[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 22 2007
No. 06-13968 THOMAS K. KAHN
________________________ CLERK
Agency No. A95-255-313
CARLOS AUGUSTO ALZATE-ZULETA,
FRANCY TRUJILLO,
JULIAN DAVID ALZATE,
CARLOS AUGUSTO ALZATE-TRUJILLO,
NATALIA ALZATE,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 22, 2007)
Before BIRCH and FAY, Circuit Judges, and DUFFEY,* District Judge.
*
Honorable William S. Duffey, Jr., United States District Judge for the Northern District
of Georgia, sitting by designation.
PER CURIAM:
Petitioner Carlos Augusto Alzate1 seeks review of the decision of the Board
of Immigration Appeals (“BIA”) affirming the Immigration Judge (“IJ”)’s order
denying his application for asylum, withholding of removal, and relief under the
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (“CAT”). Alzate alleges that he was
persecuted in his home country of Colombia on account of his membership in
Colombia’s Conservative Party. Because we find that Alzate has successfully
demonstrated past persecution on account of a political opinion, we GRANT his
petition for review, VACATE the decision of the IJ, as affirmed by the BIA, and
REMAND for a determination of whether the government adduced sufficient
evidence to establish, by a preponderance of the evidence, (1) that Alzate could
avoid future persecution by relocating within Colombia, and (2) that, under all the
circumstances, it would be reasonable for him to do so. See 8 C.F.R. §
208.13(b)(1)(i)(B).
I. BACKGROUND
Alzate is a Colombian citizen and active in that country’s Conservative
Party. He came to the United States in 2001, and timely filed an application for
1
Alzate’s petition is derivative on behalf of his wife, Francy Trujillo, and his minor
children, Julian David Alzate, Carlos Augusto Alzate, Jr., and Natalia Alzate. For convenience,
this opinion refers to the petitioners collectively as “Alzate” or “Petitioner.”
2
asylum, withholding of removal, and relief under the CAT. At a merits hearing in
April 2005, Alzate testified as to the basis of his claims for relief.
Alzate stated that while he was growing up, his “entire family” was active in
the Conservative Party, and that he had personally been active in the party since his
childhood. After finishing high school in 1976, he obtained his first job through
his involvement with the Conservative Party, and in 1984 he took a job in the
government, which he “support[ed]” by “perform[ing] political activities.” AR at
84-85. He later took another public-sector job that involved supervising “garbage
collection, the cleaning of the streets, [and] the maintenance of vegetation in the
city of Cali.” Id. at 86. He testified that this was a political job connected to the
Conservative Party. Alzate stated that in addition to his duties as a supervisor of
maintenance work, he also worked with youth through sports, social events, and
political activities, as a way to involve them in their communities and prevent them
from becoming involved in “subversive groups.” Id. at 89.
In 2000, Alzate began to receive threatening calls at his home from people
who identified themselves as members of the guerrilla group known as the FARC.
He testified that his telephone number was publicly listed, and he could not delist it
due to the requirements of his government job. He recounted that the callers
“[t]hreatened” him, and instructed him “to leave the area . . . to stay away from the
youth . . . to get out of there, because [he] was a son of a bitch,” and stated that if
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he did not do so, “they were going to harm [him] and [his] family.” Id. at 91.
When the calls began, they occurred two to three times a week, but over time, the
frequency of the calls increased. Alzate testified that the caller were pressuring
him “to stay away from the area because [he] was working for democratic ideals”
and because he “was working for one of the traditional parties of Colombia, the
Conservative.” Id. at 92. In addition to the telephone calls, Alzate’s neighbors told
him that “strange and unknown individuals” had been asking about Alzate and his
family, and specifically inquiring as to when Alzate and his family typically came
and went from the house. Id. at 92-93.
On 16 February 2001, Alzate was riding his motorcycle with his wife, when
they were approached by two people wearing face masks and riding a black
motorcycle. The individuals on the black motorcycle fired two gunshots at Alzate
and his wife, who then dropped their motorcycle and ran into an alley asking for
help. The assailants disappeared into traffic. Alzate used a portable radio to call a
colleague, who then called the police. The police came to investigate, but did not
find the assailants. Alzate did not file a formal police report, because he believed
that doing so would increase his chances of being killed, due to infiltration of the
police department by the FARC.
After the shooting incident, the threatening calls to Alzate’s home increased.
The callers identified themselves as FARC members, and at least one such call
4
explicitly referred to the shooting incident, telling Alzate that “next time [he is] not
going to survive another attack,” and that if he “didn’t leave the area or district
fast, they were going to kill [him] and [his] family.” Id. at 96.
