In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 04-2452 & 04-2949

ORLAY HERNANDEZ-BAENA and 

SANDRA CARRERA-GARCIA,

Petitioners,

v.

ALBERTO GONZALES,

Respondent.

____________

Petitions for Review of an Order of

the Board of Immigration Appeals.

No. A96 158 735 & No. A96 158 736

____________

ARGUED APRIL 1, 2005—DECIDED AUGUST 4, 2005

____________

Before EASTERBROOK, MANION, and ROVNER, Circuit

Judges.

ROVNER, Circuit Judge. Orlay Hernandez-Baena and

Sandra Carrera-Garcia, natives of Colombia, entered the

United States as non-immigrant visitors and overstayed

their visas. They filed for asylum, claiming that HernandezBaena had suffered persecution on account of political

opinion or imputed political opinion when the Revolutionary

Armed Forces of Colombia (FARC) threatened his life

because he refused to sell them military supplies. An

Immigration Judge (IJ) denied all relief except voluntary
2 Nos. 04-2452 & 04-2949

departure, and the Board of Immigration Appeals (BIA)

affirmed without opinion. For the reasons explained below,

we deny the petition for review.

I.

The facts of the case are not in dispute, as the IJ credited

petitioners’ testimony in full. Carrera-Garcia’s claims are

derivative of Hernandez-Baena’s and thus we focus on his

claims. Hernandez-Baena ran a military supply business in

Bogota. He sold boots and other supplies to the military and

to the police, as well as to private organizations such as the

Red Cross. Under Colombian law, private individuals

wishing to purchase such supplies were required to present

military or police credentials, or a permit from the government. In July 2000 two men in civilian clothing entered the

store and attempted to purchase military boots and other

supplies without the required documentation. HernandezBaena told the men that he could not sell them the goods

because he could end up in prison for doing so. Later that

day, a different man came to the store and demanded that

Hernandez-Baena “do what he was told to do in the morning” or be killed. Hernandez-Baena asked who the men

were; he was told that they were members of FARC, Colombia’s largest rebel group, and that they knew where he and

his family lived. Hernandez-Baena described FARC as a

guerilla force responsible for the deaths and kidnappings of

many Colombians. Terrified by the threat, he abandoned

his store and fled Bogota the following day with CarreraGarcia.

Petitioners stayed with family members in Pereira, a city

about 70 miles from Bogota where Hernandez-Baena

maintained an office. A week after they arrived, someone

telephoned the office and stated that Hernandez-Baena’s

“death sentence” had been signed and that he would be

found wherever he was hiding. Hernandez-Baena reported
Nos. 04-2452 & 04-2949 3

the threatening phone call to the police, who put a wiretap

on the phone. No further calls were received. After remaining in Pereira for seven months without incident,

Hernandez-Baena and Carrera-Garcia left Colombia for the

United States. They married shortly after arriving. In

September 2001, their daughter was born in the

United States. In October, the couple and their newborn

daughter returned to Colombia, where they stayed “in hiding” at the home of Hernandez-Baena’s mother in Pereira

for two and half months without receiving any threats.

The petitioners filed for asylum, claiming that

Hernandez-Baena suffered past persecution on account of

political opinion or imputed political opinion when FARC

targeted him for death for refusing to sell military supplies

in violation of Colombian law. Hernandez-Baena also

claimed that he had a well-founded fear of future persecution, contending that FARC would carry out its death threat

if he returned to Colombia. The petitioners were served

with a Notice to Appear charging them with removability

under 8 U.S.C. § 1227(a)(1)(B). They conceded removability,

renewed their applications for asylum, and sought in

addition withholding of removal, protection under the

Convention Against Torture, and in the alternative, voluntary departure.

