                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-2-2005

Arias v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1999




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                                                                 NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ____________

                                       No. 04-1999
                                      ____________

                          WALTER ANTONIO AMAYA ARIAS,

                                                  Petitioner

                                             v.

                            ALBERTO R. GONZALES,*
                        Attorney General of the United States
                   DEPARTMENT OF HOMELAND SECURITY;
              BUREAU OF IMMIGRATION & CUSTOMS ENFORCEMENT,

                                            Respondents
                                      ____________

                              On Petition for Review from an
                         Order of the Board of Immigration Appeals
                                  (Board No. A97 133 248)
                                       ____________

                                   Argued June 30, 2005

                Before: NYGAARD ** , SMITH and FISHER, Circuit Judges.

                                   (Filed August 2, 2005)




      *
        Attorney General Alberto R. Gonzales has been substituted for former Attorney
General John Ashcroft, the original respondent in this case, pursuant to Fed. R. App.
P. 43(c).
      **
           Judge Nygaard assumed senior judge status 7/9/05.
Reena Arya (Argued)
Hebrew Immigrant Aid Society
333 Seventh Avenue
New York, NY 10001
      Attorney for Petitioner

Douglas E. Ginsburg
John M. McAdams, Jr.
Lyle D. Jentzer (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
       Attorneys for Respondents

Seth M.M. Stodder (Argued)
Akin, Gump, Strauss, Hauer & Feld
2029 Century Park East, Suite 2400
Los Angeles, CA 90067
      Attorney for Amicus-Appellant,
      Human Rights First

                                      ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Petitioner Walter Antonio Amaya Arias appeals from the Board of Immigration

Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) decision denying

his applications for asylum, withholding of removal, and protection under the United

Nations Convention Against Torture (“CAT”). The BIA found that Amaya Arias was

inadmissible under 8 U.S.C. § 1182(a)(3)(B) because he “engaged in terrorist activity”



                                            2
within the meaning of the statute by making payments to a Colombian paramilitary

organization designated as a Foreign Terrorist Organization (“FTO”) pursuant to 8 U.S.C.

§ 1189. Amaya Arias argues that an involuntariness or duress defense should be implied

in § 1182(a)(3)(B)(iv), and that he has established that defense because he made the

payments to the FARC involuntarily. Because we find that there was substantial evidence

supporting the BIA’s finding that Amaya Arias made the payments voluntarily, we need

not address his statutory construction argument, and will deny his petition for review.

                                             I.

       As we write solely for the parties, and the facts are known to them, we will discuss

only those facts pertinent to our conclusion. Amaya Arias was born in Barranquilla,

Colombia, and is a native and citizen of Colombia. In April 2003, using a fraudulent visa,

he attempted to enter the United States at Miami International Airport. He was detained

by customs officials and placed in removal proceedings. He then applied for asylum and

withholding of removal.

       Colombia is a constitutional, multiparty democracy with two dominant parties: the

Liberal and the Conservative. But the organized Colombian government is relatively

weak and in ongoing conflict with several paramilitary groups, including the

Revolutionary Armed Forces of Colombia (“FARC”). Particularly relevant to this appeal,

the FARC is known to extort so-called “war taxes” from civilians in order to finance its

operations. Payment of war taxes is especially common in sections of Colombia



                                             3
controlled by the FARC. Refusal or inability to pay these war taxes is viewed as an act of

political opposition and often results in reprisal.

       In 1991, Amaya Arias joined the Colombian police force and was initially posted

in an anti-narcotics base where his duties included fighting guerrillas who belonged to the

FARC. He quit the police force in 1994 and in 1995, his girlfriend’s brother got him a

job managing a fish farm in El Morro owned by one Gustavo Guiterrez. At the time he

took this job, Amaya Arias knew that the farm was located in an area controlled by the

FARC. From his police experience, he also knew that the FARC was a violent, terrorist

organization.

       Amaya Arias worked at the El Morro farm without incident for several years. In

1997, a man dressed in civilian attire came to the farm, gave Amaya Arias an envelope

marked “Armed Revolutionary Forces of Colombia,” and told him to give it to Guiterrez.

The man did not threaten Amaya Arias in any way. Amaya Arias passed the envelope

along to Guiterrez, who later told him that it contained a letter demanding payment to the

FARC of a monthly “tax” of 500,000 pesos. Guiterrez directed Amaya Arias to pay the

tax on his behalf with funds provided by Guiterrez. Each month, approximately fifty

armed FARC guerrillas would come to El Morro, ten of whom would come to the farm.

