get letters and phone calls if “the person that’s involved in some

political group or is the first time doing something that they are not in – that they

don’t want this person to do for whatever reasons.” Silva returned to the United
6
States in March 2000, about two months after she had returned to Colombia.

Silva’s hearing testimony is attached as Appendix B to the dissenting opinion.

In addition to Silva’s oral testimony and asylum application, the record

before the Immigration Judge contained Silva’s written application for asylum and

the 2000 Country Report on Human Rights Practices for Colombia. The Country

Report noted that, in 2000, the Colombian “Government continued to face serious

challenges to its control over the national territory, as longstanding and widespread

internal armed conflict and rampant violence—both political and

criminal—persisted.” The Country Report recounted multiple stories of

widespread violence and indiscriminate attacks against citizens, both military and

civilian.

Also part of the record was the Colombia-Profile of Asylum Claims and

Country Conditions, which states that “[t]he vast majority (perhaps as high as 90

percent) of asylum claims from Colombia are based on political grounds even in

cases where there is little evidence that the political views of the applicant are

related to the mistreatment alleged.” The Profile states, “often applicants express

uncertainty about the identity and/or motivation of their alleged abusers.” The

Profile concludes that “[b]ecause of the violent nature of the narcotics traffickers

and guerrillas whose activities and agenda are often influenced by the availability

of drug money, almost any abuse alleged by asylum applicants from Colombia
7
could have occurred or at least would not be inconsistent with the country

conditions.”

At the close of Silva’s testimony, the Immigration Judge found that Silva

had established neither that she had been persecuted in the past nor that she had a

well-founded fear of persecution on account of a protected ground if she returned

to Colombia. The Immigration Judge found that the threats Silva received could

not be classified as persecution. The Immigration Judge also found that, although

the shooting incident could be classified as persecution, Silva did not know who

shot at her or why. The Immigration Judge recognized that conditions in Colombia

were violent, but stated that “everybody in Colombia suffers under these general

conditions of violence and criminal activity.” The Immigration Judge did not

make an adverse credibility finding. The decision of the Immigration Judge is

attached as Appendix C to the dissenting opinion. Silva appealed to a three-judge

panel of the Board of Immigration Appeals, which affirmed the decision of the

Immigration Judge without opinion. Silva petitioned for review and is represented

by counsel on appeal.

II. STANDARD OF REVIEW

When the Board of Immigration Appeals adopts the decision of the

Immigration Judge without opinion, we review the decision of the Immigration

Judge. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review
8
legal issues de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.

2001). This Court reviews “administrative fact findings under the highly

deferential substantial evidence test.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026

(11th Cir. 2004) (en banc), cert. denied, 544 U.S. __, 125 S. Ct. 2245 (2005). We

must affirm the decision of the Immigration Judge if it is “‘supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.’” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005),

superseding 378 F.3d 1260 (11th Cir. 2004) (quoting Al Najjar, 257 F.3d at 1284);

Adefemi, 386 F.3d at 1027 (quoting same). Thus, we do not engage in a de novo

review of factual findings by the Immigration Judge. Adefemi, 386 F.3d at 1027.

“[F]indings of fact made by . . . the [Immigration Judge] may be reversed by

this [C]ourt 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.” Id.; 8 U.S.C. § 1252(b)(4)(B) (“the administrative

findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary”). “[W]e view the record evidence in the

light most favorable to the agency’s decision and draw all reasonable inferences in

favor of that decision.” Id. Under this highly deferential standard of review, we

may not “‘reweigh the evidence’ from scratch.” Mazariegos v. Office of U.S.

Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001) (quoting Lorisme v. INS, 129
9
F.3d 1441, 1444-45 (11th Cir. 1997)).

III. DISCUSSION

Silva makes three main arguments on appeal. First, Silva argues that the

evidence compels the conclusion that she suffered past persecution and, in the

alternative, she had a well-founded fear of future persecution on account of her

political opinion. Second, Silva argues that she is entitled to withholding of

removal because she established a clear probability that her life would be

endangered if she was returned to Colombia. Third, Silva argues that the Board of

Immigration Appeals violated its regulations when it affirmed without opinion the

decision of the Immigration Judge, who allegedly committed other procedural

errors. We review each argument in turn.

A. Viewed in the Light Most Favorable to the Fact Findings of the
Immigration Judge, the Record Does Not Compel the Conclusion
That Silva Was Entitled to Asylum.

“To establish asylum eligibility based on political opinion or any other

protected ground, the alien must, with credible evidence, establish (1) past

persecution on account of her political opinion or any other protected ground, or

(2) a ‘well-founded fear’ that her political opinion or any other protected ground

will cause future persecution.” Sepulveda, 401 F.3d at 1230-31. Each avenue of

asylum relief requires proof of two criteria. To establish asylum based on past

persecution, the applicant must prove (1) that she was persecuted, and (2) that the
10
persecution was on account of a protected ground. See id. To establish eligibility

for asylum based on a well-founded fear of future persecution, the applicant must

prove (1) a “subjectively genuine and objectively reasonable” fear of persecution,

Al Najjar, 257 F.3d at 1289, that is (2) on account of a protected ground, see

Sepulveda, 401 F.3d at 1230-31.

