N.L.A. v. Eric Holder, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2706
N.L.A., H.O.P.M., and S.L.P.L.,
Petitioners,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
Petition for Review of Orders
Of the Board of Immigration Appeals.
ARGUED JANUARY 20, 2012 — DECIDED MARCH 3, 2014
Before FLAUM and ROVNER, Circuit Judges and CASTILLO,
District Judge.*
ROVNER, Circuit Judge. After Colombian guerillas from the
Revolutionary Armed Forces of Colombia (FARC) kidnapped
*
The Honorable Rubén Castillo, Chief Judge of the United States District
Court for the Northern District of Illinois, sitting by designation.
2 No. 11-2706
her father and killed her uncle, N.L.A.1 fled Colombia for the
United States. After entering the United States legally on a
tourist visa, N.L.A. and her family overstayed their visa and
then applied for asylum within the one year requirement of the
Immigration and Nationality Act (Act), claiming that they were
victims of persecution by the FARC and were in danger of
future persecution should they return to their native Colombia.
N.L.A.’s husband and daughter filed derivative claims claim-
ing that if N.L.A. should be granted asylum, by statute, they
would be as well.2 The immigration judge concluded that
N.L.A. failed to meet her burden of proof that she has suffered
from past persecution or that she would suffer from future
persecution on the basis of her membership in a social group
of land owners (or some permutation of that category) or
because of her political opinion. The Board of Immigration
Appeals (Board) affirmed. These decisions, however, do not
reasonably follow from the record evidence and compel a
contrary conclusion. For this reason we grant the petition for
review and remand to the Board for further consideration of
N.L.A.’s case and her family’s derivative claims.
1
N.L.A. has been granted permission to proceed using a pseudonym based
on N.L.A.’s claim that if she and her family are removed to Colombia,
identifying information would place them and her sister’s family (who
currently lives in hiding in Colombia) in danger of retaliation by the FARC.
Appellate Record at 2 and 5.
2
N.L.A. has two daughters, but only one is party to this appeal, as the
other was married and could not make a derivative claim at the time of
filing. The other daughter’s derivative claim remains as she was unmarried
and under twenty-one at the time of filing. 8 U.S.C. § 1158(b)(3)(B).
No. 11-2706 3
I.
There can be no doubt that the threat of violence to civilians
by guerilla groups in Colombia continues to some degree. The
question of who is persecuted by these threats and whether the
government is unable or unwilling to contain them is unre-
solved and presented in this case.
In Escobar v. Holder, we described in some detail the
ongoing conflict in Colombia attributable to the leftist revolu-
tionary FARC and its leaders’ attempts to overthrow the
Colombian government. Escobar v. Holder, 657 F.3d 537, 540
(7th Cir. 2011). FARC’s tactics are brutal. The FARC regularly
kidnaps and kills local party officials and members. Id. In
accordance with their leftist politics, the FARC often targets
landowners on the theory that land should not be privately
owned and should belong to the people. See Tapiero de Orejuela
v. Gonzales, 423 F.3d 666, 669, 672 (7th Cir. 2005); International
Protection Considerations Regarding Colombian Asylum Seekers, 15
INT’L J. REFUGEE L. 318, 319 (2003). (R. 615). Consequently,
members of FARC seek out landowners and subject them to a
“vacuna”—an extortion or a tax to remove wealth from land
owners and transfer it to the war chest for FARC’s cause.
(“vacuna” literally translates as “a vaccine,"—presumably
against FARC violence)
According to N.L.A.’s testimony, which the immigration
judge found to be credible (R. 72), N.L.A.’s father and her uncle
both owned farms in Colombia, about one hour away from
each other. In 2003, the FARC began targeting N.L.A.’s uncle,
stealing livestock, and demanding that the uncle pay the
vacuna. The uncle was opposed to financing the activities of the
4 No. 11-2706
FARC and thus refused to make the payments. Consequently,
on the night of September 13, 2003, the FARC abducted and
then killed him.3 The police performed an initial investigation
and determined that the FARC was responsible for the murder,
but the crimes were never solved. N.L.A. testified that because
both witnesses and the police fear retribution by the FARC, the
crimes they commit are rarely solved. In fact, the police
themselves are often victims of FARC kidnappings and
murder. See U.S. Department of State, Report on Human Rights
Practices: Colombia, 2, 7 (2003) (R. 908, 913); United Nations
Comm’n on Human Rights, Report of the High Commission for
Human Rights on the Situation of Human Rights in Colombia, 11,
23 (2005) (R. 495, 507); Luz E. Nagle, Colombian Asylum Seekers
and What Practitioners Should Know About the Columbian Crisis,
18 Geo. Immigr. L. J., 216 (2004) (R. 600); United Nations
Comm’n on Human Rights, Report of the High Commission for
Human Rights on the Situation of Human Rights in Colombia.
(2002) (R. 807, 819, 820, 827).
3
A Colombian newspaper reporting on the murder wrote: “The local
communist leader, ex town councilor and ex candidate of the Department
Assembly, Alfonso Lopez, was assassinated by heavily armed men in
uniforms on September 19, in the early morning hours, in his country house
on the San Francisco path, in the town of Tibacuy, in the Department of
Cundinamarea. The day before, in Silvaina, Tibaeuy and Viotá the Army
had carried out an unlawful entry and captured seventy people, accused of
collaborating with FARC, in one of the ‘miraculous catches,’ which the
Public Force has carried out throughout the country. In spite of this being
a militarized zone, these assassinations were performed with the most
complete impunity.” (R. 289)
No. 11-2706 5
Two months after members of FARC murdered the peti-
tioner’s uncle, the FARC kidnapped the petitioner’s father.
