Baena, Orlay v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-2452 & 04-2949
ORLAY HERNANDEZ-BAENA and
SANDRA CARRERA-GARCIA,
Petitioners,
v.
ALBERTO GONZALES,
Respondent.
____________
Petitions for Review of an Order of
the Board of Immigration Appeals.
No. A96 158 735 & No. A96 158 736
____________
ARGUED APRIL 1, 2005—DECIDED AUGUST 4, 2005
____________
Before EASTERBROOK, MANION, and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Orlay Hernandez-Baena and
Sandra Carrera-Garcia, natives of Colombia, entered the
United States as non-immigrant visitors and overstayed
their visas. They filed for asylum, claiming that Hernandez-
Baena had suffered persecution on account of political
opinion or imputed political opinion when the Revolutionary
Armed Forces of Colombia (FARC) threatened his life
because he refused to sell them military supplies. An
Immigration Judge (IJ) denied all relief except voluntary
2 Nos. 04-2452 & 04-2949
departure, and the Board of Immigration Appeals (BIA)
affirmed without opinion. For the reasons explained below,
we deny the petition for review.
I.
The facts of the case are not in dispute, as the IJ credited
petitioners’ testimony in full. Carrera-Garcia’s claims are
derivative of Hernandez-Baena’s and thus we focus on his
claims. Hernandez-Baena ran a military supply business in
Bogota. He sold boots and other supplies to the military and
to the police, as well as to private organizations such as the
Red Cross. Under Colombian law, private individuals
wishing to purchase such supplies were required to present
military or police credentials, or a permit from the govern-
ment. In July 2000 two men in civilian clothing entered the
store and attempted to purchase military boots and other
supplies without the required documentation. Hernandez-
Baena told the men that he could not sell them the goods
because he could end up in prison for doing so. Later that
day, a different man came to the store and demanded that
Hernandez-Baena “do what he was told to do in the morn-
ing” or be killed. Hernandez-Baena asked who the men
were; he was told that they were members of FARC, Colom-
bia’s largest rebel group, and that they knew where he and
his family lived. Hernandez-Baena described FARC as a
guerilla force responsible for the deaths and kidnappings of
many Colombians. Terrified by the threat, he abandoned
his store and fled Bogota the following day with Carrera-
Garcia.
Petitioners stayed with family members in Pereira, a city
about 70 miles from Bogota where Hernandez-Baena
maintained an office. A week after they arrived, someone
telephoned the office and stated that Hernandez-Baena’s
“death sentence” had been signed and that he would be
found wherever he was hiding. Hernandez-Baena reported
Nos. 04-2452 & 04-2949 3
the threatening phone call to the police, who put a wiretap
on the phone. No further calls were received. After remain-
ing in Pereira for seven months without incident,
Hernandez-Baena and Carrera-Garcia left Colombia for the
United States. They married shortly after arriving. In
September 2001, their daughter was born in the
United States. In October, the couple and their newborn
daughter returned to Colombia, where they stayed “in hid-
ing” at the home of Hernandez-Baena’s mother in Pereira
for two and half months without receiving any threats.
The petitioners filed for asylum, claiming that
Hernandez-Baena suffered past persecution on account of
political opinion or imputed political opinion when FARC
targeted him for death for refusing to sell military supplies
in violation of Colombian law. Hernandez-Baena also
claimed that he had a well-founded fear of future persecu-
tion, contending that FARC would carry out its death threat
if he returned to Colombia. The petitioners were served
with a Notice to Appear charging them with removability
under 8 U.S.C. § 1227(a)(1)(B). They conceded removability,
renewed their applications for asylum, and sought in
addition withholding of removal, protection under the
Convention Against Torture, and in the alternative, volun-
tary departure.
