Lead Opinion
Sergio Escobar fled Colombia after the Revolutionary Armed Forces of Colombia (FARC, short for Fuerzas Armadas Revolucionarias de Colombia) pursued him relentlessly, subjecting him to multiple hijackings at gunpoint, directing death threats at him and his family, and burning
I
Escobar is a Colombian national from the small town of Cerrito. He attended the university in the flourishing city of Cali. After receiving his degree in marketing, Escobar decided to pursue his dream of owning his own business, and so he bought two trucks to start a small transportation service. Unfortunately, Escobar soon crossed paths with FARC and his dream turned to nightmare.
Colombia has been ravaged by internal political and criminal conflict. The battle that rages has many different actors: the government’s security troops, paramilitary groups, revolutionary guerrilla groups, and drug traffickers. United Nations High Commissioner For Refugees, The State of the World’s Refugees ch. 7 (2006). One of the more powerful actors is FARC. Originally established to serve as the military wing of the Colombian Communist Party, it is now a free-standing leftist revolutionary organization attempting to overthrow the Colombian civil government. FARC is well-organized and sophisticated; in the areas under its control, FARC displaces civil government and rules on its own. Liz Harper, Colombia’s Civil War: FARC, available at http:// www.pbs.org/newshour/bb/latin_america/ colombia/players_farc.html. Its tactics are brutal. FARC regularly kidnaps, ransoms, and assassinates local party officials and members. Amnesty International, Amnesty International Report 2011: The State of the World’s Human Rights 108-12 (2011); Bureau of Democracy, Human Rights, and Labor, 2009 Human Rights Report: Colombia (2010), available at http://www.state.gOv/g/drl/rls/hrrpt/2009/ wha/136106.htm. This has led the United States to designate FARC as a Foreign Terrorist Organization. U.S. Dep’t of State, Foreign Terrorist Organizations (May 19, 2011), available at http://www. state.gov/s/ct/rls/other/des/123085.htm. FARC spies on political party meetings in order to keep tabs on their affairs and identify members of influence and importance, some of whom will be future victims.
Escobar was an active member in Colombia’s Liberal Party, one of the two parties that dominate the Colombian political establishment. Living in rural Colombia where transportation can be difficult to come by, Escobar often drove members of the Liberal Party to rallies and meetings. His service to the Liberal Party bore fruit, for he obtained one of his principal trucking contracts, which was with a sugar refinery from Cauca, through his Liberal Party contacts. In March 1998, Escobar drove some Liberal Party members to and from a political meeting. It was there,
This tactic worked only for a time. Some months later, Escobar again ran into FARC, was hijacked at gunpoint, and was forced to transport cargo to a distant FARC hideout. A few months later, he was hijacked a third time. This time, when approaching the FARC roadblock, Escobar unsuccessfully tried to maneuver around the FARC soldiers. This angered them and prompted them to threaten to kill Escobar and his family. After this encounter Escobar contacted the authorities. He filed a complaint with the Police Department of the city of Candelaria, but nothing came of it.
A few months later, Escobar learned that members of a paramilitary group that opposed FARC came to his place of business in his absence. They suspected Escobar of collaborating with FARC and threatened to kill him. Caught in the middle of these rival forces, Escobar went into hiding. But FARC had not forgotten about him. FARC soldiers went looking for him, visiting his former home and place of business. They communicated to his friends and business contacts that he had better come out of hiding or else something ominous might happen to him or his trucks. Escobar believed this to be a trap; if he came out of hiding, he feared, he would be killed. He stayed in the shadows, but FARC made good on its threat by burning his trucks. Just to ensure that it made a lasting impression on Escobar, FARC also branded its insignia on the ruined vehicles.
Escobar immediately fled Colombia. He bought a plane ticket to Panama and from there traveled to the United States on a tourist visa. In early June 2000, he landed in Miami with permission to stay in the country until December 2000. While there, he spoke to a reporter for the Miami Herald about his interactions with FARC. The reporter put him in touch with agents of the Drug Enforcement Administration (DEA) who were interested in FARC’s involvement with drug trafficking. Not familiar with U.S. immigration law, Escobar thought that his cooperation with the feds would allow him to remain in the United States as a legal resident. After receiving no further contact from the DEA, in mid-May 2002, Escobar filed an asylum application. In early August 2002, the former Immigration and Naturalization Service (now Citizenship and Immigration Services) issued Escobar a Notice to Appear and placed him under removal proceedings pursuant to 8 U.S.C. § 1227(a)(1)(B). In the meantime, Escobar continued to assist U.S. law enforcement, meeting with FBI agents and providing details about the FARC members he had encountered.