Unbeknownst to N.L.A., the FARC had been unsuccessfully
demanding money from her seventy-two-year-old father for
months. On November 18, 2003, while he was performing his
daily inspection of the farm, he was taken captive. A masked
man went to his house and told his wife that her husband was
fulfilling his duty by giving information to the FARC, and that
both she and her husband would be killed if the family
contacted the police. The FARC held N.L.A.’s father for eleven
days, during which time he was interrogated about who had
title to the farm, where his children lived, what they owned,
and where his grandchildren went to school. Under duress, the
father told the FARC where N.L.A. and her sister lived and
that they had title to the farm. The FARC threatened the father
that his daughters would be expected to pay the monthly
vacuna or hand over title to the farm, or they would be killed.
After eleven days, N.L.A.’s father was dropped off along a
highway and forced to walk home. The family testified that he
arrived at the farm weak, starved, dehydrated, and complain-
ing of kidney pain. As a result of the kidnapping and the fear
of future harm, N.L.A.’s parents and sister moved seven hours
away to another town and changed their names.4 The sister
and her husband opened a pharmacy in the town, but put the
pharmacy in the name of a third party. The family changes
apartments and phone numbers frequently to evade the FARC.
4
The record is contradictory as to whether the sister moved four or seven
hours away.
6 No. 11-2706
N.L.A. and her family also abandoned their home, discon-
nected their phone, and began living in hiding with the family
of N.L.A.’s husband, H.O.P.M. They moved between the
houses of various relatives and used a cell phone with an
unlisted number as their only means of telephone communica-
tion. In December 2003, shortly after the kidnapping, N.L.A.
visited the United States embassy to request asylum, but she
found that she would need an attorney to make the request.
The attorney advised N.L.A. that, because she and her family
already possessed valid U.S. visas, it would be easier for her to
enter the United States legally and request asylum from within.
Because N.L.A. believed that her family was in imminent
danger, the family immediately bought tickets, leaving their
home vacant, their business in the hands of a partner, and most
of their possessions behind. N.L.A. and her family entered the
United Sates with valid tourist visas on January 13, 2004, and
filed an application for asylum and withholding of removal on
January 11, 2005, within the one year application deadline.
Since they have left the farm, neighbors have reported
seeing “suspicious-looking people” poking around, but the
FARC has not managed to dole out threats or harm to N.L.A.’s
family—either the ones living here or the ones living in hiding
in a new town in Colombia.
The immigration judge denied the application for asylum
and withholding of removal and the Board affirmed with its
own written opinion, thus requiring us to review both
opinions—using the de novo standard for the legal conclusions
and deferentially for the factual conclusions, reversing only if
the evidence compels a different result. Cece v. Holder, 733 F.3d
662, 675-676 (7th Cir. 2013) (en banc). That is “we review the
No. 11-2706 7
Board’s findings under the substantial evidence standard,
which requires us to assess whether the Board’s determination
is supported by reasonable, substantial, and probative evi-
dence on the record considered as a whole and to reverse only
if the evidence compels a contrary conclusion.” Abdoulaye v.
Holder, 721 F.3d 485, 490 (7th Cir. 2013) (internal citations
omitted).
The immigration judge concluded that the FARC had only
threatened N.L.A.’s father and not N.L.A. and that therefore
her claim of past persecution was derivative to her father’s,
and thus not allowed under our case law. And because the
FARC had not threatened nor even contacted N.L.A.’s sister
since she moved to a new town, N.L.A. could not demonstrate
an objectively reasonable fear of future persecution. (R. 103-07).
The immigration judge equivocated as to whether the social
groups of “child[ren] of a[n] upper-middle class land owner
from Colombia” or “child[ren] or daughters[s] of a land owner
who has been kidnapped by the FARC” could qualify as
legitimate social groups under the Act. But because the judge
did not find any evidence of persecution, an ultimate decision
on the issue was not necessary. (R. 104). The Board agreed with
the immigration judge on all substantive points, but concluded
definitively that neither of the administrative judge’s proposed
social group categories were cognizable under the Act. (R. 5-6).
II.
To be eligible for asylum, an immigrant must demonstrate
that she “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, member-
8 No. 11-2706
ship in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). The persecution must be either that which she
has suffered in the past or a demonstration that she has a
well-founded—that is subjectively genuine and objectively
reasonable—fear of future persecution, or both. Bathula v.
Holder, 723 F.3d 889, 898 (7th Cir. 2013). If the applicant can
establish that she has suffered past persecution on the basis of
a protected ground, the existence of a well-founded fear is
presumed. 8 C.F.R. § 1208.13(b)(1); Bathula, 723 F.3d at 898. The
Government can rebut the presumption by showing either a
fundamental change in conditions in the applicant’s home
country or that, under all the circumstances, it would be
reasonable to expect the applicant to relocate to another part of
the applicant's country. 8 C.F.R. § 1208.13(b)(2)(ii); Bathula, 723
F.3d at 898. In cases in which the applicant has not established
past persecution and can only proceed by demonstrating fear
of future persecution, the asylum applicant bears the burden of
establishing that she cannot reasonably relocate to another part
of her home country to avoid persecution. Cece, 733 F.3d at 687.
In the estimation of the immigration judge and Board,
N.L.A.’s claim of past persecution is based largely on the harm
suffered by her uncle and father and thus is “derivative” and
not permitted in this Circuit. See Firmansjah v. Gonzales, 424
F.3d 598, 605 (7th Cir. 2005); Ciorba v. Ashcroft, 323 F.3d 539, 545
(7th Cir. 2003). The Board concedes that the FARC warned
N.L.A.’s father that N.L.A. and her sister would be harmed if
the family did not pay a vacuna or relinquish title to the farm,
but concluded that because N.L.A. herself was not harmed and
had no direct contact with any of its members, the claim was
only derivative to her father. The unfulfilled threat, not made
No. 11-2706 9
directly to N.L.A., was insufficient, the Board reasoned, to
constitute persecution.
