Vente v. Atty Gen USA

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

7-22-2005

Vente v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-4731

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-4731

RODOLFO VENTE VENTE,

Petitioner

v.

* ALBERTO R. GONZALES, Attorney General of the

United States

Respondent

*Substituted pursuant to Rule 43c, F.R.A.P.

On Appeal from an Order entered before

The Board of Immigration Appeals

(No. A79 092 668)

Argued December 7, 2004

Before: AMBRO, and VAN ANTWERPEN, Circuit Judges

SHADUR,** District Judge

(Opinion filed July 22, 2005)

Philippe Weisz, Esquire (Argued)

American Friends Service Committee

Immigrant Rights Program

89 Market Street, 6th Floor

Newark, NJ 07102

Attorney for Petitioner

Peter D. Keisler

Assistant Attorney General

Scott R. McIntosh, Esquire

H. Thomas Byron, III, Esquire (Argued)

United States Department of Justice

Civil Division, Appellate Staff PHB 9134

601 D Street, N.W.

Washington, D.C. 20530-0001

Douglas E. Ginsburg, Esquire

John D. Williams, Esquire

United States Department of Justice

Office of Immigration Litigation

**Honorable Milton I. Shadur, United States District

Judge for the Northern District of Illinois, sitting by

designation.

2

P.O. Box 878

Ben Franklin Station

Washington, D.C. 20044

Attorneys for Respondent

OPINION OF THE COURT

AMBRO, Circuit Judge

Rodolfo Vente Vente petitions for review of the decision

by the Board of Immigration Appeals (“BIA”) denying his

claims for asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”). Because the BIA’s

decision mischaracterized the nature of Vente’s asylum claim,

rendering meaningful review of that decision impossible, we

grant the petition.

I. Factual Background & Procedural History

Vente is a native of Colombia. He was born in 1973 in

Timbiqui, an area where the majority of the population is Afro-

Colombian. Vente lived in Cali, one of the largest cities in

Colombia, from 1993 to 1998. Beginning in January 1998, he

3

lived and worked in Cisneros, a small, predominantly Afro-

Columbian agricultural community.

From mid-1999 to November 2000, Vente attended

meetings of a community group in Cisneros. He testified before

the Immigration Judge (“IJ”) that “the purpose of these meetings

was to ask to the government to give some help for health

purposes, also schools, to work [on] the water . . . system. Also

to get certificates of the land that we were working on.” Vente

stated that he stopped going to these meetings because

paramilitary groups said that they were going to kill those who

attended and told people in the community that they should

abandon their land. Vente also testified that he was shot in the

leg in March 1999, but he did not know who shot him.

In December 2000, Vente received a threat from one of

the paramilitary groups accusing him of collaborating with

guerillas. He testified that he believed the group thought he was

a collaborator because he had attended the community group

meetings. According to Vente, that December a paramilitary

cadre destroyed the police station in Cisneros, killed three police

officers, and conducted a massacre in which nine people were

killed and twelve or thirteen people were wounded. These

events, coupled with the threat he had received, prompted Vente

to think about leaving the area.

Vente reported the threat against him to the human rights

office in Buenaventura, the region of Colombia in which

4

Cisneros is located, on January 22, 2001. This office was

unable to offer him any protection and sent him to talk to other

government authorities. The district attorney’s office was also

unable to help Vente, so he returned home. Upon his return, his

brother informed him that two men had been looking for him.

Vente then went to Cali to seek once more protection

from government authorities and was again unsuccessful. He

did receive some assistance in finding shelter and food from a

charitable organization, and he stayed in Cali for a brief period.

On February 7, 2001, Vente returned to Cisneros to see his

mother, who was ill. At this time, his uncle told Vente that it

was not advisable for him to stay in Cisneros for long because

Vente had been sent a note from a paramilitary group saying that

it was in the town and that there were other armed groups

around the town. A note dated February 6, 2001, from the

United Auto-Defenses of Colombia stated that the group knew

Vente had returned to the area and also warned him that he

would suffer consequences if he did not leave the region.

