Argued January 20, 2012
[Copyrighted Material Omitted]
For N.L.A., H.O.P.M., S.L.P.L., Petitioners: Kelly J. Huggins, Attorney, SIDLEY AUSTIN LLP, Chicago, IL.
For ERIC H. HOLDER, JR., Attorney General of the United States, Respondent: OIL, Attorney, Richard Zanfardino, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC.
Before FLAUM and ROVNER, Circuit Judges and CASTILLO, District Judge.[*]
Petition for Review of Orders Of the Board of Immigration Appeals.
Rovner, Circuit Judge.
After Colombian guerillas from the Revolutionary Armed Forces of Colombia (FARC) kidnapped her father and killed her uncle, N.L.A. 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 claiming that if N.L.A. should be granted asylum, by statute, they would be as well. 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.
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 unresolved and presented in this case.
In Escobar v. Holder, we described in some detail the ongoing conflict in Colombia attributable to the leftist revolutionary 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 FARC and thus refused to make the payments. Consequently, on the night of September 13, 2003, the FARC abducted and then killed him. 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).
Two months after members of FARC murdered the petitioner'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 complaining 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. 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.
N.L.A. and her family also abandoned their home, disconnected 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 communication. 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 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 evidence 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).
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, membership 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 ...