Before we review the details of the record, we must recall how our standard

of review governs our reading of this record. Our task is not to determine whether

the inferences Silva draws from her version of events are reasonable. We do not

deny, for example, the reasonableness of Silva’s contention that the written threat,

the anonymous phone calls, and the shooting were all related, but that is not what

we are asked to consider. Our review is more limited. The Immigration Judge

found that Silva failed to prove her entitlement to asylum, and our task is to review

the decision of the Immigration Judge under the highly deferential substantial

evidence test: we must affirm if the decision of the Immigration Judge is

“supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Al Najjar, 257 F.3d at 1284. With that highly deferential

standard in mind, we review the evidence Silva presented in the light most

favorable to the findings of the Immigration Judge.

Silva testified about four categories of events in support of her asylum

application. First, Silva testified that in September 1999 she received a
11
“condolence note” signed by the FARC, which stated “Luz Marina Silva rest in

peace for doing what she shouldn’t be doing in the wrong place.” Second, Silva

testified that she received anonymous threatening telephone calls after receiving

the “condolence note.” Third, Silva testified that two men on a motorcycle shot

into her car and hit the back window on October 9, 1999. She testified that she

received an anonymous telephone call about the shooting that night but that she did

not have any further problems until she left Colombia in November 1999. Fourth,

Silva testified that, when she returned to Colombia in January 2000, she received

more anonymous threatening telephone calls that referenced the shooting incident.

We examine these events in turn.

We first conclude that the “condolence note” Silva received was on account

of her political activity, but this one incident is not sufficient to entitle Silva to

asylum. “[P]ersecution is an extreme concept, requiring more than a few isolated

incidents of verbal harassment or intimidation[.]” Sepulveda, 401 F.3d at 1231

(internal quotation marks and citation omitted). The “condolence note” was an

example of harassment and intimidation, but not persecution. The “condolence

note” alone did not entitle Silva to asylum.

Second, Silva’s testimony regarding the anonymous telephone calls she

received, beginning in September 1999 until the shooting incident on October 9,

1999, does not compel the conclusion that Silva was persecuted on account of her
12
political opinion. Although the timing of the telephone calls supports an inference

that the calls were related to Silva’s political activity, the evidence also supports an

inference that the calls were unrelated to that activity. The record reflects that the

anonymous callers, whom Silva testified were “different people always,” gave

Silva different messages, and Silva did not testify that any of the messages

referenced her political activity. Furthermore, although Silva testified that she

engaged in political activity in Mockus’s campaigns in 1994 and 1997, she did not

testify that she was threatened in any way during her work with those campaigns

and health brigades. Silva’s past extensive political participation without

threatening calls or other harassment, along with the lack of reference to politics in

the calls in 1999, supports the inference that those calls were not about Silva’s

political activity. In addition, as with the “condolence note,” the receipt of

anonymous threats in September and October 1999, without more, does not qualify

as persecution, because “[m]ere harassment does not amount to persecution.”

Sepulveda, 401 F.3d at 1231 (quoting Gonzalez v. Reno, 212 F.3d 1338, 1355

(11th Cir.2000)).

Third, we assume, for the sake of argument, as the Immigration Judge did,

that the shooting would qualify as persecution, but Silva’s evidence does not

compel the conclusion that the shooting was connected to her political activity.

Silva testified that she did not know who shot at her car or why. The Immigration
13
Judge reasonably took that candid and powerful admission at its face value.

Again, although the timing of the shooting would allow an inference that it

was related to the “condolence note,” the record does not compel that conclusion.

Substantial evidence also allows an inference, as the Immigration Judge found, that

the shooting incident, for which Silva had no explanation, did not distinguish her

from the majority of Colombians who are also subject to the general conditions of

violence and criminal activity in Colombia. Both the Colombian Country Report

and the Country Profile are replete with descriptions of widespread and

indiscriminate violence. Silva testified that some of the anonymous calls before

the shooting were about her family exploiting the Colombian people and her not

having a bodyguard, that she did not know who shot at her or why, and that

Colombians routinely suffer similar incidents of terroristic threats and violence.

We are required to view all of this evidence in the light most favorable to the

findings of the Immigration Judge, Adefemi, 386 F.3d at 1027, and in that light, we

cannot say the shooting was indisputably related to Silva’s political activity.

Silva testified credibly about these events, but it is not clear from the record

that even Silva believed, at the time of the shooting, that it was related to her

political activity. After the shooting, Silva remained in Colombia for almost a

month and a half with no further difficulties. Silva came to the United States on

November 21, 1999, and stayed to January 2000 but did not seek asylum. Silva
14
then returned to Colombia for a few months before returning to the United States

in March 2000. Even then, Silva did not seek asylum until a year later. We do not

doubt Silva’s sincerity in applying for asylum in March 2001, but her actions in

1999 and 2000 do not comport with the actions of an individual who believed at

that time that she was a target of political persecution. It is reasonable to infer

from Silva’s actions that the allegedly “compelling” connection between the

shooting and her political activity was not immediately apparent even to Silva.