Vente returned to Cali but testified that he did not feel

safe there. On February 20, 2001, he left Colombia and flew to

the United States. The Immigration & Naturalization Service

(“INS”)1 served Vente with a Notice to Appear on March 1,

1

As a result of the Homeland Security Act of 2002, Pub. L.

No. 107-296, 116 Stat. 2135 (2002), the INS has ceased to exist

as an agency within the Department of Justice, and its

5

2001, and he conceded removability but applied for asylum,

withholding of removal, and relief under the CAT. A hearing

on these claims was held before the IJ on February 21, 2002, and

he rendered an oral decision denying Vente relief.

The IJ determined that Vente had not suffered past

persecution even assuming that his testimony was credible

regarding the threatening letters he received from paramilitary

groups. The IJ further found that some parts of Vente’s story

were credible while others were not. For example, the IJ did not

credit Vente’s statement in his asylum application that

paramilitary groups were still looking for him after he left

Cisernos. The IJ also noted the gap of eighteen months between

the time that Vente started attending the community group

meetings and the time he started receiving threats. Finally, the

IJ concluded that Vente had an obligation to live elsewhere in

Colombia, which he did not do, before coming to the United

States.

Vente appealed, and the BIA also denied his claims for

relief. It overturned the IJ’s “mixed credibility” finding as to

Vente’s testimony, noting that the IJ’s finding appeared to be

based on Vente’s statement that he was shot in the leg in March

1999 and thus the finding had to be vacated as Vente had not

enforcement functions have been transferred to the Bureau of

Immigration and Customs Enforcement within the Department

of Homeland Security.

6

attempted to tie that event to his claims for relief. The BIA went

on to determine that, even though Vente was credible, he had

not satisfied his burden of proof.

The BIA also concluded that Vente had not suffered past

persecution, noting that: (1) he conceded that he had never been

personally harmed by any paramilitary group; and (2) his ability

to live in Cali from 1993 to 1998, and again just before his

departure from Colombia, suggested “either that the ‘threat’ of

persecution was not country-wide or that he was not a serious

target of political violence.” 2 The BIA then concluded that

Vente also had not established a well-founded fear of

persecution because (1) the general unrest in Colombia did not

provide a basis for asylum or withholding of removal, and (2)

Vente’s “two brothers and his parents remain in Colombia and

there is no evidence that they have been harmed.”

Vente’s petition for review of the BIA’s denial of his

asylum claim is now before us.3

2

Vente does not appear to challenge the BIA’s determination

that he had not suffered past persecution. See Pet’r Br. at 36

(arguing that the IJ erred in construing Vente’s asylum claim as

being based on past persecution rather than on his fear of future

persecution).

3

Although Vente makes a general request that we reverse the

BIA’s order in its entirety, his petition for review focuses on his

asylum claim and makes no specific argument that the BIA’s

7

II. Jurisdiction & Standard of Review

Under 8 U.S.C. § 1252(a), we have jurisdiction to hear a

petition for review from a final order of the BIA. We must

uphold the BIA’s factual findings if they are supported by

substantial evidence. Singh-Kaur v. Ashcroft, 385 F.3d 293, 296

(3d Cir. 2004). That is, the BIA’s denial of asylum can be

reversed “only if the evidence presented by [petitioner] was such

that a reasonable factfinder would have to conclude that the

requisite fear of persecution existed.” INS v. Elias-Zacarias,

502 U.S. 478, 481 (1992); see also Abdille v. Ashcroft, 242 F.3d

477, 484 (3d Cir. 2001) (“[T]he BIA’s finding must be upheld

unless the evidence not only supports a contrary conclusion, but

compels it.”).

III. Discussion

The Attorney General and his delegates may grant asylum

to any alien who qualifies as a refugee under the Immigration

and Nationality Act (“INA”). 8 U.S.C. § 1158(b)(1). A refugee

is an alien who is “unable or unwilling” to return to his or her

denials of his claims for withholding of removal and CAT

protection were incorrect. We therefore deem those claims

waived and address only the asylum claim. See Laborers’ Int’l

Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d

Cir. 1994) (a passing reference to an argument in a party’s brief

is insufficient to bring the issue before this Court).

