United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 18, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-60352
_____________________
HENRY AUGUSTO TAMARA-GOMEZ,
Petitioner,
versus
ALBERTO R. GONZALES, U. S. ATTORNEY GENERAL,
Respondent.
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________________________________________________
Before REAVLEY, JOLLY, and DeMOSS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Henry Tamara-Gomez, a native and citizen of Colombia, brings
this petition for review of an order of the Board of Immigration
Appeals (BIA) affirming, without opinion, the decision of the
Immigration Judge (IJ) denying his application for asylum,
withholding of removal, and protection under the Convention Against
Torture. In this appeal, arising out of the drug wars of Colombia,
we decide that although the petitioner satisfies the requirement of
persecution by the insurrectionist terrorists, his claim for asylum
and withholding of removal cannot succeed because he has failed to
establish a nexus between that persecution and a statutory ground
for relief. Further, the petitioner’s claim for relief under the
Convention Against Torture likewise fails as there has been
insufficient state action as required to demonstrate torture under
the Convention. Consequently, we DENY the petition for review.
I
Henry Tamara-Gomez served in the Colombian Air Force,
providing mechanical support for helicopters. After leaving the
Air Force, Tamara-Gomez was employed as a helicopter mechanic by
DynCorp Aerospace as a part of a program of United States
assistance to Colombian law enforcement in Bogota, Colombia. As a
part of his duties, Tamara-Gomez provided mechanical support for
helicopters operated by the Colombian National Police (CNP) in
their various law enforcement activities. Tamara-Gomez was
occasionally required to ride with the CNP on helicopter missions
to perform repairs. Although a civilian, Tamara-Gomez was required
to wear a CNP uniform during these trips.
In July 2001, Tamara-Gomez accompanied the CNP on a helicopter
mission into a remote village to recover the bodies of five CNP
officers killed by the Colombian narco-terrorist guerrilla group
Fuerzas Armadas Revolucionarias de Colombia (the Revolutionary
Armed Forces of Columbia) known as FARC.1 After landing in the
village Tamara-Gomez noticed three men suspiciously filming the
CNP crew with two cameras. Tamara-Gomez alerted the CNP who were
able to capture one of the men, a FARC member. The prisoner turned
1
As corroboration, Tamara-Gomez submitted a report of the
Colombian Air Force noting the “guerrilla attack” and detailing the
deaths of the five members of the CNP.
2
to Tamara-Gomez and shouted, “We know who you are,” and, “You will
suffer retaliation.” The other men, presumably FARC members,
disappeared into the jungle.
Approximately one month after the July 2001 incident Tamara-
Gomez began to receive threatening calls, specifically mentioning
the jungle mission. These calls were received on Tamara-Gomez’s
personal cell phone. In time, the actors located Tamara-Gomez,
identified his family, and began calling the Tamara-Gomez home
threatening both Tamara-Gomez and his family. Fearing for his life
and the lives of his family members, Tamara-Gomez sought police
protection from the CNP, but was informed that the CNP lacked the
resources to provide individual security to families. Tamara-
Gomez moved his family to another house. However, within weeks the
threats of harm resumed. This time, in addition to threatening
calls, Mrs. Tamara-Gomez received demands for money, death threats
to her husband, and threats to kidnap her two sons and train them
to fight for FARC. The actors identified themselves as FARC
members. Tamara-Gomez removed his sons from school and kept them
inside his home as much as possible.
In January 2002, a bicycle bomb exploded in the Tamara-Gomez’s
new neighborhood, killing five (none of the victims were members of
Tamara-Gomez’s family). After this incident which Tamara-Gomez
felt was aimed at his family, Tamara-Gomez sent his wife and
children to Miami, Florida on visas obtained prior to the FARC
threats. Although he visited his family once in the United States,
3
Tamara-Gomez remained in Colombia to work and lived on a military
base for protection. Although unhappy with the separation, Tamara-
Gomez testified that housing on the military base was not available
for his entire family.
Although the record is not clear on the exact dates, at some
point between the time his family went to the United States in
March 2002 and late summer 2002, Tamara-Gomez learned that FARC had
tracked down and murdered other participants (or the family members
of participants) in the June 2001 CNP body-retrieval mission.
