Leyva, Alvaro H. v. Gonzales, Alberto R. , 239 F. App'x 281 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 1, 2007
Decided July 13, 2007
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3433 Petition for Review of an Order
of the Board of Immigration Appeals
ALVARO H. LEYVA,
Petitioner, No. A97-102-354
v.
ALBERTO R. GONZALES, United
States Attorney General,
Respondent.
ORDER
Alvaro Hernando Leyva, a former civilian accountant for the Colombian
Navy, and his wife and three children seek review of the final decision of the Board
of Immigration Appeals that denied them asylum and relief under the Convention
Against Torture. We deny the petition for review because substantial evidence does
not compel a finding that Leyva suffered persecution on account of political opinion
or a sufficient likelihood of torture.
No. 06-3433 Page 2
I.
Alvaro Hernando Leyva is a citizen of Colombia, as are his wife, Eda
Jannette, and their three children. Leyva began working for the Colombian Navy in
1991 as a civilian accountant. His troubles began in 1998, when he discovered
accounting irregularities that benefitted Captain German Sahid-Castano. Sahid
threatened him not to report the irregularities, stating that “the eagles kill the
doves.” Leyva interpreted this remark as a threat against his reporting the
irregularities and a reference to his being a “a Christian or a follower of [the]
Mennonite way.” In spite of the threat, Leyva reported the irregularities within the
department to the auditors. The irregularities were leaked to the press, and Sahid
subsequently lost his position with the Navy after the corruption became more
widely exposed. Leyva received a transfer to a different department.
Leyva later was stationed on a vessel, the Gloria, for six months. Before
embarking, several superior naval officers threatened Leyva in late 2000 about
reporting any irregularities. Instead, they told him to be prepared to “clean things
up if necessary” with the accounting while aboard. Once aboard, Leyva discovered
another accounting problem, in which Lieutenant Martin-Orduz misused funds.
Orduz threatened Leyva about the discovery, locked him in his office for an
unknown duration on one day, and accused him of working for counter-intelligence.
When Leyva reported the incident to the captain, the captain instructed Leyva not
to get involved. Leyva did not speak to the press about any of the corruption.
Leyva’s wife also received threats stemming from her husband’s discovery
and reporting of the accounting irregularities, including written cards suggesting
her husband’s death while he was aboard the Gloria, threatening telephone calls,
strangers approaching her at work and around the family home, and strangers
asking the children and those living in their neighborhood about the family’s
schedules and details. Leyva also continued to receive various verbal threats from
superiors.
The most serious incident occurred on February 22, 2002, when two armed
men in a vehicle approached Leyva while he was waiting at a bus stop and ordered
him into their vehicle. They placed a bag over his head, beat him with their fists
and the butts of their guns, and burned his wrists with an unidentified chemical.
The men warned him not to discuss the corruption further and threatened him and
his family. Leyva believed that the men’s accents indicated they were from the
coast, and therefore members of a paramilitary force, which is primarily recruited
from the coast. Leyva claims that his superior officers had connections with the
paramilitary forces and sent the paramilitary to threaten him.
No. 06-3433 Page 3
After the detention, Leyva reported the incident to his superiors. Two of his
superiors advised leaving the country for a time, and Leyva took a leave of absence
from his position. He arrived in the United States on April 17, 2002. His wife and
children joined him less than two months later. Notably, he only planned to visit,
but applied for asylum on April 10, 2003, based on the encouragement of friends.
After a hearing, the Immigration Judge (IJ) denied Leyva’s request for
asylum, withholding of removal, and relief under the Convention Against Torture
(CAT). The Board of Immigration Appeals (BIA) affirmed the IJ’s decision,
supplementing it with its own reasoning. Leyva now petitions this court to review
the denial of asylum and relief under the CAT, but does not seek withholding of
removal.
II.
We review the denial of asylum under “the substantial evidence standard.”
Feto v. Gonzales, 433 F.3d 907, 910-11 (7th Cir. 2006) (citation omitted). Under this
deferential standard, “we require only that the decision be supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Gjerazi v.
Gonzales, 435 F.3d 800, 807 (7th Cir. 2006) (citation and internal quotation
omitted). This standard is in accord with the statutory requirement that “the
administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). If, as in
this case, “the BIA adopts the IJ’s decision while supplementing the decision with
its own reasoning, the IJ’s decision, as supplemented by the BIA’s decision, becomes
the basis for review.” Gjerazi, 435 F.3d at 807 (citation omitted).
