Petition for Writ of Certiorari — Club Car (Quebec) Import, Inc. v. Club Car, Inc.

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7) Byes “Ourt, US.

No. ! :

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" The 518 204

Supreme Court of the Chnited Stites

SERGIO ALBERTO

RANGEL-QUINONEZ;

ESTHER CHRISTINA

MIMENDY-CAMACHO,

Petitioners,

JOHN ASHCROFT,

Attorney General of the United States,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Petition for Writ of Certiorari

Hakeem Ishola

Counsel of Record

ISHOLA & ASSOCIATES, P.C.

716 East 4500 South

Suite N142

Salt Lake City, Utah 84107

(801) 269-9541

Counsel for Petitioners

THE LEX GROUP ¢ 1108 East Main Street @ Suite 1400 ¢ Richmond, VA 23219

(804) 644-4419 @ (800) 856-4419 @ Fax: (804) 644-3660 ¢ www.thelexgroup.com

QUESTION PRESENTED FOR REVIEW

Did the United States Court of Appeals for the

Tenth Circuit improvidently approve the Board

of Immigration Appeals’ per se rule and narrow

application of the term “political opinion” as

construed in INS v. Elias-Zacarias, 502 U.S. 478

(1992), when it upheld the Board's

determination that guerilla targeting of an

individual who refused to join the guerilla’s

group does not (and may not) constitute

“political-opinion” form of persecution for

asylum purposes unless the individual belongs

to a political party or association and enunciates

a coherent political thought?

CORPORATE DISCLOSURE/

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that

the following listed persons and entities as described in

Rule 29.6 have an interest in the outcome of this case.

The representations are made in order that the judges

of this Court may evaluate possible disqualification or

recusal.

There is no parent or publicly held company

involved in this case owning 10% or more of any

corporation or stock.

Petitioners-Appellants are Sergio Rangel and

Esther Camacho.

The following judges were the panelists on the

United States Court of Appeals:

Chief Judge Deanell Tacha

Judge Mary Briscoe

Judge Harris Hartz

Petitioners were represented in the Immigration

Court and before the Board of Immigration Appeals by

Suzanne Brown, Esq.

7700 Clayton Road, Suite 306

Saint Louis, Missouri 63117

The Immigration Judge was Hon. Donn L.

Livingston, 1961 Stout Street, Denver Colorado.

ili

Petitioners were represented in the United States

Court of Appeals for the Tenth Circuit by:

Austin Johnson, Esq.

JOHNSON LAW FIRM P.C.

204 East 800 South

Orem, UT 84058

The Government-Respondents were represented

in the Immigration Court and before the Board by:

Weldon Caldbeck, Esq.

Assistant Chief Counsel

Department Homeland Security

4730 Paris Street

Denver, CO 80237

The Government-Respondents were represented

in the Tenth Circuit by:

Daniel E. Goldman, Esq.

Office of Immigration Litigation

United States Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, DC 20044

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW.. ss csiiataleamueeiaas i

CORPORATE DISCLOSURE /

CERTIFICATE OF INTERESTED PERSONG...............+ li

TABLE OF CONTENT ...............sccssessessssersensenssccsseesssesees iv

TABLE OF AUTHORITIES ...............cccsssssssserssseeseeesneneee vil

CITATION TO OFFICIAL

REPORTS OF OPINIONG. ...........ccccsssesseesreeseeeeeeeeeeeeesneeeees 1

STATEMENT OF JURISDICTION ...........cceceeeeeseeseseeesees 1

CONSTITUTIONAL &

STATUTORY PROVISIONS .........:cccscssceeseteesseseneseeeeeeneens 2

STATEMENT OF THE CASE ..........cceecesseeeeeseeseseeseeeeeneens 2

BIRTRNIEE one wninrcscsicicoccmecien ene eee

ee en

I. The Decision of the United States

Court of Appeals for the Tenth

Circuit sanctioning the Board of

Immigration Appeals' per se rule

that guerilla targeting of an

individual who refused to join the

guerilla's group may not constitute

"political-opinion" form of

persecution for asylum purposes

unless the individual belongs to a

political organization or enunciates

a thoughtful, coherent political

theory constitutes an improper

application of the rule of INS v.

Elias-Zacarias, 502 US. 478, 112

S.Ct. 812, 117 L.Ed.2d 38 (1992), is

erroneous, departs from normal

course of judicial proceedings, and

conflicts with the decisions of

Other Cin cusits .....:...ssccsenssnsvengsasesonessazsnasensase 6

A. The Court of Appeals

Decision Disregarded this

Court's Decision in Elias-

i i mctasaies undeenal 10

: Statutory Scheme

and Standards of

Eligibility for

Asylum &

Withholding of

Removal ..........:::scsceeeeeeeeees 10

y The Court of Appeals

Decision Departed

from Well-

Established Statutory

Standards and

Interpretive Case

LBW ccerssscvosscsssscesscsseensesnsones 17

B. The Court of Appeals

Decision Encourages

Employment by the

Administrative Agencies of

an Impermissible Per Se

Rule, and is Contrary to this

Court's and other Circuit

De CISIONS ..........sseseeeeseeeeeseeeeeneeetees 23

CONCLUSION. .......:::sscesssssssssersssseessesssenesesnsnenenssenssnsnenees 25

APPENDIX TO PETITION .......::.:csssseseereteetsstssesseneenseness ia

Vil

TABLE OF AUTHORITIES

CASES

Aguilera-Cota v. INS,

914 F.2d 1375 (9th Cir. 1990)...

Alfaro-Orellana v. IIchert,

720 F. Supp. 792 (N.D. Cal. 1989)........

Alvarez-Flores v. INS,

SP FOd 7 CRC ie. TID) vssssnsssiesinsnecsnenes

Arteaga v. INS,

836 F.2d 1227 (9th Cir. 1988)............0008

Artuga-Turco v. INS,

829 F.2d 720 (9th Cir. 1987) ..essssssssececeeee

Bankhole v. INS,

2002 WL 32002678 (D. Conn. 2002) .....

Bolanos-Hernandez v. INS,

767 F.2d 1277 (9 Cir. 1984) .cscccccccsssses

Chang v. INS,

119 F.3d 1055 (3d Cir. 1997) ....ccsscscceeee

Chavarria v. US Dept of Justice,

722 F.2d 666 (11 Cir. 1984).............0000

—— .

PAGE(S)

