[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-14385

________________________

Agency No. A077-889-201

HENRY BRAVO BENITEZ,

ROSA DEL CARMEN SALGADO MIRANDA, 

 Petitioners,

versus

US ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(October 24, 2013)

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Before TJOFLAT and WILSON, Circuit Judges, and PROCTOR,* District Judge.

PER CURIAM: 

Henry Bravo Benitez (Bravo) and his wife Rosa del Carmen Salgado 

Miranda (Salgado)1 petition for review of the final removal order issued by the 

Board of Immigration Appeals (BIA) on July 31, 2012. The BIA concluded that 

Bravo, a native and citizen of Colombia, was ineligible for (1) asylum under the 

Immigration and Nationality Act (INA) § 208(a), 8 U.S.C. § 1158(a); (2) 

withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); and (3) 

protection under the United Nations Convention Against Torture and Other Cruel, 

Inhuman or Degrading Treatment or Punishment (CAT) under 8 C.F.R. 

§ 208.16(c). Bravo challenges only the denials of his petitions for asylum and 

withholding of removal. For the following reasons, we dismiss Bravo’s petition.

I. BACKGROUND

From 1997 to 1999, Bravo worked as a supervisory airplane dispatcher for 

Suramericana Airlines, S.A. in Bogota, Colombia. His responsibilities included 

evaluating the weight and balance of an aircraft, calculating the maximum weight a

plane could carry, and recording the weight in the plane’s manifest. In December 

1997, 12 to 15 armed individuals who identified themselves as guerillas for the 

 

* Honorable R. David Proctor, United States District Judge for the Northern District of 

Alabama, sitting by designation. 

1 Salgado seeks relief only as a derivative beneficiary of her husband. For purposes of 

clarity, we will refer to their arguments as Bravo’s. 

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Revolutionary Armed Forces of Colombia (FARC) approached Bravo and 

demanded to board a plane with their equipment. The guerillas told Bravo that if 

he refused, he would be killed. Bravo warned them that the additional weight 

would jeopardize the flight’s safety, but the guerillas nevertheless boarded the 

plane. To conceal their activities, Bravo did not correct the plane’s manifest to 

reflect the additional passengers and cargo. At some point after the first incident, 

Bravo reported what had happened to his supervisor, who told him to keep quiet. 

During the next two years, always under the threat of death, Bravo dispatched eight 

to ten flights for FARC members. When Colombian authorities began 

investigating some of the suspicious flights, Bravo received a threatening phone 

call from the FARC, warning him about the consequences should he cooperate 

with the investigation. As a result, when Colombian authorities asked Bravo about 

the disparities between the actual and recorded weights of the planes, he lied and 

attributed them to changes in temperature. In June 1999, Bravo quit his job. Two 

months later, FARC members ambushed Bravo and his wife while they were 

stopped in Bravo’s car. The attackers knocked Bravo unconscious and questioned 

his wife, also an airline dispatcher, about flights, work schedules, and passenger 

lists. 

In November 1999, Bravo and his wife entered the United States as B-2 

nonimmigrants. One year later, Bravo applied to the Department of Homeland 

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Security (DHS) for asylum and withholding of removal, listing Salgado as a 

derivative applicant. On August 30, 2007, the DHS served Bravo and Salgado 

each with a notice to appear in immigration court as aliens subject to removal 

under 8 U.S.C. § 1227(a)(1)(B). In response, Bravo—with his wife as a derivative 

beneficiary—sought asylum, withholding of removal, and CAT relief. 

On May 3, 2011, despite finding Bravo’s testimony and evidence credible, 

the IJ denied all relief and ordered Bravo and Salgado removed to Colombia. The 

IJ found that because Bravo had provided “material support” to the FARC by 

acting as a dispatcher for ten flights carrying FARC members and equipment, he 

was ineligible for asylum under 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). The IJ also 

found that Bravo’s petition for withholding of removal was due to be denied 

because Bravo’s fear of persecution from the FARC lacked a nexus to any 

protected ground, i.e., his race, religion, nationality, membership in a particular 

social group, or political opinion. See § 1231(b)(3)(A). Bravo appealed, and the 

BIA affirmed the IJ’s decision. 