Believing his life to be in danger, Tamara-Gomez entered the United
States on a visitor’s visa on July 24, 2002. A few weeks after his
departure, a vandal broke into the Tamara-Gomez home and spray
painted the words “Sapa Regaldo” (which translated means “Two-Bit
Snitch”) and the letters “FARC.”
In addition to evidence of the acts aimed directly at him,
Tamara-Gomez introduced nearly 500 pages of official reports
detailing the brutality of FARC in Colombia.2 Specifically, the
reports speak of FARC’s brutality, vandalism, and “continued
2
These reports include: the report of the United Nations
Human Rights Counsel entitled “International protection
considerations regarding Colombian asylum seekers and refugees”; a
report of the U.S. Bureau of Democracy, Human Rights and Labor,
entitled “Country Reports on Human Rights Practices: Colombia”; the
2001 and 2002 reports of the U.S. State Department on Colombia; the
2001 and 2002 reports of Amnesty International relating to
Colombia; the Human Rights Watch World Report for several years; an
official report of the U.S. Senate Foreign Relations Committee
entitled “Colombia: Terror from all sides”; and the reports of
various other periodicals including The New Yorker magazine and the
Dallas Morning News.
4
practices of killing, attacking, and threatening off-duty police
and military personnel, their families, and those who cooperate
with them.” The State Department reports identify a campaign FARC
refers to as “Plan Pistola,” which the State Department classifies
as a “deliberate strategy” to kidnap, torture, and kill soldiers,
police, and their families. The evidence outlines FARC’s use of
wiretapping, monitoring bank accounts, and surveillance of specific
individuals to identify and target persons cooperating with the
police or military. Specific instances of violence including the
use of gas explosives in cars, bikes, and canisters appear
throughout these reports.
In addition to these acts of violence, the evidence in the
record continually speaks of FARC’s “forcible recruiting” of
children as young as twelve years old into their guerilla forces.
Once captured or “recruited” these children become essentially the
slaves of their commanders, and are subject to extreme physical and
sexual abuse. The State Department report for 2002 mentions that
in one year alone it was estimated that FARC kidnaped or “forcibly
recruited” as many as 120 minors into their ranks. The report goes
on to note that many families have reported having to move
repeatedly, withdraw their children from school, and/or leave their
community in order to flee FARC attempts to take their children.
These and other details provided in the reports in the record
corroborate the incidents reported by Tamara-Gomez and his family
and paint a grim picture of the situation in Colombia.
5
Additionally the reports mention exactly what Tamara-Gomez and his
family experienced -- “inadequate government action and resources
to combat paramilitary activity and provide security.”
Although his visa expired, Tamara-Gomez remained in the United
States, and in June 2003 he applied for asylum. On August 1, 2003,
Tamara-Gomez was charged with overstaying his visa and ordered to
appear. Tamara-Gomez sought relief through the three primary
avenues of relief available: 1) asylum under 8 U.S.C. § 1158(b);
2) withholding of removal under 8 U.S.C. § 1231(b)(3); and 3) the
United Nations Convention Against Torture,3 which prevents removal
to a country where the alien would face torture. The IJ denied all
relief and the BIA affirmed without opinion. We will review each
request for relief.
II
Because the BIA affirmed the IJ without opinion, we treat the
IJ’s decision as the final agency determination for purposes of
review. See Zhang v. Gonzales, 432 F.3d 339, 343 (5th Cir. 2005).
Administrative findings of fact are conclusive unless a petitioner
can show that “any reasonable adjudicator would be compelled to
conclude to the contrary.” See 8 U.S.C. § 1252(b)(4)(B). We have
held that this standard essentially codifies the substantial
3
The United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (Convention
Against Torture), Dec. 10, 1984, 1465 U.N.T.S. 85. See § 2242 of
the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L.
No. 105-277, codified at 28 U.S.C. § 1231 (1998).
6
evidence standard established by the Supreme Court in INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). See Zhang, 432 F.3d at 344.
As such “[w]e use the substantial evidence standard to review the
IJ’s factual conclusion that the alien was not eligible for asylum,
withholding of removal, and relief under the Convention Against
Torture.” Id.
