Filed: Oct. 24, 2013
Latest Update: Mar. 28, 2017
Summary: Case: 12-14385 Date Filed: 10/24/2013 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-14385 _ Agency No. A077-889-201 HENRY BRAVO BENITEZ, ROSA DEL CARMEN SALGADO MIRANDA, Petitioners, versus US ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (October 24, 2013) Case: 12-14385 Date Filed: 10/24/2013 Page: 2 of 10 Before TJOFLAT and WILSON, Circuit Judges, and PROCTOR, * District Judge.
Summary: Case: 12-14385 Date Filed: 10/24/2013 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-14385 _ Agency No. A077-889-201 HENRY BRAVO BENITEZ, ROSA DEL CARMEN SALGADO MIRANDA, Petitioners, versus US ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (October 24, 2013) Case: 12-14385 Date Filed: 10/24/2013 Page: 2 of 10 Before TJOFLAT and WILSON, Circuit Judges, and PROCTOR, * District Judge. ..
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Case: 12-14385 Date Filed: 10/24/2013 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14385
________________________
Agency No. A077-889-201
HENRY BRAVO BENITEZ,
ROSA DEL CARMEN SALGADO MIRANDA,
Petitioners,
versus
US ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 24, 2013)
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Before TJOFLAT and WILSON, Circuit Judges, and PROCTOR, * District Judge.
PER CURIAM:
Henry Bravo Benitez (Bravo) and his wife Rosa del Carmen Salgado
Miranda (Salgado)1 petition for review of the final removal order issued by the
Board of Immigration Appeals (BIA) on July 31, 2012. The BIA concluded that
Bravo, a native and citizen of Colombia, was ineligible for (1) asylum under the
Immigration and Nationality Act (INA) § 208(a), 8 U.S.C. § 1158(a); (2)
withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); and (3)
protection under the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT) under 8 C.F.R.
§ 208.16(c). Bravo challenges only the denials of his petitions for asylum and
withholding of removal. For the following reasons, we dismiss Bravo’s petition.
I. BACKGROUND
From 1997 to 1999, Bravo worked as a supervisory airplane dispatcher for
Suramericana Airlines, S.A. in Bogota, Colombia. His responsibilities included
evaluating the weight and balance of an aircraft, calculating the maximum weight a
plane could carry, and recording the weight in the plane’s manifest. In December
1997, 12 to 15 armed individuals who identified themselves as guerillas for the
*
Honorable R. David Proctor, United States District Judge for the Northern District of
Alabama, sitting by designation.
1
Salgado seeks relief only as a derivative beneficiary of her husband. For purposes of
clarity, we will refer to their arguments as Bravo’s.
2
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Revolutionary Armed Forces of Colombia (FARC) approached Bravo and
demanded to board a plane with their equipment. The guerillas told Bravo that if
he refused, he would be killed. Bravo warned them that the additional weight
would jeopardize the flight’s safety, but the guerillas nevertheless boarded the
plane. To conceal their activities, Bravo did not correct the plane’s manifest to
reflect the additional passengers and cargo. At some point after the first incident,
Bravo reported what had happened to his supervisor, who told him to keep quiet.
During the next two years, always under the threat of death, Bravo dispatched eight
to ten flights for FARC members. When Colombian authorities began
investigating some of the suspicious flights, Bravo received a threatening phone
call from the FARC, warning him about the consequences should he cooperate
with the investigation. As a result, when Colombian authorities asked Bravo about
the disparities between the actual and recorded weights of the planes, he lied and
attributed them to changes in temperature. In June 1999, Bravo quit his job. Two
months later, FARC members ambushed Bravo and his wife while they were
stopped in Bravo’s car. The attackers knocked Bravo unconscious and questioned
his wife, also an airline dispatcher, about flights, work schedules, and passenger
lists.
In November 1999, Bravo and his wife entered the United States as B-2
nonimmigrants. One year later, Bravo applied to the Department of Homeland
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Security (DHS) for asylum and withholding of removal, listing Salgado as a
derivative applicant. On August 30, 2007, the DHS served Bravo and Salgado
each with a notice to appear in immigration court as aliens subject to removal
under 8 U.S.C. § 1227(a)(1)(B). In response, Bravo—with his wife as a derivative
beneficiary—sought asylum, withholding of removal, and CAT relief.