7 BEC ARNIS Se

Vill

Choem v. INS,

129 F.3d 29 (18t Cir. 1997) ......ssccscscesserersecsecsesersees 17

Dulane v. INS,

46 F.3d 988 (10 Cir. 1995)......cceeceeseseeeeeeseessees 10

Ernesto Navas v. INS,

217 F.3d 646 (9% Cir. 2000)..........:eceseeeeesseeeeseeees 23

Falcon-Carriche v. Ashcroft,

350 F.3d 845 (9! Cir. 2003)........ccsceeeeereseeeererseeeeees 2

Gebremichael v. INS,

10 F.3d 28 (15 Cir. 1993) .......eeseseseeeereeeeessceeeeeneees 20

Gonzalez v. INS,

82 F.3d 903 (9 Cir. 1996)........cccseececeeereessseseeeeeees 22

Harttoni v. INS,

21 F.3d 336 (9th Cir. 1994)... cceeeeeeeeeeseseeeeeeees 20

Hernandez-Barrera v. Ashcroft,

373 F.3d 9 (18t Cir. 2004) ......eeeeseseeeseeseeeseseeeeeetees 17

INS v. Cardoza-Fonseca,

480 U.S. 421, 107 S. Ct. 1207,

94 L. Ed. 2d 434 (1987)........sccccsscssereereesseseees passim

INS v. Delgado,

466 U.S. 210, 104 S. Ct. 1758,

80 L. Ed. 2d 247 (1984)......cccscsceesesseesseeeeeeeeneeees 24

INS v. Elias-Zacarias,

502 U.S. 478, 112 S. Ct. 812,

117 L. Ed. 2d 38 (1992) ......ccccceeeseesesseseeseseees passim

INS v. Phinpathya,

464 U.S. 183, 104 S. Ct. 584,

78 L. Ed. 2d 401 (1984) ......scseccceeeeeeseseseesesseeeeteenenens 7

INS v. Stevic,

467 US. 407, 104 S. Ct. 2489,

81 L. Ed. 2d 321 (1984) ......c.cccceeeeesesesseseseseeeneenenens 14

Kapcia v. INS,

944 F.2d 702 (10 Cir. 1991) ........sseseeeeseeeeeteteseens 14

Kossov v. INS,

132 F.3d 405 (7! Cir, 1998) ......eeseeseeseereeeeeneenees 13

Lopez v. Ashcroft,

366 F.3d 799 (9th Cir. 2004) ......cceeeeeerereee 9, 20, 23

Lwin v. INS,

144 F.3d 505 (7! Cir. 1998) .......seceseceseesereseneseeesees 20

Matter of Barrera,

191. & N. Dec. 837 (BIA 1989) ........sseeesesesesesens 12

Matter of Cerna,

20 I. & N. Dec. 399 (BIA 1991) ........scsceeseseeeeeesees 24

Matter of Chen,

20 1. & N. Dec. 16, Interim Dec. #3104

(BIA 1989)......ssssssssssessssesssesssnesennensnecanensnsnnnanennnate 13

Matter of C-Y-Z-,

21 I. & N. Dec. 915, Int. Dec. #3319

(BUA, 1997 )oncsonsesoeeenovenesenneenervnernennneansanseenes

Matter of H-,

91 I. &N. Dee: 337, Int. Dec. #3276

(BIA 1996)......s-sssecsssessssessssneeennensnnesssnnennanennnness

Matter of Medina,

19 I. & N. Dec. 734 (BIA 1988) .......:s:ssssee0e0

Matter of Mogharrabi,

19 I. & N Dec. 439 (BIA 1987), limited by

Pitcherskaia v. INS,

118 F.3d 641 (9 Cir. 1997) .......esseceeeeeeeeesees

Matter of Soleimani,

20 1. & N. Dec. 99 (BIA 1989) ........seeceeseeereteneteees 11

Matter of S-P-,

21 1. & N. Dec. 486 (BIA 1996) .........:seeseeees

Matter of Yanez-Garcia,

93 I. & N. Dec. 390 (BIA 2002) ...ssssssssssssssesssee

McMullen v. INS,

658 F.2d 1312 (9th Cir. 1981)...

Mgoian v. INS,

184 F.3d 1029 (9th Cir. 1999)......seseseeseerereetees

Montoya-Ulloa v. INS,

79 F.3d 930 (9tP Cir. 1996).......sseceeseeeeeersrsetens

xi (

Nguyen v. United States, 7

539 US. 69, 123 S. Ct. 2130,

156 L. Ed. 2d 64 (2003)............cscecsecssesensseeessesesees 9

Osorio v. INS,

99 F.3d 928 (Ot Cir. 1996) ......ececcceseseeeeeeeesesesesees 13

Osorio v. INS,

18 F.3d 1017 (2d Cir. 1994) 00.0... ceeeseseeeeeeeeteees 20

Pedro-Mateo v. INS,

224 F.3d 1147 (9t Cir. 2000) ........eeeeseeeeeeeseeees 11

Pitcherskaia v. INS,

118 F.3d 641 (9t Cir. 1997) ......ceseseeeeeeeseeees 12, 21

Ramirez-Rivas v. INS,

899 F.2d 864 (9 Cir, 1990) ......cceeeeeseseeseseeeeeeees 11

Rangel v. Ashcroft, ,

Case No. 03-9541, 2004 WL 1167383

(10 Cir., May 26, BI issinissanievusinvsicsunanininnnnss 6, 19

Richards v. United States, |

369 US. 1, 82S.Ct.585,

7 L. Ed. 2d 492 (1962) .......ccccccsessseeteeseseeeeeeeeeeeneeens 7

Rios v. Ashcroft,

287 F.3d 895 (9th Cir. 2002) ......seeesessessseeeeeeees 20, 23

Rock v. Arkansas,

483 US. 44, 107 S. Ct. 2704,

Q7 L. Ed. 2d 37 (1987) .......scccccseseseeeeteeseseestseneeenens 23

Xll

Rodriguez-Rivera v. INS,

RE Fee FI is RIOD aa cnnsnncscsnccsccscecceccccssceens 12

Rosendo-Ramirez v. INS,

ee 24

Ruano v. Ashcroft,

| 3

Singh v. Ilchert,

eS.) ee 21

Singh v. INS,

ee RE BOUND viccscsencenscasesscccccesceccesees 12

Tarubac v. INS,

aS) 21

Torres-Aguilar v. INS,

2OG FG 1267 (9 CHF. Z001).............ccccrcrrcccrsrescecees 5

Tsevegmid v. Ashcroft,

DO We Bee CB CIE, ZIUD)...........ncrsesesececrsccsceees 6

United States v. Drayton,

536 U.S. 194, 122 S. Ct. 2105,

st 23

Vallecilo-Castillo v. INS,

121 F.3d 1237 (9% Cir. TE iiiisexsnassanceseceseses 13

Velasquez- Valencia v. INS,

pe ay || | ee 20, 23

xili

Vongsadky v. INS,

171 F.3d 1203 (9% Cir. 1999) . pale tnneiaiannanaea 14

Wiransane v. Ashcroft,

366 F.3d SBP (10% Cire. ZIDG) .......cescerceccssesensecceonses 10

Woldemeskel v. INS,

257 F.3d 1185 (10 Cir. 2001)............. 11, 12, 13, 14

Yuk v. Ashcroft,

355 F.3d 1222 (10™ Cir. 2006) .........n..rsscssssrsnssoneseeses 5

STATUTES

6 USC. § SGD avn. csisssncocenivinsveisanszpnvacntnevanss macanenniekesneacabbamiesie 2

B U.S.C. § 110A M4Z).........c.crcccsrscscereeeniersncssensseseesas passim

DUES. © TG osssonesctsserinessnsnscnstninniinscincentaiabiacqucatetentant 2, 11

BUT S.C. § LAGE) wncisescesssnresnsenninicenssacosacrsesncitnenssnsannainersann 15

SB USC. § UZSU OS) a casescincsricenceassnsscosesntsnsananssnnnnsnsnadanseenenas 2

8 U.S.C. § TZ31(BSMA).....ecccsnrerssnssssccess ‘abioidiiceanei <i

B UTS.CS. § VG Ea) oicsssesssercenicssisasesscescensesntoshnersbneunensestnesnsnsnne fe)

8 USK 6 CINE vcecdctentticcmnas ee 1

XiV

REGULATIONS

SORE BI iocdcrctuie organ

OO ii

CER OR...

“Last 2 5 |: eee ee mCms Oe Lee

A i a

BER & DG. UD) onan aninnssscncsccnnnncsnnnnnnnnsn

OTHER AUTHORITIES

INS Supplementary Refugee/

Asylum Adjudications Guidelines,

reprinted in 67 Interpreter Releases 101-101

(Jats. 22, TFID)P.....c.csererecrnsessessacsesensenesersvansnanaceeaes

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of

certiorari issue to review the judgment below.

CITATION TO OFFICIAL AND OFFICIAL

REPORTS OF OPINIONS

The opinion of the United States Court of

Appeals for the Tenth Circuit appears at App. 1 to the

Petition and is officially unpublished, but is also found

at 2004 WL 1167382.

The Opinion and Order of the Board of

Immigration Appeals (“the Board” or “BIA”) appears

at App. 10 and is unpublished.

The opinion and order of the Immigration Judge

(“IJ”) appears at App. 12 and is unpublished.

STATEMENT OF JURISDICTION

Petitioner seeks this Court’s review of the order

and judgment entered on May 26, 2004, in the United

States Court of Appeals for the Tenth Circuit, by a

Petition for Writ of Certiorari pursuant to this Court's

jurisdiction as conferred by 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION

There are no Constitutional Provisions involved

in this case. The following relevant statutory

provisions are attached in App. 25-29:

8 U.S.C. § 1101(a)(42); 8 U.S.C. § 1158; 8

US.C. § 1231(b)(3).

STATEMENT OF THE CASE

Petitioners, Sergio Rangel Quinonez and Esther

Cristina Camacho Mimendy (“the Rangels”), husband

and wife, are natives and citizens of Colombia who

were admitted to the United States by the former

Immigration & Naturalization Service (“INS”) as non-

immigrants on June 20, 1999, and authorized to stay

until September 19, 1999.1 The Rangels, however,

overstayed beyond the time allowed by DHS. App. 2,

at 2. The Rangels have three United States citizen

children, Mariana, 6, Sergio, 2, and Valeria, 5 months

old. The Rangels are gainfully employed and enjoy

tremendous community support in the Salt Lake City,

area, where they reside. See Oral Decision of the JJ,

App. 15. :

. As of March 1, 2003, the INS was abolished and its

functions transferred to the newly created Department of

Homeland Security (“DHS”). See Falcon-Carriche v. Ashcroft, 350

F.3d 845, 848 n.1 (9 Cir. 2003); 6 U.S.C. § 542.

PP I OE OD ON OE, whe Se oe ———

On or about December 12, 1999, Mr. Rangel filed

an asylum application with DHS. Mrs. Rangel’s

asylum application is derivative of her husband’s. The

basis for the asylum application stems from Mr.

Rangel’s past political persecution in his native

Colombia, which he believes gives rise to fear of future

persecution in that country. App. 2. More specifically,

Mr. Rangel testified credibly be fore the IJ that, in 1999,

while working as a personnel manager at his father’s

automobile dealership in his native town of

Bucaramanga, Colombia, a man who identified himself

as a member of a guerilla group demanded that Mr.

Rangel employ “one of their people.” R.110; App. 4, at

4-5; see also IJ Decision, App. 15.2

In Colombia, it is very common for guerillas to

place people as employees in a business and then use

those “employees” to lure co-workers to the guerillas’

political beliefs. R.111-112; App. 4; App. 16. Mr.

Rangel refused these overtures, telling the guerilla that

his political views were not in line with those of the

guerillas, and asked him therefore to leave. Mr. Rangel

reported the incident to the police. R.111; App. 16.

Thereafter, on March 9, 1999, several men

entered the car dealership, armed with guns and

grenades. They tied up several of the employees and

attempted to force Mr. Rangel into a truck, hitting him

2 The citation “R.” is to the administrative record submitted

to the court of appeals but not appended to this petition. In

addition, the Rangels note that the IJ or BIA did not make an

adverse credibility finding; accordingly, credibility was presumed

in the court of appeals. See App. 1c, at 8. See also Ruano v. Ashcroft,

301 F.3d 1155, 1159 (9% Cir. 2002); Artuga-Turco v. INS, 829 F.2d

720, 723 (9! Cir. 1987).

on the head, which resulted in an injury. Mr. Rangel

was, however, able to escape from the men and thus

the abduction failed. Mr. Rangel later attributed to the

attempted abduction to his earlier refusal to accede to

the demand that he employ a member of the guerilla.

Further, a contemporaneous newspaper article

buttressed Mr. Rangel’s rendition of events, and DHS

also conceded before the IJ that Mr. Rangel was a

victim of an attempted kidnapping on March 19, 1999.

R.110; App. 4; App. 16, 18.

Shortly after the failed abduction, Mr. Rangel

hid for one week at his father’s home in the hills above

Bucaramanga. This was a place frequented by a

number of Colombia’s top political figures, thus

reassuring Mr. Rangel that he would be safe there.

App. 4; App. 18. Subsequently, Mr. Rangel left

Colombia with his wife and daughter for Miami,

Florida. Believing that his situation would improve if

he hired security guards, Mr. Rangel returned to

Colombia a week and half later. R.112-114; see also

App. 18. However, threatening follow-up calls

persisted from the guerillas, which he reported to the

police. Accordingly, on June 20, 1999, Mr. Rangel

returned to the United States. See App. 5.

On August 14, 2000, after a hearing, the JJ

denied Mr. Rangel’s asylum claim on the ground that

Mr. Rangel had failed to show neither a subjective nor

an objective fear of persecution on the account of his

political opinion in Colombia. See App. 22-23; see also

App. 5. The IJ reasoned that the fact that Mr. Rangel

returned to Colombia only 10 days after his first entry

into the United States, and the fact that his parents and

brothers are living safely in Colombia indicate a lack of

subjective fear of persecution. See App. 22-23; App. 5.