We begin with Leyva’s claim for asylum. Asylum may be granted “to aliens
who apply for asylum in a timely fashion, meet certain procedural requirements,
and qualify as refugees.” Sosnovskaia v. Gonzales, 421 F.3d 589, 593 (7th Cir. 2005)
(citing 8 U.S.C. § 1158(b)(1)(A)). “A ‘refugee’ is defined as a person who is unable or
unwilling to return to the country of her nationality because of ‘persecution or a
well-founded fear of future persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion . . . .’” Id. (quoting 8
U.S.C. § 1101(a)(42)(A)). In this case, Leyva claims persecution based on political
opinion. Leyva bears the burden of demonstrating that he has suffered past
persecution or a well-founded fear of future persecution on account of his political
opinion. Id. (citing 8 C.F.R. § 208.13(a)).
Although the statute does not define “persecution,” we have previously
explained that persecution “may include detention, arrest, interrogation,
No. 06-3433 Page 4
prosecution, imprisonment, illegal searches, confiscation of property, surveillance,
beatings, [] torture, [or] behavior that threatens the same . . . .” Gjerazi, 435 F.3d at
808 (citation and internal quotations omitted). Persecution “must rise above the
level of ‘mere harassment’ and must result from more than unpleasant or even
dangerous conditions in [the] home country.” Nakibuka v. Gonzales, 421 F.3d 473,
476 (7th Cir. 2005) (citation omitted). We previously analyzed a detention lasting
three days, in which the petitioner was denied food and his face beaten. Dandan v.
Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003). We concluded:
when we look at the evidence of the severity of Dandan’s single detention, we
cannot say that we are compelled to find that he was subject to past
persecution. This is a high standard and one that is properly difficult to meet
without powerful and moving evidence. The issue is difficult to resolve, and
we find it quite serious that Dandan was detained, beaten and deprived of
food for three days. But the sort of specific information that would compel a
finding of persecution has not been presented. We know only that the
detention was without food, was three days long and that he was beaten to
the extent that his face became “swollen.” While it is distasteful to have to
quantify suffering for the purposes of determining asylum eligibility, that is
our task. A standard of review that requires our being compelled to reach a
conclusion contrary to the BIA means that we necessarily search for specifics,
not generalities. Significant in our analysis is the obvious fact that knowledge
of the specific circumstances of Dandan’s detention was entirely within his
control. Dandan’s case for past persecution, with all its procedural
ramifications that we have noted, rests wholly upon the specific
circumstances of a single aggravated detention–circumstances he alone could
have, but failed to provide. Because Dandan bears the burden of
demonstrating that his detention rises to the level of persecution, we must
hold against him the failure to provide sufficient specifics to compel our
assent. A three-day interrogation resulting in a “swollen” face does not
compel us to conclude that the BIA was incorrect.
Id. (emphasis omitted). In this case, Leyva claims a beating lasting one day and
resulting in burns on his wrists. Even when combined with the verbal threats to
Leyva and his family over time and the brief detention on the ship, the treatment
does not rise above the level of harassment. In Dandan, the applicant similarly
faced additional threats to his family and harm when “the family’s house was
shelled and partially destroyed, and that as a result, he and his family went from
shelter to shelter” for a two month period. Id. at 571. As in Dandan, we are not
compelled by the evidence to conclude that the BIA erred in finding that Leyva fails
to demonstrate that he suffered persecution.
No. 06-3433 Page 5
Since he fails to demonstrate past persecution, Leyva is not entitled to a
rebuttable presumption of future persecution. See Gjerazi, 435 F.3d at 808 (“[a]n
applicant who successfully proves past persecution is presumed to have a well-
founded fear of future persecution—a presumption that the government can rebut
by demonstrating a change in the conditions in the applicant’s homeland.” (citations
omitted)). Nonetheless, Leyva may “demonstrate a well-founded fear of future
persecution if his fear is subjectively genuine and objectively reasonable in light of
credible evidence.” Id. (citations omitted). Even assuming, as the BIA did, that
Leyva subjectively fears future persecution, his fear is not objectively reasonable in
light of the evidence. As the BIA explained, “given the passage of time since
[Leyva’s] last encounter with paramilitaries, and insofar as he is no longer an
employee of the finance department of the Colombian Navy, he is not in a position
that would cause him to be targeted for any purpose by these same, or any other
paramilitaries.” Leyva bears the burden to demonstrate that his fear is objectively
reasonable. 8 U.S.C. § 1158(b)(1)(B). Since neither the testimony nor the
documentary evidence compels a finding to the contrary, we find no error in the
BIA’s conclusion that Leyva fails to demonstrate an objectively reasonable fear of
future persecution.