On May 11, 2009, an Immigration Judge granted Escobar’s asylum application. Though Escobar failed to file his application within one year of arriving in the United States, the IJ held that Escobar’s asylum application could be processed because of changed circumstances. On the merits, the IJ found Escobar credible and concluded that he had been persecuted on
The government appealed the IJ’s decision to the Board, which vacated the IJ’s grant of asylum and ordered Escobar removed. The Board agreed with the IJ that Escobar’s asylum application qualified for the exception to the one-year filing period because of changed circumstances, and it upheld the IJ’s determination that Escobar was credible. Nevertheless, the Board did not think that Escobar had shown that he was persecuted. It reasoned that the burning of his trucks was a form of nonphysical, economic disadvantage insufficiently severe to be considered persecution. The Board added that even if Escobar was persecuted, any such persecution was not on account of his political beliefs or his membership in a particular social group. For these reasons, the Board concluded that Escobar was ineligible for asylum and ordered him removed. This petition for review followed.
II
A
To be eligible for asylum, an applicant must show that he is a refugee within the meaning of the Immigration and Nationality Act (INA). 8 U.S.C. § 1158(b)(1)(A); 8 C.F.R. § 1208.13(b). The INA defines a “refugee” as an alien who is “unable or unwilling to return” to the country of his nationality “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); 8 C.F.R. § 1208.13(b). The applicant must show that he fits within one of those categories and that there is “a nexus between his fear of future persecution and one of those five protected grounds.” Ishitiaq v. Holder,
As usual, our standard of review for legal questions is de novo. Vahora v. Holder,
In overturning the IJ’s grant of asylum, the Board first determined that Escobar had not been persecuted at all. In coming to this conclusion, however, the Board inexplicably focused only on the burning of Escobar’s trucks. Characterizing this as inflicting nothing more than an unfortunate economic disadvantage, the Board concluded that the economic detriment was not severe enough to count as persecution. The Board then stated that, even if he had been persecuted, Escobar had not shown the requisite nexus between his putative persecution and a protected ground. In particular, the Board found that there was no evidence that FARC showed any interest in Escobar’s political opinion — it just wanted his trucks at its disposal. Finally, the Board stated that Escobar’s suggested social group did not meet the statutory criteria. It understood him to be arguing for a group consisting of truckers, and it rejected that group as one that reflected neither an immutable characteristic nor a characteristic that one should not be required to change as a matter of conscience.
We have no quarrel with the broad legal principles that the Board applied. Nevertheless, as we now explain, the Board failed to take all the facts into account or at least neglected to explain why it was disregarding key parts of Escobar’s experience. We therefore cannot accord the normal weight to 'its application of these legal principles to the ease before it. We look first at the question whether the government of Colombia can be held responsible for Escobar’s persecution. Next, we consider whether the Board’s factual finding that the mistreatment FARC inflicted on Escobar was not enough to amount to “persecution” was supported by substantial evidence. Third, we address the Board’s conclusion that Escobar failed to prove his membership in -either a social group or a group defined by political opinion. See 8- U.S.C. §§ 1101(42), 1158(b)(l)(B)(i). Finally, we discuss the Board’s factual conclusion that Escobar failed to prove a link between his persecution and his group membership.
B
It was not the legitimate government of Colombia that mistreated Escobar; it was instead FARC, a powerful insurgent group that (as we mentioned earlier) has earned the designation of Foreign Terrorist Organization from the U.S. State Department. Normally, in order to obtain relief under the INA, persecution must be inflicted by the government; asylum is not offered for those who are unfortunate enough to be victims of ordinary crime or generalized chaos. Nevertheless, when a “government either condones [persecution by a private group] or is helpless to prevent it ... the claim [for asylum] is a good one.” Hor v. Gonzales,
C
The Board did express the view that the mistreatment Escobar suffered was not severe enough to amount to perse
The respondent was never physically harmed by the FARC. (Tr. at 140-141). The respondent testified that some people told him the FARC was looking for him and the FARC said that something could happen to him or his trucks if he did not reappear (Tr. at 93). When the respondent did not reappear, his trucks and a bulldozer were burned (Tr. at 94-95,137).
