[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 3, 2006
No. 04-13049
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A77-873-874 and
A77-873-875
ANDRES ARBOLEDA,
ANA MARIA POSADA,
ANA MARIA ARBOLEDA,
PABLO ARBOLEDA,
SANTIAGO ARBOLEDA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 3, 2006)
Before TJOFLAT, DUBINA and BARKETT, Circuit Judges,
PER CURIAM
Andres Arboleda, along with his wife, Ana Maria Posada, and their children,
Ana Maria Arboleda, Pablo Arboleda, and Santiago Arboleda (“the petitioners”),
petition us for review of the Board of Immigration Appeals’s (“BIA’s”) final order,
dismissing their appeal of the Immigration Judge’s (“IJ’s”) denial of asylum and
withholding of removal under the Immigration and Nationality Act (“INA”), 18
U.S.C. § 1101-1537, and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
(“CAT”), 8 C.F.R. § 208.16(c).
The BIA found that, even assuming Arboleda’s testimony that he was
persecuted by the Revolutionary Armed Forces of Columbia (“FARC”) because of
his work with the Conservative Party was credible, and assuming that he suffered
past persecution, Arboleda failed to establish his eligibility for relief because the
documentary evidence showed that the “FARC does not function countrywide and,
therefore, it is reasonable for the petitioners to relocate internally.” BIA Order,
Administrative Record (“A.R.”) at 3. On appeal, the petitioners argue that
substantial evidence did not support the BIA’s determination that the FARC did
not function countrywide in Colombia. In support of this argument, the petitioners
rely on the 2000 State Department Country Report on Colombia, which states that:
(1) the Colombian government faces serious challenges to its control over the
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national territory; (2) the major guerrilla groups in Colombia, the FARC and
National Liberation Army (“ELN”), of which the FARC is the largest, consisted of
an estimated 11,000 to 17,000 full-time combatants; (3) the guerrilla groups
exercised a “significant degree of territorial influence and initiated armed action in
nearly 1,000 of the country’s 1,085 municipalities during the year”; and (4) the
FARC regularly attacked civilians in virtually every region of Colombia. The
petitioners point out that we are aware of the widespread presence of the FARC in
Colombia, since, in Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 n.7 (11th
Cir. 2005), we found that the evidence in the 1999 and 2000 Country Reports did
not support a finding that relocation to an area where the ELN was nonexistent or
minimal was viable.
We review only the BIA’s decision in this case, as it did not expressly adopt
the IJ’s findings below. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). We review the determination by the BIA that an alien is statutorily
ineligible for asylum or withholding of removal under the “substantial evidence
test.” Id. at 1283. We “must affirm the BIA’s decision if it is ‘supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.’” Id. at 1283-84 (quoting Lorisme v. INS, 129 F.3d 1441, 1444-45 (11th
Cir. 1997)). We may not reweigh the evidence and may not reverse the BIA’s
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findings of fact unless the record compels a contrary conclusion. Farquharson v.
United States Att’y Gen., 246 F.3d 1317, 1320 (11th Cir. 2001).
The Attorney General has discretion to grant asylum if the alien meets the
INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A
“refugee” is defined as:
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
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). To establish asylum eligibility,
the alien must, with specific and credible evidence, establish (1) past persecution
on account of a statutorily listed factor, or (2) a “well-founded fear” that the
statutorily listed factor will cause such future persecution. Al Najjar, 257 F.3d at
1287; 8 C.F.R. § 208.13(a), (b). “A showing of past persecution creates a
presumption of a ‘well-founded fear’ subject to rebuttal by the [Immigration and
Naturalization Service (“INS”)].” Sepulveda, 401 F.3d at 1231; 8 C.F.R. §
208.13(b)(1). “[T]he INS can overcome the presumption of future persecution by
showing that [the applicant] could avoid future threats by relocating within the
country, assuming that it is reasonable under all the circumstances to do so.”
Antipova v. United States Att’y Gen., 392 F.3d 1259, 1265 (11th Cir. 2004)
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(withholding of removal); 8 C.F.R. § 208.16(b)(1)(i)(B).
