United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 1, 2007

 Decided July 13, 2007

Before

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-3433

ALVARO H. LEYVA,

Petitioner,

v.

ALBERTO R. GONZALES, United

States Attorney General,

Respondent.

Petition for Review of an Order 

of the Board of Immigration Appeals

No. A97-102-354

O R D E R

Alvaro Hernando Leyva, a former civilian accountant for the Colombian

Navy, and his wife and three children seek review of the final decision of the Board

of Immigration Appeals that denied them asylum and relief under the Convention

Against Torture. We deny the petition for review because substantial evidence does

not compel a finding that Leyva suffered persecution on account of political opinion

or a sufficient likelihood of torture.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 06-3433 Page 2

I.

Alvaro Hernando Leyva is a citizen of Colombia, as are his wife, Eda

Jannette, and their three children. Leyva began working for the Colombian Navy in

1991 as a civilian accountant. His troubles began in 1998, when he discovered

accounting irregularities that benefitted Captain German Sahid-Castano. Sahid

threatened him not to report the irregularities, stating that “the eagles kill the

doves.” Leyva interpreted this remark as a threat against his reporting the

irregularities and a reference to his being a “a Christian or a follower of [the]

Mennonite way.” In spite of the threat, Leyva reported the irregularities within the

department to the auditors. The irregularities were leaked to the press, and Sahid

subsequently lost his position with the Navy after the corruption became more

widely exposed. Leyva received a transfer to a different department.

Leyva later was stationed on a vessel, the Gloria, for six months. Before

embarking, several superior naval officers threatened Leyva in late 2000 about

reporting any irregularities. Instead, they told him to be prepared to “clean things

up if necessary” with the accounting while aboard. Once aboard, Leyva discovered

another accounting problem, in which Lieutenant Martin-Orduz misused funds.

Orduz threatened Leyva about the discovery, locked him in his office for an

unknown duration on one day, and accused him of working for counter-intelligence.

When Leyva reported the incident to the captain, the captain instructed Leyva not

to get involved. Leyva did not speak to the press about any of the corruption. 

Leyva’s wife also received threats stemming from her husband’s discovery

and reporting of the accounting irregularities, including written cards suggesting

her husband’s death while he was aboard the Gloria, threatening telephone calls,

strangers approaching her at work and around the family home, and strangers

asking the children and those living in their neighborhood about the family’s

schedules and details. Leyva also continued to receive various verbal threats from

superiors.

The most serious incident occurred on February 22, 2002, when two armed

men in a vehicle approached Leyva while he was waiting at a bus stop and ordered

him into their vehicle. They placed a bag over his head, beat him with their fists

and the butts of their guns, and burned his wrists with an unidentified chemical.

The men warned him not to discuss the corruption further and threatened him and

his family. Leyva believed that the men’s accents indicated they were from the

coast, and therefore members of a paramilitary force, which is primarily recruited

from the coast. Leyva claims that his superior officers had connections with the

paramilitary forces and sent the paramilitary to threaten him. 
No. 06-3433 Page 3

After the detention, Leyva reported the incident to his superiors. Two of his

superiors advised leaving the country for a time, and Leyva took a leave of absence

from his position. He arrived in the United States on April 17, 2002. His wife and

children joined him less than two months later. Notably, he only planned to visit,

but applied for asylum on April 10, 2003, based on the encouragement of friends. 

After a hearing, the Immigration Judge (IJ) denied Leyva’s request for

asylum, withholding of removal, and relief under the Convention Against Torture

(CAT). The Board of Immigration Appeals (BIA) affirmed the IJ’s decision,

supplementing it with its own reasoning. Leyva now petitions this court to review

the denial of asylum and relief under the CAT, but does not seek withholding of

removal.

II.

We review the denial of asylum under “the substantial evidence standard.” 

Feto v. Gonzales, 433 F.3d 907, 910-11 (7th Cir. 2006) (citation omitted). Under this

deferential standard, “we require only that the decision be supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Gjerazi v.

Gonzales, 435 F.3d 800, 807 (7th Cir. 2006) (citation and internal quotation

omitted). This standard is in accord with the statutory requirement that “the

administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). If, as in

this case, “the BIA adopts the IJ’s decision while supplementing the decision with

its own reasoning, the IJ’s decision, as supplemented by the BIA’s decision, becomes

the basis for review.” Gjerazi, 435 F.3d at 807 (citation omitted).

