Gomez-Zuluaga v. Atty Gen USA

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-30-2008
Gomez-Zuluaga v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 07-2674
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2674
CLAUDIA ROCIO GOMEZ-ZULUAGA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A98 497 068)
Immigration Judge: Dorothy Harbeck
Argued January 10, 2008
Before: FISHER, HARDIMAN
and STAPLETON, Circuit Judges.
(Filed: May 30, 2008)
Rachelle Abrahami
Alessandra DeBlasio (Argued)
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Attorneys for Petitioner
Jeffrey L. Menkin
Michael P. Lindemann
Ethan B. Kanter (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
OPINION OF THE COURT
2
FISHER, Circuit Judge.
Claudia Rocio Gomez Zuluaga (“Petitioner”)1 seeks
review of an order of the Board of Immigration Appeals
(“BIA”) affirming the denial of her request for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). For the reasons that follow, we will
grant the petition in part and deny it in part.
I. BACKGROUND
Petitioner, a native and citizen of Colombia, was born on
July 3, 1987, in a rural region near San Francisco, Colombia.
During most of her life, the Fuerzas Armadas Revolucionarias
de Colombia (“FARC”), a leftist guerrilla revolutionary group,
was active throughout much of Colombia. The FARC was
officially formed in 1966 and has continuously and often
violently opposed the Colombian government since that time.
The FARC is designated as a terrorist organization by the United
States Government. While the FARC is active throughout
Colombia, it holds particular sway in many rural areas where it
effectively controls local politics and the civilian population. In
2002, after peace negotiations between the FARC and the
Colombian government broke down, violence escalated and the
FARC began to specifically target civilians. Although the
1
Although Petitioner’s surnames are hyphenated
(“Gomez-Zuluaga”) in the case caption, according to her
counsel, Ms. Gomez Zuluaga does not hyphenate her surnames
and we will likewise follow this practice.
3
FARC has used a variety of methods to finance and prosecute its
guerilla war, one intimidation technique it has regularly used is
to ban women and girls from fraternizing with members of the
security forces, police officers, or officials of the Colombian
government. Such women have occasionally been deemed
“military targets.” Women who have transgressed the ban have
often been targeted for intimidation, kidnapping, rape, and
murder.
Petitioner’s first experience with the FARC occurred
when she was six years old. At that time, a number of armed
guerillas commandeered her family’s farm in rural La Bretana.
The guerrillas pressed the family members into service during
their occupation, requiring them to run a variety of errands for
them. At one point during this occupation, Petitioner heard a
gunshot, and minutes later witnessed the guerillas pass by the
farmhouse carrying a dead body in a cot. Although she did not
recognize the deceased person, the incident made Petitioner very
afraid. Shortly after this, Petitioner’s father, fearful that the
FARC would return, moved the family to another rural area, La
Granja.
During her time in La Granja, Petitioner witnessed and
experienced many more encounters and confrontations with the
FARC and the collateral effects of civil war. When she was
eleven, her family finally left La Granja due to the FARC’s
displacement of civilian populations. Petitioner’s parents
moved back to her birthplace, San Francisco, about an hour-and-
a-half drive from La Granja, while Petitioner went to live with
her sister two to three hours away in the relative safety of
4
Medellin. As she was still a very young person at the time, she
often went to visit her parents in San Francisco.
In August 2003, when Petitioner was sixteen, she began
dating a military officer who lived in La Granja. In February
2004, she went to San Francisco to visit her parents. While she
was at the family home, a man knocked on the door and told her
that she had to come with him. He then took her to an outdoor
playing field where she observed additional armed men and
many other women who had been brought there under similar
duress. The men identified themselves as being affiliated with
the FARC and told the women that the FARC knew that they
were “with military officials” and that such behavior was an
“insult” to the FARC. The men told them that being with the
soldiers was the equivalent of being against the FARC, and if
the women “did not end it with them,” then “something [would]
happen to [them] or their families.”
The FARC detained the women for nearly two hours,
during which time Petitioner recalls being very afraid and
worried. Adding to her fear, a number of the women informed
her that they had previously been kidnapped for dating military
officers. Moreover, Petitioner did not know how the FARC was
even aware of the fact that she had been dating a military
officer. Before releasing the women, the guerillas obliquely
warned them that they should remember what they had been
told, and that they should pay attention to it. Although
Petitioner had not been physically harmed, she feared for both
her own and her family’s safety. Believing the threat to be
genuine, she reluctantly broke off her relationship with the
military officer from La Granja.
5
Petitioner continued her studies in Medellin. By 2005,
her mother had moved in with her in Medellin because the
FARC set off a number of car bombs in San Francisco and
caused problems with the transportation system. Petitioner
began dating a police officer from Medellin, thinking that the
FARC would have no way of knowing of her activities in that
city. Throughout this time, Petitioner continued to visit her
father in San Francisco regularly. During one visit in the
summer of 2005, an armed man came to her father’s house and
threateningly intimated that she “would find it preferable” to do
as he instructed and accompany him. Although she was “scared
because of what happened to [her] the first time,” she agreed,
and they proceeded on foot to a hilly area on the outskirts of
town. There they met up with two other men, armed with
ammunition and grenades, who wore FARC colors and
identified themselves as members of the guerilla organization.
The men told her that “it appeared that [she] hadn’t paid
any attention to what they had told her the last time, and it
looked like she was still going out with . . . the police.”
Petitioner could not understand how these men knew about her
relationship in Medellin, but the men told her that they were
“aware of everything [she] did, [and] that they were watching
[her].” She became “very scared” that they were going to kill
her or do something to her. The men continued to detain her for
about an hour, and then released her, admonishing her that if she
“was in favor of the army or of the police, then [she] must be
against them.”
Upon returning to Medellin, Petitioner “backed off,” and
then, in August 2005, ended her relationship with the police
6
officer. She told him that the FARC had somehow learned of
their relationship, that they continued to watch her, and that they
told her that she could not date a police officer. He told her that
despite his position as a police officer, there was not much that
he could do to protect her, given that the FARC pervaded the
entire country and she would always be vulnerable.