The BIA agreed with the IJ that Bravo had “engaged in terrorist activity” by 

providing material support to the FARC, triggering the material support bar under 

§ 1182(a)(3)(B)(iv)(VI). In addition, the BIA denied Bravo’s petitions on the 

alternate basis that he did not establish a nexus between a protected ground and 

any past or potential persecution. This petition followed.

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II. ANALYSIS

Bravo raises three arguments. First, he insists that he did not provide 

“material support” to the FARC. Second, he argues that the BIA erred in 

concluding that he did not establish a nexus between any persecution and a 

protected ground. Finally, Bravo advances a procedural due process argument, 

contending that the BIA failed to afford him a fair opportunity to obtain a waiver 

of inadmissibility because the BIA did not analyze his asylum claim after 

determining that he had provided material support to the FARC. See 

§ 1182(a)(3)(B)(i). We address each argument in turn. 

A. Whether Bravo Provided Material Support to a Terrorist Organization

Section 1182(a)(3)(B)(iv)(VI) provides that an alien is ineligible for asylum 

and withholding of removal if he engages in terrorist activity by:

commit[ting] an act that the actor knows, or reasonably should know, 

affords material support, including a safe house, transportation, 

communication, funds, transfer of funds or other material financial 

benefit, false documentation or identification, weapons (including 

chemical, biological, or radiological weapons), explosives, or 

training— . . . 

(cc) to a terrorist organization described in subclause (I) or (II) of 

clause (vi) or to any member of such an organization[.]

Subclause (I) of § 1182(a)(3)(B)(vi) provides that a terrorist organization 

means an organization “designated under section 1189 of [Title 8]." The FARC is 

a “Tier I” foreign terrorist organization because the Secretary of State has 

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designated it as such pursuant to § 1189. See 73 Fed. Reg. 68,489-02 (Nov. 7, 

2008).

We begin by noting that Bravo’s duress argument was recently foreclosed by 

this court in Alturo v. U.S. Attorney General, 716 F.3d 1310 (11th Cir. 2013) (per 

curiam). In Alturo, the plaintiff, another Colombian national, argued that the 

material support bar did not apply to him because any help that he provided to the 

United Self-Defense Forces of Colombia (AUC) was given under duress. Id. at 

1312. We reasoned that because Congress has “enacted a separate waiver 

provision that vests ‘sole unreviewable discretion’ with the Secretary of State and 

the Secretary of Homeland Security to waive the [material support] bar” so long as 

the alien’s support was not voluntary, we would not read a duress exception into 

§ 1182(a)(3)(B)(iv)(VI). Id. at 1314; see also Barahona v. Holder, 691 F.3d 349, 

355–56 (4th Cir. 2012); Annachamy v. Holder, 686 F.3d 729, 734–35 (9th Cir. 

2012). In addition, the plain language of the material support bar contained no 

duress exception. Alturo, 716 F.3d at 1314. Bravo’s argument that his support 

was de minimis rather than material is also without merit. The plain language of 

the material support bar lists “transportation” as an example of material support, 

and Bravo provided the FARC with air transportation. § 1182(a)(3)(B)(iv)(VI).

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B. Whether Bravo Was Persecuted on Account of a Protected Ground

Bravo’s second argument is that substantial evidence did not support the

BIA’s finding that he did not meet his burden of establishing past persecution on 

account of his political opinion or membership in a particular social group. We 

review the BIA’s finding under the substantial evidence test. Seck v. U.S. Att’y 

Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). Under this standard, we must “view 

the record evidence in the light most favorable to the agency’s decision and draw 

all reasonable inferences in favor of that decision.” Adefemi v. U.S. Att’y Gen., 

386 F.3d 1022, 1027 (11th Cir. 2004). As we noted earlier, to establish a claim for 

asylum, Bravo must show a nexus between past persecution and a protected 

ground, such as his political opinion or membership in a particular social group. 

See § 1158(b)(1)(B)(i).

Bravo first contends that he was persecuted on account of his political 

opposition to the FARC. He points to his reluctance to assist the organization, and 

his report of the first incident to his supervisor despite the FARC’s threats. We, 

however, agree with the BIA that the “FARC’s actions against him were aimed at 

forcing him in his occupation as an airplane dispatcher to assist them in flying 

cargo and passengers,” and not actions taken to persecute him because of his 

political leanings. Indeed, most, if not all of the evidence points towards this 

conclusion. 