When they arrived, Amaya Arias would pay them. The FARC guerrillas never threatened

Amaya Arias, but he was constantly afraid of them and believed they would kill him if he

did not pay them. Amaya Arias testified that he never supported or agreed with the



                                               4
FARC’s political agenda, but paid the money to the FARC because he was “living very

happily with [his] family,” and “was making good money at the farm and ... doing well

there.”

          In January 2000, El Morro was infiltrated by members of the United Self-Defense

Forces of Colombia (“AUC”), a group at odds with the FARC. AUC members compiled

a list of El Morro residents who had made payments to the FARC. In the early morning

hours of November 22, 2000, AUC members attacked the suspected collaborators’ homes

and killed approximately eighteen people. Amaya Arias escaped violence by hiding, but

his girlfriend’s two brothers were killed, and AUC members pushed his girlfriend around

because they were searching for him. Amaya Arias, his girlfriend and his daughter

subsequently returned to live in Barranquilla. There is no evidence that the FARC

threatened or harmed Amaya Arias or his family following their return to Barranquilla.

          The IJ denied Amaya Arias’s applications for asylum and withholding of removal

on grounds that the payments he made to the FARC rendered him inadmissible under

§ 1182(a)(3)(B). Section 1182(a)(3)(B)(i) provides that an alien is inadmissible to the

United States where he is found to have “engaged in a terrorist activity.” Section

1182(a)(3)(B)(iv)(VI)(cc) defines “engage in terrorist activity” as, inter alia, the

“commi[ssion of] an act that the actor knows, or reasonably should know, affords

material support, including ... funds, transfer of funds or other material financial benefit




                                              5
... to a terrorist organization described in clause (vi)(I) or (vi)(II)[.]” 1 The IJ found that

this provision applied regardless of whether the conduct at issue was voluntary, and

therefore found that Amaya Arias’s payments, whether or not voluntary, fell within the

provision and mandated a finding of inadmissibility. The BIA agreed with the IJ’s

statutory construction.

       Even though the IJ and BIA focused their discussions on the statutory construction

of § 1182(a)(3)(B)(iv), they also made factual findings that support the Attorney

General’s primary contention on appeal that Amaya Arias acted voluntarily when he made

payments to the FARC. The BIA found that “the evidence in the record suggests that the

respondent’s act was not involuntary.” The BIA specifically noted that the IJ had found

that Amaya Arias passed money to the FARC at Guiterrez’s request, that he had not been

threatened by the FARC, and that he did not leave his job on the farm earlier because of

the money he earned there. The BIA concluded that “[p]articularly as the respondent

apparently did not encounter FARC once he left his job and in light of his reason for not

leaving his job earlier, respondent’s testimony does not reflect that his acts were wholly

involuntary.”




       1
         During the time period in which Amaya Arias made these payments, the FARC
was designated by the United States State Department as an FTO. See United States
Department of State Web Page (http://www.state.gov/s/ct/rls/fs/2003/17067.htm). As
such, it was a “terrorist organization” for purposes of § 1182(a)(3)(B)(iv)(cc).

                                                6
                                              II.

       We begin our discussion with jurisdiction, which we assess de novo. See Valansi

v. Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002) (citation omitted). We have jurisdiction to

review the BIA’s denial of Amaya Arias’s application for withholding of removal

pursuant to 8 U.S.C. § 1252(a)(1). We agree with the Attorney General, however, that we

lack jurisdiction to review Amaya Arias’s CAT claim because he failed to raise it before

the BIA. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594 (3d Cir. 2003) (reasoning that

because asylum applicant “failed to raise [ ] issue in his appeal to the Board, we do not

have jurisdiction to consider the question.”).