With respect to the objective elements of the

asylum claim, the IJ found that Mr. Rangel failed to

connect the harm he suffered as a result of the

attempted kidnapping to any of the statutory protected

grounds. See App. 21; App. 5. The IJ also denied Mr.

Rangel’s application for withholding of removal

because, having failed to meet the lower burden of

proof associated with asylum, a fortiori, he could not

meet the necessarily higher burden of proof necessary

for withholding of removal. R-74-76; App. 23.

On August 24, 2000, Mr. Rangel appealed the

IJ’s decision to the Board of Immigration Appeals,

which summarily affirmed without an opinion on

March 6, 2003. See App. 10.3 Mr. Rangel then filed a

petition for review in the United States Court of

Appeals for the Tenth Circuit on April 1, 2003. See

App. 1. For Rule 14(g)(ii) purposes, the Tenth Circuit

had appellate jurisdiction pursuant to 8 U.S.C. §

1252(a) based on an appeal from a final order of

removal from the BIA.

3 See 8 C.F.R. § 3.1(7) (2004) (authorizing streamlined

procedure by the BIA, including affirmance without an opinion).

See also Yuk v. Ashcroft, 355 F.3d 1222, 1229 (10% Cir. 2004); Torres-

Aguilar v. INS, 246 F.3d 1267, 1271 (9% Cir. 2001) (finding the

regulation constitutional).

On May 26, 2004, the Tenth.Circuit affirmed the

BIA’s denial of asylum and withholding of removal, on

the ground that the record supports the IJ’s holding

that guerilla targeting of an individual does not itself

amount to political persecution for the purposes of an

asylum claim unless the individual enunciates a

coherent political thought.4 See Rangel v. Ashcroft, Case

No. 03-9541, 2004 WL 1167383 (10 Cir., May 26, 2004),

Slip. Op. at 8.

ARGUMENT

i The Decision of the United States Court of

Appeals for the Tenth Circuit Sanctioning the

Board’s Per Se Rule that Guerilla Targeting of

an Individual Who Refused to Join the

Guerilla’s Group May Not Constitute

“Political-Opinion” Form of Persecution For

Asylum Purposes Unless the Individual

Belongs to a Political Party or Organization

and Expresses a Coherent Political Thought

Constitutes an Improper Application of INS v.

Elias-Zacarias, 502 U.S. 478 (1992), is

Erroneous, Departs from Normal Course of

Judicial Proceedings, and Conflicts with the

Decision of Other Circuits.

In the seminal case of INS v. Elias-Zacarias, 502

US. 478, 482-484, 112 S.Ct. 812, 816-17, 117 L.Ed.2d 38

(1992), similarly involving whether the alien petitioner

: Where the BIA summarily affirms the IJ, especially

without an opinion, the Court of Appeals “reviews the IJ’s

analysis as if it were the BIA’s.” Tsevegmid v. Ashcroft, 366 F.3d

1231, 1235 (10' Cir. 2003).

had demonstrated persecution on account of political

opinion, this Court held:

As for the Court of Appeals’

conclusion that the guerillas’ “motive in

carrying out the kidnapping is political”:

It apparently meant by this that the

guerrulas seek to fill their ranks in order

to carry on their war against the

government and pursue their political

goals. See 921 F.2d at 850 (citing Arteaga

v. INS, 836 F.2d 1227, 1232,n.8 (CA9 1998);

921 F.2d at 852. But that does not render

the forced recruitment “persecution on

the account of . . . political opinion.” In

construing statutes, “we must start, of

course, with the assumption that the

legislative purpose is expressed by the

ordinary meaning of the words used.”

Richards v. United States, 369 U.S. 1, 9, 82

S.Ct. 585, 591, 7 L.Ed.2d 492 (1962); see

Cardoza-Fonseca, supra, 480 US., at 431,

107 S.Ct. at 1213; INS v. Phinpathya, 464

U.S. 183, 189, 104 S.Ct. 584, 589, 78

L.Ed.2d 401 (1984). The ordinary

meaning of the phrased “persecution on

the account . . . political opinion” in 6

101(a)(42) is persecution on account of the

victim’s political opinion, not the

persecutor’s. ... Thus, the mere existence

of a_ generalized “political” motive

underlying the guerillas’ forced

recruitment is inadequate to establish

(and, indeed, goes so far as to refute) the

proposition that Elias-Zacarias fears

persecution on account of political

opinion, as § 101(a)(42) requires.

Elias-Zacarias appears to argue

that not taking sides with any political

faction is itself the affirmative expression

of a political opinion. That seems to us

not ordinarily so, since we do not agree

with the dissent that only a “narrow,

grudging construction of the concept of

‘political opinion,’ post, at 818, would

distinguish it from such quite difference

concepts of indifference, indecisiveness,

and risk averseness. But we need not

decide whether the evidence compels the

conclusion that Elias-Zacarias held a

political opinion. Even if it does, Elis-

Zacarias still has to establish that he has a

well-founded fear of persecution that the

guerillas will persecute him because of

that political opinion, rather than because

of his refusal to fight with them. He has

not done so with the degree of clarity

necessary to permit a reversal of a BIA

finding to the contrary; indeed, he has not

done so at all.

Elias-Zacarias objects that he

cannot be expected to provide direct

proof of his persecutor’s motives. We do

not require that. But since the statute

makes motive critical, he must provide

some evidence of it, direct or

circumstantial. And if he seeks to obtain

judicial reversal of the BIA’s

determination, he must show that the

evidence he presented was so compelling

that no reasonable fact-finder could fail to

find the requisite fear of persecution.

Elias-Zacarias, 502 U.S. at 482-484, 112 S.Ct. at

816-17, 117 L.Ed.2d at 38.

The foregoing clearly illustrates that this Court,

unlike the Tenth Circuit, did not employ a per se rule

(or narrowly construe “political opinion”) such that

guerilla targeting of an individual who refused to join

the guerilla’s group may not constitute “political-

opinion” form of persecution for asylum purposes.

Rather, this Court simply required that the asylum

applicant demonstrate, in addition to past persecution

or fear of persecution, a connection between the

persecution and the applicant’s political opinion the

persecutor sought to change or influence. See Elias-

Zacarias, 502 U.S. at 481-482; see also Lopez v. Ashcroft,

366 F.3d 799, 804 (9 Cir. 2004) (persecution alone is

insufficient to qualify for asylum; “[Petitioner] also had

to show that the persecution occurred because of a

protected ground.”).

This Court grants petitions for certiorari if the

court of appeals has rendered a decision that has so far

departed from the norm as to call for this Court's

supervisory authority. See Nguyen v. United States, 538

U.S. 69, 71, 123 S.Ct. 2130, 156 L.Ed. 2d 64 (2003). The

Rangels submit that, in the instant case, for the reasons

following, this Court should grant the petition for

certiorari on the sole issue raised for two distinct

reasons. First, within its ruling, the United States

Court of Appeals for the Tenth Circuit disregarded this

Court's decision which did not employ a per se rule as

utilized by the court of appeals, or narrowly restrict

“political opinion” to a demonstrable, coherent

political thought. Second, the court of appeals’

decision encourages the BIA (and the IJs) to employ a

per se rule within the Tenth Circuit, contrary to this

Court’s and other Circuits’ decisions, and _ thus

frustrating Congress’ and the agencies’ quest for a

national uniform immigration law.

A. The Court of Appeals’ Decision

Disregarded this Court’s Decision

in Elias-Zacarias

FF Statutory _ Scheme_and

Standards of Eligibility for

Asylum _ & Withholding of

Removal

An asylum applicant must first demonstrate that

he is a “refugee” within the meaning of INA Section

101(a)(42)(A), 8 U.S.C. § 1101(a)(42). See INS v. Cardoza-

Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 1209, 1221, 94

L.Ed.2d 434 (1987); Wiransane v. Ashcroft, 366 F.3d 889,

891 (10th Cir. 2004); Dulane v. INS, 46 F.3d 988, 996-99

(10 Cir. 1995). That definition includes the

requirement that an alien demonstrate that he is

unwilling or unable to return to his 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. See INA §

208, 8 U.S.C. § 1158, 8 C.F.R. § 208.13(b)(2); Cardoza-

Fonseca, 480 U.S. at 431, 107 S.Ct. at 1213, 94 L.Ed.2d

434 (fear of persecution “can be well-founded even

when there is less than 50% chance of the occurrence

taking place.”); Woldemeskel v. INS, 257 F.3d 1185, 1189-

1190 (10 Cir. 2001).

In Cardoza-Fonseca, this Court held that the

“clear probability” standard employed for withholding

of deportation under section 243(h) [now § 241(b)(3)] of

the Act is significantly different from the “well-

founded fear” of persecution standard used for asylum

under section 208 of the Act, and that the well-founded

fear standard requires a lesser degree of proof than the

clear probability standard. See id., 480 U.S. at 431, 107

S.Ct. at 1213, 94 L.Ed. 2d at 434; Montoya-Ulloa v. INS,

79 F.3d 930 (9 Cir. 1996). Accordingly, once an

applicant satisfies “the higher burden of proof required

for withholding of deportation, it follows that she has

satisfied the lesser ‘well-founded’ fear standard of

proof required for asylum.” Matter of Soleimani, 20 1. &

N. Dec. 99 (BIA 1989). Accord Ramirez-Rivas v. INS, 899

F.2d 864, 866 (9t Cir. 1990). Conversely, if the applicant

fails to meet the lesser well-founded standard, she a

fortiori cannot meet the more rigorous withholding of

removal standard. See Woldemeskel, 257 F.3d at 1189-92;

Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9% Cir. 2000);

Alvarez-Flores v. INS, 909 F.2d 1, 4 (1st Cir. 1990).4

‘ As a result of different standards of persuasion, the

evidence presented for asylum and withholding may differ, with

the latter requiring more objective and corroborative evidence.

Compare Chavarria v. US Dept of Justice, 722 F.2d 666 (11" Cir. 1984)

with Bolanos-Hernandez v. INS, 767 F.2d 1277 (9% Cir. 1984).

The “well-founded fear” standard, of course,

includes both an objective and subjective component.