The final events about which Silva testified involve the anonymous

telephone calls from January to March 2000, but Silva’s testimony about these

calls did not establish that they were about her political opinion or anything more

than harassment. Silva testified that the anonymous callers referenced the October

shooting incident, but she did not testify that any of the callers mentioned politics.

Silva also acknowledged that she had not participated in any political activity since

before the shooting and that she did not report any of the calls to the police. Apart

from the telephone calls, Silva did not have any other problems in 2000.

Although Silva’s testimony does not compel the conclusion that the

anonymous calls in 2000 were on account of her political opinion, the timing and

substance of those calls do support an inference that the earlier shooting was not

about Silva’s political activity. Silva received the calls even though she had not

been involved in politics for at least three months. The calls referenced the
15
shooting incident, but Silva offered no evidence that any of the calls referenced

politics. The references to the shooting incident, without any mention of Silva’s

political activity, which had ended several months earlier, suggest that the shooting

incident was unrelated to Silva’s political activity. This inference is also supported

by the fact that, in 1994 and 1997, when she participated in the Mockus campaigns

and health brigades, Silva received no telephone calls, but from January to March

2000, when she was not participating in any political activity, Silva received calls

that did not mention her political activity.

In sum, when we view the evidence in the light most favorable to the finding

of the Immigration Judge, the record does not compel the conclusion that Silva

suffered political persecution. Silva’s testimony compels the conclusion that the

“condolence note” was on account of her political opinion, but this event does not

qualify as persecution. Sepulveda, 401 F.3d at 1231. Although we assume, for the

sake of argument, that the shooting incident qualifies as persecution, apart from

closeness in time, Silva did not offer any evidence to connect the shooting with the

“condolence note” or her political activity in general. The record does not compel

the conclusion that the shooting was on account of her political activity. Similarly,

the record does not compel the conclusion that the harassing, anonymous telephone

calls Silva received were on account of her political opinion.

Silva also failed to establish a well-founded fear of future persecution if she
16
returned to Colombia. Silva failed to establish that she will be singled out on

account of her political opinion or the opinions of her family. Because the record

does not compel the conclusion that the past treatment to which Silva was

subjected was on account of her political opinion, Silva’s subjective fear of future

persecution is not objectively well-founded.

Our decision in Sepulveda, where the asylum applicant allegedly feared

persecution at the hands of the other main Colombian guerilla group, ELN, is

instructive. Sepulveda “participated in approximately ten peace marches” and

personally assisted in hostage negotiations “between the kidnapers and the

hostages’ families.” Sepulveda, 401 F.3d at 1229. We concluded that evidence of

specific threats against Sepulveda, delivered both by telephone and to her family

members, as well as a bombing of the restaurant where Sepulveda worked, did not

require that we grant her petition for review. As to the bombing incident, we

explained, “Although the evidence may permit a conclusion the restaurant

bombing was directed at Sepulveda on account of her political activity, it does not

compel such a conclusion.” Id. at 1231. We also ruled that “the menacing

telephone calls and threats to her, her brother, and other members of the university

group do not rise to the level of past persecution that would compel reversal of the

IJ’s decision.” Id. The Sepulveda decision illustrates that only in a rare case does

the record compel the conclusion that an applicant for asylum suffered past
17
persecution or has a well-founded fear of future persecution. Silva’s petition does

not present that rare case.

The dissent accuses the majority of deconstructing the evidence to reach its

decision, but the dissent uses a vivid imagination to draw inferences in favor of

Silva and ignore competing inferences that favor the findings of the Immigration

Judge, contrary to our deferential standard of review. Because imaginative

inferences are all that support its opinion, the dissent is left in the position of one

who, trying to fill a leaky bucket with water, must first plug all the holes. Silva’s

testimony is full of holes, and the dissent impermissibly draws inferences in Silva’s

favor to plug those holes.

The prime example of the dissent drawing an inference in favor of Silva that

is not compelled by the record is the inference of a connection between the

condolence note, the shooting, and anonymous telephone calls. Silva admitted she

did not know the identity or motivation of the shooters, and the Country Reports

and Profile established that random threats and acts of violence are common in

Colombia without regard to the victim’s political opinion. Silva also had been

involved in politics for several years without receiving any threats. Silva did not

testify that any of the anonymous calls she received in 1999 and 2000 mentioned

her politics, and the calls in 2000 were received several months after Silva ended

her political activity. There was a connection between the anonymous calls and the
18
shooting, but neither the calls nor the shooting were necessarily related to Silva’s

politics. Although the Immigration Judge, in the absence of direct evidence of the

reasons for the shooting, plausibly inferred that the shooting may not have been

based on Silva’s political opinion, the dissent draws the opposite inference in favor

of Silva.

Another problem with the inferences drawn by the dissent is that they are

based invariably on Silva’s ambiguous application for asylum rather than her

specific testimony at her hearing in response to questions asked by the Immigration

Judge. Although Silva’s testimony was consistent with her asylum application, her

testimony added context and greater detail to the cursory facts alleged in her

application, and her testimony exposed substantial deficiencies in her claim to

asylum.