8

country of origin “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.”

8 U.S.C. § 1101(a)(42)(A). Aliens have the burden of

supporting their asylum claims. Gao v. Ashcroft, 299 F.3d 266,

272 (3d Cir. 2002). “Testimony, by itself, is sufficient to meet

this burden, if ‘credible.’” Id. (citing 8 C.F.R. § 208.13(a)).

To establish eligibility for asylum, an applicant must

demonstrate past persecution by substantial evidence or a well-

founded fear of future persecution that is both subjectively and

objectively reasonable. Lukwago v. INS, 329 F.3d 157, 177 (3d

Cir. 2003). The persecution must be “committed by the

government or forces the government is unable or unwilling to

control.” Gao, 299 F.3d at 272 (internal quotation omitted).

We now turn to the arguments Vente advances in favor

of reversal: (1) the BIA erred in failing to conduct an

independent corroboration inquiry after overturning the IJ’s

negative credibility determination; (2) the BIA’s determination

that he did not meet his burden of proof was based on a factually

flawed characterization of his asylum claim; and (3) the BIA

erred in determining that Vente had an internal resettlement

alternative.

A. Corroboration

Vente asserts that the BIA committed reversible error

9

under Miah v. Ashcroft, 346 F.3d 434 (3d Cir. 2003), and

Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001), because it did

not conduct an independent corroboration analysis after

reversing the IJ’s mixed credibility determination and finding

that he had testified credibly. This contention, which his

counsel acknowledged at oral argument was not Vente’s

strongest position, we easily dispense with.

In Abdulai, we set out a three-part inquiry that the BIA

must engage in when it determines that the production of

corroborating evidence is necessary for an otherwise credible

asylum applicant to meet his/her burden of proof. 239 F.3d at

554.4 Subsequently, in Miah we held that when the BIA

rejected an IJ’s adverse credibility finding, it should have (1)

reached its own conclusions on corroboration by performing an

Abdulai analysis, or (2) remanded the case to the IJ for a new

corroboration analysis, instead of merely reiterating the IJ’s

findings on whether there had been sufficient corroboration.

346 F.3d at 440. Our concern in Miah was the effect that a

changed credibility determination—from unfavorable to

4

In such a case, the BIA must conduct the following analysis:

“(1) an identification of the facts for which it is reasonable to

expect corroboration; (2) an inquiry as to whether the applicant

has provided information corroborating the relevant facts; and

if he or she has not, (3) an analysis of whether the applicant has

adequately explained his or her failure to do so.” Abdulai, 239

F.3d at 554 (internal quotation marks omitted).

10

favorable—would have on the degree of corroboration required

of an asylum applicant when the IJ had already required the

submission of corroborating evidence. Id.

By contrast, corroboration was never an issue in Vente’s

case. Neither the IJ nor the BIA requested the submission of

corroborating evidence, and the case was decided at both levels

on the basis of Vente’s testimony alone. Nothing in Miah

suggests that the BIA, after reversing an IJ’s credibility finding,

must always conduct an independent corroboration analysis (or

remand to the IJ for a corroboration analysis) when

corroborating evidence was never an issue in the case. Indeed,

such a rule would make mandatory what we characterized in

Abdulai as an optional inquiry into corroborating evidence. See

239 F.3d at 554 (holding that “the BIA may sometimes require

otherwise-credible [asylum] applicants to supply corroborating

evidence in order to meet their burden of proof”) (emphasis

added).

Because Miah and Abdulai, taken together, do not stand

for the proposition that the BIA must always conduct an

independent corroboration analysis after vacating an IJ’s adverse

credibility finding, Vente’s argument that the BIA should have

performed such an analysis in his case, where corroboration was

never an issue, is unpersuasive. What the BIA did

here—determining that Vente testified credibly but still did not

meet his burden of proof—is not unusual. Cf. Ahmed v.

Ashcroft, 341 F.3d 214, 216 (3d Cir. 2003) (affirming BIA

11

decision holding that alien who testified credibly nonetheless

did not satisfy the burden of proof required of asylum applicants

because he had not shown that the adverse treatment he feared

rose to the level of persecution). We must therefore consider

Vente’s argument that the BIA’s determination was incorrect

because it was based on a factually flawed characterization of

his asylum claim.