In January 2006, Petitioner again visited her father in San
Francisco. During her stay, an armed man approached her in
broad daylight at the local church and ordered her to go with
him. Despite the fact that there were other people nearby,
Petitioner was “very scared” by the more brazen nature of this
encounter and agreed to go with him. The armed man covered
her eyes, and gripping her by her hands, began to lead her out of
town. Because she was blindfolded, Petitioner could not tell
where the man was taking her. After nearly two hours of
walking, they arrived at a small empty house where they were
met by a number of other armed men. Petitioner was chained to
a bed, and when she asked why she had been abducted, the men
remained silent. This continued until the next day, when
Petitioner again asked them why they had abducted her, since
she hadn’t been going out with anyone. The men told her “that
wasn’t it, that they had intentions for me with them.” The men
kept Petitioner chained to the bed for the duration of her time
there, only allowing her to be unchained to go to the bathroom,
and always with one of the guerillas present.
Petitioner continued to beg for her life throughout this
ordeal. Eventually, she told the men that she was a student and
that she was studying to be a dental hygienist. She further told
them that she was the only person in her family to make it so far
7
in school. She implored them to let her go so that she could
complete her studies, trying to think of “anything I could so they
would let me go.” Upon learning that Petitioner was studying
to be a health professional, the men began to talk amongst
themselves, and one of the men remarked that it was “very
good.” The men then left Petitioner alone again for a while.
After returning, they informed her that they were going to
release her, and that once she completed her studies (within five
months of the abduction), she was to return and work for them.
Keeping her eyes covered, the men unchained her, and then left
her near the town. In all, the FARC had confined Petitioner for
eight days.
During the time that she was away, armed guerillas
visited Petitioner’s father at his home and told him that they had
kidnapped her. They warned him that if he told anybody, they
would kill her. As a result, her father became very worried
when she did not immediately return. After being released,
Petitioner made her way to her father’s house, where her father
was “very happy” to see her and to learn that she had not been
physically injured. Neither she nor her family reported the
incident to the police for fear of reprisal. She recalled that she
only told her family a “little bit” because of the traumatic nature
of the experience and she did not give details. In her words,
“[n]obody knew.”
The very next day, Petitioner departed for Medellin.
Since that time, she has not returned to San Francisco and has
not seen her father again. Although she remained in contact
with him for another two months, his calls suddenly ceased
8
around March 2006, and no one in her family has received any
communication from him.
The day she left for Medellin, Petitioner received a phone
call on her cell phone from a person identifying himself as a
member of the FARC. He told her that she was being watched
and that the FARC knew everything about her life. They called
her one to three times per month, telling her that they were
watching her and waiting for her to finish her studies, and
constantly reminding her of her promise to work for them.
When she finally finished her studies, she “realized that [she]
had to leave the country” because the fact that the FARC had
tracked her to Medellin meant that she was not safe in any part
of the country. The FARC had effectively threatened her
everywhere that she had ever lived, including La Bretana,
Medellin, La Granja, and San Francisco. She believed that the
FARC would pursue her relentlessly, having previously
threatened or attacked other members of her family, including
her sister, uncle, and cousin. Her sister’s husband had been
kidnapped and their house had been bombed. Her uncle had
been shot for refusing to cooperate with the FARC. Her cousin
had been forced to work for the FARC. When her cousin
escaped from this involuntary servitude, the FARC murdered
him. She believed that now that she had graduated, if she
refused to work for the FARC, “what happened to her cousin
would happen to [her], also.”
In June 2006, Petitioner decided to go to the United
States. A year before, after the first two abductions, she had
tried and failed to obtain a visa. This time, fearing for her life,
she paid a man nearly $1,000 for a counterfeit Spanish passport.
9
She entered the United States on July 22, 2006, through Newark
International Airport where she was detained upon discovery of
her actual identity. During an interview with authorities,
Petitioner explained her reasons for entering the United States
illegally, and that she feared what might happen to her if she
were returned to Colombia. A few days later, the FARC again
attempted to contact her on her cell phone, which she had given
to her sister. They told her sister that Petitioner “should appear,
that it would be better if [she] appeared.”
Petitioner was placed in removal proceedings and granted
a hearing date of December 19, 2006 before an immigration
judge (“IJ”) (an additional hearing regarding the Petitioner’s
refugee status category was held on December 27, 2006).2
Petitioner requested asylum, withholding of removal, and relief
under the CAT. She submitted a psychiatric evaluation, an
affidavit from an expert on Latin America, and a brief in support
of her claim, with Amnesty International and the United States
State Department documentation attached.
On January 4, 2007, the IJ issued a decision and order
denying Petitioner’s application for asylum, withholding of
removal, and relief under the CAT. The IJ found Petitioner’s
testimony to be “credible” and determined that the events that
she described were consistent with the reports, and plausible
2
Petitioner remained in detention during this period, and
her sister (living in Boston), to whom Petitioner had entrusted
her mobile phone, received a number of calls from FARC
members who continued to threaten Petitioner.
10
given country conditions inside of Colombia. She found,
however, that as a matter of law Petitioner could not establish
that she was a refugee under the Immigration and Nationality
Act (“INA”) because she was not able to show that the FARC’s
actions against her were motivated by a political opinion that
had been imputed to her, or by her membership in a particular
social group.
In support of her decision, the IJ purportedly relied on
INA § 208(b)(1)(B)(i), stating that in order to qualify for refugee
status, the applicant “must demonstrate that a protected ground
was or would be the central reason for the persecution.” As
refugee status is a prerequisite for any successful asylum
application or request for withholding of removal under INA
§ 241(b)(3), the IJ concluded that Petitioner’s claims on these
two bases must necessarily fail. The IJ also denied Petitioner’s
CAT claim, finding that the Petitioner failed to show that she
was “more likely than not to be tortured” upon her return to
Colombia by “someone from the government,” relying on
Matter of S-V-, 22 I. & N. Dec. 1306 (BIA 2000).
On May 15, 2007, the BIA upheld the IJ’s decision. The
BIA acknowledged that the IJ had incorrectly cited INA
§ 208(b)(1)(B)(i), which actually states that a protected ground
must constitute “at least one central reason” for the persecution
alleged, rather than, as the IJ stated, “the central reason.” 3 The
BIA essentially found this error to be harmless in light of its
3
This change was made by the REAL ID Act of 2005,
Pub. L. No. 109-13, § 101(a)(3), 119 Stat. 231, 303.
