Silva v. U.S. Atty. Gen.

• Decision Date: 05 May 2006
• Docket Number: No. 04-10351.,04-10351.
• Citation: 448 F.3d 1229
• Parties: Luz Marina SILVA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1229

448 F.3d 1229

Luz Marina SILVA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 04-10351.

United States Court of Appeals, Eleventh Circuit.

May 5, 2006.

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Michael Z. Goldman, Nicolle L. Jacoby, Deckert, LLP, New York City, for Silva.

Jill Ptacek, U.S. Dept. of Justice, David V. Bernal and Russell J.E. Verby, U.S. Dept. of Justice, OIL, Washington, DC, for U.S. Atty. Gen.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before CARNES, HULL and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

The main issue presented in this petition is whether evidence, viewed in the light most favorable to the fact findings of the Immigration Judge, that two unknown persons for unknown reasons fired shots at the car of Luz Marina Silva, a Colombian citizen, soon after she had received a single written threat about her political activity and several threatening, but not political, telephone calls, compelled the conclusion that Silva suffered past persecution or has a well-founded fear of future persecution on account of her political opinion. Silva applied for asylum and alleged that she was persecuted in Colombia by the Revolutionary Armed Forces (FARC). Because Silva's testimony at her asylum hearing failed to establish that the threats she received were more than mere harassment and she failed to establish that the shooting incident was based on her political opinion, the record does not compel the conclusion that she suffered past persecution or has a well-founded fear of future persecution. We deny Silva's petition.

I. BACKGROUND

Silva was admitted to the United States as a nonimmigrant visitor on March 8, 2000, and was authorized to remain in the United States until March 12, 2001. One year later, just before she was scheduled to depart, Silva sought asylum. In her application for asylum and withholding of removal, filed on March 5, 2001, Silva contended that, because of her political activity, she was persecuted in Colombia by the FARC, a Marxist paramilitary group. Silva stated in her application that, while working on a political campaign in September 1999, she received a written death threat that was signed by the FARC. The application stated that, after Silva received the written death threat, the FARC started calling her daily at her house and restaurant, and, on October 9, 1999, two men shot at her car while she was driving and hit the rear window. Silva's application stated that after the shooting she decided to leave the country, which she did on March 8, 2000. The application also stated that the FARC continued calling Silva daily until she left the country and that on the last call she was told that she was missed on October 9 but would not be missed again. Relevant portions of Silva's asylum application are attached as Appendix A to the dissenting opinion.

The Immigration and Naturalization Service issued Silva a notice to appear on May 30, 2001, and charged Silva with removability for remaining in the United States for a longer time than permitted. See 8 U.S.C. § 1227. Silva appeared pro se before Immigration Judge Pedro Miranda in August 2001 and was granted a continuance to obtain an attorney. On February 26, 2002, Silva again appeared pro se before Judge Miranda and admitted the facts alleged in the notice to appear. At Silva's request, Judge Miranda scheduled Silva's removal hearing for September 16, 2002, to allow Silva time to prepare her case and locate an attorney. The removal hearing was finally held on December 13, 2002. Silva appeared pro se and stated that she had been unable to secure an attorney. Silva declined another continuance and stated that she was prepared to represent herself. Silva was the only witness at the hearing.

Silva testified that she had lived her entire life in Balta, Colombia, and she and her family had always been politically active. Silva testified that, although her family is known for its association with the Conservative party, she had participated in the mayoral and presidential campaigns of Antanas Mockus, a member of the Visionary party, since 1994. Silva worked for Mockus on a successful campaign for mayor of Bogotá in 1994 and an unsuccessful bid for the presidency in Colombia in 1997. Silva explained that the Visionary party drew its members from both the traditional Conservative and Liberal parties.

During Mockus's campaigns, Silva participated in "health brigades," or "help brigades," which were groups of people that traveled into neighborhoods and offered the residents of those neighborhoods health services to encourage support of the Visionary Party. Silva stated that she spoke on behalf of Mockus to people around her but never in front of an audience. Silva offered no evidence that she was threatened in any way during her work with the Mockus campaigns in 1994 and 1997.

