Arias v. Atty Gen USA ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-26-2005
Arias v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1999
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-1999
____________
WALTER ANTONIO AMAYA ARIAS,
Petitioner
v.
ALBERTO R. GONZALES,*
Attorney General of the United States
DEPARTMENT OF HOMELAND SECURITY;
BUREAU OF IMMIGRATION & CUSTOMS ENFORCEMENT,
Respondents
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A97 133 248)
____________
Argued June 30, 2005
Before: NYGAARD ** , SMITH and FISHER, Circuit Judges.
(Filed October 26, 2005)
*
Attorney General Alberto R. Gonzales has been substituted for former Attorney
General John Ashcroft, the original respondent in this case, pursuant to Fed. R. App.
P. 43(c).
**
Judge Nygaard assumed senior judge status 7/9/05.
Reena Arya (Argued)
Hebrew Immigrant Aid Society
333 Seventh Avenue
New York, NY 10001
Attorney for Petitioner
Douglas E. Ginsburg
John M. McAdams, Jr.
Lyle D. Jentzer (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondents
Seth M.M. Stodder (Argued)
Akin, Gump, Strauss, Hauer & Feld
2029 Century Park East, Suite 2400
Los Angeles, CA 90067
Attorney for Amicus-Appellant,
Human Rights First
____________
AMENDED OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Petitioner Walter Antonio Amaya Arias appeals from the Board of Immigration
Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) decision denying
his applications for asylum, withholding of removal, and protection under the United
Nations Convention Against Torture (“CAT”). The BIA found that Amaya Arias was
inadmissible under 8 U.S.C. § 1182(a)(3)(B) because he “engaged in terrorist activity”
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within the meaning of the statute by making payments to a Colombian paramilitary
organization designated as a Foreign Terrorist Organization (“FTO”) pursuant to 8 U.S.C.
§ 1189. Amaya Arias argues that an involuntariness or duress defense should be implied
in § 1182(a)(3)(B)(iv), and that he has established that defense because he made the
payments to the FARC involuntarily. Because we find that there was substantial evidence
supporting the BIA’s finding that Amaya Arias made the payments voluntarily, we need
not address his statutory construction argument, and will deny his petition for review.
I.
As we write solely for the parties, and the facts are known to them, we will discuss
only those facts pertinent to our conclusion. Amaya Arias was born in Barranquilla,
Colombia, and is a native and citizen of Colombia. In April 2003, using a fraudulent visa,
he attempted to enter the United States at Miami International Airport. He was detained
by customs officials and placed in removal proceedings. He then applied for asylum and
withholding of removal.
Colombia is a constitutional, multiparty democracy with two dominant parties: the
Liberal and the Conservative. But the organized Colombian government is relatively
weak and in ongoing conflict with several paramilitary groups, including the
Revolutionary Armed Forces of Colombia (“FARC”). Particularly relevant to this appeal,
the FARC is known to extort so-called “war taxes” from civilians in order to finance its
operations. Payment of war taxes is especially common in sections of Colombia
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controlled by the FARC. Refusal or inability to pay these war taxes is viewed as an act of
political opposition and often results in reprisal.
In 1991, Amaya Arias joined the Colombian police force and was initially posted
in an anti-narcotics base where his duties included fighting guerrillas who belonged to the
FARC. He quit the police force in 1994 and in 1995, his girlfriend’s brother got him a
job managing a fish farm in El Morro owned by one Gustavo Guiterrez. At the time he
took this job, Amaya Arias knew that the farm was located in an area controlled by the
FARC. From his police experience, he also knew that the FARC was a violent, terrorist
organization.
Amaya Arias worked at the El Morro farm without incident for several years. In
1997, a man dressed in civilian attire came to the farm, gave Amaya Arias an envelope
marked “Armed Revolutionary Forces of Colombia,” and told him to give it to Guiterrez.
The man did not threaten Amaya Arias in any way. Amaya Arias passed the envelope
along to Guiterrez, who later told him that it contained a letter demanding payment to the
FARC of a monthly “tax” of 500,000 pesos. Guiterrez directed Amaya Arias to pay the
tax on his behalf with funds provided by Guiterrez. Each month, approximately fifty
armed FARC guerrillas would come to El Morro, ten of whom would come to the farm.