B. The Asylum Claim

As stated earlier, the BIA’s decision that Vente did not

have a well-founded fear of persecution if returned to

Colombia—and that he was therefore not eligible for

asylum—rested on two findings: (1) the general unrest in

Colombia did not provide a basis for asylum; and (2) Vente’s

parents and brother remain in Colombia, and there is no

evidence that they have been harmed. These findings miss the

mark.

First, the record clearly shows that Vente’s asylum claim

is based not on allegations of general social unrest in Colombia

but on the specific threats that he received from paramilitary

organizations that identified him as having collaborated with the

guerillas.5 The Government’s argument to the contrary—that

5

As discussed above, the persecution that Vente fears must be

committed by the Colombian government or forces that

government is unwilling or unable to control in order for him to

12

the BIA’s finding that Vente’s claim was based on general

unrest is supported by substantial evidence because some of the

threats from the paramilitaries in the record are directed

generally at residents of the area in which Vente lived—is

unavailing. The Government is correct that some of the threats

from the paramilitary groups were directed at the residents of the

region in which Vente lived. See A.R. at 144–47 (letters from

the “United Auto Defense of Colombia” threatening residents of

“the region of Valle del Cauca”). However, one of the threats

includes Vente’s name on a list of people identified by a

paramilitary organization as having collaborated with the

guerillas. See id. at 142–43. Another of the threats is

specifically directed against Vente and states that he should not

have returned home to see his mother. See id. at 118 (letter

addressed to “Mr. Rodolfo Vente Vente[,] Known Residence[,]

Buenaventura Valle del Cauca” and ordering him to leave the

region or “suffer the consequences”).6

be eligible for asylum. The Government makes no argument

that Vente is not eligible for asylum because the persecution he

fears is not attributable to such actors. In addition, there is

evidence in the record that the Colombian government has done

little to address the problem of links between its military and

paramilitary groups. See A.R. at 268 (Human Rights Watch,

The “Sixth Division”: Military-[P]aramilitary Ties and U.S.

Policy in Colombia, Sept. 2001).

6

The translation of this threat, dated February 6, 2001, reads

in pertinent part as follows:

13

For your information, the central

command of the united auto-

defenses of Colombia-AUC, have

met with the purpose of discussing

your personal disobedience of

having returned to the department

of the Valley of Cauca after having

named you a person not apt to live

in this department when it was

found that you were an auxiliary to

the guerilla which operates in this

zone according to the investigations

done by this command. The

Central Command has determined

for the first and only time to pardon

your life taking into account the

delicate state of health of your

mother. But at the same time, we

demand that you disappear from the

department, to not return to the

zone you were asked to vacate nor

return to the place where your

mother lives, for the second and

last time, in a 24 hour term, starting

today, 6 th of February 2001, at

11:00[] p.m.[;] otherwise, we are

not responsible and you will suffer

the consequences.

14

Moreover, Vente’s testimony focused on the threat in

which he was named as a collaborator. The general social and

political unrest in Colombia was a component of his testimony

only insofar as he testified that paramilitary groups operate

throughout the country and that the Colombian government did

not have the resources to protect him. In any event, there is no

indication in the BIA decision that its conclusion that Vente

could not succeed—because general unrest does not provide a

basis for asylum—was drawn from the more general threats in

the record.

Second, the BIA’s focus on the fact that Vente’s family

members remain in Colombia, and that they apparently have not

suffered any harm, is misplaced. The status of Vente’s family

is irrelevant to an inquiry into whether his own fear of

persecution by paramilitary organizations upon return to

Colombia is subjectively and objectively reasonable. Vente

does not claim that the persecution he allegedly faces is on

account of kinship ties (in other words, Vente does not argue

that he fears persecution on account of membership in a

particular social group) or that his family members were ever

targeted in the way that he was.

In sum, the BIA’s findings, as discussed above, are

wholly unsupported by the record and essentially ignore the

actual basis of Vente’s asylum claim. “When deficiencies in the

A.R. at 118.