This court has declared, however, that credible threats of
imminent death or grave physical harm can indeed be suffi-
cient to amount to past persecution, provided they are credible,
imminent and severe. Stanojkova v. Holder, 645 F.3d 943, 948
(7th Cir. 2011); Bathula, 723 F.3d at 900; Boykov v. INS, 109 F.3d
413, 416 (7th Cir. 1997) (acknowledging that threats “of a most
immediate and menacing nature might, in some circumstances,
constitute past persecution.”). The Board concluded that the
threats in this case failed to reach this level because they were
unfulfilled and were directed primarily toward N.L.A.’s uncle
and father, and not toward N.L.A. But the murder of N.L.A.’s
uncle and the kidnapping of her father were, in fact, part of the
threat to N.L.A. The FARC funds its war chest by threatening
to kill or harm landowners (or cattle breeders or farmers or
wealthy business persons) who do not pay a vacuna or relin-
quish title to their land or property. The threats have force
because the FARC backs them up with acts of violence when its
demands are not met. By killing the uncle and kidnapping the
father, the FARC was announcing to N.L.A. and her sister, “we
are targeting your family and this is what happens when you
fail to pay the vacuna.”
The threat of death or grave bodily harm was credible. The
FARC had threatened the family before and proved that they
would follow through on their threats by killing the uncle and
kidnapping the father—the gravest harms possible. And the
threat was imminent. The FARC had begun harassing N.L.A.’s
uncle only a few months before they killed him. And then, less
10 No. 11-2706
than one month later, they kidnapped his brother. The FARC
had stepped up its pace and N.L.A. and her sister reasonably
feared that they would be next. N.L.A.’s sister immediately
moved and began living in hiding, and N.L.A. initiated her
path to asylum the following month by visiting the United
States embassy in Colombia.
The Board erred by misconstruing the nature of the threat.
The Board, agreeing with the immigration judge, labeled
N.L.A.’s claim as a “derivative claim.” (R. 4). The term
“derivative,” however, has a different meaning in the asylum
context. Although the misnomer itself is not problematic, it
seems to have led to some confusion about the nature of the
persecution in this case. Ordinarily in asylum law we use the
term “derivative claims” to refer to a specific statutory provi-
sion that allows spouses and children of asylum applicants to
be granted the same status as the applicant even if the spouse
or child would not otherwise be eligible for asylum on his or
her own. See 8 U.S.C. § 1158 (b)(3)(A). In a second use of the
term “derivative claim,” we describe a situation in which harm
to an applicant’s spouse or child constitutes persecution of the
primary asylum seeker. Gatimi v. Holder, 578 F.3d 611, 617 (7th
Cir. 2009) (“Genital mutilation of one’s wife, unless one
happens to be a supporter of the practice, is a way to punish
one, and so the menace to [the spouse] is a legitimate compo-
nent of [the asylum seeker’s] case.”). In this sense, it might be
less confusing to describe this type of persecution as “persecu-
tion by proxy.” See Zhou Ji Ni v. Holder, 635 F.3d 1014, 1018 (7th
Cir. 2011). As we explained in Gatimi, “[i]f your house is
burned down, or your child killed, in order to harm you, the
fact that you are not touched does not mean that those acts
No. 11-2706 11
cannot constitute persecution of you.” Gatimi, 578 F.3d at 617.
In many instances, watching a loved one suffer is more
harmful than suffering oneself.
The harm that the immigration judge and Board described
as “derivative” in this case is not really derivative at all. The
harm to N.L.A.’s father was meant as a direct threat to N.L.A.
herself. The direct message from the FARC was, “if you do not
pay the vacuna, this will happen to you as well.”
In Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003), we
explained that an asylum applicant cannot rely solely on the
persecution of her family members to qualify for asylum, but
rather must show that her family's political opinions have been
imputed to her and that she has suffered or will suffer persecu-
tion as a result. The claims that we reject as “derivative,”are
those in which family members suffer legitimate persecution,
but the applicant’s suffering, although perhaps caused by the
family member’s persecution, does not itself, rise to the level of
persecution. For example, in Tamas-Mercea v. Reno, 222 F.3d
417, 424 (7th Cir. 2000), the applicant did not argue that he was
subjected to the persecutive acts lobbed against his family, but
“instead, claims a type of derivative persecution, that which
arose from the physical abuse of his family members and the
discrimination he personally endured because of his family's”
political opinion. Id. The applicant himself merely suffered in
the form of lesser grades and lesser jobs. The court found that
“if Mr. Tamas personally had suffered the type of harm
inflicted on his family members, we would have little trouble
concluding that he had suffered persecution within the
meaning of the statute.” Id. See also Bereza, 115 F.3d at 476
12 No. 11-2706
(rejecting the derivative nature of the claim where the appli-
cant’s mother was subject to persecution, but the petitioner had
been subjected only to adverse educational and employment
actions which did not, on their own, rise to the level of persecu-
tion).
The Board cites Firmansjah v. Gonzales for the proposition
that “we [reject] claims of derivative persecution,” but the
persecution alleged in that case had only been inflicted on the
petitioner’s parents and not used as a means to persecute the
petitioner. Firmansjah v. Gonzales, 424 F.3d 598, 605 (7th Cir.
2005). Firmansjah was ethnically Chinese but living in Indone-
sia with her parents where anti-Chinese violence was prevalent
and overlooked by the government. Id. at 600. Fitmansjah left
Indonesia to study in the United States and while she was there
her parents were forced to change their Chinese surnames to
Indonesian ones to prevent persecution. Id. at 600, 605. Neither
she nor any member of her family was ever threatened or
otherwise harmed in Indonesia. Id. at 605. This court concluded
that the parent’s name change did not establish that Firmansjah
had been persecuted, and that, in any event, although having
to change one’s name is reprehensible, it did not rise to the
level of persecution. Id. at 605. The Board also cites Ingmantoro
v. Mukasey, 550 F.3d 646, 650 (7th Cir. 2008) as an example of
the distinction between derivative claims, where the respon-
dent seeks relief on the basis of shared harm with a family
member, and claims where the respondent is the intended
target of harm leveled at a family member. In Ingmantoro,
however, this Court questioned whether Ms. Ingmantoro’s
claim was really a derivative claim at all. Id. at 649-50. When
anti-Chinese thugs burned down her father’s store, they did so
No. 11-2706 13
in the course of pursuing Ms. Ingmantoro herself. The court
noted that she did not simply share in the persecution leveled
against her family, she was, herself, the target of the persecu-
tion. Id. at 650. Instead of deciding that Ms. Ingmantoro had a
derivative claim, this court determined that it could not say,
with the record on hand, that the harm suffered by Ms.
