Saldarriaga v. Gonzales ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
APOLINAR PERAFAN SALDARRIAGA; 
LUZ VELASQUEZ CARMONA; ADRIANNA
MENESSES VELASQUEZ; MAURICIO
PERAFAN VELASQUEZ,
Petitioners,
 No. 04-1182
v.
ALBERTO R. GONZALES, Attorney
General,
Respondent.

On Petition for Review of an Order of
the Board of Immigration Appeals.
(A-76-898-202; A-76-898-203; A-76-898-204; A-76-898-250)
Argued: February 1, 2005
Decided: March 29, 2005
Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.
Petition denied by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Williams and Judge Traxler joined.
COUNSEL
ARGUED: Gary Michael Bowman, Roanoke, Virginia, for Petition-
ers. Kristin Ann Cabral, UNITED STATES DEPARTMENT OF
JUSTICE, Civil Division, Washington, D.C., for Respondent. ON
BRIEF: Peter D. Keisler, Assistant Attorney General, Carl H. McIn-
2 SALDARRIAGA v. GONZALES
tyre, Jr., Senior Litigation Counsel, UNITED STATES DEPART-
MENT OF JUSTICE, Office of Immigration Litigation, Civil
Division, Washington, D.C., for Respondent.
OPINION
WILKINSON, Circuit Judge:
In this appeal from a final order of removal, we must determine
whether the Board of Immigration Appeals ("BIA") erred in rejecting
petitioner’s claim for political asylum. Petitioner claims to fear repri-
sal by Colombian drug criminals for his association with the Drug
Enforcement Agency ("DEA") and his employment by one of its
informants. However, petitioner has not demonstrated how his con-
nection to the drug trade or his collaboration with the DEA stemmed
from a political position he espouses. Because such a showing is vital
to an asylum claim grounded in "political opinion," 8 U.S.C.
§ 1101(a)(42)(A) (2000), the BIA did not err in denying petitioner’s
application. We therefore affirm the BIA’s decision and deny the peti-
tion for review.
I.
Petitioner Apolinar Perafan-Saldarriaga is a native of Colombia,
where he worked as a singer and restauranteur. After performing at
an October 1995 party, Perafan met Javier Cruz, who offered peti-
tioner a job as an escort and driver. Petitioner accepted and accompa-
nied his boss on various trips in 1995 and early 1996.
In furtherance of the employment relationship, Cruz invited peti-
tioner to travel to Roanoke, Virginia, and work in a restaurant that
Cruz was opening there. In February 1996, shortly before departing
for the United States with his wife, Perafan drove Cruz to a meeting
attended by two known drug dealers. At this meeting, petitioner
observed an exchange of a metal box typically used to transport
drugs. He noticed the same type of box while unpacking equipment
at the Roanoke restaurant later in the month. Perafan worked in the
restaurant for some eight months in 1996 before Cruz fired him over
a labor dispute.
SALDARRIAGA v. GONZALES 3
In the month after petitioner lost his job, the Roanoke Times pub-
lished articles reporting that Cruz was an informant for the DEA. This
report was well-founded: the DEA had arrested Cruz and his boss
Leonardo Rivera for drug-related offenses in 1991. In return for
leniency in sentencing, the agency had persuaded the two men to
assist in investigating the cartel that employed them. The ensuing
undercover scheme was successful and yielded material information
concerning the criminal activity of the cartel.
In the process of winding down the operation, the DEA had
secured passage, including temporary visas, to the United States for
Cruz, Perafan (whom Cruz had recently hired as a driver), and Pera-
fan’s wife. For some time after their arrival in February 1996, Cruz
had continued to operate as an informant from the Roanoke restau-
rant. But Cruz’s work was imperiled by the Roanoke Times’s 1996
expos) and his cover was completely blown when the Colombian
press picked up the story from the Associated Press. The DEA moved
Cruz to Miami for his safety and the restaurant ceased to operate.
Recently out of work, concerned about the reports in the local
media which had confirmed Cruz’s connection to the drug world, and
eager to remain in the United States, Perafan approached the DEA
agent in Roanoke who was involved with the undercover operation.
Petitioner offered to cooperate with the agency in its investigation of
Colombian drug trafficking and professed knowledge gained during
his employment by Cruz. After several interviews, however, the agent
in charge determined that Perafan possessed no useful information
that was not already known by the DEA. In mid-1997, the officer
informed petitioner and his wife that the agency could not assist them
in immigration matters.