Although the IJ did not doubt the veracity of petitioners’

description of events, he rejected their claim that

Hernandez-Baena had been persecuted on account of political opinion. The IJ determined that the two oral threats

amounted to harassment rather than persecution and

further concluded that Hernandez-Baena was not harassed

“on account of” a political opinion. The IJ also concluded

that petitioners had not demonstrated a well-founded fear

of future persecution because their fear was not objectively

reasonable in light of evidence that the Colombian government was not unable or unwilling to protect its citizens

from FARC. The IJ also denied the claims for withholding
4 Nos. 04-2452 & 04-2949

of removal and relief under the Convention Against Torture

because petitioners had not satisfied the less stringent

burden of proof for asylum eligibility. The BIA affirmed

without opinion, and after unsuccessfully seeking reconsideration and reopening, Hernandez-Baena and CarreraGarcia filed this petition for review.

II.

To establish eligibility for asylum, an applicant must

demonstrate that he is a “refugee” within the meaning of

the Immigration and Nationality Act, which defines “refugee” as “one who is unable or unwilling to return to his

country because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8

U.S.C. § 1101(a)(42)(A); see Jamal-Daoud v. Gonzales, 403

F.3d 918, 922 (7th Cir. 2005). If an applicant has suffered

persecution in the past, he is entitled to a rebuttable

presumption of a well-founded fear of future persecution.

Tolosa v. Ashcroft, 384 F.3d 906, 908 (7th Cir. 2004).

Otherwise, he must establish that he genuinely fears persecution based on a protected ground and show, based upon

credible, direct, and specific evidence, that a reasonable

person in the same circumstances would fear persecution if

returned to the petitioner’s country. Oforji v. Ashcroft, 354

F.3d 609, 613 (7th Cir. 2003). The applicant bears the

burden of proving that he is eligible for asylum. JamalDaoud, 403 F.3d at 922; 8 C.F.R. § 208.13(a).

Because the BIA affirmed without opinion, we review the

decision of the IJ directly to determine if it is supported by

substantial evidence. Tolosa, 384 F.3d at 908; Oforji, 354

F.3d at 612. We will affirm the IJ’s denial of asylum if it is

“supported by reasonable, substantial, and probative evidence on the record considered as a whole,” INS v. EliasZacarias, 502 U.S. 478, 481 (1992), and reverse it only
Nos. 04-2452 & 04-2949 5

where the evidence is so compelling that no reasonable

factfinder could fail to find the requisite fear of persecution,

id. at 483-84.

Petitioners first challenge the IJ’s conclusion that the

threats against Hernandez-Baena did not amount to past

persecution, and that in any event the threats were not “on

account of” an imputed political opinion. They argue that

FARC’s issuance of a “death warrant” against HernandezBaena amounts to more than an unfulfilled threat and rises

to the level of persecution. Although we have not foreclosed

the possibility that extraordinary threats—those “of a most

immediate and menacing nature”—might in themselves

amount to persecution, in general, unfulfilled threats do

not. Ahmed v. Ashcroft, 348 F.3d 611, 616 (7th Cir. 2003);

see Boykov v. INS, 109 F.3d 413, 416-17 (7th Cir. 1997).

Hernandez-Baena’s attempt to distinguish his case is unconvincing. He insists that the conduct went beyond mere

unfulfilled threats because FARC acted upon its threats

when it issued a “death warrant.” But he supplied no

evidence that the use of the term “death sentence” by the

person who telephoned his office in Pereira had significance

as anything other than a verbal threat. And the fact that he

remained in Pereira for seven months after the threatening

call without experiencing any further harm or threat of

harm undermines the contention that the threat was of a

sufficiently immediate and menacing nature as to constitute, without more, persecution.