A
1
Asylum is discretionary relief,4 available where 1) a person
is “unwilling to return to” their home country “because of
persecution or a well-founded fear of persecution”; and 2) the
applicant has demonstrated that “race, religion, nationality,
membership in a particular social group, or political opinion was
or will be at least one central reason for persecuting the
applicant.” See 8 U.S.C. § 1101(a)(42); and 8 U.S.C. § 1158(b).
Although finding Tamara-Gomez credible and “accepting his account”
of the facts,5 the IJ discarded all evidence of persecution.6 The
4
In support of this discretionary relief, Tamara-Gomez
submitted letters and affidavits from various community leaders,
including teachers, pastors, and friends. Each confirms that
Tamara-Gomez and his family have been model members of the
community they have become a part of in the United States.
5
The IJ’s finding that Tamara-Gomez was credible is well
supported by the evidence. In addition to documentation generally
corroborating the conditions in Colombia, Tamara-Gomez submitted
nearly 200 pages of affidavits, sworn statements, newspaper
articles, police reports, etc. detailing and confirming the
incidents specifically related to the Tamara-Gomez family.
6
Specifically, the IJ dealt with the evidence as follows:
7
IJ noted that Tamara-Gomez never claimed that he nor “any member of
his family were ever beaten, shot at, kidnaped, or otherwise
physically harmed”; and “more significantly” that Tamara-Gomez had
voluntarily returned to Colombia for “economic reasons” after
visiting his family in the United States. Consequently, the IJ
noted that Tamara-Gomez was ineligible for asylum as he had failed
to demonstrate past persecution, or a well-founded fear of future
persecution. Reviewing these findings under the substantial
evidence standard, we find that the evidence compels a finding to
the contrary.
Tamara-Gomez was recognized and confronted in the jungle by a
FARC member who threatened retaliation for Tamara-Gomez’s actions.
He, and other members of the CNP crew, were photographed by FARC
members while assisting in a CNP mission. Within a short amount of
time FARC had located Tamara-Gomez and identified his home and cell
phone numbers and the names of his wife and children. When Tamara-
Gomez relocated, FARC followed. When considered in context, the
spray-painted FARC symbols and language on the walls of Tamara-
Gomez’s new home cannot be dismissed as a “purely criminal act
First, the IJ found the “bomb incident” to be “a random act of
violence all too common in Colombia and unrelated to the respondent
or his wife.” Second, the IJ found that the “home invasion . . .
may have been a purely criminal act against a target of
opportunity.” Third, the IJ dismissed the threatening phone calls
by finding that “it was far from clear whether they were serious or
the acts of persons who enjoy terrorizing their neighbors.”
8
against a target of opportunity.”7 Each act reported by Tamara-
Gomez is corroborated by the pages of evidence outlining FARC
activity against the police and those associated with them in
Colombia. When we consider the evidence as a whole, which the IJ
apparently failed to do, we find that Tamara-Gomez has made a
compelling case of persecution. Based on the documentary evidence,
the well-supported testimony of Tamara-Gomez that was specifically
found by the IJ to be credible, the threats of violence and acts of
vandalism against Tamara-Gomez and his family by persons identified
as members of FARC, and the fact that the violent threats against
other participants of the same helicopter mission were carried out,
a “reasonable adjudicator” would be “compelled” to find that
Tamara-Gomez had been persecuted or had a “well founded fear of
future harm.”8 Consequently, the IJ’s finding to the contrary was
error.9
7
Considered in isolation the bike bomb may in fact have been
a “random act of violence.” Yet, in the light of the other
occurrences it is not unreasonable to believe that the bomb was
targeted at Tamara-Gomez and/or his family. We note the article by
the BBC included by Tamara-Gomez in the record discussing the
incident as another act of FARC “aimed at those associated with the
police.”
8
While the IJ was correct to consider the lack of actual
physical violence carried out against the person or family of
Tamara-Gomez, physical harm is not always a requirement for asylum.
See, e.g., Aguilera-Costa v. I.N.S., 914 F.2d 1375 (9th Cir. 1990)
(finding threatening notes to El Salvadorian election worker
sufficient to establish a well-founded fear of persecution).