When they arrived, Amaya Arias would pay them. The FARC guerrillas never threatened
Amaya Arias, but he was constantly afraid of them and believed they would kill him if he
did not pay them. Amaya Arias testified that he never supported or agreed with the
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FARC’s political agenda, but paid the money to the FARC because he was “living very
happily with [his] family,” and “was making good money at the farm and ... doing well
there.”
In January 2000, El Morro was infiltrated by members of the United Self-Defense
Forces of Colombia (“AUC”), a group at odds with the FARC. AUC members compiled
a list of El Morro residents who had made payments to the FARC. In the early morning
hours of November 22, 2000, AUC members attacked the suspected collaborators’ homes
and killed approximately eighteen people. Amaya Arias escaped violence by hiding, but
his girlfriend’s two brothers were killed, and AUC members pushed his girlfriend around
because they were searching for him. Amaya Arias, his girlfriend and his daughter
subsequently returned to live in Barranquilla. There is no evidence that the FARC
threatened or harmed Amaya Arias or his family following their return to Barranquilla.
The IJ denied Amaya Arias’s applications for asylum and withholding of removal
on grounds that the payments he made to the FARC rendered him inadmissible under
§ 1182(a)(3)(B). Section 1182(a)(3)(B)(i) provides that an alien is inadmissible to the
United States where he is found to have “engaged in a terrorist activity.” Section
1182(a)(3)(B)(iv)(VI)(cc) defines “engage in terrorist activity” as, inter alia, the
“commi[ssion of] an act that the actor knows, or reasonably should know, affords
material support, including ... funds, transfer of funds or other material financial benefit
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... to a terrorist organization described in clause (vi)(I) or (vi)(II)[.]” 1 The IJ found that
this provision applied regardless of whether the conduct at issue was voluntary, and
therefore found that Amaya Arias’s payments, whether or not voluntary, fell within the
provision and mandated a finding of inadmissibility. The BIA agreed with the IJ’s
statutory construction.
Even though the IJ and BIA focused their discussions on the statutory construction
of § 1182(a)(3)(B)(iv), they also made factual findings that support the Attorney
General’s primary contention on appeal that Amaya Arias acted voluntarily when he made
payments to the FARC. The BIA found that “the evidence in the record suggests that the
respondent’s act was not involuntary.” The BIA specifically noted that the IJ had found
that Amaya Arias passed money to the FARC at Guiterrez’s request, that he had not been
threatened by the FARC, and that he did not leave his job on the farm earlier because of
the money he earned there. The BIA concluded that “[p]articularly as the respondent
apparently did not encounter FARC once he left his job and in light of his reason for not
leaving his job earlier, respondent’s testimony does not reflect that his acts were wholly
involuntary.”
1
During the time period in which Amaya Arias made these payments, the FARC
was designated by the United States State Department as an FTO. See United States
Department of State Web Page (http://www.state.gov/s/ct/rls/fs/2003/17067.htm). As
such, it was a “terrorist organization” for purposes of § 1182(a)(3)(B)(iv)(cc).
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II.
We begin our discussion with jurisdiction, which we assess de novo. See Valansi
v. Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002) (citation omitted). We have jurisdiction to
review the BIA’s denial of Amaya Arias’s application for withholding of removal
pursuant to 8 U.S.C. § 1252(a)(1). We agree with the Attorney General, however, that we
lack jurisdiction to review Amaya Arias’s CAT claim because he failed to raise it before
the BIA. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594 (3d Cir. 2003) (reasoning that
because asylum applicant “failed to raise [ ] issue in his appeal to the Board, we do not
have jurisdiction to consider the question.”).
The Attorney General also argues that 8 U.S.C. § 1158(b)(2)(D) deprives us of
jurisdiction to review the BIA’s determination that Amaya Arias is ineligible for asylum
because he engaged in terrorist activity. Section 1158(b)(2)(D) provides that “[t]here
shall be no judicial review of a determination of the Attorney General under subparagraph
(A)(v).” 8 U.S.C. § 1158(b)(2)(D). A “determination of the Attorney General under
subparagraph (A)(v)” includes a determination that an alien has provided material support
to a terrorist organization within the meaning of § 1182(a)(3)(B)(i). Id. at
§ 1158(b)(2)(A)(v). Because the BIA found Amaya Arias inadmissible for engaging in
terrorist activity under 8 U.S.C. § 1182(a)(3)(B)(i), it appears that it made just the
determination that § 1158(b)(2)(D) withdraws from the scope of our jurisdiction to
review. See Bellout v. Ashcroft, 363 F.3d 975, 977 (9th Cir. 2004).
