Eleventh Circuit Thinks Death Threats and Gun Shots Don’t Justify Asylum

On May 5, 2006, the Eleventh Circuit issued a split, 2-1 decision denying asylum to a Colombian woman who, because of her political work, had been on the receiving end of menacing phone calls, a death threat note and gunfire. Previously filibustered, formerly recess-appointed, highly controversial Bush II pick Bill Pryor authored the majority opinion over a stinging dissent by Bush I appointee Ed Carnes. Apparently, Judge Carnes decided he’d finally had it with the errors committed by the immigration judges below him.

Such errors were recently the subject of a feature piece in the New York Times (“Courts Criticize Judges’ Handling of Asylum Cases,” 12/26/05, TimesSelect registration required), which reported that federal appeals court judges have begun roundly criticizing immigration courts for “a pattern of biased and incoherent decisions in asylum cases.” Seventh Circuit Judge Richard Posner wrote, for instance, that “the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.” Yet despite the growing evidence that immigration courts have been falling down on the job, the Eleventh Circuit has never – yes, never – reversed an immigration court’s refusal to grant political asylum. In Luz Marina Silva’s case, Judge Carnes felt the time had come. Unfortunately for Ms. Silva, Judges Pryor and Frank Hull (a Clinton appointee who regularly joins the court’s most conservative wing) thought otherwise.

Silva provided chilling details of her tribulations in her asylum application and at her hearing. While working on a political campaign for the mayor of Bogota, she traveled with others to neighborhoods to offer health services to garner support for the mayor’s party. In September 1999, during the course of her activities, Silva was handed a note signed by a Marxist paramilitary group saying she should “rest in peace for doing what she shouldn’t be doing in the wrong place.” She soon began receiving daily phone calls threatening to harm her if she didn’t cease her political work. Despite the calls, Silva continued. Then, after receiving many calls, and three weeks after receiving the note, two unidentified men followed her on motorcycles and shot at her car was as she was driving home. Soon after the shooting, she left Colombia. During a brief return visit to see a gravely ill relative, Silva received more threatening calls, including: “We are not going to miss a second time, we’re going to kill you.” She did not go back.

The immigration judge found Silva credible, which meant that all of the evidence she submitted was considered true. But the judge concluded that Silva’s harrowing experience did not constitute political persecution for asylum purposes because Silva could not identify the shooters or the source of the anonymous calls, and “everybody in Columbia suffers under these general conditions of violence and criminal activity.” On appeal to the Eleventh Circuit, Judges Pryor and Hull rubber-stamped the immigration court’s disregard for the circumstantial evidence pointing to the clearly political motivation of Silva’s tormenters.

Judge Carnes, a staunch conservative himself, was having none of this:

True enough, the would-be assassins did not stop to introduce themselves. They rarely do. It is not unrealistic to expect the targets of political assassinations to know the identity of the gunmen who shoot at them. Only in the majority’s imagination do would-be killers wear name tags or drive around on motorcycles with vanity plates displaying the name of their terrorist organization.

Nor was Judge Carnes finished skewering Judge Pryor’s parsing of the evidence favoring Silva:

In determining whether the facts and circumstances in any case compel a conclusion, we ought to face up to the full force of them in their entirety. The majority’s approach, instead, is a virtuoso exercise in deconstructionism. It proceeds by disassembling the whole of the evidence and then explaining why each part by itself is insufficiently compelling. This is like a man who attempts to demonstrate that a bucket of water is not really that by emptying it cup by cup, asserting as he goes along that each cupful is not a full bucket’s worth until, having emptied the whole, he proclaims that there just wasn’t a bucket of water there.

There are a few other zingers. (How about his retort to the majority’s argument that widespread terror in Columbia undercut Silva’s claim that her persecution was politically-motivated: “This is not a good decision but there is, I suppose, a bright side. What the Court holds today will make it easier to handle our caseload. In the future we can simply stamp any petition for a review a Colombian’s asylum denial: ‘Affirmed. See the Silva decision.’”) But let’s just leave it there.

Well, OK, one more. As to the fact that Eleventh Circuit has never reversed an immigration judge’s refusal to grant political asylum, Judge Carnes concluded: “[T]oday’s decision indicates that such a case, like a fabled unicorn, exists only in our imagination.”

Silva v. U.S. Attorney General, 2006 U.S. App. LEXIS 11475 (May 5, 2006)