Ingmantoro rose to the level of persecution. Id. at 649-50. The
panel also concluded that Ms. Ingmantoro presented a very
thin case that the acts occurred on the basis of her Christian
charity work. Id. More importantly, Ms. Ingmantoro did not
present any evidence linking the nefarious acts to government
action. Id. at 650. In sum, the Ingmantoro case supports N.L.A.’s
case by demonstrating how acts leveled against a family
member of an individual can indeed constitute persecution of
that individual. Thugs burned Ms. Ignamontoro’s father’s shop
as a way of threatening her, just as the FARC kidnapped
N.L.A.’s father as a way of sending a direct threat to N.L.A.
who held title, along with her sister to the land in question.
In contrast, one can imagine a situation in which one family
member is targeted because of specific activities or characteris-
tics that others in the family do not share. For example, the
government sponsored or encouraged execution of a high
ranking political leader in an unpopular political party does
not, without other evidence, indicate that the other members
of the family are at risk of death or serious injury. If the other
family members are not also leaders of the party, they are not
similarly situated and not necessarily targets. See, e.g., Mabasa
v. Gonzales, 455 F.3d 740, 746 (7th Cir. 2006).
14 No. 11-2706
In this case, the persecution of N.L.A.’s father was certainly
evidence that the FARC was gunning for N.L.A. and her
family. See Gatimi, 578 F.3d at 611. In fact, the entire purpose of
kidnapping and releasing the father was to send a message to
the family about what happens to land owners who will not
pay the vacuna. If there was any doubt, the FARC made it clear
by specifically telling N.L.A.’s father to carry the message
home that the daughters would be killed if they failed to pay
the tax.
N.L.A. testified that during her father’s time in captivity,
the FARC threatened him that “if he didn’t hand over the farm
or pay the monthly vacuna, it would cost the lives of his
daughters and grandchildren.” (R. 383) (aff. of N.L.A. at 6). The
threat to N.L.A. was serious and severe. It is true that the
FARC did not make the threat to N.L.A. personally, that is by
speaking to her face-to-face, by phone, or mail. The threat was
issued to her directly by messenger—her kidnapped and
vulnerable father. We can think of no more direct a threat than
one made to a parent about harming a child. Such a threat
becomes a threat to both the parent and the child.
It is no surprise that N.L.A. did not receive any threats
personally. Immediately after her father was released from the
captivity during which he revealed his daughters’ interest in
the farm, N.L.A. and her sister both disappeared. N.L.A. and
her family went into hiding with her husband’s family,
abandoning their home and telephone number. N.L.A.’s sister
moved to a different town, changed her name, opened a
business under a third party’s name, and changes homes every
six months. N.L.A. and her family fled to the United States
No. 11-2706 15
approximately one and a half months after the FARC released
her father—with barely enough time for the FARC to find her.
The Board accepted as credible N.L.A.’s testimony about
the threat made to her through her father, but fumbled the
analysis by misidentifying N.L.A.’s claim as derivative and
concluding that N.L.A. herself was not harmed and never had
any contact with members of the FARC. As we have estab-
lished, N.L.A. received a credible threat of imminent
harm—one that was backed by the most proof of seriousness
that one could require—the actual killing of one family
member and kidnapping of another. No reasonable fact finder
could conclude otherwise.
The Board also based its “derivative claim” analysis on the
fact that there was no evidence that N.L.A. ever held title to
her father’s farm and that if she did obtain title, it was not until
her father died in 2009. Both of these points may, in fact, be
true. The relevant fact, however, is that, while he was kid-
napped, N.L.A.’s father, under extreme pressure, told the
FARC that he had to talk to his daughters before making any
arrangement because they had the title to the farm. (R. 168)
(tr. 10/31/09 at 53); (R. at 383) (aff. of N.L.A. at 6). It certainly
would make no difference to the FARC that N.L.A.’s father
may have been legally incorrect.
An applicant who successfully proves that she was subject
to past persecution is presumed to have a well-founded fear of
future persecution, which the Attorney General can rebut by
demonstrating a change in conditions in the applicant’s home
country. 8 C.F.R. § 1208.13(b)(1); Cece, 733 F.3d at 668. The
Board did not have to rebut any findings, as it determined that
16 No. 11-2706
N.L.A. had not faced past persecution. An applicant who has
not been found to have faced past persecution, however, can
qualify for asylum by demonstrating an objectively reasonable,
well-founded fear of future persecution. 8 C.F.R. § 208.16(b)(2);
Kllokoqi v. Gonzales, 439 F.3d 336, 345 (7th Cir. 2005).
Because we find past persecution, we can presume that
N.L.A. would face future persecution, but we would find a
legitimate fear of future persecution regardless. The Board’s
determination that N.L.A. had not demonstrated an objectively
reasonable fear of future persecution was not supported by
reasonable and probative evidence on the record. See
Abdoulaye, 721 F.3d at 490. The Board’s conclusion was that in
the seven years since the murder of the uncle and the kidnap-
ping of the father, the FARC had never contacted N.L.A. or her
sister directly. It further concluded that the reports from the
neighbors that the FARC is still monitoring the farm and
searching for the family come from multiple levels of hearsay
and have not been substantiated with declarations from the
neighbors or the sister.
As we have already noted, it is unsurprising that the FARC
never contacted N.L.A. or her sister. N.L.A. has left Colombia
for the United States and the FARC has likely lost interest.5 The
5
Of course it is theoretically possible for the FARC to contact N.L.A. in the
United States. The fact that it has not may simply be a reflection of several
factors, including the fact that the government in the United States may be
more aggressive about and more successful in pursuing terrorist activity,
and that the FARC, like any organization, knows that its pursuit of N.L.A.
and her family would be costly and lead to little chance of financial or other
gain.