Cruz, meanwhile, had become concerned about the impact of his
press exposure on his 1991 sentencing deal. Despite the publication
of the Roanoke Times articles in the local Colombian media, Cruz
returned to his native land in 1997. He continued his involvement in
the drug trade there for some two years, before he was murdered by
a bodyguard in 1999.
In April 1999, the Immigration and Naturalization Service ("INS")
4 SALDARRIAGA v. GONZALES
issued petitioner a notice to appear.1 The notice alleged that Perafan
was a non-immigrant under 8 U.S.C. § 1101(a)(15)(b) (2000), who
had remained in the United states longer than permitted, making him
removable under 8 U.S.C. § 1227(a)(1)(B) (2000). Petitioner con-
ceded his removability, but applied for asylum under 8 U.S.C.
§ 1158(a)(1) (2000) for himself and derivatively his wife and chil-
dren. See 8 C.F.R. § 208.3(a) (2001).
The Attorney General has discretion to grant asylum to applicants
who establish "refugee" status. 8 U.S.C. § 1158(b)(1) (2000). A "refu-
gee" is one "who is unable or unwilling to return to" his native coun-
try "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." Id. § 1101(a)(42)(A). Perafan
alleged that his employment by Cruz, an outed DEA informant, put
him at risk of reprisal by Colombian drug dealers and made him a
"refugee" under this statutory definition.
The removal proceedings and the asylum petition were referred to
an Immigration Judge ("IJ"). The IJ heard testimony and issued a
decision on July 30, 2001. The IJ found that Perafan had successfully
demonstrated a well-founded fear of reprisal against him by drug
dealers in Colombia for his association with Cruz. Moreover, the
retaliation would be "on account of [a] political opinion," as
§ 1101(a)(42)(A) requires. The judge therefore granted Perafan asy-
lum.
A panel of the BIA reversed. A majority of the panel found implau-
sible Perafan’s allegation that he would face retaliation at the hands
of drug dealers in Colombia on account of a protected statutory
ground. The BIA therefore entered an order rejecting the asylum
claim. Petitioner now seeks review of that order in this court.
1
The agency was still known by this acronym during the administrative
proceedings in this case. We therefore use the term "INS," despite the
fact that the agency has since been renamed and reorganized. See 6
U.S.C.A. § 291 (West Supp. 2004); 8 C.F.R. § 1.1 (2005).
SALDARRIAGA v. GONZALES 5
II.
Circuit courts hear appeals from the BIA’s final orders of removal.2
See 8 U.S.C. § 1252(a)(1), (b)(2) (2000); Huaman-Cornelio v. BIA,
979 F.2d 995, 999 (4th Cir. 1992). When the BIA has adjudged asy-
lum eligibility, our review of its decision is narrow. See 8 U.S.C.
§ 1252(b)(4) (2000); Belbruno v. Ashcroft, 362 F.3d 272, 284 (4th
Cir. 2004). We determine only whether the BIA’s decision is "mani-
festly contrary to the law and an abuse of discretion."
§ 1252(b)(4)(D). When the BIA has rejected an asylum claim, we
therefore uphold its decision unless the petitioner has presented evi-
dence "so compelling that no reasonable factfinder could fail to find"
the elements required for asylum in petitioner’s favor. INS v. Elias-
Zacarias 502 U.S. 478, 483-84 (1992); Belbruno, 362 F.3d at 278;
Huaman-Cornelio, 979 F.2d at 999. These standards reflect the BIA’s
expertise in the area of immigration, its status as the Attorney Gener-
al’s designee in deportation decisions, and the special caution we
observe in matters relating to foreign relations, for which the other
branches of our government bear primary responsibility. See
Huaman-Cornelio, 979 F.2d at 999; M.A. v. INS, 899 F.2d 304, 313-
14 (4th Cir. 1990) (en banc).
2
The government contends that this court is without jurisdiction.
Because the IJ decided the case on the asylum issue, he declined to
address petitioner’s alternative application for voluntary departure. See 8
U.S.C. § 1229c (2000). However, the BIA’s reversal on the asylum issue
revived the voluntary departure application. The BIA accordingly
remanded to the IJ "to allow [petitioner] an opportunity to apply for vol-
untary departure." The government argues that, because this matter is
pending before the IJ, federal jurisdiction, which is limited to review "of
a final order of removal," is lacking. Id. § 1252(a)(1). Our sister circuits
have already considered whether a BIA order denying relief from depor-
tation, but remanding the case for voluntary departure proceedings or
other subsidiary determinations, is immediately appealable. See Del Pilar
v. United States, 326 F.3d 1154, 1156-57 (11th Cir. 2003) (per curiam);
Castrejon-Garcia v. INS, 60 F.3d 1359, 1361-62 (9th Cir. 1995); Per-
kovic v. INS, 33 F.3d 615, 618-20 (6th Cir. 1994). These precedents indi-
cate that federal jurisdiction is proper in such circumstances and, finding
their reasoning persuasive, we apply this conclusion here.