Silva’s petition presents an atypical contrast between a written application

for asylum and later testimony by the applicant at a hearing. Often an applicant for

asylum will fail to allege in his written application specific and credible facts to

support an inference of persecution, but when that applicant later testifies, at a

hearing before an immigration judge, the applicant will allege facts that, if true,

compel an inference of persecution. In many cases, the Immigration Judge will

find that the applicant’s testimony is incredible, and the Immigration Judge will

base that adverse credibility determination on the inconsistencies between the
19
earlier written application and the applicant’s later testimony. See, e.g., Forgue v.

U.S. Att’y Gen., 401 F.3d 1282, 1285 (11th Cir. 2005); D-Muhumed v. U.S. Att’y

Gen., 388 F.3d 814, 819 (11th Cir. 2004). Silva, in contrast, wrote allegations in

her application for asylum that, without more, supported an inference of

persecution on account of her political opinion, but when Silva later testified

credibly and in greater detail about those facts, at her asylum hearing, she provided

ample grounds for finding that she had not suffered persecution based on her

political opinion.

A good example of the contrast between Silva’s conclusory written

application and her later and more specific testimony involved the identity of her

persecutors. Silva’s written application stated, without qualification, that the

FARC called her and tried to kill her, but when asked about those facts at her

hearing, Silva admitted that she did not know who was responsible for the

telephone calls or the shooting:

Q. Who were these two people, do you know?
A. No.
Q. Why did they shoot you, shoot at you, do you know?
A. I have no idea but days before I was receiving – they were calling
me anonymous phone calls.

Another example of this contrast involves Silva’s account of the timeline of

events and her travel to the United States. Silva’s application did not mention her

trip to the United States in November 1999 or that the threatening telephone calls
20
ceased for almost a month and a half before she left Colombia in 1999, but at her

hearing Silva testified that she came to the United States on November 21, 1999,

and returned to Colombia in January 2000. She also testified that she had no

further problems after the shooting before she came to the United States in

November:

Q. So what you did was you came to the United States the next
month?
A. Yes, in November.
Q. Between that – up to November of 1999 had you had any other
problems?
A. No, no, no.

A third example of the contrast between Silva’s speculative application and

later testimony involves the contents of the telephone calls she received. Silva

stated in her application that the FARC called her and wanted her to stop her visits

to the poor neighborhoods, but when she was given the opportunity at her hearing

to describe the telephone calls Silva’s details did not support an inference of

political persecution. Silva testified that she did not know who the callers were.

Silva also described specific statements in the telephone calls about the wealth of

her family, the shooting incident, and the absence of a bodyguard for her, but Silva

never mentioned that any of the anonymous telephone calls, either before or after

the shooting, referenced her political activity.

In the light of the gaps in Silva’s testimony and her evident lack of

21
knowledge regarding either the alleged persecutors or the reason why she was

allegedly persecuted, the dissent relies on conclusory statements in Silva’s asylum

application rather than her more specific testimony to bolster its opinion. Although

Silva’s testified at her hearing about the content of the telephone calls, but did not

mention politics, the dissent, for example, quotes from Silva’s asylum application

in which she asserted that the callers wanted her to “stop with my visits to these

neighborhoods.” The dissent uses that assertion about the presumed intent of the

callers, which Silva did not mention at her hearing, to supply an inference that the

telephone calls were expressly related to Silva’s political activity.

Another example of the dissent’s generous use of Silva’s conclusory

application rather than her specific testimony involves the timeline of events.

Although Silva testified at her hearing that she had no problems after the day of the

shooting and came to the United States over one month later, the dissent asserts

that Silva “immediately began preparations to flee and actually left for the United

States on November 21, 1999.” Dis. Op. at 37. The basis for this inference in

favor of Silva is apparently a statement in Silva’s asylum application, in which she

stated, in reference to the shooting, “From that moment on, I stopped all my

activities and decided to leave the country which I did on March 8, [20]00.” This

imagined version of events creates an inference of urgency that does not exist in

Silva’s more specific testimony.
22
 The dissent also reads the record in the light most favorable to Silva when it

infers that the anonymous calls in January to March 2000 were related to political

activity. Silva testified that the callers in January to March 2000 referenced the

shooting, but she did not, even when asked what the callers said, testify that any

caller mentioned her politics:

Q. So you returned to Bogota when, in January of 2000?
A. Yes.
Q. Okay, and did you have any further problems after you returned
to Bogota?
A. Yes.
Q. What happened?
A. I began to receive once again telephone calls from the urban
group.
Q. Before the calls previous had been anonymous. Were these
calls identified?
A. No. The same way, anonymous.
Q. What did they say?
A. We missed already once, don’t provoke us again. We missed
on the 9th, we are not going to miss a second time, we’re going
to kill you. A very rude, very obscene.