No. 11-2706 17
sister moved to another town seven hours away, changed her
name, moves her home every few months, changes her mobile
telephone number frequently, and runs a pharmacy under a
third party’s name. It simply defies logic to conclude that
potential guerilla targets who continually move apartments,
change their phone number and operate a business under an
assumed name are not living in hiding because they work
“openly” (using an assumed name) in the business and the
children leave the home to attend school.
In other cases we have assumed that such behavior consti-
tutes hiding. See e.g. Castilho de Oliveira v. Holder, 564 F.3d 892,
895 (7th Cir. 2009) (describing the family’s behavior of moving
homes and children’s school frequently as “hiding”); Iao v.
Gonzales, 400 F.3d 530, 533 (7th Cir. 2005) (noting that we may
infer “hiding” even when the word is not used, when an
applicant states that village officials repeatedly visited her
home and she managed to evade them each time.); Agbor v.
Gonzales, 487 F.3d 499, 505 (7th Cir. 2007) (living in hiding does
not constitute safe relocation); Giday v. Gonzales, 434 F.3d 543,
555 (7th Cir. 2006), superceded by statute on other grounds, (“[I]t
is an error of law to assume that an applicant cannot be entitled
to asylum if she has demonstrated the ability to escape the
persecution only by chance or by trying to remain unde-
tected.”); Min Ning Lin v. Mukasey, 313 Fed. Appx. 854, 855 (7th
Cir. 2008) (unreported but helpful in describing hiding as
moving from place to place for a year). The Board’s reliance on
the fact that the petitioners had not been contacted by the
FARC is not a reasonable one when her sister lives in hiding in
Colombia and N.L.A. has fled to the United States—outside the
reach of the FARC.
18 No. 11-2706
The neighbors have informed N.L.A.’s sister that the FARC
still visits the family farm searching for the family. The Board
concluded that since this claim was hearsay and unsupported
by declarations from the neighbors, the sister’s friends or the
sister herself, the claims were entitled to reduced weight.
Reduced from what or as compared to what, we might ask? In
any event, the Federal Rules of Evidence do not apply in
removal proceedings, and hearsay is admissible unless its use
renders the hearing “fundamentally unfair.” Ogbolumani v.
Napolitano, 557 F.3d 729, 734 (7th Cir. 2009); Pronsivakulchai v.
Holder, 646 F.3d 1019, 1022 (7th Cir. 2011).
As our colleagues in the Third Circuit have stated in
an en banc opinion,
[Al]though the hearsay nature of evidence certainly
affects the weight it is accorded, it does not affect its
admissibility in immigration removal proceedings.
By matter-of-factly dismissing the evidence as ‘hear-
say,’ the IJ failed to explain why it should be ac-
corded no weight. We submit that such seemingly
reliable hearsay evidence should not be rejected in
such a perfunctory manner.
Dia v. Ashcroft, 353 F.3d 228, 254 (3d Cir. 2003) (en banc). The
immigration judge and Board were not required to find the
hearsay evidence sufficient, but neither could they ignore the
evidence simply because it was hearsay without considering
whether it had any indicia of reliability. See Gu v. Gonzales, 454
F.3d 1014, 1021 (9th Cir. 2006) (hearsay may not be rejected out
of hand); see also Sosnovskaia v. Gonzales, 421 F.3d 589, 594 (7th
Cir. 2005) (a fair hearing requires due consideration to the
No. 11-2706 19
arguments). In fact, the visit to the farm squares with the
modus operandi of the members of the FARC who previously
had paid frequent visits to the farms of the uncle and father to
make certain the weight of the threat was continuously felt.
The evidence also jibes with the assessment of expert Dr.
John Green, who opined that N.L.A. would be in “mortal
danger” if forced to return to Colombia because the FARC
would eventually find her. (App. 11). Dr. Green explained that:
Thanks to their nation-wide network of fronts and
spies, the FARC would have no trouble finding
[N.L.A.] and relocating in Colombia is, therefore,
unlikely to offer much protection. Given the Colom-
bian government’s poor record of protecting even
high profile FARC targets, average citizens know
how futile it is to seek official protection. If she were
to return, they would eventually find her. Though
the FARC does not practice the same kind of brutal
and indiscriminate massacres as the paramilitary
militias, they do regularly assassinate or kidnap
people they have designated as military targets. The
FARC tends to see the world in very black and white
terms; if one is not with them, one is against them,
and therefore a military target.
(R. 133-134).
Of course persecution alone is not enough. The persecution
must be “on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A); Cece, 733 F.3d at 668. In this case, the peti-
tioner claims she has been persecuted based on her member-
20 No. 11-2706
ship in a social group and political opinion.6 Several iterations
of the social group have been bandied about in this case. The
different iterations of the social group do not upset the claim,
as the various characteristics of each have been considered by
the immigration judge and Board below. See Cece, 733 F.3d at
670. Petitioners originally proposed a social group of children
of upper-middle class landowners in Colombia. The immigra-
tion judge considered that category as well as one consisting of
children or daughters of land owners who have been kid-
napped by the FARC. (R. 104). The Board considered both of
these groups and concluded that neither was a cognizable
social group under the Act. (R. 5). N.L.A.’s current claim on
appeal is that she belongs to the social group of “landowners
of means who had refused to cooperate with the FARC.”
(Petitioners’ Brief at 18).
This en banc court has recently explored the boundaries of
cognizable social groups under the Act. Cece, 733 F.3d at 668-
677. A social group is one in which membership is defined by
a characteristic that is either immutable or is so fundamental to
individual identity or conscience that a person ought not be
6
N.L.A. asserts that she was denied due process because the Board
considered social group without briefing from the petitioners. The
petitioners, however, did in fact brief the issue (R. 41-42). Furthermore, the
matter had not been conclusively decided in N.L.A.’s favor by the
immigration judge as the petitioners claim. The immigration judge stated
only that the petitioner “could well” establish her position in a social group
(and then equivocated by saying that it seemed “overly broad”), (R. 75), but
then based his decision on a finding of lack of persecution instead. In any
event, the issue was briefed and in play and N.L.A. was not denied due
process.
