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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15647
Non-Argument Calendar
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Agency No. A200-638-448
PEDRO MACHADO ALTURO,
GLORIA AMPARO CARRILLO VASCO,
CRISTHIAN DAVID MACHADO CARRILLO,
SERGIO ALEJANDRO MACHADO CARRILLO,
Petitioners,
versus
US ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(May 21, 2013)
Before TJOFLAT, CARNES, and PRYOR, Circuit Judges.
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PER CURIAM:
Pedro Machado Alturo, a Colombian national, petitions for review of a final
order of the Board of Immigration Appeals affirming the denial of his application
for asylum and withholding of removal under the Immigration and Nationality Act,
and withholding of removal under the United Nations Convention Against Torture
(CAT). See 8 U.S.C. §§ 1158(a), 1231(b)(3); 8 C.F.R. § 1208.16(c).1 The BIA
concluded that Alturo was statutorily ineligible for asylum, withholding of
removal, and CAT relief because he provided material support to a designated
terrorist organization, the United Self-Defense Forces of Columbia (AUC), in the
form of six annual payments of $300 in war taxes, totaling $1,800. The BIA
alternatively found that Alturo’s claims for relief failed on the merits because he
did not establish past persecution or a well-founded fear of future persecution on
account of a statutorily protected ground, or that he would be tortured by or with
the acquiescence of Colombian authorities upon return to his native country.
Alturo challenges both conclusions. He contends that the statutory bar for
providing material support to a terrorist organization does not apply because: (1)
he made the payments to the Aguilas Negras, or Black Eagles, which is not a
designated terrorist organization; (2) the AUC can no longer be designated as a
1
Alturo filed his application on behalf of himself, his wife Gloria Amparo Carrillo
Vasco, and his two children, Cristhian David Machado Carrillo and Sergio Alejandro Machado
Carrillo.
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terrorist organization because it demobilized in 2006; (3) he could not have known
that the Aguilas Negras or the AUC were terrorist organizations; (4) the amount of
money he provided was de minimis; and (5) he made the payments under duress.
Alturo also contends that the BIA erred in alternatively finding that he was not
entitled to asylum or withholding of removal because he established that he had,
and would be, persecuted on account of his political activities and opinions.
We review administrative factual findings under the deferential substantial
evidence test, which requires that we affirm the BIA’s decision if it is “supported
by reasonable, substantial, and probative evidence on the record considered as a
whole.” Zhou Hua Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1307 (11th Cir. 2013)
(quotation marks omitted). Although we review legal questions de novo, we must
defer to the BIA’s construction of the INA “if the statute is silent or ambiguous
with respect to the specific issue before us and the BIA’s interpretation is based on
a permissible construction of the statute.” Assa’ad v. U.S. Att’y Gen., 332 F.3d
1321, 1326 (11th Cir. 2003) (quotation marks omitted).
An alien is inadmissible and ineligible for asylum, withholding of removal,
or CAT relief if he has engaged in terrorist activity, which includes committing “an
act that the actor knows, or reasonably should know, affords material support” to a
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terrorist organization.2 8 U.S.C. § 1182(a)(3)(B)(iv)(VI); see also id. §§
1158(b)(2)(A)(v), 1231(b)(3)(B)(iv); 8 C.F.R. § 1208.16(d)(2). The INA defines a
“terrorist organization” as a group so designated by the Secretary of State or an
undesignated group that “engages in, or has a subgroup which engages in,”
terrorist activity. 8 U.S.C. § 1182(a)(3)(B)(vi). For undesignated terrorist
organizations, the material support bar does not apply if the alien “can demonstrate
by clear and convincing evidence that [he] did not know, and should not
reasonably have known, that the organization was a terrorist organization.” Id. §
1182(a)(3)(B)(iv)(VI)(dd). There is no comparable exception for designated
terrorist organizations. Id. § 1182(a)(3)(B)(iv)(VI)(cc).
In concluding that Alturo was ineligible for relief under the material support
bar, the BIA found that he paid an annual $300 “vacuna,” or war tax, to the AUC
over a period of six years in exchange for protection from local guerillas, that the
amount of funds provided qualified as “material support” within the meaning of
the INA, and that there was no exception to the statutory bar for payments made
under duress. The BIA’s factual finding that Alturo paid $1,800 to a designated
terrorist organization is supported by substantial evidence. Alturo himself testified
2
Although the material support bar does not preclude the grant of deferral of removal
under CAT, as opposed to withholding of removal, Alturo does not contend that he is entitled to
that particular form of relief. See 8 C.F.R. § 1208.17(a) (providing that an alien eligible for CAT
protection, but not withholding of removal under CAT, shall be granted deferral of removal). He
has therefore waived the issue. See Zhou Hua Zhu, 703 F.3d at 1316 n.3.