11
agreement with the IJ’s finding that the events “d[id] not arise
to persecution on account of a protected ground.” The BIA also
found that Petitioner did not have a well-founded fear of
persecution on account of a protected ground. Finally, the BIA
summarily affirmed the IJ’s determination that Petitioner had
not shown that it was more likely than not that she would be
tortured upon her return to Colombia and thus affirmed the IJ’s
denial of her CAT claim. The BIA then ordered Petitioner’s
removal to Colombia. Petitioner timely filed a petition for
review on June 4, 2007.4
4
Petitioner was detained upon entry into the United States
and remained in detention during this process, despite attempts
by her counsel to have her released. On July 17, 2007,
Petitioner was granted a Stay of Removal during the pendency
of her appeal with this Court pursuant to INA § 242(b)(3)(B)
and thus continued to remain in detention in the United States.
On November 13, 2007, she filed a pro se motion to lift the Stay
of Removal so that she might be released from detention. In this
motion, Petitioner acknowledged that she understood that lifting
the stay of removal would subject her to removal to Colombia
immediately and she had fully considered the consequences of
her request. She averred that despite the fact that her “fear of
persecution is as strong as ever[,]” the detention was, in her
words, “affecting me physically and destroying me mentally”
and suggested that her detention in the United States served as
a daily and unwelcome reminder of the indignity of detention at
the hands of the FARC. In December 2007, prior to oral
argument, we granted the motion to lift the Stay of Removal and
on January 3, 2008, Petitioner was removed to Colombia.
12
II. JURISDICTION AND STANDARD OF REVIEW
The BIA properly exercised jurisdiction over Petitioner’s
appeal from the IJ’s decision pursuant to 8 C.F.R. § 1003.1(b).
Filja v. Gonzales, 447 F.3d 241, 253 (3d Cir. 2006). We have
jurisdiction to review the BIA’s decision under INA § 242(a).
Because the BIA adopted some of the findings of the IJ and
made additional findings, we will review the decisions of both
the BIA and the IJ. Santana Gonzalez v. Att’y Gen., 506 F.3d
274, 276 (3d Cir. 2007).
We review legal determinations by the BIA de novo.
Escobar v. Gonzales, 417 F.3d 363, 365 (3d Cir. 2005).
Whether an applicant’s proffered “particular social group” is
cognizable under INA § 101(a)(42)(A) is a question of law, and
is therefore subject to de novo review. Id. at 365 (citing Wang
v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004)). Such de novo
review of the BIA’s legal determinations is of course “subject
to established principles of deference” set out in Chevron v.
Because a final order of removal creates “sufficient collateral
consequences,” Petitioner’s removal does not moot her petition
for review. See Amanfi v. Ashcroft, 328 F.3d 719, 724-25 n.1
(3d Cir. 2003).
13
National Resources Defense Council, 467 U.S. 837 (1984).5 See
Wang, 368 F.3d at 349.
The petitioner has the burden of establishing
“persecution” and a “well-founded fear of persecution,” which
includes, but is not limited to, “threats to life, confinement,
torture, and economic restrictions so severe that they constitute
a threat to life or freedom.” Yu v. Att’y Gen., 513 F.3d 346, 348
(3d Cir. 2008); see also Lukwago v. Ashcroft, 329 F.3d 157, 167
(3d Cir. 2003). Whether a petitioner has established these
elements is a question of fact, and the agency determination
must be upheld if it is supported by “substantial evidence” in the
record. Lukwago, 329 F.3d at 167. Our review is confined
solely to the administrative record, INA § 242(b)(4)(A), and we
must treat the BIA’s findings of fact as “conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” INA § 242(b)(4)(B); Lukwago, 329 F.3d at 167.
III. DISCUSSION
On appeal, Petitioner challenges the BIA’s decision
denying her application for asylum, withholding of removal, and
5
These principles, as reiterated in Lukwago v. Ashcroft,
boil down to the following axiom: “[I]f the statute is silent or
ambiguous with respect to the specific issue, the question for the
court is whether the agency’s answer is based on a permissible
construction of the statute.” 329 F.3d 157, 167 (3d Cir. 2003)
(quoting Chevron, 467 U.S. at 843).
14
relief under the CAT. Because the IJ found Petitioner credible,
a determination left undisturbed by the BIA, we treat
Petitioner’s testimony as true and accurate for purposes of our
analysis.
A. ASYLUM
INA § 208(b) gives the Attorney General or the Secretary
of Homeland Security discretion to grant asylum to an alien who
qualifies as a “refugee” under INA § 101(a)(42)(A). Under this
section, an applicant must show that at the time of her
application, she is a
“person who is outside [the] country of [her]
nationality . . . who is unable or unwilling to
return to, and is unable or unwilling to avail
himself or herself of the protection of, that
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[.]”
INA § 101(a)(42)(A). These categories – race, religion,
nationality, membership in a particular social group, and
political opinion – are often described as “enumerated grounds”
or “protected grounds.” See, e.g., Lukwago, 329 F.3d at 167.
Petitioner must show any persecution occurred or will occur not
only “on account of” a protected ground, but that the protected
ground constitutes “at least one central reason for persecuting
the applicant.” INA § 208(b)(1)(B)(i).
15
Petitioner first claims that she qualifies for asylum
because she has been persecuted by the FARC in the past on
account of (1) a political opinion imputed to her by the FARC
based on her romantic association with government-affiliated
officers, and (2) her membership in a particular social group that
she defines as “[Colombian] women who have the shared past
experience of relationships with military and police men.” She
also claims that she qualifies for asylum because she has a well-
founded fear of future persecution on account of imputed
political opinion and membership in a particular social group.
For purposes of her future persecution claim, Petitioner posits
that “upon her ‘escape’ from the FARC . . . [Petitioner] became
a member of a narrower social group than the one proposed with
respect to the past persecution she suffered.” The group she
proffers for her future persecution claim is “women who have
escaped involuntary servitude after being abducted and confined
by the FARC.” She explains that this narrower social group is
“defined by a shared past experience [of being abducted and
threatened, and that] her membership can be attributed to her
escapee ‘status.’” 6
6
Although the IJ seems to conflate the past and future
“particular social group” claims, both the bifurcated structure of
the asylum statute and our case law support an applicant’s right
to allege membership in different social groups depending on
whether they are making a “past persecution” claim or a “well-
founded fear of future persecution” claim. See Lukwago, 329
F.3d at 167.
16
We will first examine Petitioner’s past persecution claim
and assess whether any of the incidents Petitioner alleges rise to
the level of persecution. For those incidents that do rise to the
level of persecution, we will consider whether they were
motivated by Petitioner’s social group or imputed political
opinion. If Petitioner fails to establish past persecution on
account of a protected ground, we will then consider the
separate question of whether Petitioner has established a well-
founded fear of future persecution on account of a protected
ground.