No. 11-2706 21
required to change it. Id. at 669; Matter of Acosta, 19 I. & N. Dec.
211, 233-34 (BIA 1985). Our cases have made clear that some-
times an asylum applicant acquires membership in a group
with a qualifying immutable characteristic because a shared
past experience or status cannot be undone. For this reason, the
educated, landowning class of cattle farmers targeted by the
FARC constitutes a social group. Tapiero de Orejuela v. Gonzales,
423 F.3d 666, 672 (7th Cir. 2005). See also Escobar v. Holder, 657
F.3d 537, 545–46 (7th Cir. 2011) (former truckers—or, more
generally, those with a special skill needed by the persecu-
tors—constitute a social group because their past actions and
acquisition of skills are unchangeable); Sepulveda v. Gonzales,
464 F.3d 770, 771–72 (7th Cir. 2006) (subordinates of the
attorney general of Colombia who had information about
insurgents plaguing that nation); Gatimi, 578 F.3d at 614(former members of a violent and criminal faction in Kenya);
Benitez Ramos v. Holder, 589 F.3d 426, 428–29 (7th Cir. 2009)
(tattooed, former Salvadoran gang members who had since
turned to God); Lwin v. INS, 144 F.3d 505, 512 (7th Cir. 1998)
(parents of Burmese student dissidents).
In addition to this Circuit’s decision in Tapiero de Orejuela,
other courts have found that land ownership may be the basis
for a social group. See Cordoba v. Holder, 726 F.3d 1106, 1114
(9th Cir. 2013) (“Both our court and other circuits have fol-
lowed the BIA's lead in recognizing that landownership may
be the basis of a particular social group.”). In fact, the seminal
case in which the Board defined “social group” directly
addressed the issue of land ownership stating: “The shared
characteristic might be an innate one such as sex, color, or
kinship ties, or in some circumstances it might be a shared past
22 No. 11-2706
experience such as former military leadership or land owner-
ship.” Matter of Acosta, 19 I. & N. Dec. at 233 (emphasis sup-
plied).
The Board considered two social groups first, “a child or
daughter of a land owner who has been kidnapped by the
FARC,” and second, “landowners of means who refuse to
support the FARC.” In both cases the Board rejected the
categories as being too broad, too amorphous and unspecific.
The Board criticized the first category as being “too broad, as
it could apply to any child of a kidnapped landowner, regard-
less of the child's age, location, or life circumstances, particu-
larly regardless of whether the child holds or will inherit title
to the family property, which is the feature that the respondent
contends makes her a target of the FARC.” (R. 5). The Board
distinguished the second category from the social group of
wealthy and educated land owning cattle farmers targeted by
FARC in Tapiero de Orejuela by stating that the group in the
latter case was narrower and more particular because it was
defined not simply as “wealthy landowners, but as wealthy
and educated cattle farmers.” (R. 6). The Board’s distinction,
however, is one without a difference. To begin, the Board has
rejected the idea of wealth as a social group, distinguishing it
from landowning by its relative nature. As another circuit
explained:
For purposes of determining a social group, land-
ownership may appear to be indistinguishable from
wealth in many aspects. The BIA has held, however,
that the latter attribute does not, standing alone,
generally form the basis of a particular social group.
No. 11-2706 23
See A–M–E, 24 I. & N. Dec. at 73–76. Its reason for so
holding was that it found wealth to be too “indeter-
minate,” in that it might “vary from as little as 1
percent to as much as 20 percent of the population,”
and that it would be too difficult to determine who
the members of the purported class would be. Id. at
76. The BIA noted, nevertheless, that “in appropriate
circumstances, “wealth” may be a shared character-
istic of a social group,” when the group is more
“defined” (such as when a government or an uncon-
trolled rebel group targets individuals above an
established income level). Id. at 75 n. 6. The BIA has
recognized that, in contrast, “land ownership” is an
“easily recognizable trait[ ],” see C–A–, 23 I & N.
Dec. at 959–60, and, even in its decisions distinguish-
ing wealth, has recognized landownership as a
“common, immutable characteristic,” see A–M–E–,
24 I. & N. Dec. at 73.
Cordoba, 726 F.3d at 1116. In short, wealth drops out of the
comparison and the only distinction left in Tapiero de Orejuela
is the “highly educated” one—a trait that likely is of little
interest to the FARC whose main concern is the need to fund
its war chest and the uneven accumulations of land and
wealth.
More importantly, however, is the fact that this court does
not determine the legitimacy of social groups by the narrow-
ness of the category. In Cece we specifically rejected “broad-
ness” as a per se bar to protected status. Cece, 733 F.3d at 674.
In Cece we catalogued a long list of very broad categories that
24 No. 11-2706
have passed muster as social groups. Id. at 674-75 (citing cases
involving women in tribes that practice genital mutilation,
persons who oppose forced sterilization in China, Somalian
subclans, homosexuals in Cuba, and Filipinos of Chinese
ancestry living in the Phillipines). We also noted that it would
be antithetical to asylum law to deny refuge to a group of
persecuted individuals who have valid claims merely because
too many have valid claims. Id. at 675. This would be akin to
saying that the victims of widespread governmental ethnic
cleansing cannot receive asylum simply because there are too
many of them. Id. citing Singh v. I.N.S., 94 F.3d at 1353 (“Thus,
we reject the notion that an applicant is ineligible for asylum
merely because all members of a persecuted group might be
eligible for asylum.”). We have stated in no uncertain terms
that denying legitimate asylum applications merely because
the group of applicants might be too great is unreasoned and
impermissible: “the United States has every right to control
immigration. But Congress has not authorized the immigration
service to do so by denying asylum applications in unreasoned
decisions.” Iao v. Gonzales, 400 F.3d 530, 533 (7th Cir. 2005).