Furthermore, even if the acts Leyva and his family suffered amounted to past
persecution or a well-founded fear of future persecution, Leyva fails to demonstrate
that the persecution occurred “on account of” a political opinion. We have stated
that “[a] political opinion is one that is expressed through political activities or
through some sort of speech in the political arena.” Li v. Gonzales, 416 F.3d 681,
685 (7th Cir. 2005) (citations omitted). For example, “[s]omeone who campaigns
against the government and urges the voters to throw the rascals out is engaged in
political speech,” as is “someone who writes an op-ed piece or otherwise urges the
people to rid themselves of corrupt officials.” Musabelliu v. Gonzalez, 442 F.3d 991,
995 (7th Cir. 2006). Leyva did not engage in any of these classic political activities.
This does not end our analysis, however, because this court has
acknowledged that “[w]histle-blowing about public corruption can be a form of
political opinion.” Id. (citations omitted). Leyva implies that he was a whistle-
blower who tried to expose improper uses of government funds. His claim falls
short because in his investigation into corruption he “did not take [his evidence of
corruption] to the public in quest of a political decision.” Id. at 996 (citations
omitted). Instead, Leyva pursued an investigation within the chain of command in
the Navy by reporting his findings to auditors and to his superiors. See id. (noting
that the alien “made his views known within the chain of command, as part of his
official duties,” which was insufficient to constitute an expression of political
opinion). Additionally, we previously noted that “[i]t is an open question even in the
No. 06-3433 Page 6
United States whether the first amendment gives public officials a right to be free
of retaliation when they speak within an agency’s hierarchy on an issue of public
concern, as part of their duties.” Id. (noting that the Supreme Court had granted
certiorari in Garcetti v. Ceballos, 543 U.S. 1186 (2005), to address this issue).
Subsequently, the Supreme Court held that “when public employees make
statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Garcetti v. Ceballos, 126 S. Ct. 1951,
1960 (2006). As we previously noted, the holding in Garcetti “reinforces the
characterization of [Leyva’s] conduct within his employment [with the government]
as non-political speech; it would be implausible to offer broader protection for
speech to an alien under the immigration laws than is provided to citizens under
the First Amendment.” Pavlyk v. Gonzales, 469 F.3d 1082, 1089 (7th Cir. 2006). As
a factual matter, Leyva has not demonstrated that the incidents he suffered were
on account of political opinion. Musabelliu, 442 F.3d at 996. Accordingly, he fails to
qualify as a refugee entitled to asylum. Because his wife’s and children’s claims are
derivative of his own, they also do not qualify for asylum. Furthermore, since Leyva
and his family are not entitled to asylum, even if they had sought withholding of
removal, it would not be available to them. Jamal-Daoud v. Gonzales, 405 F.3d
918, 925 (7th Cir. 2005) (“Because the standard of proof for withholding of removal
is higher than that needed to establish eligibility for asylum, the failure to sustain
the burden of proof for asylum necessarily precludes eligibility for withholding of
removal.” (citation omitted)).
Leyva next claims that he and his family are entitled to protection under the
Convention Against Torture (CAT). We again review the denial of relief under the
substantial evidence standard, analyzing whether “the record compels a contrary
result.” Mabasa v. Gonzales, 455 F.3d 740, 744 (7th Cir. 2006) (internal quotation
and citations omitted). Relief under the CAT does not have to be on account of
political opinion to qualify for relief. Instead, to obtain relief under CAT, Leyva
must show that “it is more likely than not that if removed to [Colombia], he will be
subject to torture.” Boyanivskyy v. Gonzales, 450 F.3d 286, 292 n.3 (7th Cir. 2006)
(citing 8 C.F.R. § 208.16(c)(2)). The regulations define torture as:
[A]ny act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or
her or a third person information or a confession, punishing him or her for an
act he or she or a third person has committed or is suspected of having
committed, or intimidating or coercing him or her or a third person, or for
any reason based on discrimination of any kind, when such pain or suffering
No. 06-3433 Page 7
is inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.
8 C.F.R. § 208.18(a)(1). Showing a likelihood of torture is a “more stringent”
standard than is required to demonstrate persecution required to qualify for
asylum. Gomes v. Gonzales, 473 F.3d 746, 757 (7th Cir. 2007) (citation omitted).
Since, as discussed above, Leyva “fails to meet the more lenient burden of proof for
asylum, he cannot establish that he is . . . eligible for protection under the
Convention Against Torture.” Hussain v. Gonzales, 424 F.3d 622, 630 (7th Cir.
2005) (citations omitted).
III.
Because the evidence does not compel a finding of past persecution or a well-
founded fear of future persecution and because, even if the incidents had risen to
the level of persecution they were not on account of political opinion, Leyva is not
entitled to asylum. Similarly, because Leyva fails to demonstrate a likelihood of
torture, he is not entitled to relief under the Convention Against Torture. His
family’s derivative petitions likewise fail. Accordingly, we DENY the petition for
review.