1. PAST PERSECUTION
One way a petitioner may qualify for asylum is by
showing past persecution, which “gives rise to a rebuttable
presumption of a well-founded fear of future persecution.” Li
v. Att’y Gen., 400 F.3d 157, 163 (3d Cir. 2005). The INA does
not define “persecution.” Id. at 170 (“Congress chose not to
define ‘persecution’ in the Refugee Act, nor has any legislative
definition been enacted in the interim.”). We have held that
persecution, while not inclusive of every act that our society
might regard as unfair, unjust, unlawful, or unconstitutional,
generally includes treatment like death threats, involuntary
confinement, torture, and other severe affronts to the life or
freedom of the applicant. See Lin v. INS, 238 F.3d 239, 244 (3d
Cir. 2001).
Petitioner claims that all three of her involuntary
detentions by the FARC constitute persecution. The
government argues that none of the FARC’s treatment of
Petitioner was so harmful as to rise to the level of persecution.
17
We disagree with both of these claims. As we will explain,
while Petitioner’s first two encounters do not rise to the level of
persecution, her eight-day abduction at the hands of the FARC
does rise to the level of persecution.
While we have stated that threats may constitute
persecution, “we have limited the types of threats constituting
persecution to only a small category of cases, and only when the
threats are so menacing as to cause significant actual suffering
or harm.” Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir.
2006) (citing Li, 400 F.3d at 164) (internal quotation marks
omitted). Both Chavarria and Li are instructive as to where the
line should be drawn.
In Li, the petitioner, a Chinese national, was repeatedly
threatened by authorities with physical mistreatment,
sterilization, and detention after the birth of his fourth child.
400 F.3d at 165-70. In addition, he was subjected to actual
economic hardship in the form of deprivation of certain benefits.
Id. While we held that the actual economic hardship constituted
persecution, the unfulfilled “threats of physical mistreatment,
detention, or sterilization described by Li do not appear to have
been sufficiently imminent or concrete for the threats themselves
to be considered past persecution.” Id.7
7
In Li we noted that “[r]ather than consider such threats
past persecution . . . unfulfilled threats are generally within that
category of conduct indicative of a danger of future
persecution.” 400 F.3d at 165 (internal quotation marks
omitted). This characterization applies similarly here. See infra
18
In Chavarria, the petitioner, a Guatemalan national,
witnessed two women being attacked by government
paramilitaries and came to their aid. 446 F.3d at 513. A few
days later, Chavarria saw familiar-looking men conducting
surveillance of his house and subsequently learned that the
women he had helped had been human rights workers opposed
to the government. Id. Later, after briefly moving to the United
States out of fear for his safety, he returned to Guatemala and a
second incident occurred. Id. This time, armed men forced him
into the back seat of his car, put a gun to his head, robbed him,
and threatened to kill him if they ever saw him again. Id.Chavarria believed that these men were affiliated with the
paramilitaries, and fearing for his life, again fled to the United
States. Id.In assessing the question of whether the actions against
Chavarria rose to the level of persecution, we found that the act
of surveillance alone did not constitute persecution because
“even if considered a threat, [it] was not highly imminent nor
menacing enough to rise to the level of persecution.” Id. at 519.
However, we found that the explicit death threat during the
second incident did rise to the level of persecution because “it
was both highly imminent, concrete and menacing and
Chavarria suffered harm from it.” Id. at 520. We explained that
“[t]his threat is unlike the threats we encountered in Li, which
were merely verbal and not concrete because here, the attackers
actually robbed Chavarria, pointed a gun to his face, and
threatened him with death if he told his story.” Id.our discussion of future persecution.
19
Applying these standards to the present case, Petitioner’s
first two encounters with the FARC do not rise to the level of
persecution. First of all, the FARC’s apparent surveillance of
Petitioner to determine whether she was dating government
officers, while certainly threatening and violative of Petitioner’s
privacy, is similar to the surveillance in Chavarria which we
found did not rise to the level of persecution. 446 F.3d at 519.
More importantly, while FARC guerillas twice rounded up
Petitioner at gunpoint along with other women and warned her
not to fraternize with government officers, these detentions were
brief and Petitioner was not physically injured or robbed as
Chavarria was. Id. at 513. In addition, the record indicates that
the guerillas were armed, but it does not suggest the guns were
brandished or used in the same threatening manner as in
Chavarria. Id. The first two detentions are close to the line, but
on balance are more similar to the situation in Li, where the
threats were oblique and not imminent, and the petitioner was
not appreciably harmed. Such brief detentions, where little or
no physical harm occurs, generally do not rise to the level of
persecution. See Jarbough v. Att’y Gen., 483 F.3d 184, 191 (3d
Cir. 2007) (holding that two brief detentions of petitioner by the
Syrian government, while “harassing and intimidating,” did not
rise to the level of persecution).
These earlier incidents do not rise to the level of
persecution, but Petitioner’s eight-day abduction and
confinement does. Petitioner testified that an armed man forced
her to walk for two hours, eyes covered and hands bound, before
chaining her to a bed in an unfamiliar house in the hills. There,
she remained blindfolded, while a number of armed men
repeatedly threatened her, menacingly informed her that “they
20
had intentions” with her, and told her that they wanted her to
“stay with them.” The men even remained with her when she
periodically went outside to the bathroom. The FARC guerillas
confined her under these conditions for eight days.
While we have explained that detentions alone do not
necessarily constitute persecution, this unlawful abduction rises
to the level of persecution because of the duration of
confinement, the deprivation of Petitioner’s freedom of
movement and sight, the invasion of Petitioner’s privacy, the
implicit and overt threats made against her person, the ominous
warnings upon her release that the FARC would be “very
attentive” to her, and that she was obliged to return to serve their
cause upon completion of her studies. See, e.g., Lukwago, 329
F.3d at 169 (“Even if forced conscription by a guerrilla
organization alone would not qualify a victim for asylum that
does not mean that, in appropriate circumstances, it cannot
constitute persecution.”); Yu, 513 F.3d at 348 (holding that
confinement can constitute persecution).
Moreover, “we do not consider the [final incident] in
vacuo; we weigh it in conjunction with the prior incidents.”