We begin with Leyva’s claim for asylum. Asylum may be granted “to aliens

who apply for asylum in a timely fashion, meet certain procedural requirements,

and qualify as refugees.” Sosnovskaia v. Gonzales, 421 F.3d 589, 593 (7th Cir. 2005)

(citing 8 U.S.C. § 1158(b)(1)(A)). “A ‘refugee’ is defined as a person who is unable or

unwilling to return to the country of her nationality because of ‘persecution or a

well-founded fear of future persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion . . . .’” Id. (quoting 8

U.S.C. § 1101(a)(42)(A)). In this case, Leyva claims persecution based on political

opinion. Leyva bears the burden of demonstrating that he has suffered past

persecution or a well-founded fear of future persecution on account of his political

opinion. Id. (citing 8 C.F.R. § 208.13(a)).

Although the statute does not define “persecution,” we have previously

explained that persecution “may include detention, arrest, interrogation,
No. 06-3433 Page 4

prosecution, imprisonment, illegal searches, confiscation of property, surveillance,

beatings, [] torture, [or] behavior that threatens the same . . . .” Gjerazi, 435 F.3d at

808 (citation and internal quotations omitted). Persecution “must rise above the

level of ‘mere harassment’ and must result from more than unpleasant or even

dangerous conditions in [the] home country.” Nakibuka v. Gonzales, 421 F.3d 473,

476 (7th Cir. 2005) (citation omitted). We previously analyzed a detention lasting

three days, in which the petitioner was denied food and his face beaten. Dandan v.

Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003). We concluded:

when we look at the evidence of the severity of Dandan’s single detention, we

cannot say that we are compelled to find that he was subject to past

persecution. This is a high standard and one that is properly difficult to meet

without powerful and moving evidence. The issue is difficult to resolve, and

we find it quite serious that Dandan was detained, beaten and deprived of

food for three days. But the sort of specific information that would compel a

finding of persecution has not been presented. We know only that the

detention was without food, was three days long and that he was beaten to

the extent that his face became “swollen.” While it is distasteful to have to

quantify suffering for the purposes of determining asylum eligibility, that is

our task. A standard of review that requires our being compelled to reach a

conclusion contrary to the BIA means that we necessarily search for specifics,

not generalities. Significant in our analysis is the obvious fact that knowledge

of the specific circumstances of Dandan’s detention was entirely within his

control. Dandan’s case for past persecution, with all its procedural

ramifications that we have noted, rests wholly upon the specific

circumstances of a single aggravated detention–circumstances he alone could

have, but failed to provide. Because Dandan bears the burden of

demonstrating that his detention rises to the level of persecution, we must

hold against him the failure to provide sufficient specifics to compel our

assent. A three-day interrogation resulting in a “swollen” face does not

compel us to conclude that the BIA was incorrect. 

Id. (emphasis omitted). In this case, Leyva claims a beating lasting one day and

resulting in burns on his wrists. Even when combined with the verbal threats to

Leyva and his family over time and the brief detention on the ship, the treatment

does not rise above the level of harassment. In Dandan, the applicant similarly

faced additional threats to his family and harm when “the family’s house was

shelled and partially destroyed, and that as a result, he and his family went from

shelter to shelter” for a two month period. Id. at 571. As in Dandan, we are not

compelled by the evidence to conclude that the BIA erred in finding that Leyva fails

to demonstrate that he suffered persecution. 
No. 06-3433 Page 5

Since he fails to demonstrate past persecution, Leyva is not entitled to a

rebuttable presumption of future persecution. See Gjerazi, 435 F.3d at 808 (“[a]n

applicant who successfully proves past persecution is presumed to have a wellfounded fear of future persecution—a presumption that the government can rebut

by demonstrating a change in the conditions in the applicant’s homeland.” (citations

omitted)). Nonetheless, Leyva may “demonstrate a well-founded fear of future

persecution if his fear is subjectively genuine and objectively reasonable in light of

credible evidence.” Id. (citations omitted). Even assuming, as the BIA did, that

Leyva subjectively fears future persecution, his fear is not objectively reasonable in

light of the evidence. As the BIA explained, “given the passage of time since

[Leyva’s] last encounter with paramilitaries, and insofar as he is no longer an

employee of the finance department of the Colombian Navy, he is not in a position

that would cause him to be targeted for any purpose by these same, or any other

paramilitaries.” Leyva bears the burden to demonstrate that his fear is objectively

reasonable. 8 U.S.C. § 1158(b)(1)(B). Since neither the testimony nor the

documentary evidence compels a finding to the contrary, we find no error in the

BIA’s conclusion that Leyva fails to demonstrate an objectively reasonable fear of

future persecution.