15

BIA’s decision make it impossible for us to meaningfully review

its decision, we must vacate that decision and remand so that the

BIA can further explain its reasoning.” Kayembe v. Ashcroft,

334 F.3d 231, 238 (3d Cir. 2003). That is the situation in which

we find ourselves here. Given that Vente’s asylum claim is

based on the specific threats he received from paramilitary

groups in Colombia, it is unclear why the BIA even addressed

the general unrest in Colombia or whether members of Vente’s

family suffered harm. We must therefore remand this case to

the BIA for a fresh look at Vente’s asylum claim—one that

focuses on the true underpinnings of that claim.

C. Internal Resettlement Alternative

Although we have concluded that the deficiencies in the

BIA’s analysis of whether Vente has a well-founded fear of

persecution mandate a remand of this case to the BIA, we briefly

address his argument that the BIA erred in determining that he

had an internal resettlement alternative. Under the governing

asylum regulations, “[a]n applicant does not have a well-

founded fear of persecution if the applicant could avoid

persecution by relocating to another part of the applicant’s

country of nationality.” 8 C.F.R. § 1208.13(b)(2)(ii). An

applicant who has not established past persecution “bear[s] the

burden of establishing that it would not be reasonable for him or

her to relocate, unless the persecution is by a government or is

government-sponsored.” 8 C.F.R. § 1208.13(b)(3)(i).

16

The IJ concluded that Vente had an obligation to relocate

within Colombia. In its analysis of whether Vente had

established past persecution, the BIA noted that Vente had

“lived in Cali from 1993 until 1998, and again prior to his

departure to Colombia in February of 2001; he testified that he

had no problems with paramilitaries while living in Cali.” The

BIA went on to “find that [Vente]’s ability to live in Cali for a

number of years, and immediately prior to his departure from

Colombia, suggests either that the ‘threat’ of persecution was

not country-wide or that he was not a serious target of political

violence.” It is unclear whether the BIA meant, by making this

finding, to indicate its agreement with the IJ’s internal

resettlement analysis. A straightforward reading of the BIA’s

decision indicates that, rather than making an internal

resettlement determination, it merely found that Vente’s prior

residence in Cali was evidence that he had not suffered past

persecution.

Thus, to the extent that the BIA appears not to have made

an explicit finding that Vente did not have a well-founded fear

of persecution because he could relocate to Cali, his argument

misconstrues the BIA’s decision. We note, however, that

Vente’s residence in Cali from 1993 to 1998, long before he

received the threats on which his asylum claim is based, is quite

irrelevant to whether he suffered past persecution due to the

threats and to whether relocation to Cali (or another part of

Colombia) was a reasonable possibility for him after he received

the threats. We also do not believe that Vente’s brief residence

17

in Cali, which was apparently without incident, prior to his

departure from Colombia in 2001 determines whether he has a

reasonable possibility of relocating to Cali.

On remand, we encourage the BIA, if it deems necessary

an inquiry into Vente’s potential for internal relocation within

Colombia, to be more explicit in its reasoning on this issue and

to look only at the resettlement possibilities that currently exist

for Vente without reference to his place of residence there

before he received the threats at issue in his asylum claim. We

also reiterate that, on remand, it is Vente’s obligation to

demonstrate that he would not have avoided future persecution

by relocating to Cali in 2001, however brief that relocation may

have been.

IV. Conclusion

Although Vente’s argument that the BIA should have

conducted an independent corroboration analysis in his case is

unpersuasive, he is correct that the BIA mischaracterized the

nature of his asylum claim. Because the BIA’s reasoning in

denying Vente’s asylum claim on the ground that he does not

have a well-founded fear of persecution if returned to Colombia

is without grounding in the record, and because we are unable

to discern why the BIA chose to focus in its decision on issues

that were at most tangentially relevant to Vente’s claim, we

grant the petition for review and remand this case to the BIA for

further proceedings consistent with this opinion. See INS v.

18

Ventura, 537 U.S. 12, 16 (2002) (per curiam).

19