Toure v. Att’y Gen., 443 F.3d 310, 318 (3d Cir. 2006) (finding
that petitioner’s flight after “harassment continued and
escalated” reinforced the claim). Weighing this final incident in
the context of the prior incidents shows that Petitioner’s
allegations regarding the imminence and menacing nature of the
threats are justified. The overall trajectory of the harassment
against her “continued and escalated” with each new incident,
from which we can infer both the imminence and the
concreteness of the threat at the time of the eight-day
21
confinement. Therefore, it is clear that this final incident rises
to the level of persecution.
However, as we pointed out in Lukwago, a demonstration
of past persecution alone is not sufficient to qualify an applicant
for asylum. 329 F.3d at 170. We must also “look beyond the
applicant’s conduct to the persecutor’s motives.” Id. As the
Supreme Court has stated, the INA “makes motive critical” and
an asylum applicant must provide “some evidence of [motive],
direct or circumstantial.” INS v. Elias-Zacarias, 502 U.S. 478,
483 (1992).
Both the BIA and IJ held that Petitioner’s application
failed as a matter of law because she did not show her political
opinion or her particular social group constituted “at least one
central reason” for her persecution by the FARC. The IJ stated
that
“as a matter of law, her claim for asylum, and her
claim for withholding of removal pursuant to
Section 241(b)(3) fail because she cannot prove
that she was persecuted because of her political
opinion or because of her alleged membership in
a particular social group.”
First, the IJ found that women who date military or police
officers do not constitute a particular social group. The IJ noted
that this was not a recognized category under Escobar, 417 F.3d
22at 367, 8 and stated that because the group is not based on an
8
According to our survey in Escobar,
“Courts have excluded from the classification:
young, urban El Salvadoran males of military age
who had not served in the military,
Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir.
1986); youths with gang identification tattoos,
Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir.
2003); voluntary members in a taxi cab
cooperative that refused to yield to guerrillas,
Matter of Acosta, 19 I. & N. Dec. 211 (1985); and
adult women raped and brutalized as children in
El Salvador, Gomez v. INS, 947 F.2d 660 (2nd
Cir. 1991).
Courts have recognized the following social
groups: a family targeted for harassment and
violence because they were related to an allegedly
racist boss in South Africa, Thomas v. Gonzales,
409 F.3d 1177 (9th Cir. 2005); children with
“disabilities that are serious and long-lasting or
permanent in nature and parents who care for
them,” Tchoukhrova v. Gonzales, 404 F.3d 1181,
2005 WL 913449 (9th Cir. 2005); Somali women
under threat of genital mutilation, Mohammed v.
Gonzales, 400 F.3d 785 (9th Cir. 2005); a familial
sub-clan in Somalia, In re H-, Applicant, 21 I. &
N. Dec. 337 (BIA 1996); and former members of
23
immutable characteristic, it cannot qualify as a particular social
group. The IJ opined that “women,” like “youth,” was too large
and diverse a group to constitute the basis of a particular social
group. See Lukwago, 329 F.3d at 172. The IJ also relied on the
logic that because the BIA had previously held that police
officers are not a particular social group, women who date them
cannot be. See Matter of Fuentes, 19 I. & N. Dec. 658 (BIA
1988). The IJ concluded that “one who dates” cannot be an
immutable characteristic.
The IJ also found that Petitioner was not persecuted
because of her political opinion or an imputed political opinion.
She reasoned that the FARC had simply stated that they wished
Petitioner to work for them, giving no insight into the FARC’s
motivations. The IJ took issue with Petitioner’s reliance on
Chavarria, distinguishing it first on the basis that the
persecutors in Chavarria were government affiliates, while the
persecutors here are opposed to the government.9 The IJ also
posited that here, unlike Chavarria, “the most severe act of
persecution had nothing to do with respondent’s dating of police
and military officers.” The IJ stated that Petitioner’s eight-day
confinement, during which her captors eventually explained that
El Salvador's national police, Matter of Fuentes,
19 I. & N. Dec. 658 (BIA 1988).”
Escobar, 417 F.3d at 367.
9
It is difficult to see how this first distinction is relevant,
and the IJ does not explain it further.
24
they wanted her to “stay with them” was guerilla recruitment, as
distinct from harassment for dating government officers; and
guerilla recruitment, without more, is generally not a basis for
finding imputed political opinion. See, e.g., Elias-Zacarias, 502
U.S. at 481 (holding that a guerrilla organization’s attempt to
conscript a person into its military forces does not necessarily
constitute persecution on account of political opinion). The BIA
agreed with the IJ’s findings and added that
“the applicant has not sufficiently shown that
guerilla forces imputed a hostile political opinion
to her or targeted her for harm on account of her
membership in a particular social group. Rather,
as the applicant indicated, she was threatened by
guerillas for making what they perceived as being
disrespectful relationship choices and in an
attempt to recruit the applicant for her health
related background.”
Petitioner has presented sufficient record evidence that
the earlier incidents in which she was detained by the FARC
were motivated by the FARC’s desire to dissuade her and other
young women from dating, and thus affiliating themselves with
government officers. However, as we held that these earlier
incidents do not rise to the level of persecution, they do not
provide a basis for establishing refugee status, regardless of the
motivation behind them.
Because Petitioner’s eight-day abduction and
confinement does rise to the level of persecution, we may
consider whether Petitioner has shown that the FARC was
25
motivated by a protected ground when it perpetrated this
incident. We agree with the IJ and the BIA that there is
substantial evidence on the record that this final incident was not
centrally motivated by any imputed political opinion or social
group status based on Petitioner’s dating of government officers,
but rather by a desire to recruit Petitioner. During the first two
incidents, the FARC clearly expressed to the women that it was
rounding them up to warn them not to date government officers.
But during the eight-day abduction, Petitioner asked the
guerillas if she was being punished for dating a military officer,
and they told her “that wasn’t it.” Moreover, Petitioner “hadn’t
been going out with anyone,” unlike prior to the previous
incidents.
While the Petitioner’s treatment at the hands of the
guerrillas is no doubt abhorrent and repugnant to our
sensibilities, Petitioner has not established that this past
treatment occurred because the guerillas believed that she held
a particular political opinion or because she was a woman who
dated government officers.10 Here, the evidence suggests that
the FARC was simply motivated by a desire to “fill their ranks,”
which is not a protected ground under the statute. Elias-
Zacarias, 502 U.S. at 482.
10
It is not necessary to determine whether this is a
cognizable “particular social group” under the statute, because
there is substantial evidence in the record to conclude that the
FARC was not motivated by Petitioner’s membership in a
particular social group when they abducted her for eight days,
but was instead motivated by a desire to recruit her.