Furthermore, even if the acts Leyva and his family suffered amounted to past

persecution or a well-founded fear of future persecution, Leyva fails to demonstrate

that the persecution occurred “on account of” a political opinion. We have stated

that “[a] political opinion is one that is expressed through political activities or

through some sort of speech in the political arena.” Li v. Gonzales, 416 F.3d 681,

685 (7th Cir. 2005) (citations omitted). For example, “[s]omeone who campaigns

against the government and urges the voters to throw the rascals out is engaged in

political speech,” as is “someone who writes an op-ed piece or otherwise urges the

people to rid themselves of corrupt officials.” Musabelliu v. Gonzalez, 442 F.3d 991,

995 (7th Cir. 2006). Leyva did not engage in any of these classic political activities. 

This does not end our analysis, however, because this court has

acknowledged that “[w]histle-blowing about public corruption can be a form of

political opinion.” Id. (citations omitted). Leyva implies that he was a whistleblower who tried to expose improper uses of government funds. His claim falls

short because in his investigation into corruption he “did not take [his evidence of

corruption] to the public in quest of a political decision.” Id. at 996 (citations

omitted). Instead, Leyva pursued an investigation within the chain of command in

the Navy by reporting his findings to auditors and to his superiors. See id. (noting

that the alien “made his views known within the chain of command, as part of his

official duties,” which was insufficient to constitute an expression of political

opinion). Additionally, we previously noted that “[i]t is an open question even in the
No. 06-3433 Page 6

United States whether the first amendment gives public officials a right to be free

of retaliation when they speak within an agency’s hierarchy on an issue of public

concern, as part of their duties.” Id. (noting that the Supreme Court had granted

certiorari in Garcetti v. Ceballos, 543 U.S. 1186 (2005), to address this issue). 

Subsequently, the Supreme Court held that “when public employees make

statements pursuant to their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitution does not insulate their

communications from employer discipline.” Garcetti v. Ceballos, 126 S. Ct. 1951,

1960 (2006). As we previously noted, the holding in Garcetti “reinforces the

characterization of [Leyva’s] conduct within his employment [with the government]

as non-political speech; it would be implausible to offer broader protection for

speech to an alien under the immigration laws than is provided to citizens under

the First Amendment.” Pavlyk v. Gonzales, 469 F.3d 1082, 1089 (7th Cir. 2006). As

a factual matter, Leyva has not demonstrated that the incidents he suffered were

on account of political opinion. Musabelliu, 442 F.3d at 996. Accordingly, he fails to

qualify as a refugee entitled to asylum. Because his wife’s and children’s claims are

derivative of his own, they also do not qualify for asylum. Furthermore, since Leyva

and his family are not entitled to asylum, even if they had sought withholding of

removal, it would not be available to them. Jamal-Daoud v. Gonzales, 405 F.3d

918, 925 (7th Cir. 2005) (“Because the standard of proof for withholding of removal

is higher than that needed to establish eligibility for asylum, the failure to sustain

the burden of proof for asylum necessarily precludes eligibility for withholding of

removal.” (citation omitted)).

Leyva next claims that he and his family are entitled to protection under the

Convention Against Torture (CAT). We again review the denial of relief under the

substantial evidence standard, analyzing whether “the record compels a contrary

result.” Mabasa v. Gonzales, 455 F.3d 740, 744 (7th Cir. 2006) (internal quotation

and citations omitted). Relief under the CAT does not have to be on account of

political opinion to qualify for relief. Instead, to obtain relief under CAT, Leyva

must show that “it is more likely than not that if removed to [Colombia], he will be

subject to torture.” Boyanivskyy v. Gonzales, 450 F.3d 286, 292 n.3 (7th Cir. 2006)

(citing 8 C.F.R. § 208.16(c)(2)). The regulations define torture as:

[A]ny act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person for such purposes as obtaining from him or

her or a third person information or a confession, punishing him or her for an

act he or she or a third person has committed or is suspected of having

committed, or intimidating or coercing him or her or a third person, or for

any reason based on discrimination of any kind, when such pain or suffering
No. 06-3433 Page 7

is inflicted by or at the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity.

8 C.F.R. § 208.18(a)(1). Showing a likelihood of torture is a “more stringent”

standard than is required to demonstrate persecution required to qualify for

asylum. Gomes v. Gonzales, 473 F.3d 746, 757 (7th Cir. 2007) (citation omitted). 

Since, as discussed above, Leyva “fails to meet the more lenient burden of proof for

asylum, he cannot establish that he is . . . eligible for protection under the

Convention Against Torture.” Hussain v. Gonzales, 424 F.3d 622, 630 (7th Cir.

2005) (citations omitted).

III.

Because the evidence does not compel a finding of past persecution or a wellfounded fear of future persecution and because, even if the incidents had risen to

the level of persecution they were not on account of political opinion, Leyva is not

entitled to asylum. Similarly, because Leyva fails to demonstrate a likelihood of

torture, he is not entitled to relief under the Convention Against Torture. His

family’s derivative petitions likewise fail. Accordingly, we DENY the petition for

review.