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that, from 2000 through 2006, he made six annual payments of $300 to a
paramilitary organization called the Peasant Self-Defense Group of Magdalena
Medio, which he noted was “the same” as the AUC. 3 He explained that, in return
for the payments, the AUC promised him protection from local guerillas, though
he feared retribution if he refused to pay as one of his neighbors was killed for not
paying the war tax.
Contrary to Alturo’s contention, the fact that the AUC was demobilized in
2006 does not render the material support bar inapplicable. When Alturo made
those payments, the AUC was active and designated as a Foreign Terrorist
Organization by the United States State Department. Nor is it relevant whether
Alturo knew, or should have known, that the AUC was deemed a terrorist
organization. Where the recipient of material support is a designated terrorist
organization, the INA requires only that the alien know, or should know, that his
actions will afford material support to that organization; it does not require any
specific knowledge of the status of the organization. Compare id. §
1182(a)(3)(B)(iv)(VI)(cc), with § 1182(a)(3)(B)(iv)(VI)(dd).
The BIA’s legal determinations that the funds provided by Alturo constitute
“material support” within the meaning of the statutory bar and that the statute does
3
It is not clear from the record whether the Aguilas Negras and the Peasant Self-Defense
Group of Magdalena Medio are one and the same, though documents submitted to the BIA
appear to suggest that the Aguilas Negras were formed out of the ashes of the AUC following its
dissolution in 2006. It is clear, however, that both organizations are associated with the AUC.
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not contain a duress exception are permissible constructions of the INA to which
we must defer. The INA broadly defines “material support” to include the
provision of “a safe house, transportation, communications, funds, transfer of
funds or other material financial benefit, false documentation or identification,
weapons . . ., explosives, or training,” 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (emphasis
added), and the BIA reasonably concluded that annual payments of $300 over a
period of six years was not so insignificant as to fall outside that definition. See
Viegas v. Holder, 699 F.3d 798, 803 (4th Cir. 2012) (holding that the payment of
monthly dues for four years and the hanging of posters on behalf of a terrorist
organization was “material support”); Singh-Kaur v. Ashcroft, 385 F.3d 293, 298–
99 (3d Cir. 2004) (noting that “material support” is a broad concept that is not
limited to the enumerated examples and deferring to the BIA’s conclusion that the
“provision of food and setting up tents” qualified as such support).
Likewise, the BIA reasonably concluded that the statutory bar does not
exempt material support provided to a terrorist organization under duress. As the
BIA aptly noted, the material support bar contains no express duress exception,
which stands in marked contrast to a neighboring provision in the INA that
includes an explicit involuntariness exception for aliens who have been affiliated
with a totalitarian party. See 8 U.S.C. § 1182(a)(3)(D) (barring the admission of
aliens who have been affiliated with “the Communist or any other totalitarian
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party,” but expressly exempting those who can establish that the affiliation “was
involuntary”). Congress has also enacted a separate waiver provision that vests
“sole unreviewable discretion” with the Secretary of State and the Secretary of
Homeland Security to waive the bar, provided that the alien has not “voluntarily
and knowingly” supported terrorist activities. 8 U.S.C. § 1182(d)(3)(B). In light
of these specific features of the INA, every circuit that has addressed the issue has
concluded that there is no implied exception to the material support bar for support
given involuntarily or under duress, and that an alien’s sole recourse in cases of
coercion is to seek a waiver from the Secretaries of State or Homeland Security.
See Barahona v. Holder, 691 F.3d 349, 355–56 (4th Cir. 2012); Annachamy v.
Holder, 686 F.3d 729, 734–35, 740 (9th Cir. 2012). Alturo, in fact, concedes that
any such waiver would have to be granted by the appropriate executive branch
officials.
Because the BIA reasonably declined to recognize a duress exception to the
material support bar, we are bound to defer to its permissible construction of the
statute. See Assa’ad, 332 F.3d at 1326. While the result might reasonably be
viewed as harsh, we are constrained by the language Congress chose to use and the
BIA’s reasonable construction of that language. It is up to Congress, not the
courts, to correct any perceived inequity.
PETITION DENIED.
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