Although the IJ did not doubt the veracity of petitioners’
description of events, he rejected their claim that
Hernandez-Baena had been persecuted on account of polit-
ical opinion. The IJ determined that the two oral threats
amounted to harassment rather than persecution and
further concluded that Hernandez-Baena was not harassed
“on account of” a political opinion. The IJ also concluded
that petitioners had not demonstrated a well-founded fear
of future persecution because their fear was not objectively
reasonable in light of evidence that the Colombian govern-
ment was not unable or unwilling to protect its citizens
from FARC. The IJ also denied the claims for withholding
4 Nos. 04-2452 & 04-2949
of removal and relief under the Convention Against Torture
because petitioners had not satisfied the less stringent
burden of proof for asylum eligibility. The BIA affirmed
without opinion, and after unsuccessfully seeking reconsid-
eration and reopening, Hernandez-Baena and Carrera-
Garcia filed this petition for review.
II.
To establish eligibility for asylum, an applicant must
demonstrate that he is a “refugee” within the meaning of
the Immigration and Nationality Act, which defines “refu-
gee” as “one who is unable or unwilling to return to his
country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, mem-
bership in a particular social group, or political opinion.” 8
U.S.C. § 1101(a)(42)(A); see Jamal-Daoud v. Gonzales, 403
F.3d 918, 922 (7th Cir. 2005). If an applicant has suffered
persecution in the past, he is entitled to a rebuttable
presumption of a well-founded fear of future persecution.
Tolosa v. Ashcroft, 384 F.3d 906, 908 (7th Cir. 2004).
Otherwise, he must establish that he genuinely fears pers-
ecution based on a protected ground and show, based upon
credible, direct, and specific evidence, that a reasonable
person in the same circumstances would fear persecution if
returned to the petitioner’s country. Oforji v. Ashcroft, 354
F.3d 609, 613 (7th Cir. 2003). The applicant bears the
burden of proving that he is eligible for asylum. Jamal-
Daoud, 403 F.3d at 922; 8 C.F.R. § 208.13(a).
Because the BIA affirmed without opinion, we review the
decision of the IJ directly to determine if it is supported by
substantial evidence. Tolosa, 384 F.3d at 908; Oforji, 354
F.3d at 612. We will affirm the IJ’s denial of asylum if it is
“supported by reasonable, substantial, and probative evi-
dence on the record considered as a whole,” INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992), and reverse it only
Nos. 04-2452 & 04-2949 5
where the evidence is so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution,
id. at 483-84.
Petitioners first challenge the IJ’s conclusion that the
threats against Hernandez-Baena did not amount to past
persecution, and that in any event the threats were not “on
account of” an imputed political opinion. They argue that
FARC’s issuance of a “death warrant” against Hernandez-
Baena amounts to more than an unfulfilled threat and rises
to the level of persecution. Although we have not foreclosed
the possibility that extraordinary threats—those “of a most
immediate and menacing nature”—might in themselves
amount to persecution, in general, unfulfilled threats do
not. Ahmed v. Ashcroft, 348 F.3d 611, 616 (7th Cir. 2003);
see Boykov v. INS, 109 F.3d 413, 416-17 (7th Cir. 1997).
Hernandez-Baena’s attempt to distinguish his case is un-
convincing. He insists that the conduct went beyond mere
unfulfilled threats because FARC acted upon its threats
when it issued a “death warrant.” But he supplied no
evidence that the use of the term “death sentence” by the
person who telephoned his office in Pereira had significance
as anything other than a verbal threat. And the fact that he
remained in Pereira for seven months after the threatening
call without experiencing any further harm or threat of
harm undermines the contention that the threat was of a
sufficiently immediate and menacing nature as to consti-
tute, without more, persecution.
The petitioners further argue that FARC’s conduct was
“on account of” imputed political opinion because
Hernandez-Baena’s refusal to deal with the guerillas
frustrated FARC’s political objectives and reflected support
for the Colombian government. In that respect, this case is
virtually indistinguishable from Elias-Zacarias, where the
Supreme Court held that an applicant’s failure to cooperate
with a guerilla insurgency is neither political opinion nor a
basis for imputed political opinion. 502 U.S. at 482, 483.
