[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 6, 2007
No. 06-11985 THOMAS K. KAHN
________________________ CLERK
BIA Nos. A79-513-473 & A79-513-504
JHONYER FRANCISCO MARIN MEJIA,
MARIA EUGENIA MARTINEZ CAMARGO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 6, 2007)
Before BARKETT and KRAVITCH, Circuit Judges, and TRAGER,* District
Judge.
*
Honorable David G. Trager, United States District Judge for the Eastern District of
New York, sitting by designation.
BARKETT, Circuit Judge:
Jhonyer Francisco Marin Mejia (“Mejia”) and his wife, Maria Eugenia
Martinez Camargo (“Camargo”), through counsel, seek review of the Board of
Immigration Appeal*s (“BIA”) decision affirming the Immigration Judge*s (“IJ”)
order denying their application for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”).1 On appeal, the petitioners argue that
the BIA erred by finding that they (1) failed to demonstrate past persecution or a
well-founded fear of future persecution; and (2) failed to demonstrate that any
persecution they suffered was on account of a protected ground. They claim to
have demonstrated past persecution by the Revolutionary Armed Forces of
Colombia (“FARC”) on account of Mejia*s support for the Liberal Party.
BACKGROUND
Mejia joined the Liberal Party in 1995, and soon became active in a variety
of Party activities.2 He assisted a Party-sponsored literacy campaign in 1997,
supported the Party’s 1998 presidential campaign, attended “peace walks,” and
prepared political pamphlets. Mejia was especially active as a member of
1
Although the IJ also denied their request for relief under the Convention Against
Torture (“CAT”), the petitioners do not challenge that denial on appeal. We therefore deem it to
be abandoned. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1283 n.12 (11th Cir. 2001).
2
Because the IJ made no adverse credibility finding, we take Mejia’s testimony as true.
2
“Commune 20,” a Party-associated youth group in the petitioners’ hometown of
Cali. With Commune 20, Mejia organized youth soccer and basketball games, and
also encouraged young people to participate in programs that provided sex
education and attempted to implement policies against the use of drugs and
weapons. Mejia stated that these were among the ideals of the Liberal Party.
Commune 20 met weekly, and put on larger events approximately twice per year.
Mejia testified that his activities caught the attention of the FARC—the
most powerful guerrilla group in Colombia3—which opposed the Liberal Party.
Mejia further contends that the FARC persecuted him on account of his support
and participation in Party activities, beginning in 1999 and continuing through
February 2001. The first incident occurred on October 15, 1999, when Mejia
found graffiti at his wife’s farm which alluded to the FARC’s presence in the area,
and referenced him specifically. Thinking that the graffiti was the work of FARC
3
The FARC emerged in the 1960s as the radicalized leftist by-product of a ten-year de
facto civil war between Liberals and Conservatives in Colombia known as La Violencia. Jose E.
Arvelo, Note, International Law and Conflict Resolution in Colombia: Balancing Peace and
Justice in the Paramilitary Demobilization Process, 37 Geo. J. Int’l L. 411, 415-17 (2006). The
FARC claims to “represent the rural poor against Colombia’s wealthy classes and oppose
American influence in Colombia (particularly Plan Colombia), the privatization of natural
resources, multinational corporations and rightest violence.” Council on Foreign Relations,
FARC, ELN, AUC (Colombia, rebels) (Nov. 2005),
http://www.cfr.org/publication/9272/farc_eln_auc_colombia_rebels.html?breadcrumb=%2Fregio
n%2F246%2Fcolombia. In order to advance this political philosophy, the FARC has struggled to
seize power from, and in some areas effectively replace, the Colombian government. William D.
Shingleton, Understanding Colombia, 25 Fletcher F. World Aff. 255, 260 (2001).
3
guerrillas who were simply passing through the area, Mejia and Camargo did not
report the incident to the police. Then, on October 7, 2000, during a youth soccer
game associated with the Liberal Party, two unidentified individuals threw a large
rock at Mejia and then quickly fled the scene. When Mejia returned home,
Camargo informed him that she had received a threatening phone call from the
FARC instructing Mejia to stop all contact with the community and to suspend his
political activities.