As a result of the shooting incident and the constant death threats, Alzate
decided to leave his government job, and formed a private garbage collection
company that contracted with the municipality. He believed that by leaving the
public sector, he was no longer going to be “exposed to the constant danger . . . on
the streets.” Id. at 97. Despite his move to the private sector, however, “the calls
continue[d] and the situation worsen[ed].” Id. Finally, as a result of the shooting
and the constant threats from the FARC, Alzate decided to move his family to the
United States.
After the hearing, the IJ delivered his opinion. He began by finding that
Alzate’s testimony was credible and consistent with his asylum application.
Despite this finding, however, the IJ stated that Alzate had not established
eligibility for asylum. The IJ relied primarily on two grounds: first, the IJ
observed that the events in question “happened almost five years ago.” Id. at 53.
Second, the IJ stated that Alzate had not proven that he was unable to avoid
persecution by relocating within Colombia. The IJ then reasoned that, because
Alzate did not qualify for asylum, he could not meet the higher threshold
applicable to claims for withholding of removal. Finally, the IJ stated that Alzate
5
had not been subjected to torture and therefore could not receive relief under the
CAT. The BIA summarily affirmed the IJ’s decision.
II. DISCUSSION
When, as here, the BIA summarily affirms the IJ’s decision without issuing
a separate opinion, “the IJ’s decision becomes the final removal order,” and “[w]e
review the IJ’s decision as if it were the [BIA]’s.” Alim v. Gonzales, 446 F.3d
1239, 1254 (11th Cir. 2006) (internal citations and quotations omitted). “[W]e
must affirm the IJ’s decision if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1230 (11th Cir. 2005) (per curiam) (citation, quotation, and
alteration omitted). This standard of review is highly deferential, and we will
reverse the IJ’s decision only if the evidence compels us to do so. Id.
An alien who arrives in, or is present in, the United States may apply for
asylum, which the Attorney General has discretion to grant if the alien is a
“refugee” as that term is defined in the Immigration and Nationality Act (“INA”).
Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (per curiam) (citing
INA § 208(a)(1), (b)(1), 8 U.S.C. § 1158(a)(1), (b)(1)). A “refugee” is defined, in
pertinent part, as:
any person who is outside any country of such person’s nationality . . .
who is unable or unwilling to return to, and is unable or unwilling to
avail himself or herself of the protection of, that country because of
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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). An asylum applicant “may
qualify as a refugee either because he or she has suffered past persecution or
because he or she has a well-founded fear of future persecution.” 8 C.F.R. §
208.13(b). By demonstrating past persecution based on a protected ground, an
applicant creates a rebuttable presumption that he or she has a well-founded fear of
future persecution. Id., § 208.13(b)(1). The government may rebut that
presumption by showing, by a preponderance of the evidence, that “[t]he applicant
could avoid future persecution by relocating to another part of the applicant’s
country of nationality . . . and, under all the circumstances, it would be reasonable
to expect the applicant to do so.” Id., § 208.13(b)(1)(i)(B), (b)(1)(ii).2
We have held that “persecution is an extreme concept, requiring more than a
few isolated incidents of verbal harassment or intimidation.” Sepulveda, 401 F.3d
at 1231 (internal quotation omitted). “In determining whether an alien has suffered
past persecution, the IJ must consider the cumulative effects of the incidents,”
2
The government may also rebut the presumption by showing that “[t]here has been a
fundamental change in circumstances such that the applicant no longer has a well-founded fear
of persecution in the applicant’s country of nationality.” 8 C.F.R. § 208.13(b)(1)(i)(A). Here,
however, the government has not sought to prove a fundamental change in circumstances, and on
appeal the government raises only the issue of Alzate’s ability to relocate. Accordingly, we do
not address whether a “fundamental change in circumstances” has occurred in Colombia.
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rather than viewing each incident in isolation. Delgado v. U.S. Att’y Gen., __ F.3d
__, No. 05-16419, slip op. at 8 (11th Cir. May 25, 2007) (citing Ruiz v. U.S. Att’y
Gen., 479 F.3d 762, 766 (11th Cir. 2007)).