6 Nos. 04-2452 & 04-2949
Moreover, we have recently stated that “a threat posed by
an armed insurgency is not ‘persecution.’ ” Hor v. Gonzales,
400 F.3d 482, 485 (7th Cir. 2005) (holding that an Algerian
national who was aligned with the government, and who
had been threatened with death by armed rebels unless he
assisted them, was not a victim of persecution). Indeed,
Hernandez-Baena’s own testimony demonstrates that he
refused to comply with the request of the FARC members
because he did not want to go to jail for violating Colombian
law—not because of a political opinion. His refusal to
cooperate with FARC is not a “political opinion” simply
because his behavior conformed to the law. Elias-Zacarias
also provides the basis for rejecting petitioners’ conclusory
argument that the IJ unreasonably sought direct proof of
FARC’s motive for threatening Hernandez-Baena. What the
IJ sought, rightfully, was “some evidence of it, direct or
circumstantial.” Elias-Zacarias, 502 U.S. at 483.
Petitioners next challenge the IJ’s conclusion that
Hernandez-Baena lacked a well-founded fear of future pers-
ecution, essentially arguing that because “[t]his record is
barren of evidence that FARC ever lifted the death warrant
it announced” in July 2000, he per se has a well-founded
fear. Because the threat was never “lifted,” they contend, “it
must be presumed, for all intents and purposes, that
Hernandez-Baena is under threat of death from FARC.” But
this argument misstates the burden of proof, which lays
squarely on the applicant. E.g., Jamal-Daoud, 403 F.3d at
922. Moreover, even if Hernandez-Baena is in fact “under
threat of death,” in order for us to reverse the IJ’s decision,
we would effectively have to conclude that the Colombian
government is unable or unwilling to protect its citizens
from FARC. See Hor, 400 F.3d at 485 (“Persecution is
something a government does, either directly or by abetting
(and thus becoming responsible for) private discrimination
by throwing in its lot with the deeds or by providing
protection so ineffectual that it becomes a sensible inference
Nos. 04-2452 & 04-2949 7
that the government sponsors the misconduct.”); cf. Bace v.
Ashcroft, 352 F.3d 1133, 1138-39 (7th Cir. 2003) (Attacks
not actually directed by the state amounted to persecution
where “attackers clearly had a political motivation.”). But
in this case the record does not support such a conclusion;
indeed, the opposite appears to be true. When Hernandez-
Baena reported the death threat, police responded immedi-
ately by wiretapping his phone in order to trace the caller.
No further threats have been received since the police
response. Under these circumstances, petitioners would be
hard pressed to demonstrate any connection between the
government and FARC’s threats. See Roman v. INS, 233
F.3d 1027, 1035 (7th Cir. 2000). The IJ’s conclusion that
petitioners’ fear of future persecution was not objectively
reasonable was supported by substantial evidence, and
accordingly, asylum was properly denied.
Finally, petitioners challenge the BIA’s refusal to recon-
sider or reopen their administrative appeal. We review the
denial of such motions for abuse of discretion. Singh v.
Gonzales, 404 F.3d 1024, 1027 (7th Cir. 2005). A motion to
reconsider “asks that a decision be reexamined in light of
additional legal arguments, a change of law, or an argu-
ment that was overlooked earlier.” Patel v. Ashcroft, 378
F.3d 610, 612 (7th Cir. 2004). The BIA concluded that the
petitioners raised no error of law or fact in the earlier
decision that would warrant reopening, and this decision
was not an abuse of discretion. Nor can we say the BIA
abused its discretion by declining to reopen the appeal. As
we have explained, “a motion to reopen asks for reconsider-
ation on the basis of facts or evidence not available at the
time of the original decision, such as changed country
conditions.” Id. Petitioners provided different translations
of documents that were already in the record, but nothing
in their memorandum and attachments presented new facts
or evidence warranting reopening. The BIA was therefore
within its discretion in denying the motion.
8 Nos. 04-2452 & 04-2949
For the reasons stated above, we DENY the petition for
review.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-4-05