6 SALDARRIAGA v. GONZALES
III.
Perafan alleges that the BIA erred by overturning the IJ’s decision
to grant him asylum. He contends the BIA should have respected the
IJ’s findings concerning witness credibility and credited the IJ’s con-
clusion that petitioner’s fear of reprisal in Colombia was well-
founded. By failing to do so, he says, the BIA exceeded its own scope
of review and impermissibly overrode factual determinations commit-
ted to the IJ. See 8 C.F.R. § 1003.1(d)(3) (2005). Petitioner reiterates
to us the ubiquity of drug crime in Colombia and describes the violent
tactics of drug dealers there. He maintains that he will be targeted
because of his association with Cruz if he must return to Colombia.
He asks that we reject the BIA’s contrary holding.
Quite apart from the question of petitioner’s apprehensions of
reprisal, his asylum claim founders on more fundamental grounds.
For in addition to proving a well-founded fear of persecution, a party
seeking refugee status must also demonstrate that the persecution is
"on account of" one of the protected grounds — "race, religion,
nationality, membership in a particular social group, or political opin-
ion." 8 U.S.C. § 1101(a)(42)(A) (2000). To satisfy the statutory test,
an applicant must make a two-fold showing. He must demonstrate the
presence of a protected ground, and he must link the feared persecu-
tion, at least in part, to it. See Elias-Zacarias, 502 U.S. at 482-83;
Rivera-Moreno v. INS, 213 F.3d 481, 486 (9th Cir. 2000).
When the protected ground is political opinion, the first showing
is prototypically met by evidence of verbal or openly expressive
behavior by the applicant in furtherance of a particular cause. See,
e.g., Camara v. Ashcroft, 378 F.3d 361, 364 (4th Cir. 2004)
("demonstrating with students" and participating in a "protest march"
for ethnic rights demonstrates political opinion for asylum purposes).
Less overtly symbolic acts may also reflect a political opinion. See
Briones v. INS, 175 F.3d 727, 728-29 (9th Cir. 1999) (en banc) (hold-
ing that applicant’s provision of material information concerning a
political insurgency reflected a political opinion). But whatever
behavior an applicant seeks to advance as political, it must be moti-
vated by an ideal or conviction of sorts before it will constitute
grounds for asylum. Because of this requirement, we recently reem-
phasized that "[f]ears of retribution over purely personal matters or
SALDARRIAGA v. GONZALES 7
general conditions of upheaval and unrest do not constitute cogniza-
ble bases for granting asylum." Belbruno, 362 F.3d at 284 (quoting
Huaman-Cornelio, 979 F.2d at 1000). Indeed, actions motivated by
an employment interest, see Adhiyappa v. INS, 58 F.3d 261, 267 (6th
Cir. 1995), or other "personal benefit," see Perlera-Escobar v. Execu-
tive Office for Immigration, 894 F.2d 1292, 1298 (11th Cir. 1990)
(per curiam), do not merit protection as a political refugee.
In appealing his denial of asylum, petitioner reiterates the unfortu-
nate predicament he faced when he found himself unemployed and
tainted by association with Cruz, a known DEA informant. Yet Pera-
fan never suggests that his initial acceptance of Cruz’s job offer, his
continued employment after it became clear that Cruz trafficked in
narcotics, his decision to travel to Roanoke pursuant to this employ-
ment, and his attempt to avoid removal from the United States by
cooperating with the DEA were motivated by anything other than
self-regarding ends.
Petitioner has not argued that his decisions in this course of action
were grounded in principle, inspired by altruism, or intended to
advance a cause, as a political opinion applicant must show. And,
even if we entertained the generous assumption that Perafan’s cooper-
ation with the DEA stemmed from a disapproval of the drug cartel,
such a stance on his part still could not constitute a political opinion
under § 1101(a)(42)(A). Indeed, to credit such disapproval as grounds
for asylum would enlarge the category of political opinions to include
almost any quarrel with the activities of almost any organization.
Not only would the proliferation of asylum grants under this expan-
sive reading interfere with the other branches’ primacy in foreign
relations, see M.A., 899 F.2d at 313-14, it would also strain the lan-
guage of § 1101(a)(42)(A). The statute requires persecution to be on
a discrete basis and to fall within one of the enumerated categories.
