Tapiero De Orejuela v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4077
JAIDIBE TAPIERO DE OREJUELA,
JUAN JOSE OREJUELA TAPIERO,
CARLOS ANDRES OREJUELA, and
SAUL OREJUELA,
Petitioners,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
Nos. A79-592-346, A79-592-347,
A79-588-828, A79-588-829.
____________
ARGUED NOVEMBER 10, 2004—DECIDED SEPTEMBER 8, 2005
____________
Before POSNER, WOOD, and EVANS, Circuit Judges.
WOOD, Circuit Judge. Jaidibe Tapiero de Orejuela and
her three sons, Saul Alberto, Carlos Andres, and Juan Jose,
fled Colombia after the Revolutionary Armed Forces of
Colombia (FARC, standing for Fuerzas Armadas de Colom-
bia) murdered Jaidibe’s husband and the father of her
children and then continued its threats on the family. The
Orejuelas applied for asylum based on their persecution as
members of the educated, wealthy, landowning class in
2 No. 03-4077
Colombia that opposed FARC, as members of the immediate
family of the deceased Mr. Orejuela, and based on their
political opinions in opposition to FARC’s communist
doctrine. The Immigration Judge (IJ) denied their applica-
tions for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT). The Board of
Immigration Appeals (BIA) summarily affirmed the IJ’s
decision. We conclude that the Orejuelas have shown that
they are members of a persecuted social group. We there-
fore grant the petition for review and remand for further
consideration of their claim.
I
Internal conflict and violence that is both political and
criminal continue to challenge Colombian society. The
government’s security forces, paramilitary groups, guerrilla
groups, and drug traffickers all fight one another. FARC is
a leftist guerrilla group that originally was established to
serve as the military wing of the Colombian Communist
Party. Where FARC exercises control, according to the 2001
United States Department of State Country Report, it
collects “war taxes,” conscripts members of the citizenry,
regulates travel and commerce, and in effect displaces civil
government. Even where FARC does not fully displace the
civilian government, it nevertheless operates almost
without impunity as a result of a reign of terror that targets
police and military officials, their families, and those who
cooperate with them. According to the United Nations High
Commissioner for Refugees:
[T]he FARC launched a concerted campaign of threats
and intimidation against local authorities, as part of
a strategy to further undermine State authority and
destabilize the government. According to the Ministry
of Interior, over 300 mayors . . . have received direct
threats, and many have gone into hiding or conduct
No. 03-4077 3
their office from different municipalities. The FARC
have issued various statements indicating that all
departmental and municipal authorities in the coun-
try are targeted. A total of sixty mayors (that is to
say, one per month on average) have been killed in
Colombia during the past five years.
Attorneys, judges, victims, witnesses and other persons
who participate in proceedings and investiga-
tions related to violations of human rights or humani-
tarian law, involving members of the public security
forces or paramilitary or guerilla groups, face serious
risks. . . . [M]embers of the judiciary face increasing
threats from the side of the FARC for the mere fact of
being public officials.
United Nations High Commissioner for Refugees, Interna-
tional Protection Considerations Regarding Colombian
Asylum-Seekers and Refugees ¶¶ 51-52 (Geneva, Sept.
2002). As a consequence of this violent campaign, the
military and civilian forces of Colombia have proven
unwilling and unable to control FARC.
The 2001 Country Report describes FARC’s consistent use
of kidnapping as “an unambiguous, standing policy and
major source of revenue.” The Country Report also indicates
that in March 2000, FARC instituted “Law 002,” which
targets the wealthy in particular. According to FARC, all
those with assets over $1 million must pay taxes to FARC
or face kidnapping. FARC often kidnaps and/or extorts
“persons deemed to hold an opposing political opinion” and
uses this practice “to finance [its] political/military objec-
tives, targeting members of the middle and upper classes,
those engaged in business, and others seen as possible
sources of funds.” United Nations High Commissioner for
Refugees, International Protection Considerations ¶ 47.