The BIA has construed the INA and its regulations to require that an asylum
applicant show that he faces a threat of future persecution country-wide. Matter of
Acosta, 19 I. & N. Dec. 211, 235 (BIA 1985). We have upheld the imposition of a
“country-wide” requirement, and have noted that “it is not unreasonable to require
a refugee who has an internal resettlement alternative in his own country to . . .
establish that such an option is unavailable.” Mazariegos v. United States Attorney
Gen., 241 F.3d 1320, 1327 (11th Cir. 2001). Since 2001, the immigration
regulations have codified the country-wide requirement, and have instructed the IJ
to consider whether “under all the circumstances it would be reasonable to expect
the applicant [to relocate].” 8 CFR § 1208.13(b)(2)(ii); see also 8 CFR §
1208.13(b)(1)(i)(B).1 The regulations identify several considerations relevant to
the “reasonableness” determination, including
whether the applicant would face other serious harm in the place of
suggested relocation; any ongoing civil strife within the country,
administrative, economic or judicial infrastructure; geographical
limitations; and social and cultural constraints, such as age, gender,
health, and social and familial ties.
1
Although Mazariegos was issued on February 12, 2001, after the regulation’s effective
date (January 5, 2001), see 65 Fed.Reg. 76133, it appears that the panel did not consider the
regulation. See Mazariegos, 241 F.3d at 1325 (“The [INA] does not expressly require that
asylum seekers face a threat of persecution throughout their entire country of origin as opposed
to a particular place within that country. Nor do the INS’s regulations express such a
requirement.”).
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8 CFR § 1208.13(b)(3). See, e.g., Sepulveda, 401 F.3d at 1232 n.7 (considering,
inter alia, the large numbers of internally displaced people – and the resulting lack
of access to health care, education, or employment – in concluding that relocation
within Colombia was not reasonable). See also Da Silva v. Ashcroft, 394 F.3d 1, 8
(1st Cir. 2005) (“The touchstone is whether, under all the circumstances of a
particular case, internal relocation is a reasonable solution.”); Mohamed v.
Ashcroft, 396 F.3d 999, 1006 (8th Cir. 2005) (“Relocation must not only be
possible, it must also be reasonable.”); Gambashidze v. Ashcroft, 381 F.3d 187,
192 (3d Cir. 2004) (“Thus the regulation envisions a two-part inquiry: whether
relocation would be successful and whether it would be reasonable.”); Eduard v.
Ashcroft, 379 F.3d 182, 194 (5th Cir. 2004) (reversing and remanding to BIA for
the requisite determination of whether relocation was “reasonable”).
In the instant case, as the government concedes, the BIA presumed past
persecution and therefore the burden was on the government to show that internal
relocation was reasonable. See BIA’s Order at 1-2; Respondent’s Brief at 19; 8
C.F.R. §1208.13 (b)(1)(ii). The only evidence submitted by the Department of
Homeland Security (“DHS,” formerly the INS) to satisfy its burden was (1) the
1997 Department of State Asylum Profile, and (2) the 1999 and 2000 Department
of State Country Reports. See INS Notices of Filing Documents, A.R. at 99 &
6
421. This evidence alone is insufficient to meet the government’s burden.
On the contrary, the record in this case compels the conclusion that the
FARC operates country-wide in Colombia, and that relocation was therefore not a
viable option for the petitioners to escape persecution. On this point, Sepulveda is
instructive. In that case, we ultimately held that the petitioner had failed to
establish a well-founded fear of persecution, but we explicitly addressed the
petitioner’s claim that substantial evidence did not support the IJ’s finding that she
could internally locate to an area within Colombia where the ELN presence was
nonexistent or minimal, stating:
[T]he evidence does not support such a finding. The 1999 and 2000
Country Reports, on which the IJ ostensibly relied, make clear that the
guerrillas exercise influence throughout Colombia, and that small and
large municipalities are already overwhelmed by the huge populations
of displaced persons, who are consequently without access to health
care, education, or employment.
Sepulveda, 401 F.3d at 1232 n.7.
Looking at the same country reports at issue in Sepulveda (i.e., 1999 and
2000 Department of State Country Reports on Colombia) we again conclude, as we
did in that case, that these do not support a finding that the guerillas did not
exercise influence throughout Colombia.2 According to the 2000 Country Report,
2
The fact that Sepulveda’s persecutors were the ELN guerrillas, not the FARC guerillas,
only further supports our analysis. It is undisputed that the FARC is the largest and most
widespread of any guerrilla group in Colombia.