On May 3, 2011, despite finding Bravo’s testimony and evidence credible,
the IJ denied all relief and ordered Bravo and Salgado removed to Colombia. The
IJ found that because Bravo had provided “material support” to the FARC by
acting as a dispatcher for ten flights carrying FARC members and equipment, he
was ineligible for asylum under 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). The IJ also
found that Bravo’s petition for withholding of removal was due to be denied
because Bravo’s fear of persecution from the FARC lacked a nexus to any
protected ground, i.e., his race, religion, nationality, membership in a particular
social group, or political opinion. See § 1231(b)(3)(A). Bravo appealed, and the
BIA affirmed the IJ’s decision.
The BIA agreed with the IJ that Bravo had “engaged in terrorist activity” by
providing material support to the FARC, triggering the material support bar under
§ 1182(a)(3)(B)(iv)(VI). In addition, the BIA denied Bravo’s petitions on the
alternate basis that he did not establish a nexus between a protected ground and
any past or potential persecution. This petition followed.
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II. ANALYSIS
Bravo raises three arguments. First, he insists that he did not provide
“material support” to the FARC. Second, he argues that the BIA erred in
concluding that he did not establish a nexus between any persecution and a
protected ground. Finally, Bravo advances a procedural due process argument,
contending that the BIA failed to afford him a fair opportunity to obtain a waiver
of inadmissibility because the BIA did not analyze his asylum claim after
determining that he had provided material support to the FARC. See
§ 1182(a)(3)(B)(i). We address each argument in turn.
A. Whether Bravo Provided Material Support to a Terrorist Organization
Section 1182(a)(3)(B)(iv)(VI) provides that an alien is ineligible for asylum
and withholding of removal if he engages in terrorist activity by:
commit[ting] an act that the actor knows, or reasonably should know,
affords material support, including a safe house, transportation,
communication, funds, transfer of funds or other material financial
benefit, false documentation or identification, weapons (including
chemical, biological, or radiological weapons), explosives, or
training— . . .
(cc) to a terrorist organization described in subclause (I) or (II) of
clause (vi) or to any member of such an organization[.]
Subclause (I) of § 1182(a)(3)(B)(vi) provides that a terrorist organization
means an organization “designated under section 1189 of [Title 8]." The FARC is
a “Tier I” foreign terrorist organization because the Secretary of State has
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designated it as such pursuant to § 1189. See 73 Fed. Reg. 68,489-02 (Nov. 7,
2008).
We begin by noting that Bravo’s duress argument was recently foreclosed by
this court in Alturo v. U.S. Attorney General, 716 F.3d 1310 (11th Cir. 2013) (per
curiam). In Alturo, the plaintiff, another Colombian national, argued that the
material support bar did not apply to him because any help that he provided to the
United Self-Defense Forces of Colombia (AUC) was given under duress. Id. at
1312. We reasoned that because Congress has “enacted a separate waiver
provision that vests ‘sole unreviewable discretion’ with the Secretary of State and
the Secretary of Homeland Security to waive the [material support] bar” so long as
the alien’s support was not voluntary, we would not read a duress exception into
§ 1182(a)(3)(B)(iv)(VI). Id. at 1314; see also Barahona v. Holder,
691 F.3d 349,
355–56 (4th Cir. 2012); Annachamy v. Holder,
686 F.3d 729, 734–35 (9th Cir.
2012). In addition, the plain language of the material support bar contained no
duress exception. Alturo, 716 F.3d at 1314. Bravo’s argument that his support
was de minimis rather than material is also without merit. The plain language of
the material support bar lists “transportation” as an example of material support,
and Bravo provided the FARC with air transportation. § 1182(a)(3)(B)(iv)(VI).
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B. Whether Bravo Was Persecuted on Account of a Protected Ground
Bravo’s second argument is that substantial evidence did not support the
BIA’s finding that he did not meet his burden of establishing past persecution on
account of his political opinion or membership in a particular social group. We
review the BIA’s finding under the substantial evidence test. Seck v. U.S. Att’y
Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). Under this standard, we must “view
the record evidence in the light most favorable to the agency’s decision and draw
all reasonable inferences in favor of that decision.” Adefemi v. U.S. Att’y Gen.,
386 F.3d 1022, 1027 (11th Cir. 2004). As we noted earlier, to establish a claim for
asylum, Bravo must show a nexus between past persecution and a protected
ground, such as his political opinion or membership in a particular social group.