The IJ erred in not finding that Alzate was subject to past persecution on
account of his political opinion. Though persecution requires “more than a few
isolated incidents of verbal harassment or intimidation,” Sepulveda, 401 F.3d at
1231 (internal quotation omitted), the record in this case compels a finding of past
persecution. Rather than “a few isolated incidents” of harassment, Alzate received
repeated death threats from self-identified members of the FARC, and the threats
occurred with increasing frequency until Alzate finally fled Colombia with his
family. In addition to the verbal threats, Alzate’s neighbors informed him that
unknown individuals were asking about Alzate’s and his family’s habits with
respect to coming and going from their home. The threats culminated in the
attempted murder of Alzate and his wife in the streets of Cali by gunmen later
identified as FARC members. After the shooting Alzate continued to receive
increasingly frequent death threats from callers who identified themselves as
FARC members, including calls referring to the attempted murder of Alzate and
his wife, and stating that he would not survive another attack. The threats
continued until Alzate brought his family to the United States. These events,
including unrelenting death threats from the FARC, suspicious individuals asking
8
about Alzate’s family’s habits, and the attempted shooting of Alzate and his wife
by the FARC, cumulatively amount to past persecution. See Ruiz, 479 F.3d at 766;
Delgado, __ F.3d __, No. 05-16419, slip op. at 9. The IJ’s finding to the contrary
is not supported by substantial evidence.
Moreover, Alzate’s persecution was on account of his political activities, a
statutorily protected ground. Alzate was a lifelong member of, and active in, the
Conservative Party. He worked with youth in Cali, attempting to prevent them
from becoming involved in “subversive groups.” AR at 89. The FARC expressly
referred to this work in its threats. The FARC’s overt reference to Alzate’s
political activities compel us to find that the FARC’s persecution of Alzate was on
account of those activities, see Delgado, __ F.3d __, No. 05-16419, slip op. at 3-4,
8-9 (record compelled finding that persecution was on account of political opinion
where references to petitioner’s political activities preceded attacks), and at oral
argument the government candidly acknowledged that the events at issue occurred
on account of Alzate’s political opinion. Accordingly, we are compelled to find
that Alzate established past persecution on account of his political opinion, and the
IJ erred in finding otherwise.
The IJ’s determination that Alzate could not qualify for asylum because the
events in question occurred “almost five years ago” is also erroneous. It is
undisputed that the FARC’s persecution of Alzate and his family continued
9
unabated until they left Colombia for the United States. It is also undisputed that,
upon reaching the United States, Alzate filed a timely application for relief.
During the five years at issue, Alzate was actively pursuing his timely filed asylum
application in the instant proceeding. Nonetheless, the IJ premised his denial of
asylum, in part, on the fact that several years had passed between the time Alzate
initiated the process of seeking asylum and the time a merits hearing was held.
The IJ identified no authority for the proposition that relief may be denied
on account of the time that passed while an alien actively pursued relief, and
denying relief on that basis was improper. An alien is not ineligible for asylum
merely because of the time that passed between the filing of an asylum application
and the date of a merits hearing, and we have routinely found petitioners eligible
for relief on the basis of events that occurred many years earlier. See, e.g., id., No.
05-16419, slip op. at 3-4 (finding petitioner eligible for withholding of removal on
the basis of events that occurred nine years prior to our decision); Niftaliev v. U.S.
Att’y Gen., __ F.3d __, No. 06-12708, slip op. at 1-2 (11th Cir. May 25, 2007)
(finding past persecution for purposes of asylum eligibility on basis of events that
occurred more than a decade prior to our decision); Ruiz, 479 F.3d at 763-64
(finding petitioner eligible for withholding of removal on basis of events that
occurred six years prior to our decision).
The IJ also improperly placed the burden on Alzate to show that he could
10
not avoid persecution by relocating within Colombia, citing a lack of evidence on
the issue as a basis for denying Alzate’s application. Because Alzate established
past persecution on account of a protected ground, however, the burden is on the
government to show both the feasibility and reasonableness of internal relocation.
See 8 C.F.R. § 208.13(b)(1)(ii). Thus, a lack of evidence on the issue does not
render Alzate ineligible for relief. Only if the government adduced sufficient
affirmative evidence at the asylum hearing to show, by a preponderance of the
evidence, both that Alzate could avoid future persecution by relocating within
Colombia, and that, “under all circumstances, it would be reasonable to expect
[him] to do so,” is Alzate’s presumption of a well-founded fear of future
persecution rebutted. See id., § 208.13(b)(1)(i)(B).
III. CONCLUSION
The record here compels a finding that Alzate suffered past persecution on
account of his political opinion. Because the IJ erroneously found that Alzate did
not suffer past persecution on account of a protected ground, the IJ did not reach
the question of whether the government proved by a preponderance of the evidence
that Alzate could avoid future persecution by relocating, and that such relocation
would be reasonable under all of the circumstances. We therefore GRANT
Alzate’s petition, VACATE the decision of the IJ, and REMAND for a
determination as to whether the government carried this burden.
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