As we have already explained, Escobar’s case is based on much more than that. On three separate occasions, FARC members hijacked Escobar’s truck, kidnapped him, and ordered him to do their bidding at gunpoint. Each time, they sent him off with a stern warning accompanied by a threat to his life and family. When he hid, they scoured the area looking for him, telling his friends that if he did not show himself they would kill him, kill his family, and destroy his trucks. When Escobar refused the bait, they made good on their threat: they burned his trucks and branded their call-sign on the wrecks. The Board never took that evidence into account. If it had a reason for thinking this part of FARC’s mistreatment of Escobar irrelevant, we do not know what that reason is. Even though our review is deferential, “the [Board] may not simply overlook evidence in the record that supports the applicant’s case.” Espinosa-Cortez v. Attorney General,
It is especially troubling that the Board said nothing about the threats of violence FARC made when Escobar did not come out of hiding. Threats can constitute persecution, if they are immediate, menacing, or the perpetrators attempt to follow up on them. Nzeve v. Holder,
D
In order to be entitled to asylum, Escobar must link his mistreatment to either his “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(42), 1158(b)(l)(B)(i). He argues that he satisfies both the “particular social group” and the “political opinion” categories. We first address his theory that he was persecuted
The group to which Escobar asserts that he belongs is defined as truckers who, because of their anti-FARC views and actions, have collaborated with law enforcement and refused to cooperate with FARC. Citing Gatimi the Board found that this was not a “social group” because a person can cease being a trucker, and once he has done that, it implied, he automatically will no longer be a trucker who has collaborated with law enforcement and refused to cooperate with FARC. Gatimi,
The government also has another objection to Escobar’s proposed group. In a nonprecedential disposition, Poroj-Mejia v. Holder,
Giving the Board the Chevron deference it is due, we accept the proposition that a “social group” cannot be defined solely by the fact that its members suffer persecution from the government or from a group that the government cannot or will not control. But we must still decide whether Escobar’s proposed group, as a matter of fact, suffers from that flaw. We begin with the obvious point that just because all members of a group do experi
The situation in Poroj-Mejia is distinguishable (although in light of its lack of precedential status it would not matter if it were not). Poroj-Mejia, a Guatemalan, sought withholding of removal because he was threatened by a violent criminal gang called Mara 18. Poroj-Mejia,
The government also relies on Pavlyk v. Gonzales,
But, unlike the situation in Pavlyk, Escobar has not described a “group” consisting of one person who conducted one controversial investigation. Nor, to repeat, is Escobar’s group is defined solely by the fact that he is being persecuted for his collaboration with law enforcement. Escobar’s theory, which the Board did not confront, is that FARC is persecuting him because he and those like him bring together a number of characteristics: skills as a trucker, support of the government, and opposition to FARC. (These are all traits of the victims, not of the persecutor, and thus they are the correct ones to use according to Elias-Zacarias. See
A final distinction between Escobar’s group and the ones alleged in Pavlyk and Poroj-Mejia is worth pointing out. One might think that just as Escobar faces persecution as a trucker who opposed FARC, Pavlyk and Poroj-Mejia faced persecution for their opposition to similarly powerful criminal entities in their respective countries. But the latter two also failed because of a different initial hurdle: as we discussed earlier, private persecution is not grounds for asylum unless the state condones it or is helpless to prevent it. Nothing in Pavlyk and Poroj-Mejia indicates that the persecution was anything but ordinary criminal behavior that falls outside the scope of the asylum statute.
It would do Escobar no good to prove a social group if he were not a member of that group. But the record could easily support a finding that he is. The Board found him credible, and it did not seriously question any of the elements that make up his group membership. The government asserts that Escobar acted only for reasons of self-preservation, not because of any fundamental commitment against FARC. It notes that Escobar testified that he transported goods for FARC because he was afraid of what it would do to him. This shows, the government argues, that he just belonged to the group of people who cooperated with FARC because they feared retaliation — and once again, it insists that this is not a group protected by the law.
This argument fails to come to grips with the details of Escobar’s testimony. In the evidence that the Board failed to discuss, Escobar explained why he had been targeted and asserted that he transported goods for FARC because he feared immediate retaliation, as his head was pressed up against the unfriendly side of the barrel of a gun. Acting under threat of immediate execution does not suggest that one is unworthy of asylum. If anything, it reinforces his evidence of persecution. More importantly, Escobar is not saying that he has been persecuted because he did transport goods for FARC; he contends that he was and will be persecuted for refusing to transport goods for FARC. The government has no explanation for why he might have refused to cooperate. It would have been an odd way for Escobar to pursue self-preservation; acquiescence in FARC’s every demand would have been much safer. The Board failed to explain why, in light of Escobar’s strong ties to the anti-FARC Liberal Party, it could not find that his resistance was motivated, at least in part, by his fundamental opposition to FARC and its goals.
E
The final question is whether Escobar can show the necessary nexus be
The Board concluded, based on the incomplete account of the facts it offered, that the only reason FARC targeted Escobar was for his trucking capabilities. But that makes no sense. Perhaps FARC was happy to take advantage of Escobar’s trucking capabilities for a while. But if that is what it wanted more broadly, then it is hard to see why it would have torched the very trucks it wanted when Escobar managed to evade it. Once again, the Board must take all of these facts into account before reaching a final conclusion on the case. The facts taken as a whole might well lead the Board to conclude that FARC suppresses the public’s support of the legitimate Colombian government by violently subjugating people who work within the system.