“Due to the significance of the income derived from ransom
and extortion to fund political-military activities,” the
4 No. 03-4077
report continues, “refusal or inability to pay is viewed as an
act or indication of political opposition.” Id.
Mr. and Mrs. Orejuela were married in 1974. Shortly
thereafter, Mr. Orejuela began purchasing real estate. In
1981, he purchased a 2.5 acre farm called Yolandita in the
province of Cauca, on which he grew coffee beans and
bananas. In 1989, he purchased two large ranches known as
Arabia and La Esperanza, also in the province of Cauca, on
which he raised cattle and other livestock. He hired manag-
ers for each of these estates. In 1994, the family purchased
a home in Cali, the capital of Cauca.
In August 1999, while he was visiting one of his ranches,
a group of FARC guerrillas threatened Mr. Orejuela,
demanding money to support their efforts. According to
his wife, Mr. Orejuela refused because he did not sup-
port FARC’s communist ideology. FARC representatives
told him that they would kill him if he did not pay. Around
the same time, Saul and Carlos noticed that they were
being followed when they drove to the Universidad
Autonóma de Occidente where they both studied as well
as when they walked around campus. One day, Carlos
received an anonymous call shortly after he returned home
from the university indicating that the person knew that he
had just returned home.
FARC made good on its threats two months later. On
November 9, 1999, Mr. Orejuela stopped at a bakery near
his home. A man approached Mr. Orejuela from behind.
When Mr. Orejuela turned around, the man shot him
twice in the head, killing him. Mrs. Orejuela asked the
government to investigate her husband’s murder, but a
local judge advised her that pursuing the matter could
endanger her children.
In October 2000, a group of approximately 25 FARC
guerrillas approached Saul and Carlos when they went
No. 03-4077 5
to pay the workers on one of the ranches. (The sons testified
that they visited the ranches every two weeks on Fridays or
Saturdays for this purpose.) The guerrillas asked if the
brothers were Saul and Carlos and demanded $20,000 from
them. Saul testified that the guerrillas told them that they
knew “all of our movements, everything we did, where we
studied. That they knew where we lived and also about my
[younger] brother.” The guerrillas warned Saul and Carlos
that if they did not “collaborate with them” they would “run
with the same luck as our father.” According to Saul, when
he asked why FARC was doing this to his family, the
guerrillas responded that it was because the Orejuelas had
more than so many others and had been able to study at the
university. About a month later, Saul and Carlos fled
Colombia for the United States.
Mrs. Orejuela remained in Colombia with her youngest
son Juan, but FARC soon focused its unwelcome atten-
tion on her. FARC sent two letters to Mrs. Orejuela de-
manding payment; in the second letter, FARC threatened
to kill Juan if she failed to do so. Mrs. Orejuela took the
threats seriously and brought them to the attention of
the local authorities, who unhelpfully responded that
she should leave the country because there was no pro-
tection for her in Colombia. During this time, she removed
Juan from school and went to live with her sister in a less
affluent area of Cali. About two weeks after receiving the
letters, she sent Juan to live in the United States. Mrs.
Orejuela stayed in Colombia until June 2001; during that
time, she hid from FARC and did not return to her home or
the family’s ranches. In June 2001, Mrs. Orejuela joined her
sons in the United States.
At their March 6, 2002, removal hearing, the Orejuelas
requested asylum, withholding of removal, and protec-
tion under the CAT. On April 26, 2002, the IJ denied
the Orejuelas’ applications for asylum, finding that
they had not established either past persecution or a
6 No. 03-4077
well-founded fear of future persecution on the basis of “a
particular social group that is cognizable under the Immi-
gration and Nationality Act.” The IJ concluded that FARC
did not kill Mr. Orejuela because of his political opinions,
but because of his wealth:
[T]he facts establish that the FARC demanded money,
not because of respondent’s political opinion or member-
ship in a particular social group, but because
the respondent was wealthy and the FARC wanted
money. . . . Although the respondent testified that her
husband’s refusal was because he was not in agreement
with their communist ideology, the FARC demanded
the money because her husband was a wealthy cattle
farmer rather than because of his political beliefs.