The petitioners further argue that FARC’s conduct was

“on account of” imputed political opinion because

Hernandez-Baena’s refusal to deal with the guerillas

frustrated FARC’s political objectives and reflected support

for the Colombian government. In that respect, this case is

virtually indistinguishable from Elias-Zacarias, where the

Supreme Court held that an applicant’s failure to cooperate

with a guerilla insurgency is neither political opinion nor a

basis for imputed political opinion. 502 U.S. at 482, 483.
6 Nos. 04-2452 & 04-2949

Moreover, we have recently stated that “a threat posed by

an armed insurgency is not ‘persecution.’ ” Hor v. Gonzales,

400 F.3d 482, 485 (7th Cir. 2005) (holding that an Algerian

national who was aligned with the government, and who

had been threatened with death by armed rebels unless he

assisted them, was not a victim of persecution). Indeed,

Hernandez-Baena’s own testimony demonstrates that he

refused to comply with the request of the FARC members

because he did not want to go to jail for violating Colombian

law—not because of a political opinion. His refusal to

cooperate with FARC is not a “political opinion” simply

because his behavior conformed to the law. Elias-Zacarias

also provides the basis for rejecting petitioners’ conclusory

argument that the IJ unreasonably sought direct proof of

FARC’s motive for threatening Hernandez-Baena. What the

IJ sought, rightfully, was “some evidence of it, direct or

circumstantial.” Elias-Zacarias, 502 U.S. at 483.

Petitioners next challenge the IJ’s conclusion that

Hernandez-Baena lacked a well-founded fear of future persecution, essentially arguing that because “[t]his record is

barren of evidence that FARC ever lifted the death warrant

it announced” in July 2000, he per se has a well-founded

fear. Because the threat was never “lifted,” they contend, “it

must be presumed, for all intents and purposes, that

Hernandez-Baena is under threat of death from FARC.” But

this argument misstates the burden of proof, which lays

squarely on the applicant. E.g., Jamal-Daoud, 403 F.3d at

922. Moreover, even if Hernandez-Baena is in fact “under

threat of death,” in order for us to reverse the IJ’s decision,

we would effectively have to conclude that the Colombian

government is unable or unwilling to protect its citizens

from FARC. See Hor, 400 F.3d at 485 (“Persecution is

something a government does, either directly or by abetting

(and thus becoming responsible for) private discrimination

by throwing in its lot with the deeds or by providing

protection so ineffectual that it becomes a sensible inference
Nos. 04-2452 & 04-2949 7

that the government sponsors the misconduct.”); cf. Bace v.

Ashcroft, 352 F.3d 1133, 1138-39 (7th Cir. 2003) (Attacks

not actually directed by the state amounted to persecution

where “attackers clearly had a political motivation.”). But

in this case the record does not support such a conclusion;

indeed, the opposite appears to be true. When HernandezBaena reported the death threat, police responded immediately by wiretapping his phone in order to trace the caller.

No further threats have been received since the police

response. Under these circumstances, petitioners would be

hard pressed to demonstrate any connection between the

government and FARC’s threats. See Roman v. INS, 233

F.3d 1027, 1035 (7th Cir. 2000). The IJ’s conclusion that

petitioners’ fear of future persecution was not objectively

reasonable was supported by substantial evidence, and

accordingly, asylum was properly denied.

Finally, petitioners challenge the BIA’s refusal to reconsider or reopen their administrative appeal. We review the

denial of such motions for abuse of discretion. Singh v.

Gonzales, 404 F.3d 1024, 1027 (7th Cir. 2005). A motion to

reconsider “asks that a decision be reexamined in light of

additional legal arguments, a change of law, or an argument that was overlooked earlier.” Patel v. Ashcroft, 378

F.3d 610, 612 (7th Cir. 2004). The BIA concluded that the

petitioners raised no error of law or fact in the earlier

decision that would warrant reopening, and this decision

was not an abuse of discretion. Nor can we say the BIA

abused its discretion by declining to reopen the appeal. As

we have explained, “a motion to reopen asks for reconsideration on the basis of facts or evidence not available at the

time of the original decision, such as changed country

conditions.” Id. Petitioners provided different translations

of documents that were already in the record, but nothing

in their memorandum and attachments presented new facts

or evidence warranting reopening. The BIA was therefore

within its discretion in denying the motion.
8 Nos. 04-2452 & 04-2949

For the reasons stated above, we DENY the petition for

review.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-4-05