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the guerillas “exercised a significant degree of territorial influence and initiated
armed action in nearly 1,000 out of the 1,085 municipalities [approximately 92%]
during the year, which was approximately the same level as in 1999.” See A.R. at
100; see also A.R. at 423 (1999 Report). The 2000 Report states that the two
major guerilla groups, of which the FARC is the largest, consist of an estimated
11,000 to 17,000 full-time combatants organized into more than 100 semi-
autonomous groups. It says that “FARC and the ELN regularly attacked civilian
populations, committed massacres and summary executions and killed medical and
religious personnel.” A.R. at 102. The 2000 report indicates that the FARC
continued its practice of using gas canisters and mortars to destroy small towns,
and the guerrillas held more than 1,000 kidnapped civilians and 500 kidnapped
soldiers and police. Id. The report documents that “[i]n many places, guerillas
collected ‘war taxes,’ forced members of the citizenry into their ranks, forced small
farmers to grow illicit crops, and regulated travel, commerce and other activities.”
Id. In fact, according to the report, the FARC announced “Law 002” in March of
2000, which “demanded that anyone with assets of $1 million pay taxes to the
FARC or risk kidnapping.” Id. In sum, the 2000 Country Report illustrates the
killing, kidnapping and other atrocities commited by the FARC against the civilian
population in virtually every region in Colombia, which it states caused an
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estimated 1 million displaced citizens from 1996 to 2000. See A.R. at 101, 108-12,
118-21.3
The only other evidence submitted by the government to satisfy its burden of
showing that relocation would be a successful way for the petitioners to avoid
persecution is the 1997 Department of State Asylum Profile. The 1997 profile
opines that “those fleeing guerilla or police/military harassment or threats in
conflictive zones usually are able to find peaceful residence elsewhere in the
country.” A.R. at 142. The profile states that relocation is available because the
guerrilla movement was “fragmented” and only operated in “specific areas of the
country.” Id. at 142-43. It reports that, in 1997, the guerillas exercised influence
in only about half of the country’s municipalities. Id. at 137.
3
The 1999 Country Report paints a very similar picture. See A.R. at 423 (“The
Government continued to face a serious challenge to its control over the national territory, as
longstanding and widespread internal armed conflict and rampant violence – both political and
criminal – persisted”); id. “The two major guerrilla groups, the [FARC] and the [ELN], consist
of an estimated 11,000 to 17,000 full-time combatants organized into more than 100
semiautonomous groups. The FARC and the ELN, along with other smaller groups, exercised a
significant degree of influence and initiated armed action in nearly 1,000 of the country’s 1,085
municipalities during the year, compared with 700 municipalities in 1998”); id. at 422-23
(“Paramilitary groups and guerrillas were responsible for the vast majority of political and
extrajudicial killings during the year. . . . The FARC and the ELN regularly attacked civilian
populations, committed massacres and summary executions, and killed medical and religious
personnel. Guerillas . . .were responsible for the majority of kidnapings. Guerillas held more
than 1,000 kidnaped civilians, with ransom payments serving as an important source of revenue.
Other kidnap victims were killed. In some places, guerillas collected ‘war taxes,’ forced
members of the citizenry into their ranks, forced small farmers to sow illicit crops, and regulated
travel, commerce, and other activities”); id. at 424 (“Violence and instability in rural areas
displaced approximately 288,000 civilians from their homes during the year. The total number
of internally displaced citizens during 1995-99 probably exceeded 1 million”).
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While the 1997 Asylum Profile’s assessment would appear to support the
government’s claim, it is contradicted by the more recent 1999 and 2000 Country
Reports. The 2000 Country Report documents the guerillas’ territorial influence in
the year 2000 at 92% of the countries’ municipalities – a dramatic increase of more
than 40% since 1997. The Country Reports no longer speak of the guerrillas as
“fragmented” and limited in operations to only specific areas of the country.
Rather, they attest to an intensification of the conflict and a territorial expansion in
guerrilla violence throughout the country.