Woldemeskel, 257 F.3d at 1190. The objective component

requires a showing by credible, direct, and specific

evidence in the record of facts that would support a

reasonable fear that the alien faces persecution.> The

alien must also establish that he possesses a belief or

characteristic a persecutor seeks to overcome in others

by means of punishment or persecution of some sort.

See Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987),

as limited by Pitcherskaia, 118 F.3d at 648. The threat or

infliction of physical harm is the classic form of

persecution. See Montoya-Ulloa, 79 F.3d at 930; see also

INS Supplementary Refugee/Asylum Adjudications

Guidelines, reprinted in 67 Interpreter Releases 101-101

(Jan. 22, 1990) (persecution may be periodic and arrest

need not be imminent at the time applicants leaves

country). -However, for the harm or suffering to be

considered persecution it must have been inflicted

either by the government or by persons the

government is willing or unable to control. See Singh v.

INS, 94 F.3d 1353, 1360 (9' Cir. 1996).

An alien may also establish statutory eligibility

for asylum by demonstrating that he was persecuted in

the past on account of political opinion or any of the

other grounds enumerated in the Act for which asylum

5 See Cardoza-Fonseca, 480 U.S. at 431, 107 S.Ct. 1213, 94

L.Ed.2d 434; Pitcherskaia v. INS, 118 F.3d 641, 648 (9t Cir. 1997);

Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9 Cir. 1988); Matter of

Barrera, 191. & N. Dec. 837, 845 (BIA 1989).

may be granted.° Where past persecution is established

by the alien, the Service will ordinarily have to present,

as a factor against the favorable exercise of discretion,

evidence that there is little likelihood of present

persecution, or the agency may take administrative

notice of changed circumstances in appropriate cases,

such as where the government from which the threat of

persecution arises has been removed from power.’ See

Woldemeskel, 257 F.3d at 1190-91. Second, once _ the

asylum applicant shows past persecution or credible

fear of future persecution, then the Attorney General

must exercise or decline to exercise discretion in

granting the application for asylum. See Woldemeskel,

257 F.3d at 1190.

On the other hand, to qualify for withholding of

removal,’ an alien must show that his life or freedom

would be threatened in the country of removal on

account of his race, religion, nationality, membership

6 See Kossov v. INS, 132 F.3d 405, 409 (7' Cir. 1998); Chang v.

INS, 119 F.3d 1055, 1062 n.4 (3d Cir. 1997); Matter of Chen, 20 1. &

N. Dec. 16, Interim Dec. #3104 (BIA 1989).

See 8 C.F.R. § 208.13(b)(1)(I); Vallecilo-Castillo v. INS, 121

F.3d 1237 (9 Cir. 1997)(Government does not overcome

presumption by simply asking for administrative notice of

changed conditions in Nicaragua); Osorio v. INS, 99 F.3d 928, 932

99th Cir. 1996);Matter of C-Y-Z-, 21 I. & N. Dec. 915, Int. Dec. # 3319

(BIA 1997); Matter of H-, 21 I. & N. Dec. 337, Int. Dec. #3276, at 19

n.7 (BI A 1996).

° Withholding of removal, unlike asylum, provides for

absolute prohibition of removal of a person to a country in which

his life would be threatened. See Cardoza-Fonseca, 480 U.S. at 429,

n.6., 107 S.Ct. at 1212, n.6., 94 L.Ed.2d at 434.

in a particular social group, or political opinion. See

INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). To make

this showing, the alien must establish a “clear

probability” of persecution on account of one of these

enumerated grounds. See INS v. Stevic, 467 U.S. 407,

413, 104 S.Ct. 2489, 2493, 81 L.Ed.2d 321 (1984); Matter

of Medina, 19 1. & N. Dec. 734 (BIA 1988).

This clear probability standard requires a

showing that it is more likely than not an alien would

be subject to persecution and thus imposes an absolute

bar on removal by the Attorney General for an

applicant who has met his burden.? Cardoza-Fonseca,

480 US. at 429, 107 S.Ct. at 1212, 94 L.Ed.2d at 434. If

the alien is determined to have suffered such

persecution in the past, it shall be presumed that his

life or freedom would be threatened on return to that

same country unless a preponderance of the evidence

establishes that conditions in that country have

changed to such an extent that it is no longer more

likely than not that the alien would be persecuted

there. See 8 C.E.R § 208.16(b)(2); Vongsadky v. INS, 171

F.3d 1203, 1205-07 (9t8 Cir. 1999).

’ “Persecution means the infliction of suffering or harm

upon those who differ . . . in ways regarded as offensive,” Kapcia v.

INS, 944 F.2d 702, 706 (10'* Cir. 1991), and “may be inflicted either

by the government or by persons or organizations that the

government is unable or willing to control.” Id. (quoting McMullen

v. INS, 658 F.2d 1312, 1315 (9 Cir. 1981) (core holding superseded by

the statute). See generally Woldemeskel, 257 F.3d at 1190 (defining

persecution).

Withholding of removal, like asylum, offers

relief from removal based on the likelihood of

persecution in the alien’s home country. While asylum

requires a lesser showing of persecution (lower burden

of proof) than withholding, it also carries with it the

entitlement to become a permanent resident alien in

the United States. On the other hand, withholding of

removal does not offer automatic right to permanent

residency, for the alien may still be removed to a

neutral country in which s/he would not be subjected

to persecution. The better benefit obtained under

withholding, therefore, is the absolute bar on the

Attorney General to remove an alien to a particular

country where he will be persecuted. See Cardoza-

Fonseca, 480 U.S. at 428, n.6; 107 S.Ct. at 1212, n.6., 94

L.Ed.2d at 434.

The withholding of removal statute, INA §

241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), provides in

pertinent parts that the Attorney General “may not

remove an alien to a country if the Attorney General

decides that the alien’s life or freedom would be

threatened in such country on the account of race,

religion, nationality, membership in a particular social

group or political opinion..”1° An alien who meets this

10 INA § 241(b), 8 U.S.C. § 1231(b) provides:

(3) Restriction on removal to a country where the

alien’s life or freedom would be threatened

(A) In general

Notwithstanding paragraphs (1) and (2),

the Attorney General may not remove an

alien to a country if the Attorney General

(B)

(D)

determines that such alien’s life or

freedom would be threatened in that

because of the alien’s race, religion,

nationality, membership in a particular

social group, or political opinion.

Exception

Subparagraph (A) does not apply to an

alien deportable under section

1227(a)(4)(D) of this title or if the Attorney

General decides that-

(i) the alien ordered, incited,

assisted, or otherwise

participated in the persecution of

an individual because of the

individual's race, religion,

nationality, membership in a

particular social group, or

political opinion;

(ii) the alien, having been convicted

by a final judgement of a

particularly serious crime is a

danger to the community of the

United States;

(iii) there are serious reasons for

considering that the alien has

committed a serious nonpolitical

crime outside the United States

before the alien arrived in the

Unites States, or

there are reasonable grounds to believe

that the alien is a danger to the security of

the United States.

standard and does not fall under a statutory exception,

may not be removed by the Attorney General. See

Cardoza-Fonseca, 480 U.S. at 429, 107 S.Ct. at 1212, 94

L.Ed.2d at 434; Choem v. INS, 129 F.3d 29 (1st Cir. 1997);

8 C.F.R. § 208.16. Accordingly, even aliens who have

been convicted of the most serious crimes -

“ageravated felonies” - remain eligible for withholding

of removal, provided they served less than five years

imprisonment. See,e.g., Hernandez-Barrera v. Ashcroft,

373 F.3d 9, 18 (1st Cir. 2004); Bankhole v. INS, 2002 WL

32002678 (D. Conn. 2002).

ya The Court of Appeals

Decision Departed from

Well-Established Statutory

Standards and Interpretive

Case Law.

In applying the foregoing statutory standards

and case-law interpreting them, the Court of Appeals

for the Tenth Circuit impermissibly approved or

sanctioned the IJ’s (or BIA’s) determination that

guerilla targeting of an individual who refused to join

For purposes of clause (ii), an alien who

has been convicted of an aggravated

felony (or felonies) for which the alien has

been sentenced to an aggregate term of

imprisonment of at least 5 years shall be

considered to have committed a

particularly serious crime. The previous

sentence shall not preclude the attorney

general from determining __ that,

notwithstanding the length of sentence

imposed, an alien has been convicted of a

particularly serious crime.

the guerilla’s group may not constitute “political-

opinion” form of persecution for asylum purposes,

unless the individual also shows that he belongs to a

political party or expresses a coherent political thought.

More specifically, the IJ found that Mr. Rangel

Quinonez had failed to show that the attempted

abduction was related to his political opinion because

Mr. Rangel “did not have a meaningful political

opinion which anyone would be interested in

changing,” and failed to demonstrate his membership

in a political party. R.74-75; App. 21. The Court of

Appeals agreed with the IJ, reasoning:

Although Mr. Rangel told the first alleged

guerilla that he did not share the guerilla’s views, this

expression of opinion (probably held by most of his

compatriots) was not necessarily the reason for his

persecution. Cf. Elias-Zacarias, 502 U.S. at 438

(“[Petitioner] appears to argue that not taking sides

with any political faction is itself the affirmative

expression of a political opinion. That seems to us not

ordinarily so....%”). After all, Mr. Rangel Quinonez

had not distinguished himself from the general

populace by participating in any political activity. It

was not unreasonable for the IJ to find that the

guerrillas’ interest in him was not his rather vague

political views but something else, such as his wealth

or his position in the car dealership. Hence, we affirm

the IJ’s adverse asylum determination on the ground

that Petitioners failed to show that any persecution of

Mr. Rangel Quinonez was based on his political

opinions.

Rangel v. Ashcroft, No. 03-9541, 2004 WL 1167383

(10% Cir., May 26, 2004), Slip. Op. at 8-9; App. 9.

The Tenth Circuit’s decision is contrary to this

Court’s holding in Elias-Zacarias. Unlike the court of

appeals’ per se rule that guerilla targeting of an

individual for political reasons does not itself constitute

persecution unless the applicant belongs to a political

organization or expresses a Plato-like political thought,

this Court only held in Elias-Zacarias that the asylum

applicant demonstrate, in addition-to persecution, a

connection between the persecution and the applicant's

political opinion which the persecutor sought to

change or influence. See id., 502 U.S. at 482-483, 112

S.Ct. at 816, 117 L.Ed.2d at 38. This Court certainly did

not hold that demonstrable political targeting by

guerillas of an individual may not constitute political

persecution for asylum purposes unless the individual

also shows that he belongs to a political party or is a

versatile political thinker.

