Alturo v. U.S. Attorney Gen.

• Decision Date: 21 May 2013
• Docket Number: Non–Argument Calendar.,No. 12–15647,12–15647,n–Argument Calendar.
• Citation: 716 F.3d 1310
• Parties: Pedro Machado ALTURO, Gloria Amparo Carrillo Vasco, Cristhian David Machado Carrillo, Sergio Alejandro Machado Carrillo, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

716 F.3d 1310

Pedro Machado ALTURO, Gloria Amparo Carrillo Vasco, Cristhian David Machado Carrillo, Sergio Alejandro Machado Carrillo, Petitioners,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 12–15647

Non–Argument Calendar.

United States Court of Appeals,Eleventh Circuit.

May 21, 2013.

Rodrigo Vilar, Vilar & Solano, PA, Miami, FL, for Petitioners.

Franklin M. Johnson, Jr., David V. Bernal, Alison Marie Igoe, Krystal Samuels, Daniel I. Smulow, U.S. DOJ, OIL, David McConnell, OIL, Washington, DC, Michelle Ressler, District Counsel's Office, USICE, Miami, FL, for Respondent.

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

Before TJOFLAT, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

Pedro Machado Alturo, a Colombian national, petitions for review of a final order of the Board of Immigration Appeals affirming the denial of his application for asylum and withholding of removal under the Immigration and Nationality Act, and withholding of removal under the United Nations Convention Against Torture (CAT). See8 U.S.C. §§ 1158(a), 1231(b)(3); 8 C.F.R. § 1208.16(c).¹ The BIA concluded that Alturo was statutorily ineligible for asylum, withholding of removal, and CAT relief because he provided material support to a designated terrorist organization, the United Self–Defense Forces of Columbia (AUC), in the form of six annual payments of $300 in war taxes, totaling $1,800. The BIA alternatively found that Alturo's claims for relief failed on the merits because he did not establish past persecution or a well-founded fear of future persecution on account of a statutorily protected ground, or that he would be tortured by or with the acquiescence of Colombian authorities upon return to his native country.

Alturo challenges both conclusions. He contends that the statutory bar for providing material support to a terrorist organization does not apply because: (1) he made the payments to the Aguilas Negras, or Black Eagles, which is not a designated terrorist organization; (2) the AUC can no longer be designated as a terrorist organization because it demobilized in 2006; (3) he could not have known that the Aguilas Negras or the AUC were terrorist organizations; (4) the amount of money he provided was de minimis; and (5) he made the payments under duress. Alturo also contends that the BIA erred in alternatively finding that he was not entitled to asylum or withholding of removal because he established that he had, and would be, persecuted on account of his political activities and opinions.

We review administrative factual findings under the deferential substantial evidence test, which requires that we affirm the BIA's decision if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Zhou Hua Zhu v. U.S. Att'y Gen., 703 F.3d 1303, 1307 (11th Cir.2013) (quotation marks omitted). Although we review legal questions de novo, we must defer to the BIA's construction of the INA “if the statute is silent or ambiguous with respect to the specific issue before us and the BIA's interpretation is based on a permissible construction of the statute.” Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1326 (11th Cir.2003) (quotation marks omitted).

An alien is inadmissible and ineligible for asylum, withholding of removal, or CAT relief if he has engaged in terrorist activity, which includes committing “an act that the actor knows, or reasonably should know, affords material support” to a terrorist organization.²8 U.S.C. § 1182(a)(3)(B)(iv)(VI); see also id. §§ 1158(b)(2)(A)(v), 1231(b)(3)(B)(iv); 8 C.F.R. § 1208.16(d)(2). The INA defines a “terrorist organization” as a group so designated by the Secretary of State or an undesignated group that “engages in, or has a subgroup which engages in,” terrorist activity. 8 U.S.C. § 1182(a)(3)(B)(vi). For undesignated terrorist organizations, the material support bar does not apply if the alien “can demonstrate by clear and convincing evidence that [he] did not know, and should not reasonably have known, that the organization was a terrorist organization.” Id. § 1182(a)(3)(B)(iv)(VI)(dd). There is no comparable exception for designated terrorist organizations. Id. § 1182(a)(3)(B)(iv)(VI)(cc).

In concluding that Alturo was ineligible for relief under the material support bar, the BIA found that he paid an annual $300 “vacuna,” or war tax, to the AUC over a period of six years in exchange for protection from local guerillas, that the amount of funds provided qualified as “material support” within the meaning of the INA, and that there was no exception to the statutory bar for payments made under duress. The BIA's factual finding that Alturo paid $1,800 to a designated terrorist organization is supported by substantial evidence. Alturo himself testified that, from 2000 through 2006, he made six annual payments of $300 to a paramilitary organization called the Peasant Self–Defense Group of Magdalena Medio, which he noted was “the same” as the AUC. ³ He explained that, in return for the payments, the AUC promised him protection from local guerillas, though he feared retribution if he refused to pay as one of his neighbors was killed for not paying the war tax.

Contrary to Alturo's contention, the fact that the AUC was demobilized in 2006 does not render the material support bar inapplicable. When Alturo made those payments, the AUC was active and designated as a Foreign Terrorist Organization by the United States State Department. Nor is it relevant whether Alturo knew, or should have known, that the AUC was deemed a terrorist organization. Where the recipient of material support is a designated terrorist organization, the INA requiresonly that the alien know, or should know, that his actions will afford material support to that organization; it does not require any specific knowledge of the status of the organization. Compare id. § 1182(a)(3)(B)(iv)(VI)(cc), with§ 1182(a)(3)(B)(iv)(VI)(dd).

The BIA's legal determinations that the funds provided by Alturo constitute “material support” within the meaning of the statutory bar and that the statute does not contain a duress exception are permissible constructions of the INA to which we must defer. The INA broadly defines “material support” to include the provision of “a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons ..., explosives, or training,” 8...