The remainder of the record evidence – presented by the petitioners – further
compels the conclusion that the FARC operated country-wide. The petitioners
submitted documentary evidence from the U.S. Department of State, Amnesty
International and reputable news agencies that attests to the widespread nature of
FARC atrocities committed throughout the entire country. This evidence showed
that: (1) the activities of guerrilla groups in Colombia, with membership in the tens
of thousands, of which the FARC is the largest, best trained and best equipped,
were “widespread,” at least in rural areas; (2) the FARC has 15,000 to 17,000
combatants and controlled an estimated 40% of the countryside; (3) the FARC
“regularly” attacked civilian populations, laid landmines, kidnapped civilians, and
destroyed small towns; (4) at least 300,000 people were displaced to urban areas in
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1999 due to guerrilla violence; and (4) in 2000, the FARC had the power and
influence to pass a law demanding war taxes from Colombian citizens. See A.R. at
580-81, 590, 594, 600, 615, 631, 653.
Finally, Arboleda’s past experience supports the conclusion that relocation
would not successfully shield him of persecution by the FARC. Arboleda testified
that he relocated from his farm in Armero Guayabal (in the department of Tolima)
to the capital city, Bogota, after he was detained by the FARC while driving in his
car in Amero Guayabal. Despite his relocation, the FARC continued to threaten
him and his family at both his Bogota home and office, with frequent notes and
telephone calls detailing the family’s activities and threatening them with death.
At the same time, the FARC continued to persecute Arboleda at his farm, by
burning down his farm house and killing several of his cattle. See A.R. at 375-81.
In fact, according to Arboleda’s testimony, even after the family left Colombia for
the United States, the FARC continued to go after him by placing bombs in two of
his Bogota restaurants and by sending a sympathy card (i.e., an implicit death
threat) to his home in Bogota.
Given our consideration of the evidence, we are compelled to find that the
INS failed to establish by a preponderance of the evidence that the petitioners
could relocate within Colombia out of the FARC’s reach. See 8 CFR §
11
1208.13(b)(1)(ii) (burden of proof). Moreover, even if the BIA’s conclusion that
the FARC did not function country-wide had been supported by substantial
evidence, the BIA erred in failing to consider whether relocation for the Arboledas
was “reasonable.” The BIA found that:
[t]he documentary evidence submitted by [the DHS] reflects that the
[FARC] does not function countrywide, and therefore, it is reasonable
for the respondents to internally relocate.
A.R. at 3. This analysis is incomplete. As stated earlier in our opinion, the agency
regulations require that the factfinder consider the following factors in its
reasonableness determination, including
whether the applicant would face other serious harm in the place of
suggested relocation; any ongoing civil strife within the country,
administrative, economic or judicial infrastructure; geographical
limitations; and social and cultural constraints, such as age, gender,
health, and social and familial ties.
8 CFR § 1208.13(b)(3). Thus, in Sepulveda we considered not only the fact that
the guerillas exercised influence throughout the country, but also that the numbers
of internally displaced people due to the civil war and the violence and the
resulting scarcity of health care, education, and employment would make it
unreasonable for the petitioners to relocate. See id, 401 F.3d at 1232 n.7. The BIA
in this case, however, did not mention any of the other factors it should have
considered in making its determination. This is reversible error. See Hagi-Salad v.
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Ashcroft, 359 F.3d 1044, 1045 (8th Cir. 2004) (remanding to the BIA for a
reasonableness determination based on factors in 8 CFR § 208.13(b)(3)); Knezevic
v. Ashcroft, 367 F.3d 1206, 1214-15 (9th Cir. 2004) (same). See also
Gambashidze v. Ashcroft, 381 F.3d at 192 (“Thus the regulation envisions a two-
part inquiry: whether relocation would be successful, and whether it would be
reasonable”).
Accordingly, we conclude that the BIA’s finding that the DHS met its
burden in establishing that the petitioners could reasonably relocate within
Colombia to escape persecution was not supported by substantial evidence in the
record. The evidence in the record compels a finding that the FARC operates
country-wide in Colombia, and the BIA failed to independently consider whether it
was possible for the Arboledas to find a safe haven through internal relocation.
Because the BIA affirmed the IJ’s removal order on this ground alone, we vacate
the BIA’s order and remand this case back to the BIA for further proceedings not
inconsistent with this opinion.
PETITION GRANTED.
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