The records below show that Mr. Rangel

suffered past political persecution in Colombia. Both

DHS and the IJ agreed that Mr. Rangel was beaten and

almost abducted at gun-point by guerrillas -who

demanded that he employ one of them. He suffered

this harm as a result of his refusal to accede to the

guerrilla’s request. See App. 17. Clearly, evidence

concerning the treatment by a guerilla group of a

person or his family is highly probative of threat

against the asylum seeker. Indeed, courts have found

evidence of this nature as_ constituting past

persecution.!! See,e.g., Lopez v. Ashcroft, 366 F.3d at 804

(refusal to cooperate with guerillas against Guatemalan

government equals persecution;) Rios v. Ashcroft, 287

F.3d 895, 900 (9th Cir. 2002) (same); Arteaga v. INS, 836

F.2d 1227, 1232 (9 Cir. 1988) (mere threat of

kidnapping equal persecution); Aguilera-Cota v. INS,

914 F.2d 1375 (9 Cir. 1990) (threatening anonymous

note plus visit from stranger equal persecution); see also

Mgoian v. INS, 184 F.3d 1029, 1035-36 (9% Cir. 1999);

Lwin v. INS, 144 F.3d 505, 512 (7 Cir. 1998);

Gebremichael v. INS, 10 F.3d 28 (1% Cir. 1993).

Further, it is axiomatic that “political opinion”

includes activities broader than electoral process,

definitely encompassing active anti-guerilla actions or

defiance as engaged by Mr. Rangel, and not simply a

rendition of a thoughtful political theory as required

here by the Board and the Court of Appeals See Elias-

Zacarias, 502 U.S. at 478; Lopez, 366 F.3d at 804; Osorio v.

- INS, 18 F.3d 1017, 1029-31 (2d Cir. 1994). But see also,

e.2., Velasquez-Valencia v. INS, 244 F.3d 48, 50 (1s Cir.

2001) (neutrality could itself be a persecutable opinion).

And the record in this case supports a finding that Mr.

Rangel was kidnapped and almost abducted at gun-

point by the guerillas because he rebuffed their

overtures on political grounds. Therefore, DHS did not

rebut the presumption of past persecution in Colombia

or that country conditions have changed.

i The converse, however, is not true. The fact that an

applicant's family members are not persecuted is not relevant to

the asylee’s claim. Harttoni v. INS, 21 F.3d 336, 342 (9" Cir. 1994).

Moreover, the Board and the Courts have

recognized that there are mixed motive cases in which

it is almost impossible to discern the exact reason or

motive for the persecution. See,e.g., Pitcherskaia, 118

F.3d at 647; Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir.

1995); Matter of S-P-, 21 I. & N. Dec. 486 (BJA 1996). In

such a case, it is sufficient that the applicant

demonstrate that the persecution was motivated in part

by an actual or imputed political opinion. See,e.g.,

Tarubac v. INS, 182 F.3d 1114, 1118-1119 (9t Cir. 1999)

(reversing BIA where it treated the presence of a non-

political motive as evidence of absence of a political

motive).

In this case, Mr. Rangel provided detail and

credible testimony that the guerillas kidnapped and

almost successfully abducted him because of his stance

that he did not share their political views and refused

to employ one of the guerillas. He also testified to

repeated threatening and harassing telephone calls

from the guerillas. Without any deference to mixed-

motive cases such as Matter of S-P-, the IJ and the court

of appeals concluded that the guerillas must have been

motivated by economic gains. See App. 8. As the Ninth

Circuit held in Pitcherskaia, 118 F.3d at 647, the Board

and the Court of Appeals “misconstrued the motive

requirement. Elias-Zacarias does not require that an

alien provide evidence that the persecutor’s motive

was to inflict harm.” Therefore, having suffered this

kind of constant physical harassment and attempted

forced abduction, Mr. Rangel has shown politically-

based past persecution and a genuine, well-founded

fear of persecution if returned to Colombia.

In summary, the record shows that Mr. Rangel

has demonstrated that he met the well-founded fear of

persecution standard and should have been granted

the relief of asylum by the Court of Appeals. See 8

C.E.R. § 208.13(b)(1). Therefore, the Tenth Circuit's

decision holding that he failed to establish past

persecution and a well-founded fear of persecution is

not supported by substantial evidence, and no

reasonable fact-finder could fail to see that he had

shown the requisite fear of persecution. See Elias-

Zacarias, 502 U.S. at 484, 112 S.Ct. at 817, 117 L.Ed.2d at

38.

Similarly, upon finding that Mr. Rangel was not

statutorily barred from _ seeking withholding of

removal, the Board and the court of appeals should

have applied the standard set forth in 8 C.F.R. § 208.16

in determining eligibility for withholding.

As demonstrated above, Mr. Rangel also met the

higher burden of proving persecution under the clear

probability standard for his past politically-motivated

persecution in Colombia. Where, as here, past

persecution has been shown by the applicant, it shall

be presumed that future persecution is imminent.

Gonzalez v. INS, 82 F.3d 903, 910 (9 Cir. 1996); 8 C.F.R.

§ 208.13(b)(1). | Accordingly, the Tenth Circuit's

decision to the contrary is not supported by substantial

evidence and should be reversed by this Court through

this certiorari petition. See Elias-Zacarias, 502 U.S. at

484, 112 S.Ct. at 817, 117 L.Ed.2d at 38.

B. The Court of Appeal’s Decision

Encourages the Agencies to

Employ a Per Se Rule and _ is

Contrary to this Court’s and other

Circuits’ Decisions

The Tenth Circuit’s decision impermissibly

sanctions the administrative agencies’ employment of a

per se rule contrary to this Court's and other appellate

court decisions on a similar issue. See,e.g., United States

v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242

(2002); Rock v. Arkansas, 483 U.S. 44, 68, 107 S.Ct. 2704,

97 L.Ed.2d 37 (1987) (frowning against application of

per se rule). For example, the United States Court of

Appeals for the Ninth Circuit has held that a refusal to

cooperate with guerillas may, under certain

circumstances, constitute a political opinion for

purposes of asylum. See Lopez, 366 F.3d at 804; Rios,

287 F.3d at 900. The Ninth Circuit has held that while

an asylum applicant “must provide some direct or

circumstantial evidence that they were persecuted on

account of political opinion, . . .we have held

persecution to be on account of political opinion where

there appears to be no other logical reason for the

persecution at issue.” Rios, 287 F.3d at 900 (citing

Ernesto Navas v. INS, 217 F.3d 646, 657 (9 Cir. 2000)).

Similarly, the United States Court of Appeals for

the First Circuit has recognized that neutrality may

itself be persecutable. See Velasquez-Valencia, 244 F.3d

at 50. Therefore, the Tenth Circuit’s decision requiring

that Mr. Rangel couple his fear of persecution with a

certain coherent theoretical political ideology, or for

him to do so in consonance with a political association,

is erroneous and conflicts with Elias-Zacarias and other

Circuit decisions.

Further, the foregoing clearly illustrate that

other Circuits have not employed the kind of per se

rule utilized in the instant case by the Tenth Circuit.

Should this Court not reverse the Tenth Circuit and

resolve the conflict, the administrative agencies will

continue to frustrate Congressional intent that the

asylum laws be applied consistently and uniformly

Nationwide. See,e.g., INS v. Delgado, 466 U.S. 210, 215,

104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984) (granting

certiorari to resolve conflict with Circuits).

Moreover, the Board (and the IJs) cannot achieve

their oft-stated goal of a uniform national immigration

law!2 when the Circuits are hopelessly divided in their

plenary review of Board decisions. See Rosendo-Ramirez

v. INS, 32 F.3d 1085, 1091 (7 Cir. 1994). And, without

__a doubt, “National uniformity in the immigration and

naturalization laws is paramount; rarely is the vision of

a unitary nation so pronounced as the laws that

determine who may cross our national borders and

who may become a citizen.” Rosendo-Ramirez, 32 F.3d

at 1091; see also Alfaro-Orellana v. Ilchert, 720 F.Supp.

792, 797 (N.D. Cal. 1989) (lamenting checkerboard

pattern of adjudicating asylum laws).

Therefore, it is respectfully submitted that the

Tenth Circuit was in error when it sanctioned the BIA’s

. narrow construction of the term “political opinion” as

utilized in § 1101(a)(42) to apply only to members of

12 See Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 393 (BIA

2002); Matter of Cerna, 20 I. & N. Dec. 399 (BIA 1991).

political parties or active enunciation of a coherent

political thought. Because the issue of what is

“political opinion” has been so narrowly construed by

the Tenth Circuit, in contrast to this Court and other

Circuits, the issue raised by this Petition is appropriate

for review by this Court.

CONCLUSION

For the foregoing reasons, the Petitioners submit

that this Court should grant review in this case to

reverse the holding of the United States Court of

Appeals for the Tenth Circuit. The Petitioner would

also ask, as an alternative relief, that this Court remand

this case to the court of appeals for further proceedings

consistent with the Court's decision.

Respectfully submitted,

[s/

HAKEEM ISHOLA

Counsel of Record

ISHOLA & ASSOCIATES, P.C.

716 EAST 4500 SOUTH, SUITE N142

SALT LAKE CITY, UTAH 84107

(801) 269-9541 (PHONE)

(801) 269-9581 (FAX) —

Counsel for the Petitioner

Date: August 18, 2004

TABLE OF CONTENTS

Appendix to Petition

Page

Order and Judgment of

The United States Court of Appeals

for the Tenth Circuit

Re: Affirming Decision of BIA

entered May 26, 2004...............ccccscssssscssesses App. 1

Order of

The Board of Immigration Appeals

Re: Denying Respondents’ Request for

Three-Member Review

entered March 6, 2008 .................sssssssseees App. 10

Oral Decision of

The United States Department of Justice

Executive office for Immigration Review

Re: Denying Application for Asylum

entered August 14, 2000................ccceee App 12

DIR Be i eicenscteciinisiantipiatineennneennnnin App. 25

rds Rs iinicianeerntsnnstenintinpiecleipen nena App. 26

CUS 6 cli ae App. 29

App. 1

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SERGIO ALBERTO RANGEL QUINONEZ

and ESTHER CRISTINA CAMACHO MIMENDY,

Petitioners,

JOHN ASHCROFT,

Respondent.