This particularity demonstrates that the asylum statute was not
intended as a panacea for the numerous personal altercations that
invariably characterize economic and social relationships. See
Huaman-Cornelio, 979 F.2d at 1000; see also Ontunez-Tursios v.
Ashcroft, 303 F.3d 341, 352 (5th Cir. 2002). Even when a widespread
conflict between a foreign government and an opposing non-state
actor overshadows these relationships, as is the case in Colombia, a
8 SALDARRIAGA v. GONZALES
party seeking political opinion asylum must do more than describe
how this overshadowing has affected his life. To receive protection
as a refugee, he must also demonstrate that he has a particular stake
in the conflict and a position on how governance in that country ought
to occur. Accord Cruz-Navarro v. INS, 232 F.3d 1024, 1030 (9th Cir.
2000) (rejecting asylum claim for applicant who "did not testify that
he had particular political beliefs or opinions, much less political
motives" for his actions).
For an applicant who has been forced to declare his allegiance in
an expressly political struggle between an organized insurgency and
government forces, demonstration of a political opinion may be more
straightforward. See Briones, 175 F.3d at 728-29. But when, as here,
the applicant has not taken sides in such manner — much less under
duress — and the conflict, though ubiquitous, is not aimed at control-
ling the organs of state, an applicant cannot merely describe his
involvement with one side or the other to establish a political opinion.
See Estrada-Escobar v. Ashcroft, 376 F.3d 1042, 1047 (10th Cir.
2004) (rejecting asylum for applicant who "fails to link his persecu-
tion to anything other than his status as a police officer" involved in
civil strife); Rivera-Moreno, 213 F.3d at 486 ("[i]t is clear that perse-
cution for failure to contribute nursing services [to guerrillas] is not
a protected ground under § 1101(a)(42)(A)"); Cruz-Diaz v. INS, 86
F.3d 330, 332 (4th Cir. 1996) (per curiam) ("The guerrillas’ conscrip-
tion of [applicant] as a child, his fleeing from the guerrillas, and his
hiding from both the guerrillas and the army . . . does not establish
a political opinion on his part.") Here the absence of a political end,
even from petitioner’s own description of his motivations, demon-
strates that his best evidence amounts to no more than a description
of how the conflict in Colombia has impacted his life. Because he has
not further explained how his involvement with this conflict stems
from a political opinion he has adopted, he cannot be entitled to the
protection of asylum.
Finally, it bears mention that, even if petitioner were found to have
manifested a political opinion as the statute requires, there is no indi-
cation that the cartel members would persecute him in response to
that manifestation. Yet such a nexus between political opinion and
feared persecution, required by the statutory phrase "on account of,"
§ 1101(a)(42)(A), is no less an important element of an asylum claim
SALDARRIAGA v. GONZALES 9
than the applicant’s display of a political opinion in the first place.
See Elias-Zacarias, 502 U.S. at 482-83; Huaman-Cornelio, 979 F.2d
at 1000. Indeed, to secure refugee status, "an applicant must tie the
persecution to a protected cause . . . [and] show the persecutor had
a protected basis . . . in mind in undertaking the persecution." Rivera-
Moreno, 213 F.3d at 486 (citation omitted) (emphasis added). Thus,
even if Perafan’s cooperating with the DEA were somehow to be
deemed sufficiently political, his protection as a refugee would not
necessarily follow. For the inscrutability of the political opinion he
claims implies that any persecution he faces is due to the fact of his
cooperation with the government, rather than the content of any opin-
ion motivating that cooperation. See Adhiyappa, 58 F.3d at 268
(rejecting asylum claim where "it was [applicant’s] status as an infor-
mant, not his political opinion," that provoked persecution by political
separatists).
IV.
We appreciate Perafan’s desire to remain outside Colombia and
away from the foment of the drug trade. But statutes sometimes
require saying no, even to a hard luck case. We are not empowered
to bestow the privilege of residing in the United States in violation of
the standards that Congress has announced in § 1101(a)(42)(A).
Being involved in the drug wars of a foreign country with their webs
and patterns of violence and recrimination is not the same thing as
being persecuted on account of a political opinion. Applying the stat-
ute to the facts before us, in light of the deference we accord adminis-
trative asylum determinations, we find no error in the BIA’s decision
not to grant Perafan refugee status. The order of the BIA is therefore
affirmed and the petition for review is
DENIED.