       The Attorney General also argues that 8 U.S.C. § 1158(b)(2)(D) deprives us of

jurisdiction to review the BIA’s determination that Amaya Arias is ineligible for asylum

because he engaged in terrorist activity. Section 1158(b)(2)(D) provides that “[t]here

shall be no judicial review of a determination of the Attorney General under subparagraph

(A)(v).” 8 U.S.C. § 1158(b)(2)(D). A “determination of the Attorney General under

subparagraph (A)(v)” includes a determination that an alien has provided material support

to a terrorist organization within the meaning of § 1182(a)(3)(B)(i). Id. at

§ 1158(b)(2)(A)(v). Because the BIA found Amaya Arias inadmissible for engaging in

terrorist activity under 8 U.S.C. § 1182(a)(3)(B)(i), it appears that it made just the

determination that § 1158(b)(2)(D) withdraws from the scope of our jurisdiction to

review. See Bellout v. Ashcroft, 363 F.3d 975, 977 (9th Cir. 2004).



                                                 7
       Amaya Arias counters that Congress altered the effect of § 1158(b)(2)(D) in the

recently enacted REAL ID Act of 2005. See Pub. L. No. 109-13, 119 Stat. 231 (May 11,

2005). He specifically directs us to § 106(a)(1) of the REAL ID Act, which inserted the

following new § 1252(a)(2)(D) into Title 8:

       Nothing in subparagraph (B) or (C), or in any other provision of this
       chapter (other than this section) which limits or eliminates judicial review,
       shall be construed as precluding review of constitutional claims or
       questions of law raised upon a petition for review filed with an appropriate
       court of appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D) (emphasis added). We discussed this provision in

Papageorgiou v. Gonzales, 2005 WL 1490454 (3d Cir. June 24, 2005), stating that it

reflects Congress’s “intent to restore judicial review of constitutional claims and

questions of law presented in petitions for review of final removal orders.” 2005 WL

1490454, at *2. We found that the new § 1252(a)(2)(D) “repealed all jurisdictional bars

to our direct review of constitutional claims and questions of law in final removal orders

other than those remaining in 8 U.S.C. § 1252 (e.g., in provisions other than (a)(2)(B) or

(C)) following the amendment of that section by the Act.” Id.

       The plain terms of § 1252(a)(2)(D) are satisfied here. Section 1158(b)(2)(D)

constitutes a provision of Chapter 12 “which limits or eliminates judicial review[.]” And

Amaya Arias’s statutory construction claim that § 1182(a)(3)(B)(iv) does not encompass

involuntary material support clearly presents “questions of law.” We therefore find that




                                              8
we have jurisdiction to review the BIA’s conclusion that Amaya Arias is ineligible for

asylum under § 1182(a)(3)(B)(iv).

                                            III.

       We turn now to the merits. As noted, Amaya Arias’s statutory construction

argument depends on his establishing that there was not substantial evidence to support

the BIA’s finding that he made payments to the FARC voluntarily. “We must uphold the

BIA’s factual findings if they are supported by substantial evidence.” Singh v. Gonzales,

406 F.3d 191, 195 (3d Cir. 2005) (citing Singh-Kaur v. Ashcroft, 385 F.3d 293, 296 (3d

Cir. 2004)). Substantial evidence review “is extremely deferential, setting a ‘high hurdle

by permitting the reversal of factual findings only when the record evidence would

compel a reasonable factfinder to make a contrary determination.’” He Chun Chen v.

Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004) (citations and internal quotations omitted).

       We find that Amaya Arias has failed to meet this heavy burden. Amaya Arias was

never expressly threatened by the FARC, and there was substantial evidence that he

remained at the farm not because he feared retribution from the FARC, but rather because

he made good money there. There was no evidence that Amaya Arias or his family had

any encounters with the FARC after they left El Morro in 2000, which supports the

inference that Amaya Arias could have left El Morro earlier without fear of retribution.

Indeed, this inference, coupled with Amaya Arias’s knowledge of the FARC’s tactics, is

substantial evidence that Amaya Arias and his family had a reasonable opportunity to



                                             9
leave El Morro before the onset of any possible duress. Cf. United States v. One 107.9

Acre Parcel of Land Located in Warren Township, Bradford County, Pa., 898 F.2d 396,

399 (3d Cir.1990) (stating that “[i]n a criminal law context, ... duress contains three

elements[, including] (3) no reasonable opportunity to escape the threatened harm.”). At

the same time, Amaya Arias fails to point us to evidence which would compel us to reach

a conclusion contrary to the BIA’s finding that he made payments to the FARC

voluntarily. We therefore conclude that substantial evidence supports the BIA’s finding

that Amaya Arias acted voluntarily when he made payments to the FARC, and will deny

the petition for review on this basis.




                                             10