The attacks escalated. On November 27, 2000, three armed men identifying
themselves as members of the FARC stopped Mejia and Camargo’s car on a
roadway outside of Cali. One of the men came to Camargo’s side of the vehicle,
while another approached on Mejia’s side. The men forced Mejia to exit the
vehicle. One of them put a gun to Mejia’s head, told him that he knew where
Mejia and his family lived, accused him of being a traitor, and asked him whether
“the call was enough.” The men told Mejia that he should go far away, and that he
was to stop “doing what [he] was involved in” and “had to stop all contact that
[he] was having with the community.” They then threw Mejia down and hit him in
the face with the butt of a rifle, breaking his nose. As he lay on the ground, the
men hurled insults at him before departing. Mejia went to the hospital for surgery
on his nose. He reported the incident to the police on November 29, 2000.
4
Finally, on February 3, 2001, Mejia received a “condolence” letter which
specifically named him and referenced his “sure death.” Mejia also reported this
incident to the police, who told him that they could not offer him security. He then
made plans to travel to the United States.4 After he left, his mother continued to
receive threatening phone calls saying that the FARC was looking for Mejia and
that it would find him.
On or about March 15, 2001, Mejia and Camargo were admitted to the
United States as nonimmigrant visitors for business, with authorization to remain
until September 14, 2001. On January 22, 2002, Mejia filed an application for
asylum on behalf of his wife and himself, withholding of removal, and relief under
the CAT. In February 2002, the Immigration and Naturalization Service (“INS”)
served the petitioners with notices to appear, charging them with removability
under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for remaining in the United
States for a time longer than permitted.
Following a hearing on Mejia’s claims, the IJ found that “for the most part”
Mejia’s testimony was consistent with his application, and made no adverse
credibility finding. The IJ concluded, however, that Mejia’s “limited political and
community activism” did not amount to past persecution or a reasonable fear of
4
Mejia had apparently planned to travel to the United States in December 2000, but
delayed his trip due to “some difficulties.”
5
future persecution, and denied Mejia’s application for asylum and withholding of
removal. On appeal, the BIA affirmed in a separate opinion.
We “review[] only the decision of the BIA, except to the extent that it
expressly adopts the IJ’s opinion.” Nreka v. U.S. Att’y Gen., 408 F.3d 1361, 1368
(11th Cir. 2005) (internal quotations and citation omitted). To the extent that the
BIA or IJ’s decision was based on a legal determination, we review de novo. Id.
We review the IJ and BIA’s factual determinations under the substantial evidence
test, and we will “affirm the [IJ’s] decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Forgue
v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (alteration in original)
(internal quotations and citations omitted).
DISCUSSION
An alien who arrives in, or is present in, the United States may apply for
asylum. INA § 209 (a)(1), 8 U.S.C. § 1158(a)(1). Under the INA, the Attorney
General or Secretary of Homeland Security may grant asylum if the alien meets the
statutory definition of “refugee.” See 8 U.S.C. § 1158(b)(1)(A). The definition of
refugee includes:
any person who is outside any country of such person’s nationality . .
. and 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 persecution or a well-founded fear of persecution on
6
account of race, religion, nationality, membership in a particular
social group, or political opinion.
Id. § 1101(a)(42)(A). The asylum applicant has the burden of proving the
“refugee” status that entitles him or her to be considered for asylum. Al Najjar,
257 F.3d at 1284; 8 C.F.R. § 208.13(a). In order to carry this burden, the applicant
must, with specific and credible evidence, establish (1) past persecution on
account of a statutorily protected ground or (2) a well-founded fear of future
persecution on account of a protected ground. 8 C.F.R. § 208.13(b); Al Najjar,
257 F.3d at 1287.
To establish a well-founded fear of persecution, the applicant need only
show that “[t]here is a reasonable possibility of suffering such persecution if he or
she were to return to that country.” 8 C.F.R. § 208.13(b)(2)(i)(B) (emphasis
added); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 450 (1987) (“Congress
did not intend to restrict eligibility for [asylum] to those who could prove that it is
more likely than not that they will be persecuted if deported.”). An applicant who
has demonstrated past persecution is presumed to have a well-founded fear of
future persecution. 8 C.F.R. § 208.13(b)(1). That presumption can be rebutted if
the IJ finds that there has been a “fundamental change in circumstances” such that
the fear is no longer well-founded, or that the applicant can safely relocate within
7
the country of nationality. Id.5 Although the INA itself does not define
“persecution,” we have recognized that proving persecution requires “more than a
few isolated incidents of verbal harassment or intimidation . . . .” Gonzalez v.