26
2. WELL-FOUNDED FEAR
OF FUTURE PERSECUTION
While Petitioner has failed to show past persecution
motivated by a protected ground, that is not the end of the
analysis. A showing of past persecution merely triggers a
rebuttable presumption that Petitioner has a well-founded fear
of future persecution. Lukwago, 329 F.3d at 174 (citing 8
C.F.R. § 208.13(b)(1)). While this presumption is often
determinative of a petitioner’s asylum claim, it is not necessary
for a petitioner to show past persecution if she can nonetheless
show a well-founded fear of future persecution without the
benefit of such a presumption. Id. Such are the circumstances
of the case before us.
Petitioner is not relieved of her burden of showing, as a
threshold matter, that her race, religion, nationality, membership
in a particular social group, or political opinion will be one of
the central reasons motivating her persecutors to target her. Id.For purposes of her future persecution claim, Petitioner has
proffered a different “particular social group” from the one
offered in support of her past persecution claim. That group is
“women who have escaped involuntary servitude after being
abducted and confined by the FARC.” 11 Because this group is
11
Because Petitioner convinced the FARC to release her
based on a promise to return and join them that she never
intended to keep, we believe her actions here are tantamount to
an escape from forced conscription. Thus, the circumstances
here are functionally equivalent to the circumstances in
27
based in part on events that happened in the past, it is effectively
a “status or condition” that is sufficiently immutable to be
considered a particular social group. See Escobar, 417 F.3d at
367 (holding that generally, “those who possess immutable
characteristics such as race, gender or a prior position, status or
condition” can be considered members of a particular social
group); see also Matter of Acosta, 19 I. & N. Dec. 211, 333
(BIA 1985) (“The shared characteristic . . . might be a shared
past experience such as former military leadership or land
ownership.”).
Moreover, this group is narrow and distinctive, and while
clearly related to the FARC’s past mistreatment of numerous
individuals, it exists independently of the persecution that
Petitioner fears that she will suffer in the future as a member of
this particular social group. As we explained in Lukwago,
“We agree that under the statute a ‘particular
social group’ must exist independently of the
persecution suffered by the applicant for asylum.
Although the shared experience of enduring past
persecution may, under some circumstances,
support defining a ‘particular social group’ for
purposes of fear of future persecution, it does not
support defining a ‘particular social group’ for
past persecution because the persecution must
have been ‘on account of” a protected ground.
Lukwago, 329 F.3d at 164 (Lukwago was able to escape from
forced conscription “while collecting firewood”).
28
INA § 101(a)(42)(A). Therefore, the ‘particular
social group’ must have existed before the
persecution began.”
329 F.3d at 172. It is precisely Petitioner’s escapee status that
is likely to motivate the FARC to seek her and persecute her in
the future. Unlike in the past persecution context, her escapee
status has already attached, and a fortiori will have existed
before any future persecution occurs.
This scenario parallels Lukwago. In that case, we
accepted, for purposes of showing a well-founded fear of future
persecution, Lukwago’s proffered “particular social group”:
“children from Northern Uganda who have escaped from
involuntary servitude after being abducted and enslaved by the
LRA [Lord’s Resistance Army, a group of anti-government
guerillas].” Id. at 174-75. There is no relevant distinction
between this group and the social group that Petitioner has
proffered here. Both groups encompass former captives of
guerilla groups who escaped from that captivity and are
therefore stigmatized by the experience. Based on the degree of
similarity between Lukwago’s and Petitioner’s situations, we see
no reason why membership in the group, “women who have
escaped involuntary servitude after being abducted and confined
by the FARC,” cannot form the basis for establishing refugee
status in a future persecution claim.
In order to show that a fear is “well-founded” under the
asylum statute, Petitioner must show that her fear is both
subjective and objectively reasonable, Abdille v. Ashcroft, 242
F.3d 477, 495-96 (3d Cir. 2001), which she may do by using
29
testimonial, documentary, or expert evidence, Lukwago, 329
F.3d at 177. Where documentary evidence is insufficient,
credible and persuasive testimony from the petitioner may be
sufficient to establish both objective and subjective fear. Id.“To satisfy the objective prong, a petitioner must show he or she
would be individually singled out for persecution or demonstrate
that there is a pattern or practice in his or her country of
nationality . . . of persecution of a group of persons similarly
situated to the applicant on account of” a protected ground. See
Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006). A
“pattern or practice” of persecution must be “systematic,
pervasive, or organized.” Id. (quoting Lie v. Ashcroft, 396 F.3d
530, 537 (3d Cir. 2005).
We first examine the IJ’s and the BIA’s decisions that
Petitioner had not established that she had a well-founded fear
of future persecution. In its brief two-sentence analysis, the IJ
determined that despite the threats against her, Petitioner did not
establish a well-founded fear because the threats are “not based
on her immutable characteristics.” The BIA affirmed the IJ’s
analysis in a single sentence, finding that “the record does not
support the applicant’s claim of having a well-founded fear of
persecution on account of a protected ground.” While neither
the IJ nor the BIA has provided us a detailed analysis on this
point, we construe these decisions to reject both Petitioner’s
proffered social group and her claim that her fear was well-
founded. Such truncated review of Petitioner’s well-founded
fear cannot be the basis for rejecting her claim, which, as we
will explain, is supported by both the law and the record.
30
Applying the above framework to Petitioner’s case, we
first hold that Petitioner has established a subjective fear of
future persecution through her testimony before the IJ:
Q. And what do you think would happen to
you if you – what did you think would
happen to you if you didn’t join the FARC
as you wanted after you graduated?
A. That they were going to kill me, that is to
say what happened to my cousin most
likely would happen to me, also.
Petitioner’s cousin had previously been forced to join the
FARC, and after he was able to escape, the FARC killed him.
She later reiterated her own personal fears:
Q. And what do you think the FARC would
do if you were forced to return to
Colombia?
A. Well, the most likely thing would be that
they would kill me. The same thing
happened to my cousin. He escaped from
them, and they killed him, and here I
escaped from them, also.
These statements, which the IJ herself found to be credible, are
sufficient to establish that Petitioner subjectively feared
persecution. Lukwago, 329 F.3d at 177.
31
Petitioner’s specific fear is also objectively reasonable.
