Gomez-Zuluaga v. Att'y Gen. of the U.S., (3d Cir. May 30, 2008)

We determine that Petitioner is a member of the particular social group of "women who have escaped involuntary servitude after being abducted and confined by the FARC" and 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 and to consider Petitioner's withholding claim. We also remand for the BIA to reconsider Petitioner's CAT claim and for application of the appropriate "acquiescence" standard.

Petitioner, a citizen of Colombia , sought asylum, withholding of removal and Convention Against Torture (CAT) relief based on her fear of the Revolutionary Armed Forced of Colombia (FARC). She claimed past persecution on account of her membership in a particular social group and imputed political opinion. Petitioner testified that she lived in a rural region of Colombia where the FARC was active. Her first encounter with the FARC was when she was six years old and FARC guerrillas occupied her family's farm. As a result, her family moved to another rural area in Colombia . Petitioner also witnessed and experienced more confrontation with the FARC in this new area. As a result, her family returned to the area their farm was located. At age eleven, Petitioner moved to Medellin to live with her sister. When she was sixteen, she began dating a military officer. On a visit to her parents, she was taken by a member of the FARC to a playing field where she and other women were held for two hours and were told that it was an "insult" to the FARC that they were "with military officials." The FARC told them that it was the equivalent of being against the FARC. Petitioner and the other women were threatened that if they did not end their relationships, something would happen to them or their families. As a result, Petitioner broke off her relationship with the military officer.

Two years later, Petitioner began dating a police officer from Medellin . On a visit to see her father, she was again accosted by the FARC and told that they knew about her relationship with the police officer and that they were watching her. They admonished her that if she was in the favor of the army or the police, then she must be against them. She soon ended her relationship with the police officer, who had told her that he could not protect her and that given that the FARC pervaded the entire country, she would always be vulnerable. In 2006, on a visit to her home town, the FARC blindfolded Petitioner and took her to a empty house where she was chained to a bed. When Petitioner asked them why she was abducted, they men told her it was not because she dated a police officer but because they had other intentions for her. Petitioner was held for eight days and was only unchained when she was allowed to go to the bathroom. Petitioner begged for her life throughout her captivity and told the FARC that she wanted to complete her studies to be a dental hygienist. The FARC told her that they would release her and that once she completed her studies she had to return to work for them. Neither Petitioner, nor her family reported the incident. The day Petitioner left to return to Medellin , she received a call from a FARC member who told her that the FARC was watching her. One to three times per month she received similar calls on her cell phone. The FARC told her that they were waiting for her to finish her studies and reminded her of her promise to work for them. Petitioner also testified that her cousin had been forced to work for the FARC and that after he had escaped, the FARC killed him.

Petitioner fled to the United States in June 2006 with a false Spanish passport. She was detained upon entry and throughout the course of her immigration court hearing and BIA appeal. In support of her claim, she submitted a psychiatric evaluation, an affidavit from an expert from Latin America , a brief in support of her claim and reports from Amnesty International and the Department of State. The immigration judge denied asylum, withholding and CAT relief. The IJ found Petitioner to be credible and that her account was consistent with country conditions in Colombia . The IJ, however, held that she failed to establish that the actions against her were motivated by an imputed political opinion or by her membership in a particular social group. The IJ also found that she failed to show that a protected ground was or would be "the central reason for persecution" under INA §208(b)(1)(B)(i). The IJ also denied her withholding and CAT claims. With regard to CAT, the IJ held that Petitioner failed to show that she would be tortured by "someone from the government" upon her return. The BIA upheld the IJ decision. The BIA acknowledged that the IJ had incorrectly cited INA §208(b)(1)(B)(i)(as amended by the REAL ID Act) which provides that a protected ground must be "at least one central reason," not "the central reason." The BIA found this to be harmless error. The BIA also found that Petitioner did not have a well-founded fear on account of a protected ground and summarily affirmed the IJ's CAT denial.

Prior to the Third Circuit's decision in this case, Petitioner filed a pro se motion to lift her stay of removal, stating that the detention was affecting her physically and "destroying" her mentally. The court granted her motion and she was removed to Colombia . The court found that this did not moot her petition for review.

On review, the Third Circuit held that although Petitioner's first two encounters with the FARC did not rise to the level of persecution, her eight-day abduction by the FARC did constitute persecution. The court contrasted Petitioner's case, with the claims set forth in Li v. Att'y Gen. of the U.S., 400 F.3d 157 (3d Cir. 2005) and Chavarria v. Gonzales, 446 F.3d 508 (3d Cir. 2006). The court found that Petitioner's circumstances during the first two detentions were more similar to the applicant in Li because the threats were oblique and not imminent. In contrast, the court found that Petitioner's eight-day abduction rose to the level of persecution because of its duration, the deprivation of Petitioner's freedom of movement and sight, the implicit and overt threats against her life and the ominous warning upon her release. On the issue of nexus, the court agreed with the IJ and BIA and held that there was substantial evidence on the record that Petitioner's eight-day abduction by the FARC was not centrally motivated by any imputed political opinion or social group status, but rather by a desire to recruit Petitioner.

The court then turned to Petitioner's well-founded fear of future persecution claim. The court held that her proferred social group of "women who have escaped involuntary servitude after being abducted and confined by the FARC" was sufficiently immutable to be considered a particular social group and existed independently of the persecution that the Petitioner feared.

The court held that Petitioner established a subjective fear of persecution through her statements that she feared the FARC would kill her and that what happened to her cousin would happen to her. The court then turned to the issue of whether her fears were objectively reasonable. The court held that they were because 1) she showed through the harm to her other family members that the FARC is both willing and able to extract retribution, 2) she established that the FARC had continued to contact her, even after her arrival in the United States, and so it was reasonable to believe that the FARC would continue to monitor and track her, and 3) the articles and reports Petitioner submitted corroborated the reasonableness of her fears. The court turned again to the question of nexus, this time holding that she sufficiently established that her well-founded fear of persecution on account of her membership in a particular social group, and that the BIA's determination was not supported by substantial evidence. Because the BIA did not reach the issue of whether it was reasonable for Petitioner to relocate within Colombia , the court remanded the issue to the BIA.

The court also directed the BIA to give full consideration to Petitioner's withholding claim with respect to future persecution when it considered the case on remand.

On the issue of CAT relief, the court criticized the IJ for looking only at whether Petitioner feared torture "at the hands of the government, and failing to acknowledge that under the regulations Petitioner was only required to show that torture would occur "at the instigation of or with the consent or acquiescence of" the government. 8 CFR §208.18(a)(1). The court also noted that the IJ relied on Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000), but that the court had altered the standard set forth in S-V- in Silva-Rengifo v. Att'y Gen. of the U.S., 473 F.3d 58, 70 (3d Cir. 2007)(finding that government acquiescence does not require actual knowledge). The court found that the IJ's decision was likely erroneous on its face for failing to consider consent or acquiescence and the IJ at best applied the incorrect standard. The court remanded the matter to the BIA to give it an opportunity to better explain its decision. The court urged the BIA to consider the documentary evidence of record which established that the FARC routinely tortured, mutilated, and killed people. The court also urged the BIA to consider whether the past harm Petitioner suffered amounted to torture and whether the FARC's ability to track Petitioner's movements increased the likelihood that she would be tortured.

The petition for review was denied in part and granted in part.