Although there is no evidence that these calls in 2000 were related either to Silva’s

politics, or the “condolence note,” or even the calls that preceded the shooting, the

dissent draws an allegedly compelling inference in favor of Silva and treats the

calls and these other events as unquestionably interrelated. Dis. Op. at 36. The

failure of the dissent to draw the reasonable inference, in favor of the finding of the

Immigration Judge, that these events, in a country besieged by indiscriminate

violence, intimidation, and crime, could be unrelated, is telling.
23
 Finally, the dissent takes issue with the reliance by the majority and the

Immigration Judge on the Colombian Country Report and Country Profile. The

dissent argues that the majority fails to recognize “that the Country Profile

indicates that much of the violence in Columbia is targeted at activities that are

protected grounds.” Dis. Op. at 39. The dissent quotes the Country Profile that

“[F]our out of every ten murders are targeted for their involvement with political,

labor, or social causes.” Id.

Again the dissent reads the record in the light most favorable to Silva. We

agree that Colombia is a place where the awful is ordinary, but we must state the

obvious: if four out of every ten murders are on account of a protected ground, six

out of ten are not. The majority of the violence in Colombia is not related to

protected activity. When an individual seeking asylum based on persecution does

not know either the identity of the alleged persecutors or the reason for the

persecution, the prevalence of random violent activity in Colombia, totally

unrelated to any protected ground, allows a reasonable inference that the individual

seeking asylum is the victim, not of political persecution, but of random violence.

When we read the Colombian reports in the light most favorable to the finding of

the Immigration Judge, as we must, the substantial evidence of non-political

violent activity in Colombia supports the conclusion that Silva’s evidence, with its

gaping holes and absence of proof, did not establish persecution on account of a
24
protected ground.

Regarding our reference to our precedent in Sepulveda, the dissent wonders

whether the petition of a successful applicant for asylum in our Court is like the

fabled unicorn, but the dissent, as with its view of the evidence, misses the point

about the scope of our review. It is a rare case that will compel reversal of the

Immigration Judge for one fundamental reason: the Immigration Judge is in a

superior position to make findings of fact. We do not reweigh the evidence

presented to an Immigration Judge for sound reasons. Immigration Judges, not we,

actually see and hear the applicants for asylum testify. Immigration Judges, not

we, have personal encounters with applicants for asylum from Colombia who, like

thousands of other Colombians, suffer real threats of violence. Immigration

Judges, not we, are on the front lines everyday deciding whether the persecution

suffered by an applicant for asylum meets the requirement of Congress that it be

based on a protected ground. Our standard of review reflects the wisdom that

Immigration Judges are in a better position to make that judgment call.

Although the law recognizes that the Immigration Judge who saw and heard

Silva testify was in a superior position to make findings of fact, the dissent is able

to find, in its search of the cold record before us, several facts that are not clear to

us. First, the dissent finds the identity of the shooters even though Silva testified

that she did not know them. Second, the dissent finds the motivation of the
25
shooters even though Silva testified that she did not know their motivation. Third,

the dissent finds the identify of the telephone callers that Silva described as

anonymous. Fourth, the dissent finds that the calls were about Silva’s politics even

though Silva did not describe a single reference to her political activities in the

calls. Fifth, the dissent finds that the events involving a written threat, anonymous

calls, and unknown shooters were all interrelated in a country where indiscriminate

threats, crime, and violence are commonplace.

Whether we, like the dissent, would have made different findings, if faced

with Silva’s application for asylum and live testimony, is irrelevant. When we

view the record in the light most favorable to the Immigration Judge, we conclude

that the denial of Silva’s application was supported by substantial evidence. We

reject Silva’s petition for review of the denial of her application for asylum.

B. The Record Does Not Compel the Conclusion That Silva
Was Entitled to Withholding of Removal.

To qualify for withholding of removal, Silva must have established that it is

more likely than not that her life or freedom would be threatened on account of a

statutorily protected factor if returned to Colombia. 8 U.S.C. § 1231(b)(3).

“Where an applicant is unable to meet the ‘well-founded fear’ standard for asylum,

[s]he is generally precluded from qualifying for either asylum or withholding of

[removal].” Al Najjar, 257 F.3d at 1292-93 (citations omitted). Because Silva

26
failed to establish eligibility for asylum, she likewise failed to establish entitlement

to withholding of removal.

C. The Board of Immigration Appeals Obeyed Its
Regulations When It Affirmed Without Opinion.

Silva’s final arguments relate to alleged procedural errors of the Immigration

Judge and Board of Immigration Appeals. We defer to the interpretation of the

regulations that governs the Board of Immigration Appeals if the interpretation by

the Board is reasonable and does not contradict the clear intent of Congress.

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104

S. Ct. 2778, 2781-82 (1984). If the decision of the Immigration Judge complies

with the regulations, the issues in the case are not complex, and the issues are

governed by existing precedent, then it is proper for the Board to affirm the

decision of the Immigration Judge without opinion. Gonzalez-Oropeza v. United

States Att’y Gen., 321 F.3d 1331, 1333 (11th Cir. 2003); see 8 C.F.R. §

1003.1(e)(4)(i).