In any event, broad categories need not open the floodgates
of immigration. Demonstrating that one belongs to a social
group is only the first step in determining asylum and says
nothing about whether the applicant will be able to establish
the nexus between that membership and the persecution
required to warrant asylum. Cece, 733 F.3d at 674. As the Board
itself explained “the fact that almost all Somalis can claim clan
membership and that interclan conflict is prevalent should not
create undue concern that virtually all Somalis would qualify
for refugee status, as an applicant must establish he is being
No. 11-2706 25
persecuted on account of that membership.” In re H-, 21 I. & N.
Dec. 337, 343 (BIA 1996).
The Board also rejected N.L.A.’s proposed social groups
because “[t]he characteristic of being a ‘landowner of means’
is not immutable, as one can change one’s status by selling,
losing or abandoning one’s property, as the respondent did
here.” (R. 6). Having cited Tapiero de Orejuela earlier, this was
an odd assertion for the Board to make, as we addressed that
issue directly in Tapiero de Orejuela and readily dismissed it by
noting that “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 persecution.”
Tapiero de Orejuela, 423 F.3d at 672-73. The court went on to
note that a family could be targeted for persecution based on
past membership in the cattle farmer, landowning class—a
category which is undoubtedly immutable. Id.Although the issue was not raised by the Board, it warrants
mentioning that the fact that N.L.A. and her family belong to
a category of persons targeted by the FARC does not disqualify
their otherwise valid social group consisting of Colombian
land-owning farmers. As we emphasized in Cece, “[a] social
group cannot be defined merely by the fact of persecution or
solely by the shared characteristic of facing dangers in retalia-
tion for actions they took against alleged persecutors. That
shared trait, however, does not disqualify an otherwise valid
social group.” Cece, 733 F.3d at 671 (internal citations omitted).
We need not decide whether the social group of “child[ren]
or daughters of a land owner who has been kidnapped by the
FARC” is a cognizable social group as N.L.A. has demon-
26 No. 11-2706
str at e d me mbe r ship in one legitimate so cial
group—Colombian land owners who refuse to cooperate with
the FARC. Likewise, just as in Tapiero de Orejuela, it is possible
that N.L.A. and her family were also members of a smaller
social group consisting of the close family members of the
father and uncle, but we need not decide that now.
In sum, there can be no rational reason for the Board to
reject a category of “land owners” when the Board in Acosta
specifically used land owning as an example of a social group
and this Circuit has made clear that the category of educated
land owning cattle farmers targeted by the FARC qualifies as
a social group.
For this reason we also do not need to determine whether
the FARC targeted N.L.A. based on her family’s anti-FARC
political opinion. The petitioner contended that her father
refused to support the FARC based on his political opinion, but
N.L.A. would have had to show that “politics rather than
many other likely reasons lay behind [her] unwillingness to
support FARC.” Tapiero de Orejuela, 423 F.3d at 674. In this case,
we are told that N.L.A.’s father refused to pay the vacuna based
on his objection to the FARC cause, but we are not told about
N.L.A.’s own political opinion on the matter.
For the final hurdle, N.L.A. must demonstrate that the
government of Colombia acquiesced in the persecution.
Persecution does not include the actions of private citizens
unless the government is complicit in those acts or is unable or
unwilling to take steps to prevent them. Cece, 733 F.3d at 675
(citing Bitsin v. Holder, 719 F.3d 619, 628 (7th Cir. 2013)).
No. 11-2706 27
The Board concluded that N.L.A. had not demonstrated
that the FARC is a group that the government cannot or will
not control. The Board reasoned that the FARC had been
considerably weakened by the government’s ramped up
military and police operations, by the assassination of the
FARC’s leaders, and desertions caused by the weakened
leadership.
The fact that the Colombian government is, of late, engaged
in more concerted and successful efforts to control the FARC,
however, does not necessarily mean that it cannot also remain
willfully blind to the torturous acts of the FARC.
Where a government contains officials that would be
complicit in torture, and that government, on the
whole, is admittedly incapable of actually prevent-
ing that torture, the fact that some officials take
action to prevent the torture would seem neither
inconsistent with a finding of government acquies-
cence nor necessarily responsive to the question of
whether torture would be 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.
De La Rosa v. Holder, 598 F.3d 103, 110 (2d Cir. 2010).
On the other side of the scale, the Board considered the
testimony of Dr. Green about the ongoing strength of the
FARC in Colombia. Dr. Green testified that despite Colombia’s
efforts to extinguish the FARC, the FARC “has demonstrated
an amazing ability to survive and assert itself” and that “the
FARC is very far from defeated.” (R. 1031). Neither the
28 No. 11-2706
immigration judge nor the government questioned Dr. Green’s
credentials. As a researcher, Dr. Green studied and compiled
the opinions of other experts in supporting his opinion. The
Board discounted Dr. Green’s testimony as being based on
various levels of hearsay. As we discussed above, hearsay is
admissible in removal proceedings as long as it is probative
and not fundamentally unfair. See Ogbolumani, 557 F.3d at 734.
And in any event, Federal Rule of Evidence 703 allows experts
to rely on hearsay if it is the kind of facts or data upon which
“experts in the field would reasonably rely.” Fed. R. Evid. 703;
U.S. v. Fenzl, 670 F.3d 778, 782 (7th Cir. 2012). Someone like Dr.
Green, who studies the FARC as the Colombia Country
Specialist for Amnesty International and as Senior Research
Fellow of the Council on Hemispheric Affairs, could certainly
assess the reliability of other researchers’ reports and rely on
them in the ordinary course of his work. Moreover, Dr. Green’s
opinion is supported by the U.S. Department of State Country
Reports both at the time he testified in 2008 and the most
current Country Report which indicates that the FARC
continue to commit a not insignificant number of unlawful
killings and kidnappings (R. 907); U.S. Department of State,
Colombia 2012 Human Rights Report, available at the permalink
at http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/
index. htm?year=2012&dlid=204438.7
7
According to the 2012 report:
Guerrilla groups were also responsible for unlawful killings of
government security forces and civilians. On January 21, FARC
guerrillas employed a bomb concealed on a live horse to attack a
passing patrol, killing one soldier and wounding two others. On
(continued...)
