NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3654
___________
LUZ VELASQUEZ-GARZON
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A88 349 091)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 22, 2010
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
Opinion filed: July 22, 2010
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OPINION
___________
PER CURIAM
Luz Velasquez-Garzon, a citizen of Colombia, entered the United States illegally
in July 2007, and was placed in removal proceedings. An Immigration Judge (“IJ”)
concluded that she was removable for entering without a valid entry document. See
Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I) [8 U.S.C.
§ 1182(a)(7)(i)(I)]. Velasquez-Garzon applied for asylum, withholding of removal, and
for protection under the Convention Against Torture (“CAT”), alleging that she is afraid
to return to Colombia because she was threatened by individuals who are associated with
the Revolutionary Armed Forces in Colombia (“FARC”), a known terrorist group.
According to Velasquez-Garzon, around March 2007, she borrowed a significant
sum of money from an organization known as “Gota Gota.” Soon after, she came to learn
that “Gota Gota” was associated with the FARC. Her fears were confirmed when four
male members of the organization came to her house and requested payment in April
2007; when Velasquez-Garzon could not provide the money, they informed her that she
had one week to pay. The same four men returned a week later, and she did not have the
money. The men became violent and aggressive, struck her with a gun, ripped her
clothes, used abusive language, and threatened to kill her. Velasquez-Garzon also
testified that she was harassed by phone and that she believed the threats because a girl in
the neighborhood was killed around the same time. Velasquez-Garzon moved to a new
home approximately two hours away, where she stayed for several months before
traveling to the United States. She believes that if she returns to Colombia, she will be
kidnapped or killed by members of “Gota Gota” or FARC because they want repayment
of the loan.
The IJ found that Velasquez-Garzon was credible, but determined that she was not
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entitled to asylum or withholding of removal because her fears stemmed from a personal
matter without any nexus to her race, religion, nationality, membership in a particular
social group, or political opinion. The IJ also denied relief under the CAT, holding that
Velasquez-Garzon failed to demonstrate that she would be tortured by a public official
upon return. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision,
concluding that while Velasquez-Garzon’s fear of harm was certainly understandable, it
was an insufficient basis for asylum and withholding removal. The Board also agreed
that Velasquez-Garzon had not established that it was more likely than not that she would
be subject to torture “by or at the instigation of or with the acquiescence of a public
official or person acting in an official capacity.” Finally, the Board concluded that the
new evidence Velasquez-Garzon offered on appeal could not be considered. Velasquez-
Garzon filed a timely petition for review.1
“[W]hen the BIA both adopts the findings of the IJ and discusses some of the
bases for the IJ’s decision, we have authority to review the decisions of both the IJ and
the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Our review of these
decisions is for substantial evidence, considering whether they are “supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir. 2009) (en banc) (internal citation
1
Velasquez-Garzon has waived her claim for CAT relief by failing to pursue it in her
brief to this Court. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005).
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omitted). An applicant for asylum has the burden of establishing that she is unable or
unwilling to return to her home country “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.” INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A)]; see 8
C.F.R. 208.13; Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). “[A] key task for
any asylum applicant is to show a sufficient ‘nexus’ between persecution and one of the
listed protected grounds.” Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir. 2009).
The record in this case establishes that the FARC, or a group affiliated with the
FARC, assaulted and threatened Velasquez-Garzon because she did not repay money that
the organization had lent to her. Velasquez-Garzon alleges that “this is no ‘purely
personal matter’” because “[e]verything the FARC does is politically connected and has a
political goal.” Pet’r’s Br., 7. Notably, however, “[p]ersecution on account of . . .
political opinion . . . is persecution on account of the victim’s political opinion, not the
persecutor’s.” INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992) (internal quotations
omitted). Velasquez-Garzon testified that she was not a member of a political group, and
there is no indication in the record that the FARC imputed a political opinion to her. See
Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004) (per curiam) (holding that
refusal to pay extortion money to the FARC did not constitute persecution on account of
actual or imputed political opinion).
We also reject Velasquez-Garzon’s contention that she is a member of a particular
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social group made up of FARC victims. See Pet’r’s Br., 6. We have held that
“membership in a ‘particular social group’ can be attributed to either: (1) those who
possess immutable characteristics such as race, gender or a prior position, status or
condition; or (2) those who possess a characteristic that is capable of being changed but is
of such fundamental importance that individuals should not be required to modify it, e.g.,
religion.” Escobar v. Gonzales, 417 F.3d 363, 367 (3d Cir. 2005). “[T]he persecution
cannot be what defines the contours of the group.” Id.; see also Lukwago v. Ashcroft,
329 F.3d 157, 172 (3d Cir. 2003) (holding “that the ‘particular social group’ must exist
independently of the persecution suffered by the applicant for asylum.”). Velasquez-
Garzon also asserts that she was targeted “as a person who would be able to provide some
service to the FARC.” Pet’r’s Br., 8. The characteristics of such a group, however, are
“far too vague and all encompassing to . . . set the perimeters for a protected group.” 2
Escobar, 417 F.3d at 368; cf. Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 345 (3d Cir.
2008) (recognizing social group defined as “women who have escaped involuntary
servitude after being abducted and confined by the FARC”).
In sum, we conclude that the BIA’s decision to deny Velasquez-Garzon’s
applications for asylum and withholding of removal rests upon substantial evidence. We
2
Velasquez-Garzon claims that the IJ should have “looked more closely at the
Department of State’s Human Rights Practices Report” and faults the BIA for refusing to
consider new evidence on appeal. That material, however, does not bear on whether she
has established that she was persecuted on account of a protected ground.
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will therefore deny the petition for review.
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