Silva complains that the Board of Immigration Appeals affirmed without

opinion, and the Immigration Judge failed to satisfy the standards of the Board for

a reasoned decision, but these arguments fail. Nothing in this case required a

written opinion by the Board of Immigration Appeals. The Immigration Judge did

not commit material errors, and the clear issues presented by this case were

27
governed by our previous decisions in Adefemi and Sepulveda.

IV. CONCLUSION

We deny Silva’s petition for review of the order for her removal.

PETITION DENIED.

28
CARNES, Circuit Judge, dissenting:

I dissent from the decision to deny Ms. Silva’s petition for review of the

order of removal, which is based on the denial of her application for asylum.

I.

The question is not whether the immigration judge should have found the

statements Silva made in her asylum application and hearing testimony to be

credible. The judge did credit her statements. Because he did, the law requires

that we, too, accept Silva’s statements as truth. Yang v. U.S. Att’y Gen., 418 F.3d

1198, 1201 (11th Cir. 2005); Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226

(5th Cir. 1977). In reviewing a denial of asylum where the immigration judge

credited the applicant, we are to take as true not only the statements she made

during her testimony but also those contained in her application, at least where the

two are consistent. See Nreka v. U.S. Att’y Gen., 408 F.3d 1361, 1364 (11th Cir.

2005) (considering “his application for asylum and his testimony”); Sepulveda v.

U.S. Att’y Gen., 401 F.3d 1226, 1229–30 (11th Cir. 2005) (examining both

“Sepulveda’s testimony and her asylum application” and stating standard of review

in terms of “the record considered as a whole”). And, as the majority concedes,

“Silva’s testimony was consistent with her asylum application.” Maj. Op. at 19.

Silva said in her application that after FARC sent her the threatening note,

she received almost daily threatening phone calls from FARC which continued
29
until she left the country. She also stated that: “I was threatened to death by the

FARC’s urban militias”; FARC “declared me a military objective”; “If I go back to

Colombia . . . [I will be] tortured and killed”; “I would be killed as FARC

sentenced me”; and “I know that if I go back to my country I will be kill [sic].”

She explained that if she went back FARC “will find me sooner or later, to be

tortured and killed and FARC always does.” These application statements are

consistent with her testimony. That should be all we need to know. See

Menghesha v. Gonzales, 440 F.3d 201, 203 (4th Cir. 2006) (reciting the

“undisputed facts adduced in [the] asylum application and hearing testimony” and

stating “[i]n the absence of contrary evidence or an adverse credibility

determination, we accept [the] uncontested account as true.”).

The majority’s attempt to dismiss Silva’s asylum application as

“ambiguous” compared to “her specific testimony” at the hearing is unconvincing.

In fact, Silva’s application is as specific and detailed, if not more so, than her

testimony. Her application actually contains more words than her testimony, and

the bulk of what she said in her application is a lengthy and detailed explanation of

the events preceding and following FARC’s attempt on her life. It is not

ambiguous. Silva pointedly states that FARC tried to kill her and will kill her if

she is forced to return to Colombia. To avoid a battle of scissors and trading

snippets of Silva’s statements and testimony with the majority, I have attached as
30
appendices to this opinion every part of her application where she made any

statement about the facts (App. A), her entire testimony (App. B), and the

immigration judge’s ruling (App. C). The interested reader can see for herself

everything that Silva said and the context in which she said it.

In reading Silva’s testimony at the hearing we should keep in mind that there

she only answered questions asked by the immigration judge—who expressed his

skepticism of all asylum claims relating to Colombia—and by the attorney

representing the Immigration and Naturalization Service. Silva had no attorney,

spoke through an interpreter, and did not attempt to question herself. As a lay

person, Silva may well have believed that the statements in her application entitled

her to asylum. It is difficult for me to view that as an unreasonable belief,

especially since it is one that I share. Again, the majority’s insistence that Silva’s

testimony was more specific and detailed than her statements in her application is

simply not accurate. Compare App. A (the asylum application) to App. B (the

testimony).

While purporting to accept Silva’s credited statements as true, the majority

actually does an end run around the credibility determination by selectively

dismissing her statements that discomfort its position, labeling them as

“speculative,” or suggesting that maybe Silva was not credible after all. For

example, the majority more than once implies that maybe Silva should not be
31
believed because she did not report to the police the threatening phone calls she

received. Silva explained that she did not report them because she had been

warned: “don’t you dare even think about making a report,” and that people in

Colombia are too afraid to make police reports. In any event, her failure to report

the threats and violence against her did not prevent the immigration judge from

crediting her statements about what happened. While purporting not to reweigh

the evidence, the majority actually does so by disregarding as not specific and not

credible enough many of the statements that Silva made in her application and

some of those she made while testifying at the hearing. Either Silva was credible,

or she was not, and the immigration judge found her to be credible. We must take

her statements, those in the asylum application as well as those she made while

testifying, to be true.

Having determined that Silva was credible, the question before the

immigration judge was whether the historical facts established by Silva’s

application and testimony proved that she had suffered “persecution or a well-

founded fear of persecution on account of . . . [her] political opinion” within the

meaning of § 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C.