No. 03-9541

(Petition for Review)

(Nos. A77-868-231 / 232)

[ENTERED: MAY 26, 2004]

ORDER AND JUDGMENT

Before TACHA, Chief Judge, BRISCOE, and HARTZ,

Circuit Judges.

After examining the briefs and appellate record, this panel

has determined unanimously that oral argument would not

materially assist the determination of this appeal. See Fed. R. App.

P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument. This order and judgment is not

binding precedent, except under the doctrines of law of the case,

res judicata, and collateral estoppel. The court generally disfavors

the citation of orders and judgments; nevertheless, an order and

judgment may be cited under the terms and conditions of 10th Cir.

R. 36.3.

App. 2

Petitioners Sergio Alberto Rangel Quinonez and

Esther Cristina Camacho Mimendy, appeal the March

6, 2003, decision by the Board of Immigration Appeals

(BIA), affirming the order of an immigration judge (IJ)

ordering their removal from the United States. We

exercise jurisdiction under 8 U.S.C. §1252(a), see

Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.

2003), and affirm.

I. BACKGROUND

Petitioners are natives and citizens of Colombia

who were admitted to the United States as

nonimmigrants on June 20, 1999. They were authorized

to remain in the country until September 19, 1999, but

remained without authorization beyond that date. At a

hearing before the IJ on April 25, 2000, Petitioners

conceded removability, but applied for asylum and

restriction on removal under §§ 208 & 241(b)(3) of the

Immigration and Nationality Act (INA), and

withholding of removal under the Convention against

Torture. Ms. Camacho Mimendy is married to Mr.

Rangel Quinonez, and her claims are derivative of his.

The IJ rejected Petitioners' applications for asylum,

restriction on removal, and withholding of removal,

and ordered their removal from the United States. The

BIA affirmed without opinion. On appeal Petitioners

challenge the denial of their claims for asylum and

restriction on removal They do not contest the rejection

of their claim under the Convention against Torture.

App. 3

A. Applicable Law

Asylum and restriction on removal are the two

available means of relief under the INA to an alien who

fears persecution if returned from the United States to

a particular country. Wiransane v. Ashcroft, No. 02-9555,

2004 U.S. App. LEXIS 8259 at *2 (10th Cir., Apr. 27,

2004). "A grant of asylum permits the alien to remain in

this country; a restriction on removal forbids removal

of the alien to the country where persecution may

occur." [d.

In order to be eligible for asylum, an alien must

first establish his status as a refugee. 8 US.C. §

1158(b)(1). To do so, he must show that he "is unable or

unwilling to return to, and is unable or unwilling to

avail himself . . . of the protection of, [his 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). Aliens who, like

Petitioners, base their asylum claims upon a well-

founded fear of future persecution "must show both a

genuine, subjective fear of persecution, and an

objective basis by credible, direct, and specific evidence

in the record, of facts that would support a reasonable

fear [of] . . . persecution." Wiransane, 2004 U.S. App.

LEXIS 8259 at *5 (internal quotation marks omitted).

In order to obtain a restriction on removal, Mr.

Rangel Quinonez must show that his "life or freedom

would be threatened in [Colombia] because of [his]

race, religion, nationality, membership in a particular

social group, or political opinion." INA § 241(b)(3)(A), 8

App. 4

U.S.C. § 1231(b)(3)(A). "The Attorney General may not

remove an alien if the alien is able to establish a clear

probability of persecution in the country to which he

would be returned." Wiransane, 2004 U.S. App. LEXIS

8259 at *6 (internal quotation marks omitted). "The

standard of proof for restriction on removal is more

demanding than the well-founded fear standard

applicable to an asylum claim. Thus, when an applicant

fails to establish the objective component of a well-

founded fear of persecution, he necessarily fails to

establish entitlement to restriction on removal." Id. at

*6*7 (internal quotation marks and citations omitted).

B. Facts and Proceedings Below

Mr. Rangel Quinonez contends that he suffered

political persecution giving rise to a fear of future

persecution in the course of events surrounding an

attempted abduction by unidentified anti-government

guerillas on March 9, 1999. At the time, he was a

personnel manager at his father's car dealership in

Bucaramanga, Colombia. He attributes the abduction

attempt to his earlier refusal to comply with a demand

by a man who visited him at the dealership and

"identified himself as a member of a guerilla group." R.

at 110. The demand was "to let one of their . . . people

come in to work in the enterprise." Id. Mr. Rangel

Quinonez testified that for about a week after the failed

abduction he hid at his father's home in the hills above

Bucaramanga, and then went with his wife and

daughter to Miami, Florida. He returned to Colombia a

week and a half later, thinking that he could live in the

country if he had a security service. Threatening

follow-up phone calls, however, convinced him

App. 5

otherwise, and he returned to the United States on June

20, 1999.

Although Mr. Rangel Quinonez testified that the

first visitor identified himself as a guerilla, he provided

no evidence that the men involved in the abduction

attempt were guerillas--other than the assertion that in

Colombia "the common criminals [are] always asking

to steal money or a car or something," whereas

guerillas typically attempt abductions. Id. at 114.

Further, the only link Mr. Rangel Quinonez made

between these two incidents and his political opinions

was the assertion that guerillas in Colombia "try to

place people in a business to convince the workers to

come over to... the guerillas' beliefs[,]" id. at 11112,

and that when he refused the initial demand to hire an

operative, he "told [the guerillas] that [his] political

views were not in accordance with their political

views." Id. at 111. The IJ noted, however, that Mr.

Rangel Quinonez "testified that he has never belonged

to a political party or donated any money to a political

organization," and that "it does not appear that his

father has been politically active either." Id. at 68.

The IJ denied Petitioners' asylum claim because

he found that Mr. Rangel Quinonez showed neither a

subjective nor an objective fear of persecution in

Colombia on the basis of his political opinion. With

respect to Mr. Rangel Quinonez's subjective fear, the IJ

based his finding on Mr. Rangel-Quinonez's return to

Colombia only 10 days after his first entry into the

United States, as well as his testified-to knowledge that

his parents and brothers were living safely in

Colombia.

App. 6

As for the objective element of the asylum claim,

the IJ found that Mr. Rangel Quinonez had not

"establish[ed] the nexus between the harm which he

suffered and which he fears and any of the protected

grounds." Id. at 7374. First, the IJ found that Mr. Rangel

Quinonez's description of the visit by the guerilla

operative did not "show[] that [he] has been targeted

for persecution" because "[w]Je do not know from [his]

version of events who wanted him to hire somebody or

why they wanted [him] hired." Id. at 74. The IJ also

found that Mr. Rangel Quinonez had failed to show

that the attempted abduction was made on account of

his political beliefs, because he "did not have any

expressed political opinion" beyond his testimony in

the hearing that he believed in "liberty," which

amounted to a "political opinion . . . so vague that...

[he] did not have a meaningful political opinion which

anyone would be interested in changing." Id. at 7475.

Finally, the IJ found that Mr. Rangel Quinonez's

testimony as to the threatening phone calls after the

attempted abduction was "less than persuasive,"

because, again, he did not identify the callers or

provide any details about the calls. Id. at 74.

With respect to Petitioners' restriction-on-

removal claim, the IJ said that "[b]ecause [Mr. Rangel

Quinonez] has failed to establish that he meets the

definition of refugee, he has failed to satisfy the higher

burden of proof for withholding of removal ... ." Id. at

76.

App. 7

Petitioners challenge the IJ's adverse asylum

determination, contending that he erred in finding no

"nexus between the harm. which. [Mr.. Ranga.

Quinonez] suffered and which he fears and any of the

protected grounds," Aplt. Br. at 5, because the JJ

erroneously found that (1) Mr. Rangel Quinonez did

not possess a meaningful political opinion sufficient to

attract political persecution; (2) his kidnappers did not

have a political motive in attempting to kidnap him; (3)

Mr. Rangel Quinonez failed to establish the identity of

his would-be kidnappers as guerillas; and (4) "security

precautions are sufficient in Bucaramanga, Colombia"

to live free of harm... ." Id. They also assert that the IJ

erred in denying their restriction-on-removal claim.

Il. DISCUSSION

"Where . . . the BIA summarily affirms or adopts

an immigration judge's decision, this court reviews the

judge's analysis as if it were the BIA's." Tsevegmid, 336

F.3d at 1235. Our standard of review is highly

deferential: "We review the JJ's resolution of the initial

refugee status question under a substantial evidence

standard." Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir.

2004). This means that the IJ's adverse asylum decision

"must be upheld if supported by reasonable,

substantial and probative evidence on the record as a

whole." Krastev v. INS, 292 F.3d 1268, 1275 (10th Cir.

2002). We hold that the record supports the IJ's holding

that Mr. Rangel Quinonez failed to make the requisite

showings to be eligible for asylum or restriction on

removal under the INA.

App. 8

Guerilla targeting of an innocent civilian for

non-political reasons does not in itself amount to

political persecution for the purposes of an asylum

claim. See INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992)

(fact that "the guerillas seek to fill their ranks in order

to carry on their war against the government and

pursue their political goals . . . does not render...

forced recruitment 'persecution on account of .. .

political opinion." (internal citation omitted)); Ustyan v.