No. 11-2706 29
This type of evidence is precisely what convinced this court
in 2011 that “[g]iven the strength of FARC in Colombia, its
state-like status, its ongoing war with the Colombian govern-
7
(...continued)
February 3, FARC guerrillas detonated a motorcycle bomb in front
of a police station in the city of Tumaco, Narino Department,
killing 11 police officers and wounded more than 70 police and
civilians. On March 9, a FARC ambush in the department of Arauca
resulted in the deaths of 11 army soldiers patrolling the area. On
April 7, on the road between Quibdo, Choco Department, and
Medellin, Antioquia Department, FARC guerrillas placed a false
emergency call summoning army assistance; when the soldiers
arrived, the FARC ambushed the unit, killing seven and wounding
two others.
In many areas of the country, the FARC and ELN worked together
to attack government forces or demobilized paramilitary members;
in other areas they fought each other. Various courts convicted
members of the FARC secretariat in absentia on charges including
aggravated homicide.
The FARC killed persons it suspected of collaborating with
government authorities or rival drug-trafficking groups. The CNP
reported that through September the FARC had killed at least 163
civilians. For example, on January 28, FARC forces in the depart-
ment of Antioquia killed two civilians and then ambushed CNP
forces that attempted to respond and investigate the crime.
All guerrilla groups killed some kidnapping victims.
* * *
The government reported that guerrillas kidnapped 33 persons
(17 by the FARC and 16 by the ELN) during the year.
See http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#
wrapper
30 No. 11-2706
ment, and the impotence of the government over FARC, the
‘state action’ element of Escobar's claim is easily met by the
evidence showing that FARC has persecuted him.” Escobar, 657
F.3d at 543 (internal citations omitted).
The Country Reports (even if relied on with a grain of salt,
see Koval v. Gonzales, 418 F.3d 798, 807-08 (7th Cir. 2005)) do not
support the notion that there has been a significant reduction
in killings and kidnapping since the decision in Escobar.
Compare U.S. Department of State, Colombia 2008 Human Rights
Report, available at http://www.state.gov/j/drl/rls/hrrpt/ 2010/
wha/154499.htm (129 killings and 64 kidnappings by the
FARC) with U.S. Department of State, Colombia 2012 Human
Rights Report, available at http://www.state.gov/j/drl/rls/
hrrpt/humanrightsreport/index.htm?year=2012&dlid= 204438
(163 killings and 33 kidnappings by the FARC).
The Board also ignored the testimony of the family that
they could not rely on the police to protect them. N.L.A.’s
husband, H.O.P.M., testified that “it is common knowledge in
Colombia that the FARC has informants in all parts of the
government, even the police department. I even heard that
they have computers in which they can type someone’s
number and get that person’s entire record.” (R. 392) (aff. of
H.O.P.M. at p. 5). N.L.A. testified that when her father was
kidnapped the family opted not to seek police help, as the
police would be ineffective and could not protect them from
the repercussions of contacting the authorities: “we never
called the police because the FARC ‘doesn’t forgive’ and we
feared even stronger repercussions if they found out we sought
help. They are everywhere in Colombia and we feared they
No. 11-2706 31
would find out if we spoke to the authorities, and that the
police could do little to protect us.” (R. 384) (aff. of N.L.A. at 7).
Fear of repercussions, and the inability of the police to protect
the family from them, fueled many decisions not to call police
for help. See (R. 381-82) (aff. of N.L.A. at 4-5); (R. 391-92) (aff. of
H.O.P.M. at 4-5); (R. 404) (aff. of N.L.A.’s daughter at 2.) (R.
380) (aff. of N.L.A. at p. 3). N.L.A. testified:
My aunt called the police, and the police investi-
gated after she told them that it was the FARC who
killed her husband. The police, however, did not do
much else because they also fear the FARC. The best
they did for my aunt was to tell her that it was
“under investigation.”… The police have questioned
my uncle’s neighbors, but they give very little
information, if any, under the “law of silence,” a fear
which the FARC has instilled in everyone.
Id.The Board states that it considered the record as a whole in
evaluating government acquiescence, but then cites in great
detail reports that the power of the FARC has been reduced,
but fails to mention even one piece of the testimony from the
family about their experiences with the FARC or any of the
evidence from Country Reports that the FARC kidnapping and
murder rates have changed very little. And as the Second
Circuit noted, it is not inconsistent for some parts of a govern-
ment to be involved in efforts to reduce private persecution,
while others continue to turn a blind eye, or worse yet, aid in
that persecution. De La Rosa, 598 F.3d at 110; see also
Pieschacon-Villegas v. Attorney General of U.S., 671 F.3d 303, 312
32 No. 11-2706
(3d Cir. 2011) (“The mere fact that the Colombian government
is engaged in a protracted civil war with the FARC does not
necessarily mean that it cannot remain willfully blind to the
torturous acts of the FARC.”)
Finally, the Board concluded that N.L.A. could safely
relocate in Colombia just as her sister had. The Board stated,
“Although the respondent’s sister and her family apparently
move and change their phone numbers often, and have
registered their pharmacy under a third party’s name, the
sister and her family routinely leave their home to work and
attend school.” (R. 8). This is quite an extensive “although.”
One need not be secreted in an attic behind a hidden bookcase
to be living in hiding. As we explained above, moving fre-
quently, changing phone numbers and living under an
assumed identity is a horrible way to live and certainly
constitutes living in hiding. It is an error of law to assume that
an applicant cannot be entitled to asylum if she has demon-
strated the ability to escape persecution only by chance or by
trying to remain undetected. Giday v. Gonzales, 434 F.3d 543,
555 (7th Cir. 2006). N.L.A.’s sister has not demonstrated that
she has safely relocated. The Board’s conclusion that N.L.A.
could indeed relocate, which is based on what the Board views
as her sister’s success, is not reasoned or logical.
For these reasons, we GRANT the petition for review and
REMAND this matter to the Board for further proceedings
consistent with this opinion.