One might argue that FARC did not target Escobar because of his anti-FARC views. Instead, it pursued him only because he refused to cooperate, and this, the Supreme Court has stated, is insufficient for asylum. Elias-Zacarias,
Finally, we address Escobar’s alternative argument that he was persecuted on account of his political opinion. The Board rejected this claim because it reasoned that FARC wanted Escobar only for his trucking capabilities. The latter explanation cannot be justified on the basis of the evidence in this record. The government argues additionally that FARC made no mention of Escobar’s Liberal Party affiliation when confronting him, and thus his political opinion played no part in his persecution. But the evidence could support a finding that FARC spied Escobar at a Liberal Party meeting, and whether or not FARC spotted him there, it did hijack him after that very meeting. Escobar has pointed to a number of facts that would suggest that his Liberal Party affiliation played some part in his persecution. We are not aware of any requirement that persecutors recite a bill of particulars while they are holding a gun to someone’s head, and so we place little weight on the fact that the FARC thugs who kidnapped Escobar may not have mentioned his Liberal Party affiliation at that moment. It is also important to be precise about what political opinion Escobar was espousing. Escobar is a member of the Liberal Party, but he is also anti-FARC. We discussed above how this helps to define his particular social group, but it is also relevant to a political opinion claim. The Board’s rejection of Escobar’s contention that FARC knew of Escobar’s political views and persecuted him at least in part on account of them must be reconsidered in light of all the evidence.
It is not this court’s job to resolve this petition definitively. The government requests that if we disagree with the grounds the Board presented, we remand to the B.oard to allow it to address the government’s argument that Escobar is barred from a grant of asylum or withholding of removal because he allegedly provided material support to a terrorist organization and has been convicted of a particularly serious crime. We recognize that these issues may be addressed in further proceedings. For the reasons we have stated, however, we Grant Escobar’s petition for review and Remand for further proceedings consistent with this opinion.
Concurrence Opinion
concurring in the judgment.
My colleagues’ discussion of the “social group” question is compatible with recent decisions in this circuit. As the Attorney General has not asked us to overrule these decisions, I concur in the result. But I am skeptical about this circuit’s approach to the subject.
The Immigration and Nationality- Act permits federal officials to grant asylum to aliens who seek refuge here “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). INS v. Elias-Zacarias,
What the Seventh Circuit has effectively done in this and other recent cases is read “because of ... membership in a particular social group” in a way that includes everyone threatened by rebels a nation’s government cannot control, just as the Ninth Circuit in Elias-Zacarias had read “because of ... political opinion” in a way that included everyone threatened by rebels. This makes eligible for asylum everyone who faces a substantial risk of harm in his native land, no matter the reason. The Convention Against Torture, S. Treaty Doc. 100-20, 1465 U.N.T.S. 85, see 8 C.F.R. § 208.17 (2008), and the rules for withholding of removal, 8 U.S.C. § 1231(b)(3), offer some protection to persons at risk of injury or death but require a higher burden of persuasion (proof by a preponderance of the evidence that future injury is more likely than not, see INS v. Stevic,
The Board of Immigration Appeals has established, in decisions that we must respect — see Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
Redefining Escobar’s “social group” as “truckers who in the past refused to cooperate with FARC and who formerly collaborated with law enforcement authorities” would not avoid the BIA’s second bulwark: its rule that “social group” cannot be defined just by asking who the persecutors mistreated. In re C — A—, 23 I. & N. Dec. 951, 956 (BIA 2006). For if the persecutors’ acts define a social group, then again § 1101(a)(42)(A) effectively offers asylum to all mistreated persons, whether or not race, religion, politics, or some extrinsically defined characteristics (such as tribal membership) account for the persecution. And again this court professes to accept the Board’s position. My colleagues write: “Giving the Board the Chevron deference it is due, we accept the proposition that a
In sum, under this court’s approach, any person mistreated in his native country can specify a “social group” in a circular fashion and then show that the mistreatment occurred because of membership in that ad hoc group. Anyone threatened or injured in the past, or who sought police protection, has an “immutable” characteristic (the past can’t be changed), and the selection criteria used by the persecutor (here, people who own trucks and prefer not to give free transport to rebels, or more generally “have a special skill”) become the defining characteristics of the “social group”. The structure of § 1101(a)(42)(A) unravels, and the distinction between asylum and withholding of removal (or the CAT) collapses.
Surprisingly, the agency has not asked us to revisit the line of cases that has led to today’s decision. Indeed, the agency’s brief does not even cite Elias-Zacarias. Perhaps the Attorney General is relying on the fact that asylum is permissive, while withholding of removal is obligatory. Qualification under § 1101(a)(42)(A) does not require the agency to grant asylum; it just makes an alien eligible for administrative discretion. Perhaps the agency plans to restore a functioning distinction among asylum, withholding of removal, and CAT by careful exercise of that discretion. But the judiciary still should keep these three categories distinct, and I think it unfortunate that this circuit has interpreted § 1101(a)(42)(A) in a way that blurs the statutory lines.