9
After the hearing in this case, the Attorney General issued
the largest drug conspiracy indictment in the history of the United
States charging that FARC and its leadership are responsible for
9
2
However, our asylum review does not end with a determination
of persecution. The alien carries the burden to establish a nexus
between the persecution and one of the five statutory grounds for
asylum. See 8 U.S.C. § 1158(b) (race, religion, nationality,
membership in a particular social group, or political opinion). It
is on this point that Tamara-Gomez’s request for asylum fails.10
Tamara-Gomez argues that his association with the CNP has
caused FARC to attribute to him the political opinions and beliefs
of the Colombian government, or at the least to view him as a
political opponent. This claim is not supportable. As the IJ
correctly found, FARC targeted Tamara-Gomez because they viewed him
as a part of the CNP -- not as a result of any specific or personal
belief imputed to him in that role. It is clearly established that
“[d]angers faced by policemen as a result of that status alone are
not ones faced on account of race, religion, nationality,
membership in a particular social group or political opinion.”
smuggling approximately $25 billion in cocaine into the United
States and other countries. The indictment notes that FARC is
known for its brutality against the citizens and government
officials of Colombia, including brutal acts of violence such as
murder, rape, and dismemberment while the victim is alive. See,
e.g., Juan Forero, U.S. Indicts 50 Leaders of Colombian Rebels in
Cocaine Trafficking, N.Y. Times, March 23, 2006, at A7.
10
The IJ noted this deficiency, finding that even had the
persecution requirement been met by Tamara-Gomez, “it remains to be
seen whether such a fear would have a nexus to one of the five
protected grounds.”
10
Matter of Fuentes, I & N Dec. 658, 661 (BIA 1988). As the BIA has
stated:
Policemen are by their very nature public
servants who embody the authority of the
state. As policemen around the world have
found, they are often attacked either because
they are (or are viewed as) extensions of the
government’s military forces or simply because
they are highly visible embodiments of the
power of the state. In such circumstances,
the dangers the police face are no more
related to their personal characteristics or
political beliefs than are the dangers faced
by military combatants. Such dangers are the
perils arising from the nature of their
employment and domestic unrest rather than “on
account of” immutable characteristics or
beliefs within the scope of [8 U.S.C. §
1158(b)].
Id. Consequently, we conclude that the required nexus between the
persecution and a statutory ground for asylum has not been
established. Thus, the denial of asylum is supported by
substantial evidence.
The IJ denied Tamara-Gomez’s requests for withholding of
removal and relief under the Convention Against Torture on the
grounds that such relief requires a showing of persecution equal to
or greater than that required by 8 U.S.C. § 1158 for asylum.
Because the IJ’s finding as to persecution was error, we turn to
consider these alternative measures of relief.
B
Relief under 8 U.S.C. § 1231(b)(3) is discretionary, and
prohibits the removal of an alien to a country where that alien’s
life or freedom would be threatened. See 8 U.S.C. § 1231(b)(3)
11
(providing for relief by withholding removal). As outlined in the
discussion above, Tamara-Gomez may have established the fear of
future harm required for this relief. However, § 1231(b)(3)
relief, like asylum, requires the alien to establish that the
danger to life or freedom results from “the alien’s race, religion,
nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). Thus, as with asylum,
substantial evidence supports the IJ’s denial of Tamara-Gomez’s
request for withholding of removal, as association with the police
does not fall into one of the statutory grounds for withholding
removal.
C
Tamara-Gomez also seeks relief under the provisions of the
Convention Against Torture. Article III of the Convention
provides, “[n]o State Party shall expel, return (“refouler”) or
extradite a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected
to torture.” Convention Against Torture, Art. III. Significantly,
relief under the Convention Against Torture does not require a
nexus to specific statutory grounds. See e.g., Camara v. Ashcroft,
378 F.3d 361 (4th Cir. 2004) (holding that an alien need not prove
the reason for the torture to be eligible for Convention Against
Torture relief). Nor is the inability to establish asylum fatal to
the pursuit of Convention Against Torture relief. See, e.g.,
Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004) (finding the
12
Convention Against Torture inquiry to be independent of asylum
analysis); Farah v. Ashcroft 348 F.3d 361 (9th Cir. 2003) (holding
that the failure to establish eligibility for asylum does not
necessarily doom an application for Convention Against Torture
relief).