See § 1158(b)(1)(B)(i).
Bravo first contends that he was persecuted on account of his political
opposition to the FARC. He points to his reluctance to assist the organization, and
his report of the first incident to his supervisor despite the FARC’s threats. We,
however, agree with the BIA that the “FARC’s actions against him were aimed at
forcing him in his occupation as an airplane dispatcher to assist them in flying
cargo and passengers,” and not actions taken to persecute him because of his
political leanings. Indeed, most, if not all of the evidence points towards this
conclusion.
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Nor are we persuaded that the FARC sought to harm Bravo on account of
his membership in a particular social group. Bravo argues that “former flight
dispatchers” are a particular social group, and that after he resigned he was
attacked on account of his membership in the group. Citing our decision in
Castillo-Arias v. U.S. Attorney General, 446 F.3d 1190 (11th Cir. 2006), the BIA
found that Bravo had not established that “former flight dispatchers” were a social
group qualifying for protection under the INA, because “former flight dispatchers”
are not, as we said in Castillo-Arias, people with a “shared characteristic . . . that
the members of the group either cannot change, or should not be required to
change because it is fundamental to their individual identities or consciences.” Id.
at 1193 (omission in original) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233
(BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec.
439, 447 (BIA 1987)).
In Castillo-Arias, we adopted the BIA’s Acosta formulation of what
constitutes a “particular social group.” Id. at 1196. Although former flight
dispatchers might, in one sense, have a “shared past experience,” we cautioned in
Castillo-Arias against “rendering ‘particular social group’ a catch-all for all groups
who might claim persecution.” Id. at 1197. In that case, we held that drug-cartel
informants “who remain anonymous are not visible enough to be considered a
‘particular social group.’” Id. Viewing the record in the light most favorable to
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the BIA, we agree that “former flight dispatchers” do not have the social visibility
to warrant being considered a particular social group. Bravo points to no evidence
that a former flight dispatcher would be “highly visible” in the community. Id. at
1194 (internal quotation marks omitted). We therefore conclude that because
Bravo was not a member of a particular social group, he did not establish a nexus
between any persecution and a protected ground.
C. Whether Bravo’s Due Process Rights Were Violated
Bravo’s final argument is that his due process rights were violated because
he was deprived of his ability to seek a waiver under § 1182(d)(3)(B)(i).
According to current DHS policy, that waiver may only be granted if, the material
support bar notwithstanding, the alien would have been eligible for asylum. See
U.S. Citizenship and Immigration Services, USCIS Implementation Memorandum
at 4 (May 24, 2007), available at http://www.uscis.gov/files/pressrelease
/MaterialSupport_24May07.pdf (last visited Aug. 9, 2013) (providing that an
exemption will only be considered for an alien who “is otherwise eligible”). Bravo
argues that because the BIA never reached the merits of his asylum claim, it
deprived him of a fair chance to be eligible for the waiver.
We are aware that this issue has not yet been decided in this circuit, although
it was recently addressed by the Seventh Circuit in FH-T v. Holder, — F.3d —,
No. 12-2471, 2013 WL 3800252, at *11 (7th Cir. July 23, 2013) (holding that there
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was no evidence that Congress “intended the waiver provision to require [BIA]
adjudication of the merits of asylum claims in every case triggering the material
support for terrorism bar”). However, we need not reach the issue in light of the
fact that the BIA did reach the merits of Bravo’s asylum claim. It is true that the IJ
only reached the nexus issue with regard to Bravo’s withholding of removal claim,
but the BIA explicitly held that Bravo had failed to show a “past persecution or a
well-founded fear of future persecution,” which is the standard for asylum. See Li
Shan Chen v. U.S. Att’y Gen., 672 F.3d 961, 964–65 (11th Cir. 2011) (per curiam).
It is therefore apparent that the BIA reached the merits of Bravo’s asylum claim,
and found it wanting.2 With that in mind, we leave for another day the decision of
whether Bravo’s due process rights would have been violated had the BIA failed to
reach the merits of his asylum claim.
PETITION DISMISSED.
2
As to Bravo’s withholding of removal claim, we note that “[w]here 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].” Silva v. U.S. Att’y Gen., 448 F.3d
1229, 1243 (11th Cir. 2006) (alterations in original) (internal quotation marks omitted).
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