The IJ found that the record did not support the conclu-
sion that FARC viewed the refusal to pay as a political
statement. While the IJ credited a Reuters article that
reported the guerrillas targeted cattle farmers for extortion,
he found that this proved the extortion was for
money rather than for political views.
The IJ concluded that the Orejuelas’ status as wealthy
landowners was not an “immutable characteristic” as
defined by the BIA in Matter of Acosta, 19 I. & N. Dec. 211,
233 (BIA 1985), because their status as such was not
“something that the respondent[s] cannot change, or should
not be required to change.” In addition, the IJ found that
the Orejuelas “failed to establish country-wide persecution”
because some of their other family members were safe in
Colombia and Mrs. Orejuela was safe while she stayed with
her sister in a less prosperous neighborhood in Cali.
Finally, the IJ denied the family withholding of removal
and relief under the CAT. The BIA summarily affirmed the
IJ’s decision on October 29, 2003, and the petitioners filed
a timely appeal.
No. 03-4077 7
II
Before addressing the Orejuelas’ petitions, we note
that Congress’s recent enactment of the REAL ID Act of
2005, Pub. L. 109-13, 119 Stat. 731, amended 8 U.S.C.
§ 1158(b), thereby altering an alien’s burden of proof in
asylum claims. See REAL ID Act § 101(3). However, these
new burdens apply only to applications filed on or after
the date of enactment, May 11, 2005, long after the
Orejuelas filed their applications. See REAL ID Act
§ 101(h)(2). The REAL ID Act also changed our standard of
review for removal orders, see § 101(e), to require that “[n]o
court shall reverse a determination made by a trier of fact
with respect to the availability of corroborating evidence .
. . unless the court finds . . . that a reasonable trier of fact
is compelled to conclude that such corroborating evidence is
unavailable.” This amendment is effective for cases “in
which the final administrative removal order is or was
issued before, on, or after [May 11, 2005].” This provision
would apply to the Orejuelas’ petitions, but it is not rele-
vant because the IJ did not make any findings regarding
corroborating evidence in this case.
In cases where the BIA summarily affirms the IJ, we
review the IJ’s decision as if it were the BIA’s.
Jamal-Daoud v. Gonzales, 403 F.3d 918, 922 (7th Cir.
2005). Our review of the Orejuelas’ claims for asylum,
withholding of removal, and relief under the CAT are
governed by the substantial evidence standard. Id. “Apply-
ing that standard, we assess whether the BIA’s determina-
tion was ‘supported by reasonable, substantial, and proba-
tive evidence on the record considered as a whole,’ and
reverse only if the evidence compels a contrary conclusion.”
Ahmed v. Ashcroft, 348 F.3d 611, 615 (7th Cir. 2003)
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
We will overturn the BIA’s decision only “if the record
compels a contrary result.” Brucaj v. Ashcroft, 381 F.3d 602,
606 (7th Cir. 2004) (citing Georgis v. Ashcroft, 328 F.3d 962,
8 No. 03-4077
967-68 (7th Cir. 2003)). We review the BIA’s legal conclu-
sions de novo. Ahmed, 348 F.3d at 615.
The petitioners appeal the decision of the BIA denying
them asylum. They argue that the IJ erred in his conclusion
that FARC did not persecute them on the basis of their
membership in two social groups—the group of individuals
who are educated, wealthy, landowning, cattle-farming
Colombians and the group of individuals in Mr. Orejuela’s
immediate family. In addition, they contend that the IJ
wrongly rejected their claims that their persecution by
FARC was based on their political opinion and that they
faced country-wide persecution.