Reno, 212 F.3d 1338, 1355 (11th Cir. 2000) (citation omitted).
We begin by noting that, as the government conceded at oral argument, the
IJ in this case made no adverse credibility finding. We require IJs to make “clean
determinations of credibility.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201
(11th Cir. 2005) (internal citation omitted); see also id. (“Though the IJ made a
reference to Yang’s claims as a ‘ridiculous fabrication’ and stated that her
testimony was ‘extremely inconsistent and [made] absolutely no sense
whatsoever,’ we are not persuaded that this was an explicit finding that Yang’s
testimony was not credible.”). As we noted in Forgue, IJs must also provide
“specific, cogent reasons for an adverse credibility finding.” 401 F.3d at1287. The
IJ did not do so here, and thus we accept Mejia’s testimony as credible.6
The question before us, then, is whether, as a matter of law, what Mejia
endured constitutes past persecution, and we find that it does. Mejia received
5
Because the BIA in this case found that Mejia had not shown persecution or a well-
founded fear of persecution, it did not reach “the issue of whether the respondent could safely
reside elsewhere in Colombia.”
6
We note also that Mejia corroborated his testimony by submitting police reports and a
hospital report, although neither document was authenticated.
8
threats and attempted attacks over an 18 month period, which culminated when he
and Camargo were stopped on a roadway by three armed members of the FARC,
who threatened Mejia at gunpoint, threw him to the ground, and smashed him in
the face with the butt of a rifle, breaking his nose. Prior to that, a large rock was
thrown at him during a Liberal Party-sponsored soccer game, and Camargo
received a threatening telephone call from the FARC immediately after the attack
at the soccer game.7 These direct attacks were accompanied by threats, including
FARC graffiti at Camargo’s farm which specifically named Mejia, a subsequent
condolence letter that referenced his sure death, and threatening phone calls his
mother received after he left Colombia.
While a “few isolated incidents of verbal harassment or intimidation” do not
demonstrate past persecution, Gonzalez, 212 F.3d at 1355 (citation omitted), the
threats and attacks the petitioners suffered were neither “isolated” nor simply
“harassment.” Mejia was physically attacked twice: once when a large rock was
thrown at him and once when members of the FARC pointed a gun at his head and
then broke his nose with the butt of a rifle. Given these physical assaults, the
7
Our recent decision in Jimenez v. U.S. Att’y Gen. makes clear that an attack can be
“physical” and constitute a form of persecution even if the intended target of the attack is not
actually struck by the attacker’s projectile. Jimenez,492 F.3d 1223, 1233-34 (11th Cir. 2007)
(holding that petitioner “suffered past persecution when two FARC members on motorcycles
followed him and intentionally shot at him in his moving car” even though the shooters missed;
and that the IJ erred by focusing on whether petitioner was “physically harmed”).
9
verbal threats Mejia and his wife received cannot be considered “isolated.” In
assessing past persecution we are required to consider the cumulative impact of
the mistreatment the petitioners suffered. Ruiz v. Gonzales, __ F.3d __, 2007 U.S.
App. LEXIS 3699, at *11 (11th Cir. Feb. 20, 2007). Considering the cumulative
effects of the escalating threats and attacks, we conclude that Mejia suffered past
persecution. Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861-62 (11th Cir. 2007).
The IJ in this case made no finding regarding the second prong of the
persecution question—whether the mistreatment Mejia suffered was “on account
of” his political opinion. Because neither the IJ nor the BIA reached this issue, we
remand for a determination in the first instance. See Lopez v. U.S. Att’y Gen., 490
F.3d 1312, 1316 (11th Cir. 2007).
Accordingly, the BIA’s decision is VACATED and REMANDED for
further proceedings consistent herewith.
10