Ashcroft, No. 02-9596, U.S. App. LEXIS 6814, at *4 (10th

Cir., April 8, 2004). Even assuming that the men who

visited, attempted to kidnap, and later called

Mr. Rangel Quinonez were guerillas, their use of force

to place an operative in his employ (or to kidnap him

for ransom) does not amount to political persecution if

that attempt was made without regard to his political

opinions. Although Mr. Rangel Quinonez told the first

alleged guerilla that he did not share the guerillas'

views, this expression of opinion (probably held by

most of his compatriots) was not necessarily the reason

for his persecution. Cf. Elias-Zacarias, 502 U.S. at 483

("[Petitioner] appears to argue that not taking sides

with any political faction is itself the affirmative

expression of a political opinion. That seems to us not

ordinarily so... ."). After all, Mr. Rangel Quinonez had

not distinguished himself from the general populace by

participating in any political activity. It was not

unreasonable for the IJ to find that the guerillas’

interest in him was not his rather vague political views

but something else, such as his wealth or his position in

the car dealership. Hence, we affirm the IJ's adverse

asylum determination on the ground that Petitioners

failed to show that any persecution of Mr. Rangel

Quinonez was based on his political opinions. It is

App. 9

therefore irrelevant whether the IJ erred in finding that

Mr. Rangel Quinonez had failed to establish that his

assailants were in fact anti-government guerillas.

Likewise, whether Mr. Rangel Quinonez could live

safely in Colombia is irrelevant.

Because we affirm the IJ's holding that Mr.

Rangel Quinonez failed to establish the objective

component of a well-founded fear of persecution for

the purpose of his asylum claim, he necessarily failed

to establish his (and his wife's) entitlement to

restriction on removal. See Batalova v. Ashcroft, 355 F.3d

1246, 1255 (10th Cir. 2004); Yuk, 355 F.3d at 1236.

Accordingly, we affirm the IJ's restriction-on-removal

determination.

lll. CONCLUSION

We AFFIRM the decision of the BIA.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

App. 10

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

[ENTERED: MARCH 6, 2003]

Files: A77 868 231 - Salt Lake City

A77 868 232

Date: MAR 06 2003

Inre: SERGIO ALBERTO RANGEL QUINONEZ

ESTHER CRISTINA CAMACHO MEMENDY

IN REMOVAL PROCEEDINGS :

APPEAL

ON BEHALF OF RESPONDENTS:

Suzanne Brown, Esquire

ON BEHALF OF SERVICE:

Weldon S. Caldbeck,

Assistant District Counsel

ORDER:

App. 11

PER CURIAM. The Board Affirms, without

opinion, the results of the decision below.! The

decision below is, therefore, the final agency

determination. See 8 C.F.R. § 3.1(a)(7).

Ls/

FOR THE BOARD

‘ The respondents’ request for three-member review made

pursuant to 8 C.F.R. § 3.3(f) is denied.

App. 12

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT

Salt Lake City, Utah

File No: A 77 868 231/232 August 14, 2000

In the Matter of

SERGIO ALBERTO RANGEL QUINONEZ

and ESTHER CHRISTINA CAMACHO

MIMENDY

Respondents

[ENTERED: AUGUST 14, 2000]

IN REMOVAL PROCEEDINGS

CHARGE: Immigration and Nationality Act

Section 237(a)(1)(B)-nonimmigrant

overstays.

APPLICATIONS: Asylum under Section 208 of the

Immigration and Nationality Act;

withholding of removal pursuant

to Section 241(b)(3) of the

Immigration and Nationality Act;

and the Convention Against

Torture.

App. 13

ON BEHALF OF RESPONDENT:

Suzanne Brown, Esquire

Brown and Wichmer

7700 Clayton Road

Suite 306

St. Louis, Missouri 63117

ON BEHALF OF SERVICE:

Weldon Caldbeck, Esquire

Assistant District Counsel

Denver, Colorado

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondents are married. The first named

respondent is a 30-year-old male, native and citizen of

Colombia. The second named respondent is 23 years

old, she is also a native of Colombia. The respondents

arrived in the United States on June 20, 1999. They

were admitted as nonimmigrants with authorized stay

up until September 19, 1999. Through counsel the

respondents have admitted that they remained in the

United States beyond their authorized period of time

without further authorization from the Immigration

and Naturalization Service. Through counsel they have

conceded that they are subject to removal as charged

and the charges will be sustained.

The respondents request asylum and

withholding of removal under the Immigration and

Nationality Act and under the Torture Convention.

There is a single application which was submitted. The

App. 14

application was executed by the male respondent. The

request for asylum of the second named respondent is

based upon the application of the first named

respondent. The application was submitted to the

Immigration and Naturalization Service on December

5, 1999, and the applications were not granted by the

immigration Service but the matter was referred to this

Court. A merits hearing was held in this case. The first

named respondent was the sole witness in the

proceeding. Because he was the sole witness and

because it was his application which was submitted,

hereafter he will be referred to as “the respondent”.

The respondent also submitted a great deal of

background material concerning the situation in

Colombia, as well as information relating specifically to

the respondent. Also the respondent submitted a letter

which counsel claims was authored by one of the

guerrilla groups in Colombia (Exhibit 4). The letter was

offered without a translation as required by the

regulations, however, the Court permitted the court

interpreter to translate the letter orally. The letter is

unsigned and it appears to be a fax copy originating

from another fax copy. The document has not been

properly authenticated and so its probative value is

difficult for this Court to assess. However, the

document was allowed into the record.

App. 15

The respondent presented his passport to the

Court. It does show that-both respondents have made

numerous trips to the United States. The passport of

the first named respondent indicates arrivals in the

United States, March 14, 1998, March 29, 1999, and June

20, 1999. The passport of the second named respondent

shows those same three entries and also another entry

on January 7, 1999.

The respondents were married in 1995. They

have one child, which was born in the United States on

a previous visit to this country. The adult male

respondent testified that he worked in Colombia for

the family's automobile dealership. He was a manager

of the dealership in Bucaramanga in Santander

province in Colombia. The respondent testified that

there are various guerrilla groups active in his area in

Colombia and he characterized them as being "leftist"

and they aimed to take over the country. The

respondent testified that he has a contrary political

opinion, that is, he believes in "freedom". The

respondent testified that he has never belonged to a

political party or donated any money to a political

organization and it does not appear that his father has

been politically active either. The respondent testified

that in January of 1999 he was at his dealership when a

person who identified himself as "a member of a

guerrilla group" demanded that the respondent hire a

member of their group. The person did not say what

group he belonged to or who the person was to be

hired. The respondent assumed that this person was

from a guerrilla group because he believes that this is

the way the guerrilla groups operate. The respondent

was asked by his counsel if it is common for the

App. 16

guerrillas to place workers in an organization in order

to convince the workers to join that organization and

the respondent relied, "Yes". The respondent testified

that he did not agree to hire anybody referred by this

unnamed group. The respondent testified that

afterwards he started receiving threatening phone calls.

The respondent did report the threatening phone calls

to the police. They responded and counseled the

respondent on how to comport himself under the

situation.

On March 19, 1999, according to the respondent,

two armed men came to his business and said that they

were from the police and that they were investigating a

stolen car. The record will show that the respondent

provided some newspaper articles to document this

event. The respondent also provided a letter from, the

National Police indicating that there is an investigation

concerning the episode. The letter from the police,

however, indicates that the episode took place on April

19, 1999, whereas the respondent indicated that the

episode took place on March 19, 1999. The respondent

testified that six men were involved in the attempted _

abduction. He explained that two men initially came in,

said that they were from the police investigating a

stolen car. The respondent believes that these people

were from the same group that initially required him to

hire someone from the group, however, again the

group did not identify itself. The respondent presumed

that they were from the same group and that they were

some form of guerrilla group. The respondent believes

that the assailants were guerrillas rather than common

criminals because of the weapons that they had. The

respondent explained that they had 9 mm. pistols and

_ App. 17

they apparently had a hand grenade. It does not seem

to the Court that this type of weaponry is restricted to

military or guerrilla organizations. In fact, the

respondent explained that occasionally the guerrillas

hire common criminals who apparently are armed in

this fashion to commit abductions. The respondent

testified that the abductors tied up some employees

and tried to force the respondent into a pickup truck.

The respondent resisted. He was hit and his shirt was

torn. He was slightly injured, however, it was not such

an injury that required him to see a doctor. The

respondent was able to break free and the assailants

fled. One of the newspaper articles describing the

attempted abduction describes the situation as follows:

"The criminals demanded that the businessman enter a

vehicle but he was able to trick the anti-socials and

escaped. Advised of this action, the police took control

of the situation implementing the operation lock and

the frustrated kidnappers ran away." (Exhibit 4-13).

The respondent was asked again as to why he believes

that the assailants were guerrillas since they did not

identify themselves as guerrillas. The respondent

explained that the guerrillas "take people" and that the

criminals "just steal things". The Court finds that the

respondent's explanation-as to why he believes the

assailants were guerrillas is speculation. It is clear from

the background material that there are common

criminals in Colombia who engage in abductions in

order to extort a ransom from relatives and co-workers.

It seems to this Court that there is not evidence on this

record from which this Court could find that the

respondent was approached by guerrillas as opposed

to having been approached by common criminals.

App. 18

The respondent testified that after the attempted

abduction in March of 1999 that he fled to his father's

home in the hills-This is a place where there are many

political figures living and the respondent indicated

that with the help of the police and army in Colombia,

as well as hired help, that the people living in this area

are able to live securely. The respondent stayed about

ten days in his father's home in the hills and then he

came to Miami. He stayed about another ten days in

the United States and then he returned to Colombia.

The respondent claims that he returned to Colombia

because he believes that the situation in Colombia had

settled down and that it was safer for him to come back

after those ten days. The Court finds this to be

somewhat improbable. It is very unlikely that if the

respondent was afraid of the guerrilla wars in

Colombia that he would have sincerely believed that

the situation would have significantly changed during

the ten days that he was in the United States. Rather,

what the respondents' return to Colombia after ten

days_in the United States shows is that the respondent

most likely did not have a_ subjective fear of

persecution in Colombia based on any organized

activity by the guerrillas. The respondent testified that

his brother remains in Colombia and runs the car

dealership. It does not appear that he has had any

contact with any organized crime figures or with the

guerrillas since the respondent left. The respondent

acknowledged that his parents and his brothers are

living safely in Colombia with the help of hired

bodyguards and with the help of the government. The

respondent attempts to distinguish his situation

indicating that it would be different because of the past

kidnapping attempt. The Court does not find that this

App. 19

attempt to distinguish the respondent's situation from

his parents and his brothers is convincing. Rather, the

respondent would most likely find himself in a

situation very similar to his parents and his brothers if

he returned to Colombia and that is, that he would be

able to live there provided he took prudent and

substantial efforts to protect himself.