First, Petitioner testified that the FARC had harmed or
threatened members of her family: her brother-in-law was
abducted, her sister’s house was bombed, her uncle was shot
three times, her cousin was killed as punishment for escape, and
shortly after Petitioner left, her father disappeared. All of these
incidents show that the FARC is both willing and able to exact
retribution on those individuals who defy it and makes it a
practice to do so. That these incidents involve members of
Petitioner’s own family only reinforces the imminence and
proximity of the threat to Petitioner specifically.
Second, Petitioner has consistently received threatening
phone calls and messages since her abduction. The FARC
contacted her between one and three times a month and told her
that they were watching her and knew everything about her.
They reminded her of her “commitment” to them and that they
had been able to watch her and find her everywhere she had
lived: La Bretana, La Granja, Medellin, and San Francisco.
Even after she fled to the United States, the FARC contacted her
by cell phone, which her sister, who had been keeping the phone
for her, answered. The FARC representative ominously told her
that Petitioner “should appear, that it would be better if [she]
appeared.” This testimony reinforces not only that it is
reasonable to believe that the FARC will continue to track and
monitor Petitioner, but that the FARC’s threats are credible in
the sense that they have consistently shown a capability and an
inclination to locate and punish Petitioner.
Finally, the articles and reports submitted by Petitioner
corroborate the reasonableness of her fears. The 2004 State
32
Department Report on Colombia says that FARC does in fact
practice forced conscription and that the FARC commanders
often threatened to kill deserters and their families. In addition,
the State Department Report states that the FARC guerillas have
been known to threaten, beat, rape, and sexually abuse women
for fraternizing with government and police officers. While in
this future persecution context Petitioner is asserting that her
persecution will be motivated by her escapee status and not for
any previous fraternization, these reports still serve to bolster
Petitioner’s claim that the FARC is generally inclined to follow
through on vendettas and mete out punishment for perceived
transgressions of all sorts, and that such practices are systemic
and pervasive.
The final question is whether this future persecution is
likely to occur on account of a protected ground. The IJ
determined that Petitioner’s claim was not based on her
“immutable characteristics,” but we disagree. For the reasons
explained supra, we accept that for purposes of future
persecution, Petitioner is a member of the group, “women who
have escaped involuntary servitude after being abducted and
confined by the FARC,” and that this is a “particular social
group” under the INA. Thus, contrary to the IJ’s finding, the
action that Petitioner reasonably fears, reprisal from the FARC
for having escaped, is inextricably linked to her status as an
escapee. Her escapee status is immutable, and the record shows
that the FARC is willing to carry out such retribution against
deserters and escapees generally, including the specific example
of Petitioner’s own cousin. Petitioner has thus shown that she
has a well-founded fear of future persecution on the ground that
she belongs to the “particular social group” of “women who
33
have escaped involuntary servitude after being abducted and
confined by the FARC.”
The objective experiences of Petitioner’s family
members, the threats she herself has received, and the country
reports detailing the FARC’s tendency to take revenge for
perceived wrongs against it, combine to satisfy the requirement
that her fear of persecution be objectively reasonable. Thus, the
BIA’s determination that Petitioner did not have a well-founded
fear of persecution on account of her particular social group was
not supported by substantial evidence.12
However, the regulations state that “an applicant does not
have a well-founded fear of persecution if the applicant could
avoid persecution by relocating to another part of the applicant’s
country of nationality, . . . if under all the circumstances it would
be reasonable to expect the applicant to do so.” 8 C.F.R.
§ 208.13(b)(1). While Petitioner presented some evidence that
the FARC’s influence was pervasive in Colombia, and that she
had already relocated a number of times and had still been
consistently threatened, the BIA did not reach this issue below.
Therefore, on remand, the BIA should consider the issue of
relocation. Lukwago, 329 F.3d at 181.
12
We have previously noted that “[a]s is often the case,
[the petitioner’s] political opinion argument is entwined with his
social group claim.” Lukwago, 329 F.3d at 181. Because we
hold that Petitioner has established a well-founded fear of
persecution based on her particular social group, it is not
necessary to analyze the imputed political opinion claim.
34
B. WITHHOLDING OF REMOVAL
The standard for a claim of withholding of removal under
INA § 241(b)(3) is higher than the standard for asylum.
Balasubramanrim v. INS, 143 F.3d 157, 165 (3d Cir. 1998). As
with asylum, Petitioner must show that any persecution is on
account of a protected ground, but in addition, she must show
that such persecution is “more likely than not” to occur.
Lukwago, 329 F.3d at 182. Thus, an applicant who cannot meet
the standard for asylum will necessarily be unable to meet the
standard for withholding of removal. Id. Because we have
determined that there is substantial evidence to support the
conclusion that Petitioner has not shown past persecution, she
cannot meet the standard for withholding of removal on this
claim.
But we have determined that Petitioner has a well-
founded fear of future persecution on the basis of her status as
a former FARC prisoner who escaped. Because the BIA
rejected her withholding of removal claim with respect to future
persecution when it rejected her asylum claim, upon remand, the
BIA should give full consideration to Petitioner’s withholding
of removal claim with respect to future persecution, taking into
account the fact that the threats she has received are directly
related to her membership in a social group, “women who have
escaped involuntary servitude after being abducted and confined
by the FARC.”
35
C. PROTECTION UNDER THE CAT
Petitioner’s final claim is for withholding of removal
under the CAT. In order to succeed on this claim, she must
show that it is more likely than not that she will be tortured if
removed to Colombia, and that such torture will occur with the
consent or acquiescence of the government. Fadiga v. Att’y
Gen., 488 F.3d 142, 160 n.4 (3d Cir. 2007). The “more likely
than not” standard is equivalent to the “clear probability”
standard used for withholding of removal, “and both standards
are equivalent to a ‘preponderance of the evidence.’” Id.(quoting INS v. Stevic, 467 U.S. 407, 424 & n.19 (1984)).
Unlike her other two claims, Petitioner need not show that she
is a “refugee” to sustain her CAT claim or that any torture was
on account of a protected ground. Silva-Rengifo v. Att’y Gen.,
473 F.3d 58, 64 (3d Cir. 2007). The regulations define torture
as
“any 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 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.”
36
8 C.F.R. § 208.18(a)(1).
Here, the IJ denied Petitioner’s CAT claim because she
failed to show that she would be
“personally at risk of torture at the hands of the
government. To meet her burden of proof, an
applicant must . . . establish that someone from
the government and someone in her particular
alleged circumstances is more likely than not to
be tortured in the country designated for removal
by the government. [Petitioner] here has made no
such showing.”