§ 1101(a)(42)(A). Our standard of review requires that we apply a substantial

evidence test to determine if the immigration judge’s decision is supported by

“reasonable, substantial, and probative evidence on the record considered as a
32
whole.” Sepulveda, 401 F.3d at 1230; Al Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001). If not, then the evidence would “compel” a reasonable factfinder

to conclude otherwise than the immigration judge did, and we must reverse.

Sepulveda, 401 F.3d at 1230. Because the standard of review in these cases is

deferential, we have been loath to find that a petitioner has met her burden on

appeal. This, however, is a case in which we should find she has done so.

II.

The facts established by Silva’s statements are these. Three weeks before

she was shot at, Silva received a threatening “condolence note” from FARC. As

the majority opinion recognizes, this threat was made solely because of Silva’s

political activities in the countryside on behalf of the Visionary Party. The only

fair interpretation of the “Rest in Peace” condolence note she was handed, while

engaging in political activities, is that FARC was threatening to kill Silva because

of those political activities.

Three weeks after FARC threatened to kill her for that reason, someone tried

to carry out that threat. On October 9, 1999, while Silva was driving between the

restaurant her family ran and her apartment, two gunmen on a motorcycle shot at

her. The bullets shattered a window of her car, as Silva put it: “missing me by

very little.” Shying away from the obvious, the majority opinion is willing only to

assume that being shot at is persecution. I would be so bold as to hold that it is,
33
especially when the attempted murder is preceded by a written threat to kill the

victim because of her political activities and by an almost daily barrage of

threatening phone calls at her home and restaurant.

The element the immigration judge found wanting, and the majority opinion

concludes is not compelled by Silva’s statements and testimony, is that the

shooting on October 9, 1999, and the threatening phone calls she received were on

account of her political activities. The immigration judge and the majority are

wrong. Not only did the shooting come only three weeks after FARC threatened to

kill Silva because of her political involvement, it also came after she refused to

stop her political activities despite the FARC threat. As Silva put it in her asylum

application, after the threatening note, “I got scared but promise myself not to let

these subversive [sic] intimidate me and continued with my political and social

involvement.” She had last been involved in political activities just a few days

before the attempt to kill her. In other words, FARC threatened Silva with death

because of her political activities, she refused to give in to the threat and continued

to engage in political activities, and promptly thereafter someone did try to kill her,

just as FARC had promised it would.

Attempting to denigrate the compelling force of these facts, the majority

opinion insists that the “connection between the shooting and her political activity

was not immediately apparent even to Silva.” Maj. Op. at 15. According to
34
Silva’s credited testimony: “I had an attempt against my life, the FARC tried to kill

me before I came over here.” That is why she sought asylum. During the hearing

Silva was asked this about the shooters: “Who were these two people, do you

know?” and she answered “No.” The majority views that admission as of great

significance, stressing that, “she did not know who fired the shots or made the

phone call or why the shots were fired.” Maj. Op. at 5. True enough, the would-be

assassins did not stop to introduce themselves. They rarely do. It is not realistic to

expect the targets of political assassinations to know the identity of the gunmen

who shoot at them. Only in the majority’s imagination do would-be killers wear

name tags or drive around on motorcycles with vanity plates displaying the name

of their terrorist organization. While Silva did not know the identity of the two

people who shot at her, she testified that the shooting came only three weeks after

FARC had made a written threat against her life because of her political activities.

She also testified at the hearing that “FARC tried to kill me before I came over

here.”

Contrary to the majority’s repeated contention that the phone calls were

“threatening, but not political,” Silva stated that the anonymous callers wanted her

to stop her trips to the neighborhoods where she had engaged in political activities

and that they knew her family’s political participation. She testified at the hearing

that the calls were “from the urban group,” an obvious reference to FARC. She
35
also linked the attempted murder to her political activities. When asked why the

men had shot at her, Silva testified that while she did not know, days before the

attempt to kill her she had received the anonymous phone calls and only three

weeks before she had received the condolence note from FARC while engaged in

political activities. That was entirely consistent with her statements in the asylum

application that FARC wanted her dead and would kill her if she returned to

Colombia. The evidence compels the conclusion that Silva did believe, and with

good reason, that FARC tried to kill her.

FARC’s threat to kill Silva and the attempt that was made to do so are linked

not only by closeness in time but also by the stream of anonymous, threatening

phone calls Silva began receiving immediately after she was handed the

condolence note from FARC. Describing the timing and content of those calls,

Silva referred to the day she received that note from FARC and said:

From that moment on the phone calls from FARC started
almost daily at my house and at my restaurant “Tomillo Laurel
y Pimienta.” They were wanting me to stop with my visits to
these neighborhoods and to my surprise they also knew all my
family background and my family political participation. They
mentioned that to kill me was a nice way to take revenge of my
all my [sic] political relatives that were taking advantage of the
Colombians who did not know the evil underneath my family
that we were on[ly] looking for our welfare not for the welfare
of the working class.