In June 1999, Silva came to the United States on a tourist visa. She stayed for one month and then returned to Colombia. After her return to Colombia, Silva again worked for Mockus in his second successful campaign for mayor of Bogotá. In September 1999, while Silva was participating in one of the "health brigades," she was handed a "condolence note" that said "Luz Marina Silva rest in peace for doing what she shouldn't be doing in the wrong place." Silva stated that the note, which she neither reported to authorities nor kept, was signed by the FARC. Silva stated that, after she received the "condolence note," she received anonymous telephone calls. On one occasion, an anonymous caller told Silva that she was a target because her family "had always exploited the Colombian people." Another caller said Silva was a target because she, unlike other members of her family, did not have a bodyguard. Silva did not testify that any of the calls mentioned her politics.

On October 9, 1999, about three weeks after Silva received the "condolence note," two men on motorcycles followed Silva home from the restaurant she owned, and during the trip, they fired gun shots into her car. The shots hit the back window of Silva's car, but she was not injured. That night, Silva received a telephone call and the caller warned her not to report the shooting to the Colombian authorities. The caller did not identify himself.

Although Silva first speculated that the FARC was responsible for the shooting, Silva later admitted that she did not know who fired the shots or made the phone call or why the shots were fired. Silva testified that the last time she participated in politics was a few days before the October 9, 1999, shooting. Silva testified that she had no further threats, calls, or other problems after October 9, 1999, until she came to the United States in November 1999.

Silva stayed in the United States from November 1999 until January 2000, but did not seek asylum. Silva then chose to return to Colombia to visit a dying relative. Silva testified that she "thought enough time had elapsed and that [she] could go back, that things might be different." After her return to Colombia, Silva again began receiving anonymous telephone calls "daily," in which the callers said, in an apparent reference to the shooting of Silva's car, "we missed already once, don't provoke us again" and "we are not going to miss a second time, we're going to kill you." Silva speculated that by "provoke" the anonymous callers meant that she should not be in Colombia or return to Colombia from the United States.

Silva did not testify that any of the new anonymous telephone calls referenced her political activity, and there is no evidence that Silva engaged in any political activity in 2000. Apart from the anonymous telephone calls, Silva did not have any problems in Colombia after she returned. Silva did not report the calls in 2000 to the police. She testified that her cousin, who was secretary to Mockus, also received anonymous telephone calls and that people in all of Colombia received letters and telephone calls calculated to terrorize them. She speculated that people get letters and phone calls if "the person that's involved in some political group or is the first time doing something that they are not in — that they don't want this person to do for whatever reasons." Silva returned to the United States in March 2000, about two months after she had returned to Colombia. Silva's hearing testimony is attached as Appendix B to the dissenting opinion.

In addition to Silva's oral testimony and asylum application, the record before the Immigration Judge contained Silva's written application for asylum and the 2000 Country Report on Human Rights Practices for Colombia. The Country Report noted that, in 2000, the Colombian "Government continued to face serious challenges to its control over the national territory, as longstanding and widespread internal armed conflict and rampant violence — both political and criminal — persisted." The Country Report recounted multiple stories of widespread violence and indiscriminate attacks against citizens, both military and civilian.

Also part of the record was the Colombia-Profile of Asylum Claims and Country Conditions, which states that "[t]he vast majority (perhaps as high as 90 percent) of asylum claims from Colombia are based on political grounds even in cases where there is little evidence that the political views of the applicant are related to the mistreatment alleged." The Profile states, "often applicants express uncertainty about the identity and/or motivation of their alleged abusers." The Profile concludes that "[b]ecause of the violent nature of the narcotics traffickers and guerrillas whose activities and agenda are often influenced by the availability of drug money, almost any abuse alleged by asylum applicants from Colombia could have occurred or at least would not be inconsistent with the country conditions."

At the close of Silva's testimony, the...