To qualify for asylum, the Orejuelas must first show that
they satisfy the statutory definition of a “refugee”: someone
who is unable or unwilling to return to her country of origin
“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). The Orejuelas can meet their burden by
proving either past persecution or a well-founded fear of
future persecution. Tolosa v. Ashcroft, 384 F.3d 906, 908
(7th Cir. 2004). “A petitioner’s experience of past persecu-
tion gives rise to a rebuttable presumption that she will face
future persecution.” Id. (citing 8 C.F.R. § 208.13(b)(1)(I)). To
be granted asylum based on a well-founded fear of future
persecution, the petitioners must show with credible and
specific evidence that they will suffer persecution upon
return to Colombia. Vujisic v. INS, 224 F.3d 578, 580 (7th
Cir. 2000). Persecution can be by the government itself or
by a group that the government is “unable or unwilling to
control.” Balogun v. Ashcroft, 374 F.3d 492, 499 n.8 (7th Cir.
2004) (quoting Borja v. INS, 175 F.3d 732, 735 n.1 (9th Cir.
1999) (en banc)).
Turning first to the issue of whether the Orejuelas’
persecution was based on their membership in a social
group, we have held, following the Board, that a character-
No. 03-4077 9
istic that defines a “social group” within the meaning of the
immigration laws “must be one 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.” Lwin v. INS, 144 F.3d 505, 512
(7th Cir. 1998) (adopting the BIA’s standard
for determining a social group articulated in Acosta, 19 I. &
N. Dec. at 233, though rejecting immutability as a neces-
sary prerequisite for the shared characteristic). The Board
in Acosta further described this test: “The shared character-
istic might be an innate one such as sex, color, or kinship
ties, or in some circumstances it might be a shared past
experience such as former military leadership or land
ownership. The particular kind of group characteristic that
will qualify under this construction remains to
be determined on a case-by-case basis.” 19 I. & N. at 233
(emphasis added). Thus, the inquiry should focus on
“whether the danger flows from an ongoing violent struggle
affecting the population in a relatively undifferentiated way
or if danger exists on account of a protected ground.”
Ahmed, 348 F.3d at 619 (emphasis added). A particular
characteristic that defines a social group within a society
such as education, manner of speech, or profession may be
more mutable than one’s race, ethnicity, or religion, but
these traits are nevertheless distinguishing markers within
a given society that are not easily changed or hidden.
Applying this social group test from Acosta, the Orejuelas
fall into a distinct social group: the educated, landowning
class of cattle farmers targeted by FARC. The State Depart-
ment’s Country Report, citing the Free Country Foundation,
notes that cattlemen are among the guerrillas’ “preferred
victims.” This group is not defined merely by wealth, a
characteristic that standing alone was rejected by the Board
in In re V-T-S-, 21 I. & N. Dec. 792, 799 (1997), but by their
ownership of land, their social position as cattle farmers,
and their education. (Saul Orejuela testified that when he
10 No. 03-4077
was threatened, he was told by the FARC guerrillas that it
was because his family belonged to a “privileged group” and
that he and his brothers had gone to schools and universi-
ties; he also testified that the guerrillas focused on them
because his father was “renowned” as a cattle rancher.) In
Acosta, the Board recognized that “shared past experiences”
including land ownership and past military service may
constitute a characteristic that is a basis for a social group
designation. Here, the Orejuelas possess land of a particu-
lar type (cattle ranches) and the educational status that
combined make the Orejuelas and those like them targets
of FARC’s violent campaign.
Furthermore, even if the family were to give up its land,
its cattle farming, and even its educational opportunities,
there is no reason to believe that they would escape perse-
cution. In discussing former public officials, the United
Nations High Commissioner for Refugees noted that “the
individual concerned is not able to avoid persecution simply
by quitting his/her function and relocating elsewhere with
a different job.” United Nations High Commissioner for
Refugees, International Protection Considerations ¶ 52.
Mrs. Orejuela testified that she believed she would still
be targeted if the family sold the cattle ranches, as FARC
would continue its quest for funding by targeting the family
regardless because of its past membership in the cattle
farmer, landowning class.
We are aware that many other Colombians, including
poor farmers, are victims of violence by FARC, but this does
not mean that wealthy landowners are not targeted as such.
The existence of other persecuted social groups, such as
members of a particular village who resisted a paramilitary
organization, does not mean that any one group does not
qualify under the statute.