In response to the shooting, Silva stopped her political activities, and the

36
threatening phone calls ceased. She immediately began preparations to flee and

actually left for the United States on November 21, 1999. When Silva returned to

Colombia in January of 2000 to visit a gravely ill relative, the threatening phone

calls resumed, and they came on a daily basis. They continued until Silva left for

the United States a second time two months later, and she has not been back to

Colombia since.

The gist of the threatening phone calls was: “We missed already once, don’t

provoke us again. We missed on the 9th, we are not going to miss a second time,

we’re going to kill you.” In one or more of the phone calls she received Silva was

told that her family had always exploited the Colombian people and the violence

had been directed at her because, unlike other members of her family, Silva did not

have bodyguards. Silva testified that her family on her father’s side always had

been involved in politics. She explained that by “family” she “meant uncles,

cousins, my father’s cousins. My father’s side of the family.”

Unlike Silva, none of her four brothers had ever been involved in any type of

politics. They lived in a house with Silva’s mother. None of the four non-political

brothers (or the mother apparently) ever had any problems with FARC. The

restaurant the family owned and ran never had any problems with FARC. The

only person in Silva’s immediate family to get a death threat from FARC, to get

shot at, and to be tormented daily by threatening phone calls was the politically
37
active Silva, who had received a threatening note from FARC because of her

political activities.

When asked if her cousin, the Mayor of Bogota’s secretary, had any

problems, Silva testified: “They have always received anonymous phone calls,

always. In Bogota in the whole Colombia they are always calling and sending

letters to terrorize people.” Silva pointed out that the violence and threats of

violence usually were targeted at those engaged in political activities. When asked

if a lot of people get letters and phone calls, she explained: “Yes. If the person

that’s involved in some political group or is the first time doing something that

they are not in–that they don’t want this person to do for whatever reasons.”

In determining whether the facts and circumstances in any case compel a

conclusion, we ought to face up to the full force of them in their entirety. The

majority’s approach, instead, is a virtuoso exercise in deconstructionism. It

proceeds by disassembling the whole of the evidence and then explaining why each

part by itself is insufficiently compelling. This is like a man who attempts to

demonstrate that a bucket of water is not really that by emptying it cup by cup,

asserting as he goes along that each cupful is not a full bucket’s worth until, having

emptied the whole, he proclaims that there just wasn’t a bucket of water there.

The only reasonable conclusion from the facts established by Silva’s

application statements and testimony, which were credited by the immigration
38
judge, is that the reason she was threatened, shot at, and threatened again is her

political activities. The evidence compels that conclusion. It is no answer to say to

Silva, as the immigration judge did, that “I don’t see that you are in any worse

position than anybody else in that country.” I doubt that all forty-three million

people in Colombia are being persecuted by FARC—the evidence establishes that

at least four of them, Silva’s non-political brothers, are not. In any event, the

widespread nature of violence in a country is not a legitimate reason for denying

asylum to a petitioner who establishes that she has been persecuted within the

meaning of § 101(a)(42)(A) of the Immigration and Nationality Act. There is no

numerosity exception in the asylum laws.

The majority opinion seems to endorse the immigration judge’s widespread

terror exception to the asylum laws, finding comfort in the Colombian Country

Report and the Country Profile’s being, in the majority’s words, “replete with

descriptions of widespread and indiscriminate violence.” Maj. Op. at 12. What the

majority and the immigration judge fail to recognize is that the Country Profile

indicates that much of the violence in Columbia is targeted at activities that are

protected grounds under the asylum laws of this country. See Dep’t of State

Bureau of Democracy, Human Rights and Labor, Colombia Profile of Asylum

Claims & Country Conditions 3 (1997) (“[F]our out of every ten murders are

targeted for their involvement with political, labor, or social causes.”). The fact
39
that there is also indiscriminate violence is no reason for refusing to recognize

violence and persecution on grounds that are specifically listed in our immigration

laws. Otherwise, no one from Colombia would ever be eligible for asylum.

And indeed under the majority’s decision, no one from Colombia will be

entitled to asylum. Since “[t]he majority of the violence in Colombia is not related

to protected activity,” since the “awful is ordinary,” and since only “four out of

every ten murders are on account of a protected ground,” Maj. Op. at 24, it will

always be reasonable to find that violence was not on account of a protected

ground—even where, as here, a terrorist group threatens a political activist with

death because of her politics, she receives a barrage of threatening phone calls

connected in time to that threat and to her political activities, and soon thereafter

someone attempts to kill her. This is not a good decision but there is, I suppose, a

bright side. What the Court holds today will make it easier to handle our caseload.

In the future we can simply stamp any petition for review of a Colombian’s asylum

denial: “Affirmed. See the Silva decision.”

Today’s decision also has implications beyond cases involving Colombian

applicants. The majority opinion refers to the often-mentioned, but never sighted,

“rare case” in which the facts are so compelling that we will reverse an

immigration judge’s finding that a petitioner has failed to prove persecution on a

protected ground. No published opinion of this Court has ever found that rare
40
case, and today’s decision indicates that such a case, like the fabled unicorn, exists

only in our imagination.

41