The respondent bears the burden of proof in

applications for asylum. In order to be granted asylum

the respondent must show that he meets the definition

of refugee as set forth in Section 101(a)(42) of the

Immigration and Nationality Act, that is, he must show

than he has suffered persecution in the past or that he

has a reasonable fear of persecution in the future on

account of race, religion, nationality, membership in a

particular group, or political opinion. The respondent

meets this burden of proof if he shows that a

reasonable person in his _ position would fear

persecution in his home country. The respondent's

claim may be proven by his own testimony, although

corroborating evidence should be provided where it is

available. In order to be granted withholding of

removal under the Immigration and Nationality Act or

under the Torture Convention, the respondent bears a

heavier burden of proof in the sense that he must show

that it is "more likely than not" that he would be

persecuted or tortured.

In assessing the respondents' claim, I believe

that the respondent has testified in a generally credible

fashion in the sense that I believe that the respondent

has testified basically to the facts that he believes are

true. I do think that the respondent may have

App. 20

embellished some of the details, however, counsel for

the respondent, as well as counsel for the Immigration

Service, have indicated that they feel that this record

shows that the respondent did suffer what appears to

be an attempted kidnapping on March 19, 1999. This

would, of course, instill subjective fear in the victim.

The problem with the asylum claim as far as the Court

can see, is that the respondent has not been able to

establish the nexus between the harm which he

suffered and which he fears and any of the protected

grounds. The respondent testified that he was

approached by a person who wanted him to hire

someone into his organization. The identity of the

person was not disclosed, the organization that the

person belonged to was not disclosed, the identity of

the person to be hired was not disclosed. The

respondent himself acknowledged that when this

episode occurred he did not take it very seriously. This _

is a very curious episode and I do not think it shows

that the respondent has been targeted for persecution.

We do not know from the respondent's version of

events who wanted him to hire somebody or why they

wanted this person hired. The respondent did testify

that later on there were some telephone calls. Again, it

does not appear that the identity of the people making

the telephone calls was disclosed. This aspect of the

respondent's testimony, that is, the aspect regarding

telephone calls, the Court finds to be less than

persuasive. The respondent did not provide any detail

about those telephone calls. In any event, the

respondent indicates that he did report the telephone

calls to the police and they were attempting to identify

the callers, showing that the government in Colombia

is willing to protect the respondent.

App. 21

The attempted kidnapping on March 19, 1999,

again is described in such a way that the assailants are

not identified. The respondent did not have any

expressed political opinion, he indicated that he does

believe in "liberty" but his political opinion is so vague

that the Court believes that the respondent did not

have a meaningful political opinion which anyone

would be interested in changing. The unknown

assailants, therefore, could not have been motivated by

a desire to change the respondent's political opinion

and there is nothing on this record to indicate that they

were motivated by any of the other protected grounds.

The record does not clearly indicate that the episode of

March 19, 1999 was a kidnapping for ransom, however,

it is the respondent's burden of proof in applications

for asylum and for withholding of removal. The record

does not indicate’ any particular reason for the

kidnapping attempt and so the Court finds that the

respondent has failed to meet his burden of Proof to

show that there was a connection between the

attempted abduction and any of the protected grounds.

The record in this case also indicates that the

government of Colombia certainly is willing to protect

the respondent to the extent they can. It is clear that a

great deal of enforcement resources were brought to

bear on the respondent's complaints. Of course no

police force in any country is able to provide 100%

protection for its citizens but it does seem in this case

that the government of Colombia is willing to provide

its protection and the record in this case also shows

that the protection provided by the government,

together with the private protection which can be

afforded by relatively affluent business persons such as

App. 22

the respondent, does provide the inhabitants with a

degree of protection. And so, on this record, I cannot

find that the respondent has shown that, the

government of Colombia, together with the

respondent's own resources, is insufficient to protect

the respondent. Indeed, it appears that the

respondent's brother, who now occupies virtually the

same position that the respondent had in Colombia, is

able to live in Colombia without being kidnapped.

Accordingly, the Court finds that the respondent

has failed to establish that he meets the definition of

refugee as set forth in Section 101 (a)(43)(A) of the

Immigration and Nationality Act. The Court also

believes that the respondent has failed to meet the

higher burden of proof to shoe that it is more likely

than not that he would be persecuted or tortured in

Colombia if he were to return there. The respondent

did in fact return to Colombia after the abduction in

March of 1995 and it does not appear that he suffered

upon his most recent trip to Colombia. Because the

respondent has failed to establish that he meets the

definition of refugee, he has failed to satisfy the higher

burden of proof for withholding of removal under the

Immigration and Nationality -Act. Likewise, I do not

believe that this record shows that it is more likely than

not that the respondent would be tortured if he were to

be returned to Colombia. The record is consistent with

a theory that the respondent fears common criminals in

Colombia and with the protection of the authorities

there, it can not be said it is more likely than not that he

would be tortured it he were returned to Colombia.

Accordingly, I find that the respondent has failed to

meet his burden of proof with respect not only to

App. 23

asylum, but to withholding of removal under the

Immigration and Nationality Act and the Torture

Convention. And so, those forms of relief must be

denied. Accordingly, the following order shall issue:

ORDER

The applications of the respondents for asylum

in the United States are denied;

The applications of the respondents for

withholding of removal under Section 241(b)(3) and

the Convention Against Torture are denied; and the

following order shall issue:

The respondents are ordered removed from the

United States to Colombia pursuant to Section

237(a)(1)(B) of the Immigration and Nationality Act.

/s/ Donn L. Livingston

DONN L. LIVINGSTON

Immigration Judge

App. 24

CERTIFICATE PAGE

I hereby certify that the attached proceeding

before JUDGE DONN L. LIVINGSTON, in the matter

of:

SERGIO ALBERTO RANGEL QUINONEZ and

ESTHER CHRISTINA CAMACHO MIMENDY

A 77 868 231/232

Salt Lake City, Utah

is an accurate, verbatim transcript of the cassette tape

as provided by the Executive Office for Immigration

Review and that this is the original transcript thereof

for the file of the Executive Office for Immigration

Review.

/s/ Michelle P. Marvin

Michelle P. Marvin, Transcriber

Free State Reporting, Inc.

1324 Cape St. Claire Road

Annapolis, Maryland 21401

(301) 261-1902

October 26, 2000

(completion date)

By submission of this CERTIFICATE PAGE, the

Contractor certifies that a Sony BEC/T-147, 4-channel

transcriber or equivalent, as described in Section C,

paragraph C.3.3.2 of the contract, was used to

transcribe the Record of Proceeding shown in the

above paragraph.

App. 25

Sec. 1101. - Definitions

(a)

(42)

As used in this chapter -

+ + +

The term "refugee" means

(A)

(B)

any person who is outside any country of

such person's nationality or, in the case of

a person having no nationality, is outside

any country in which such person last

habitually resided, 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, or

in such special circumstances as_ the

President after appropriate consultation

(as defined in section 1157(e) of this title)

may specify, any person who is within

the country of such person's nationality

or, in the case of a person having no

nationality, within the country in which

such person is habitually residing, and

who is persecuted or who has a well-

founded fear of persecution on account of

race, religion, nationality, membership in

a particular social group, or political

opinion. The term "refugee" does not

include any person who ordered, incited,

App. 26

assisted, or otherwise participated in the

persecution of any person on account of

race, religion, nationality, membership in

a particular social group, or political

opinion. For purposes of determinations

under this chapter, a person who has

been forced to abort a pregnancy or to

undergo involuntary sterilization, or who

has been persecuted for failure or refusal

to undergo such a procedure or for other

resistance to a coercive population

control program, shall be deemed to have

been persecuted on account of political

opinion, and a person who has a well

founded fear that he or she will be forced

to undergo such a procedure or subject to

persecution for such failure, refusal, or

resistance shall be deemed to have a well

founded fear of persecution on account of

political opinion.

+ + +

Sec. 1158. - Asylum

(a) Authority to apply for asylum

(1)

In general

Any alien who is physically present in the

United States or who arrives in the

United States (whether or not at a

designated port of arrival and including

an alien who is brought to the United

States after having been interdicted in

(2)

App. 27

international or United States waters),

irrespective of such alien's status, may

apply for asylum in accordance with this

section or, where applicable, section

1225(b) of this title.

Exceptions

(A)

Safe third country

Paragraph (1) shall not apply to an

alien if the Attorney General

determines that the alien may be

removed, pursuant to a bilateral or

multilateral agreement, to a

country (other than the country of

the alien's nationality or, in the

case of an alien having no

nationality, the country of the

alien's last habitual residence) in

which the alien's life or freedom

would not be threatened on

account of race, religion,

nationality, membership in a

particular social group, or political

opinion, and where the alien

would have access to a full and fair

procedure for determining a claim

to asylum or equivalent temporary

protection, unless the Attorney

General finds that it is in the public

interest for the alien to receive

asylum in the United States.

(B)

(C)

(D)

App. 28

Time limit

Subject to subparagraph (D),

paragraph (1) shall not apply to an

alien unless the alien demonstrates

by clear and convincing evidence

that the application has been filed

within 1 year after the date of the

alien's arrival in the United States.

Previous asylum applications

Subject to subparagraph (D),

paragraph (1) shall not apply to an

alien if the alien has previously

applied for asylum and had such

application denied.

Changed circumstances

An application for asylum of an

alien may be _ considered,

notwithstanding subparagraphs

(B) and (C), if the alien

demonstrates to the satisfaction of

the Attorney General either the

existence of changed

circumstances which materially

affect the applicant's eligibility for

asylum or extraordinary

circumstances relating to the delay

in filing an application within the

period specified in subparagraph

(B).

App. 29

+ + +

Sec. 1231. - Detention and removal of aliens ordered

removed

(b)

(3)

+ + +

Countries to which aliens may be removed

+ + +

Restriction on removal to a country

where alien's life or freedom would be

threatened

(A)

In general

Notwithstanding paragraphs (1)

and (2), the Attorney General may

not remove an alien to a country if

the Attorney General decides that

the alien's life or freedom would

be threatened in that country

because of the alien's race, religion,

nationality, membership in a

particular social group, or political

opinion.

+ + +

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.