To obtain relief under the Convention Against Torture, the
alien need not demonstrate all of the elements of a persecution
claim; instead he must show a likelihood of torture upon return to
his homeland. See, e.g., Camara v. Ashcroft, 378 F.3d 361 (4th
Cir. 2004); Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003); Malhi
v. I.N.S., 336 F.3d 989 (9th Cir. 2003); Efe v. Ashcroft, 341 F.3d
348 (5th Cir. 2003) (all requiring the alien to establish that it
is “more likely than not” that he will be tortured if removed to
his native country). “Torture is defined as any act by which
severe pain or suffering . . . is intentionally inflicted on a
person . . . for any reason . . . when such pain or suffering is
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity.” 8 C.F.R. § 208.18(a)(1). Thus relief under
the Convention Against Torture requires a two part analysis --
first, is it more likely than not that the alien will be tortured
upon return to his homeland;11 and second, is there sufficient state
11
In considering whether the alien has met his burden of
proof, the IJ should consider, along with other evidence:
(i) Evidence of past torture inflicted
13
action involved in that torture. Even if Tamara-Gomez could show
that there is a likelihood of torture upon his return to Colombia,
his claim for relief must fail because the state action requirement
has not been met.
The Convention Against Torture requires “a public official” or
“person acting in a public capacity” to “inflict,” “acquiesce,” or
“give consent” to the torture. Tamara-Gomez cannot make this
showing. The Government of Colombia has not in any way inflicted,
acquiesced, or even turned a blind eye to the conduct of FARC. By
Tamara-Gomez’s own testimony, the Colombian government allowed him
to live at a military base under the protection of the Colombian
government. The Colombian government apparently is fully engaged
in opposition to FARC. We agree with other circuits that neither
the failure to apprehend the persons threatening the alien, nor the
lack of financial resources to eradicate the threat or risk of
torture constitute sufficient state action for purposes of the
Convention Against Torture. See, e.g., Reyes-Sanchez v. United
States, 369 F.3d 1239 (11th Cir. 2004) (holding that the failure of
upon the applicant;
(ii) Evidence that the applicant could
relocate to a part of the country of removal
where he or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass
violations of human rights within the country
or removal, where applicable; and
(iv) Other relevant information regarding
conditions in the country of removal.
Zhang, 432 F.3d at 345 n.4 (citing 8 C.F.R. § 208.16(c)(3)).
14
the Peruvian government to apprehend the rebels responsible for
holding an alien at gunpoint did not constitute acquiescence by the
Peruvian government to the rebel activity); Auguste v. Ridge, 395
F.3d 123 (3d Cir. 2005) (holding that where prison conditions
resulted from budgetary and management problems rather than an
intent to inflict physical or mental pain and suffering, the fact
that Haitian authorities had knowledge of suffering resulting from
horrible prison conditions did not constitute intent by the Haitian
government that such suffering take place). It is an unfortunate
circumstance that the CNP is unable to provide complete security to
Tamara-Gomez and his family. Nevertheless, the lack of such
security does not rise to the level of state action required for
relief under the Convention Against Torture. Further, the
willingness of the Colombian military to allow Tamara-Gomez to live
on base further belies an inference of acquiescence on the part of
the Colombian government. Consequently, substantial evidence
supports the IJ’s denial of Tamara-Gomez’s claim for relief under
the Convention Against Torture.
IV
This case evokes feelings of sympathy for those fighting the
drug lords and insurrectionists in Colombia. We have been made
aware of the dangers that many face in the drug wars and related
violence occurring in Colombia. As the IJ noted “the respondent
and his family are well-educated and most appealing and the court
can easily understand that they would prefer to be in the
15
relatively stable environment we enjoy here in the United States
rather than in a country where violence is a part of everyday
life.” Yet a review of the evidence and applicable law compels us
to conclude that Tamara-Gomez has not demonstrated the necessary
nexus between persecution and a statutory ground required for
asylum or withholding of removal. Further, Tamara-Gomez has not
proven state action sufficient to make him eligible for relief
under the Convention Against Torture. Accordingly, the petition
for review is
DENIED.
16
Tamara-Gomez v. Gonzales
Court: Court of Appeals for the Fifth Circuit
Date filed: 2006-04-18
Citations: 447 F.3d 343
Copy CitationsCombined Opinion