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Amaya Arias counters that Congress altered the effect of § 1158(b)(2)(D) in the
recently enacted REAL ID Act of 2005. See Pub. L. No. 109-13, 119 Stat. 231 (May 11,
2005). He specifically directs us to § 106(a)(1) of the REAL ID Act, which inserted the
following new § 1252(a)(2)(D) into Title 8:
Nothing in subparagraph (B) or (C), or in any other provision of this
chapter (other than this section) which limits or eliminates judicial review,
shall be construed as precluding review of constitutional claims or
questions of law raised upon a petition for review filed with an appropriate
court of appeals in accordance with this section.
8 U.S.C. § 1252(a)(2)(D) (emphasis added). We discussed this provision in
Papageorgiou v. Gonzales, 2005 WL 1490454 (3d Cir. June 24, 2005), stating that it
reflects Congress’s “intent to restore judicial review of constitutional claims and
questions of law presented in petitions for review of final removal orders.” 2005 WL
1490454, at *2. We found that the new § 1252(a)(2)(D) “repealed all jurisdictional bars
to our direct review of constitutional claims and questions of law in final removal orders
other than those remaining in 8 U.S.C. § 1252 (e.g., in provisions other than (a)(2)(B) or
(C)) following the amendment of that section by the Act.” Id.The plain terms of § 1252(a)(2)(D) are satisfied here. Section 1158(b)(2)(D)
constitutes a provision of Chapter 12 “which limits or eliminates judicial review[.]” And
Amaya Arias’s statutory construction claim that § 1182(a)(3)(B)(iv) does not encompass
involuntary material support clearly presents “questions of law.” We therefore find that
we have jurisdiction to review that legal determination. However, the BIA alternatively
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held that even if an involuntariness exception exists, Amaya Arias’s support was not
involuntary. Amaya Arias challenges this determination as well. Because this
determination is, as previously noted, a factual one, we would have no jurisdiction to
review it if Amaya Arias were only seeking review of the asylum claim. But as
previously noted, he is also seeking review of the withholding denial, and we retain
jurisdiction to review factual issues pertaining to that claim because the jurisdictional
limitation at 8 U.S.C. § 1182(b)(2)(D) does not apply to withholding claims, and therefore
does not preclude our review of factual issues pertaining to such claims. Thus, because
the availability of withholding of removal turns on the same factual issues that Amaya
Arias raised in his asylum claim, we have jurisdiction to reach the merits of his claims,
both factual and legal.
III.
We turn now to the merits of the withholding claim. As noted, Amaya Arias’s
statutory construction argument depends on his establishing that there was not substantial
evidence to support the BIA’s finding that he made payments to the FARC voluntarily.
“We must uphold the BIA’s factual findings if they are supported by substantial
evidence.” Singh v. Gonzales, 406 F.3d 191, 195 (3d Cir. 2005) (citing Singh-Kaur v.
Ashcroft, 385 F.3d 293, 296 (3d Cir. 2004)). Substantial evidence review “is extremely
deferential, setting a ‘high hurdle by permitting the reversal of factual findings only when
the record evidence would compel a reasonable factfinder to make a contrary
9
determination.’” He Chun Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004) (citations
and internal quotations omitted).
We find that Amaya Arias has failed to meet this heavy burden. Amaya Arias was
never expressly threatened by the FARC, and there was substantial evidence that he
remained at the farm not because he feared retribution from the FARC, but rather because
he made good money there. There was no evidence that Amaya Arias or his family had
any encounters with the FARC after they left El Morro in 2000, which supports the
inference that Amaya Arias could have left El Morro earlier without fear of retribution.
Indeed, this inference, coupled with Amaya Arias’s knowledge of the FARC’s tactics, is
substantial evidence that Amaya Arias and his family had a reasonable opportunity to
leave El Morro before the onset of any possible duress. Cf. United States v. One 107.9
Acre Parcel of Land Located in Warren Township, Bradford County, Pa., 898 F.2d 396,
399 (3d Cir.1990) (stating that “[i]n a criminal law context, ... duress contains three
elements[, including] (3) no reasonable opportunity to escape the threatened harm.”). At
the same time, Amaya Arias fails to point us to evidence which would compel us to reach
a conclusion contrary to the BIA’s finding that he made payments to the FARC
voluntarily. We therefore conclude that substantial evidence supports the BIA’s finding
that Amaya Arias acted voluntarily when he made payments to the FARC, and will deny
the petition for review on this basis.
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