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Nor are we persuaded that the FARC sought to harm Bravo on account of 

his membership in a particular social group. Bravo argues that “former flight 

dispatchers” are a particular social group, and that after he resigned he was 

attacked on account of his membership in the group. Citing our decision in 

Castillo-Arias v. U.S. Attorney General, 446 F.3d 1190 (11th Cir. 2006), the BIA 

found that Bravo had not established that “former flight dispatchers” were a social 

group qualifying for protection under the INA, because “former flight dispatchers” 

are not, as we said in Castillo-Arias, people with a “shared characteristic . . . that 

the members of the group either cannot change, or should not be required to 

change because it is fundamental to their individual identities or consciences.” Id.

at 1193 (omission in original) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233 

(BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 

439, 447 (BIA 1987)). 

In Castillo-Arias, we adopted the BIA’s Acosta formulation of what 

constitutes a “particular social group.” Id. at 1196. Although former flight 

dispatchers might, in one sense, have a “shared past experience,” we cautioned in 

Castillo-Arias against “rendering ‘particular social group’ a catch-all for all groups 

who might claim persecution.” Id. at 1197. In that case, we held that drug-cartel 

informants “who remain anonymous are not visible enough to be considered a 

‘particular social group.’” Id. Viewing the record in the light most favorable to 

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the BIA, we agree that “former flight dispatchers” do not have the social visibility 

to warrant being considered a particular social group. Bravo points to no evidence 

that a former flight dispatcher would be “highly visible” in the community. Id. at 

1194 (internal quotation marks omitted). We therefore conclude that because 

Bravo was not a member of a particular social group, he did not establish a nexus 

between any persecution and a protected ground. 

C. Whether Bravo’s Due Process Rights Were Violated

Bravo’s final argument is that his due process rights were violated because

he was deprived of his ability to seek a waiver under § 1182(d)(3)(B)(i). 

According to current DHS policy, that waiver may only be granted if, the material 

support bar notwithstanding, the alien would have been eligible for asylum. See 

U.S. Citizenship and Immigration Services, USCIS Implementation Memorandum

at 4 (May 24, 2007), available at http://www.uscis.gov/files/pressrelease

/MaterialSupport_24May07.pdf (last visited Aug. 9, 2013) (providing that an 

exemption will only be considered for an alien who “is otherwise eligible”). Bravo

argues that because the BIA never reached the merits of his asylum claim, it 

deprived him of a fair chance to be eligible for the waiver. 

We are aware that this issue has not yet been decided in this circuit, although 

it was recently addressed by the Seventh Circuit in FH-T v. Holder, — F.3d —, 

No. 12-2471, 2013 WL 3800252, at *11 (7th Cir. July 23, 2013) (holding that there 

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was no evidence that Congress “intended the waiver provision to require [BIA] 

adjudication of the merits of asylum claims in every case triggering the material 

support for terrorism bar”). However, we need not reach the issue in light of the 

fact that the BIA did reach the merits of Bravo’s asylum claim. It is true that the IJ 

only reached the nexus issue with regard to Bravo’s withholding of removal claim, 

but the BIA explicitly held that Bravo had failed to show a “past persecution or a 

well-founded fear of future persecution,” which is the standard for asylum. See Li 

Shan Chen v. U.S. Att’y Gen., 672 F.3d 961, 964–65 (11th Cir. 2011) (per curiam). 

It is therefore apparent that the BIA reached the merits of Bravo’s asylum claim, 

and found it wanting.2

 With that in mind, we leave for another day the decision of 

whether Bravo’s due process rights would have been violated had the BIA failed to 

reach the merits of his asylum claim.

PETITION DISMISSED. 

 

2 As to Bravo’s withholding of removal claim, we note that “[w]here an applicant is 

unable to meet the ‘well-founded fear’ standard for asylum, [s]he is generally precluded from 

qualifying for either asylum or withholding of [removal].” Silva v. U.S. Att’y Gen., 448 F.3d 

1229, 1243 (11th Cir. 2006) (alterations in original) (internal quotation marks omitted). 

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