The IJ never reached the question whether it was more likely
than not that Petitioner would be tortured if removed to
Colombia. Rather, the decision apparently rested on the fact that
Petitioner had not shown that any potential torture would occur
“at the hands of the government.”
This “at the hands of the government” language does not
acknowledge that, under the regulations, Petitioner need only
show that any torture will occur “at the instigation of or with the
consent or acquiescence” of the government, and need not be
directly carried out by the government’s “hands.” See 8 C.F.R.
§ 208.18(a)(1). For support, the IJ relied upon Matter of S-V-,
a case which itself acknowledges that a CAT claimant may
establish a claim based not only on torture at the instigation of
the government, but also on consent or acquiescence of the
government. 22 I. & N. Dec. at 1311 (“[R]egulations do require
that the harm be inflicted by or at the instigation of or with the
37
consent or acquiescence of a public official or other person
acting in an official capacity.”). Even assuming that the IJ’s
reliance on this case indicates that she considered whether
evidence in the record supported the risk of torture with the
consent or acquiescence of the government, we altered the
standard for acquiescence in Silva-Rengifo. 473 F.3d at 70(“We are persuaded both by the foregoing history of the
Convention’s implementing legislation, and the sound logic of
our sister circuit courts of appeals, that the definition of
“acquiescence” adopted in Matter of S-V- was the wrong legal
standard to apply.”).
In Silva-Rengifo, we held that government acquiescence
no longer required actual knowledge of torturous conduct. 473
F.3d at 65. We further stated:
“The CAT does not require an alien to prove that
the government in question approves of torture, or
that it consents to it. Rather, as the court
concluded in Zheng v. Ashcroft, 332 F.3d 1186,
1194 (9th Cir. 2003), an alien can satisfy the
burden established for CAT relief by producing
sufficient evidence that the government in
question is willfully blind to such activities.”
Id.Silva-Rengifo was decided after the IJ’s decision, but
prior to the BIA’s determination, and we must presume the BIA
was aware of it. However, the BIA did not address either
Matter of S-V- or Silva-Rengifo. The BIA instead issued a one-
38
sentence summary affirmance of the IJ’s decision: “the record
[does not] support the applicant’s claim that she more likely than
not faces torture in Colombia.” Because of the BIA’s lack of
explanation for its decision, we have very little to review other
than the decision of the IJ. As described above, the IJ’s decision
is likely erroneous on its face for failing to consider consent or
acquiescence, and regardless, in light of the subsequent filing of
Silva-Rengifo, the IJ at best applied the incorrect standard with
respect to government acquiescence.
As in Silva-Rengifo, we will not now “review the
evidence under the correct standard for acquiescence to
determine if there is substantial evidence to support the BIA’s
conclusion that [Petitioner] does not qualify for relief under the
Convention.” 473 F.3d at 71 (citing INS v. Ventura, 537 U.S. 12(2002) (per curiam)). Instead, we will remand to the BIA to
give it an opportunity to better explain its decision.13
On remand, the BIA should consider whether Petitioner
is more likely than not to be tortured by the FARC if removed
to Colombia, and should apply the appropriate standard in
determining whether the Colombian government is likely to be
13
“[T]he availability of judicial review (which is
specifically provided in the INA) necessarily contemplates
something for us to review.” Abdulai v. Ashcroft, 239 F.3d 542,
555 (3d Cir. 2001). When the BIA fails to adequately explain
its reasoning, such that it becomes “impossible for us to review
its rationale,” we will vacate and remand for further explanation
of the decision. Id.39
willfully blind to Petitioner’s risk of torture by the FARC. The
BIA should consider that the record contains evidence that both
the police officer and the military officer that Petitioner had
been dating were aware of the fact she had been kidnapped and
threatened, and even though both were government
representatives, each told her that there was nothing they could
do to protect her. Although these statements are different than
filing an official police report without response, these men
essentially told her that even if they went to the proper
authorities, these authorities would do nothing to stop it. This
may be circumstantial evidence that the Colombian government
was willfully blind to such treatment and that to pursue official
assistance would have been futile. See Valdiviezo-Galdamez v.
Att’y Gen., 502 F.3d 285, 293 (3d Cir. 2007) (finding that “the
police ignored five reports filed by Galdamez concerning
violence and threats by gang members” and that “[t]his could
arguably constitute government ‘acquiescence’ to torture as we
now know it”).
The BIA should also consider the documentary evidence
Petitioner submitted, including the State Department Report and
the Amnesty International Report. The State Department Report
specifically states that the government of Colombia was aware
that the FARC routinely tortured, mutilated, and killed people.
The Report illustrates that this problem is pervasive in
Colombia, where paramilitaries sympathetic to the government
often engage in similar activities with tacit approval from the
government. The record also shows that there are often tacit
non-aggression pacts between the groups in some regions. The
mere fact that the Colombian government is engaged in a
protracted civil war with the FARC does not necessarily mean
40
that it cannot remain willfully blind to the torturous acts of the
FARC. Moreover, the record reveals that Colombian authorities
have been especially slow to end abuses against women or bring
perpetrators to justice. Such abuses include rape, sex slavery,
mutilation and the like. There is also very little support for
women who have been abused, and as Amnesty International
reports, “[t]he response of the authorities . . . can be as abusive
as the violence itself.” The BIA should also consider whether
Petitioner’s past harm constitutes torture, and whether the
apparent ability and inclination of the FARC to track
Petitioner’s movements increases the likelihood that she will
actually be tortured in the future.
IV. CONCLUSION
For the reasons set forth above, we will grant the petition
in part and deny it in part. With respect to Petitioner’s asylum
claim, we will deny the petition to the extent that it is based on
the past persecution claim. We will grant the petition with
respect to Petitioner’s well-founded fear of future persecution
on account of her particular social group, “women who have
escaped involuntary servitude after being abducted and confined
by the FARC.” We determine that she is a member of this group
and that she has shown a well-founded fear of persecution based
on this affiliation. However, we will remand to the BIA for
further proceedings to determine whether Petitioner’s relocation
to another part of Colombia would mitigate the risk of
persecution. On remand, the BIA should also consider
Petitioner’s withholding of removal claim with respect future
persecution on account of her particular social group. We will
also grant the petition with respect to the CAT claim,
41
specifically for reconsideration of this claim and application of
the appropriate standard. We will therefore remand to the BIA
for further proceedings consistent with this opinion.
42