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Martinez-Buendia v. Holder

August 10, 2010


Petition for Review of an Order of the Board of Immigration Appeals.

The opinion of the court was delivered by: Flaum, Circuit Judge.

ARGUED MAY 19, 2010

Before FLAUM, MANION, and HAMILTON, Circuit Judges.

Petitioner Doris Martinez-Buendia appeals her denial of asylum and withholding of removal. Martinez-Buendia is a fifty-year-old optometrist from Colombia. She came to the United States in 2005 and applied for asylum on the ground that she was being persecuted by the Revolutionary Armed Forces of Colombia (the Fuerzas Armadas Revolucionarias de Colombia-commonly known as the "FARC") on account of her anti-FARC political position and her involvement with a social group called the "Health Brigades." About two years before Martinez-Buendia fled Colombia, the FARC began harassing her with phone calls and letters demanding that she give public credit to the FARC for the health care work she organized in rural communities through the Heath Brigades. As Martinez-Buendia continually refused the FARC's demands, the FARC's actions grew increasingly violent towards her. The FARC escalated from making threatening phone calls and leaving threatening letters to attacking a Health Brigade caravan and kidnaping her sister. After Martinez-Buendia's sister escaped, the FARC kidnaped Martinez-Buendia's brother-in-law. The final incident before Martinez-Buendia fled involved a FARC member following Martinez-Buendia into a cab while she was delivering school supplies to an under-resourced school, holding a gun to her head, and threatening that if she did not give the FARC credit for the Health Brigades, they would do far worse to her than they did to her sister. Upon arriving in the United States, Martinez-Buendia filed for asylum, withholding of removal, and relief under the Convention Against Torture. An Immigration Judge ("IJ") denied her application in an oral decision on March 26, 2008. The Board of Immigration Appeals (the "Board") affirmed the IJ's decision on October 15, 2009 on the ground that Martinez-Buendia had not established that the past persecution she suffered in Colombia was on account of her political opinion or membership in a particular social group. This appeals follows. For the reasons set forth below, we reverse the decision of the Board and grant the petition for review.

I. Background

A. Martinez-Buendia's Experiences with the FARC

As an initial matter, we note that the facts of this case are undisputed. Martinez-Buendia was the only witness to testify at the hearing and the IJ found her completely credible.

Martinez-Buendia is a Colombian citizen from Bogota who has dedicated her life to helping others. She is a optometrist and holds a master's degree in health administration. Martinez-Buendia attended university in the mid-1980s, where she became involved in a clinical practicum providing free health services to impoverished communities in Colombia. Her practicum experience set her down a career path of providing health services to communities in need. In 2000, Martinez-Buendia began organizing Health Brigades, groups of volunteer health care providers and other individuals who travel to remote areas of Colombia to provide health services. The Health Brigades organized by Martinez-Buendia generally operated in areas around Barranquilla, where Martinez-Buendia lived and worked, and Bogota, where Martinez-Buendia's family lived. In addition to her work organizing Health Brigades, Martinez-Buendia also taught courses at the Metropolitan University in Barranquilla and worked as an optometrist. Martinez-Buendia is unmarried. Her mother and five siblings all still live in Bogota.

Beginning in 2004, members of the FARC began contacting Martinez-Buendia by telephone and leaving notes at her office, on her car, and at her home demanding that she start publicly attributing her Health Brigade work to FARC. The FARC members threatened to harm Martinez-Buendia if she did not comply. At first Martinez-Buendia ignored the threats because she thought they were pranks by her students. However, in November 2004 it became clear that these threats were not a prank. That month, Martinez-Buendia organized a Health Brigade trip to the municipality of Icononzo. Martinez-Buendia's sister and brother-in-law were participating in this trip. While traveling to Icononzo, a group of FARC members intercepted the Health Brigade. The FARC members read the names of the Health Brigade members from a list to the group, and physically attacked several members of the Health Brigade, including Martinez-Buendia. During the commotion, a government helicopter flew by and began shooting at the FARC members. Once the shooting began, the FARC members quickly grabbed several members of the Health Brigade, including Martinez-Buendia's sister, Mercedes. Martinez-Buendia heard one of the FARC members say, "I have Doris already," which she believes meant that the FARC intended to capture her instead of her sister. The FARC also spray-painted the Health Brigade cars with statements such as "S.O.B. dogs from the government." Martinez-Buendia and her brother-inlaw managed to get to the next town and get a new vehicle to get to Bogata. Once they returned home they called the police. The Department of Security Administration installed a recording device on Mercedes's phone to intercept any calls from the FARC.

Over the next few months Martinez-Buendia received several phone calls from the FARC on her home phone and on Mercedes's phone. During one of those phone calls, the FARC member told Martinez-Buendia that they had her sister and that they would kill her unless Martinez-Buendia agreed to work for the FARC cause. Martinez-Buendia testified that she always hung up and never spoke to the person on the phone. When the IJ questioned Martinez-Buendia about why she did not go along with the FARC to save her sister, MartinezBuendia said that she was unable to work for the FARC "because it is a rebel group to the democracy of Colombia, because they have harmed a lot of Colombia and my beginnings would not let me or allow me to do this." In February 2005, Martinez-Buendia was in Bogota visiting her mother. While at her mother's house, Mercedes showed up in the middle of the night visibly beaten, wearing men's clothing, and very thin from having been infected with a parasite. Martinez-Buendia testified that Mercedes told the family that she escaped in the night. Martinez-Buendia also testified, and provided documentation, that Mercedes suffered, and continues to suffer, severe psychological damage from her experience in captivity. In March 2005, Mercedes's husband was captured by the FARC and died in their custody because he did not have access to proper medicine.

Because of Mercedes's kidnaping, Martinez-Buendia did not organize any Health Brigades during 2005. How-ever, at some point in 2005, Martinez-Buendia did go to a community meeting in Puerto Colombia. After dropping off school supplies at a school in Puerto Colombia, Martinez-Buendia got into a taxi. An armed member of the FARC followed her into the taxi, pointed a gun at her, and threatened to kill her unless she began doing work for the FARC. The individual gave MartinezBuendia thirty days to appear before the FARC. After this incident, Martinez-Buendia fled to the United States and applied for asylum.

B. Procedural History

Martinez-Buendia filed an application for asylum, withholding of removal, and relief under the Convention Against Torture on October 28, 2005. The Department of Homeland Security initiated removal proceedings against her on December 8, 2005. After a series of continuances, Martinez-Buendia had a hearing before an IJ on March 26, 2008. She had an attorney present. The IJ found Martinez-Buendia's testimony consistent and credible. The IJ also found that Martinez-Buendia had suffered harm that rose to the level of past persecution. However, the IJ denied relief because he found that Martinez-Buendia did not suffer past persecution on account of her political opinion or her membership in a particular social group. Martinez-Buendia appealed the IJ's decision to the Board. The Board held that the FARC's actions were motivated by the FARC's own political agenda and not by a desire to punish MartinezBuendia for her political opinion. The Board also held that Martinez-Buendia had not established that she be-longed to a cognizable social group because the Health Brigades did not have a common quality binding its members that is either unchangeable or fundamental to their identities. In the alternative, the Board held that Martinez-Buendia failed to show ...

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