The Orejuelas have shown that the persecution they faced
was serious indeed. It included the murder of Mr. Orejuela,
No. 03-4077 11
repeated attempts at extortion, and various death threats.
This is more than enough to show past persecution. They
have shown that their suffering was differentiated from the
rest of the population and that FARC targeted them
because of their particular social group identity. The threats
against them did not constitute indiscriminate violence.
While we are sure that FARC would be happy to take the
opportunity to rob any Colombian (or foreigner for that
matter) of his money, it is those who can be identified and
targeted as the wealthy landowners that are at continued
risk once they have been approached and refused to cooper-
ate with FARC’s demands. While it might also be possible
to find that the Orejuelas were members of a smaller social
group consisting of the immediate family members of Mr.
Orejuela, see Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997),
we need not consider this because we find that they are
members of the social group comprised of the educated,
landowning class. (Readers of Isabel Allende’s The House of
the Spirits or Gabriel García Márquez’s One Hundred Years
of Solitude will recall that the history of conflict between
large landowners and the rest of society is a long one in
Latin America.)
Our conclusion is entirely consistent with the Supreme
Court’s decision in INS v. Elias-Zacarias. In that case, the
Court had to decide whether a guerrilla organization’s
efforts to conscript a person into its military forces neces-
sarily amounted to persecution on account of political
opinion. 502 U.S. at 481. The Court concluded that the
answer was no. Id. at 483. Persons resisting recruitment
might have many reasons to do so, including fear of combat,
a desire to remain at home, and a desire to earn more
money. Nothing in the record showed that the petitioner’s
motive was political; in fact, it indicated that he resisted
purely out of fear for his family. Id. at 482. Second, the
Court pointed out that the critical question for persecution
based on political opinion is the opinion of the victim, not
12 No. 03-4077
the opinion of the persecutor. Id. Elias-Zacarias had
nothing to say about persecution on account of membership
in a social group, which is the Orejuelas’ preferred theory.
It is true that the Orejuelas advanced political opinion
as an alternate ground for their petition, but the IJ found
that the evidence did not support this part of their claim.
We see nothing in the record that undermines that ruling.
The petitioners argue that their refusal to support FARC
was based on their political beliefs (i.e., opposition to
communism) and that other courts have found that threats
of extortion amount to political persecution. See, e.g., Borja,
175 F.3d 732 (finding political persecution existed in a
claim by a Filipino woman who received death threats after
refusing to continue to pay a communist guerrilla organiza-
tion). Nevertheless, just as the petitioner in Elias-Zacarias
needed to show that a political reason lay behind his
resistance to joining the military group, the Orejuelas
would have had to show that politics rather than many
other likely reasons lay behind their unwillingness to
support FARC.
The facts presented by the Orejuelas did not compel the
IJ to reach that conclusion. While Mrs. Orejuela testified
that her husband refused to pay FARC because he dis-
agreed with its communist ideology, there is no evidence
in the record that any of the petitioners were politically
active in opposing FARC other than through their efforts to
manage their land without paying the “tax” demanded by
FARC. The most one might say is that members of the
privileged landowning class are unlikely to share the
communist ideology of FARC members. This, however,
takes us back to persecution on the basis of membership
in a social group as opposed to persecution on the basis
of political opinion or even mixed motives. See Mohideen v.
Gonzales, 2005 WL 1691597 (7th Cir. July 21, 2005).
Finally, the Orejuelas contest the IJ’s conclusion that
No. 03-4077 13
relocation within Colombia is a realistic possibility for
them. As the U.S. Department of State Country Report
indicates, FARC has a presence throughout the country and
an increasing presence in the urban areas. Even though
Mrs. Orejuela was able to live at her sister’s home for a few
months, she continued to receive threats by FARC at her
home within the same city of Cali. This is not enough to
show that the Orejuelas could safely relocate within the
country. Given FARC’s presence throughout Colombia and
the family’s identity, we conclude that this is not an
alternate ground on which to uphold the IJ’s decision.
For these reasons, we GRANT the petition for review
and REMAND this matter to the BIA for further proceed-
ings consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-8-05