Petition for Writ of Certiorari — Perafan Saldarriaga v. Gonzales

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government insurgents in Colombia. The

government of Colombia is unable to

control the political insurgency, which has,

in the words of the government's chief

witness at trial, “melded” with the major

narcotrafficking organizations which were

the subject of the DEA money-laundering

operation (App. 46-47, A39-40);

(3) The DEA obtained a visa for Mr.

Perafan and his wife to come to the United

States because the DEA feared that the

narcotraffickers would retaliate against Mr.

Perafan on account of their mistaken belief

that he knowingly worked with the DEA’s

money laundering operation and provided

intelligence to the United States

government about narcotraffickers/

insurgents (App. 28-29);

(4) Once Mr. Perafan arrived in the United

States, the DEA fell out with Cruz, lost

interest in Mr. Perafan, and provided no

assistance to him in obtaining permanent

immigration status in the United States

(App. 29-30);

(5) Mr. Perafan presented sufficient

evidence to persuade the immigration Judge

that he had a well-founded fear of

persecution if he returned to Colombia

because Cruz was killed when he returned

to Colombia (App. 48-49), Mr. Perafan’s

brother was killed on account of Mr.

Perafan’s relationship with the DEA, and

Mr. Perafan’s mother (App. A28) and

sister-in-law (App. A27) were threatened by

narcotraffickers on account of Mr.

Perafan’s involvement with the DEA,

requiring them to relocate their homes;

(6) The Immigration Judge found that Mr.

Perafan’s “association with the DEA was

tantamount to choosing the other side in

their conflict with the Colombian

government. If, therefore, that conflict is

political, the opinions imputed to

Respondent would trigger the protection of

United States asylum law (App. A46).”

The judge found, based on the evidence

presented by the government at trial, that

the drug war between the United States

and Colombian governments and the

narcotrafficker-insurgents, is political (App.

A47-49).

The INS appealed the Immigration Judge’s ruling,

and the Board of Immigration Appeals (BIA) found that

Mr. Perafan did not present sufficient evidence that he

feared persecution if he returned to Colombia (A14).

On appeal, the Fourth Circuit ruled that Mr.

Perafan was not entitled to asylum because “a political

opinion applicant must show” that his acts “were

grounded in principle, inspired by altruism, or intended

to advance a cause," and Mr. Perafan did not meet that

standard (A10).

Mr. Perafan filed a petition for rehearing en banc,

which was denied on June 1, 2005 (Al).

REASONS WHY THE WRIT SHOULD BE.

GRANTED_

|. | THERE ISA SPLIT AMONG THE CIRCUITS

AS TO WHAT CONSTITUTES "POLITICAL"

OPINION,

The Fourth Circuit’s decision illustrates a split

among the Circuits as to what constitutes “political”

activity or political opinion.

In INS v. Elias-Zacarias,this Court held that a

Guatamalan who fled to this country to avoid being

forced to join anti-government guerillas did not establish

that he was being persecuted on account of political

opinion because the motives of the victim and the

motives of the persecutors were not necessarily political.

The Court held that the victim, in resisting military

service, was not necessarily expressing a political opinion

because even:

a person who supports a guerilla movement

might resist recruitment for a variety of

reasons--fear of combat, a desire to remain

with one’s family and friends, a desire to

earn a better living in civilian life, to

> §02 U.S. 478 (1992); see,e.g. Sanghav. INS, 103

F.3d 1482, 1489 (9th Cir. 1997); seealso Steel on

Immigration Law § 8.07(a)(2000) (citing memorandum

opinion by General Counsel of INS that imputed

political opinion can constitute basis for asylum claims

under Elias-Zacarias).

mention only a few.*

The Court also found that the guerillas, in forcing

a person into joining them, were not necessarily

persecuting their conscript on account of his political

opinion because the guerillas, merely wishing to fill their

ranks, may not care what political opinion the conscript

holds.* Thus, the Court’s opinion seems to say that the

focus of a political asylum case must be on the political

Opinion held by the victim.

The Court held that Elias-Zacarias did not meet

his burden of proof because he produced no evidence that

the guerillas have a political “motive” in forcing him to

join them:°* there was no evidence that the guerillas were

forcing him to join them because of his political opinion.

The dissent, written by Justice Stevens, stated that

the majority’s “narrow, grudging construction of the

concept of ’political opinion’"’ did not take into account

the reality that political persecution occurs when a victim

is persecuted takes sides in a conflict: when the either

takes part in activity on behalf of the government or its

enemies or refuses to do so.

Since Elias-Zacarias the Third, Eighth, and Ninth

Circuits have applied the phrase “political” so as to cover

* $02 U.S. 482.

* Id.

® 502 U.S. at 483.

7 Td. at 487.

the Perafan’s situation.

In De Brenner v. Ashcroft,* the Eighth Circuit

considered the case of a wealthy Peruvian who fled

persecution from the Shining Path guerillas, who sought

to “take from the rich and give to the poor."’ The

Immigration Judge granted asylum, but the BIA reversed,

finding that the Shining Path persecuted the victim

because of her wealth, not because of a political opinion.

The Eighth Circuit reversed, finding that the Shining

Path imputed a political opinion in favor of the current

Capitalist system, and she was entitled to political asylum

based on an “imputed political opinion.""®

In Lukwago v. Ashcroft," the Third Circuit

reversed the BIA’s denial of asylum to a Ugandan who,

as a child, was kidnapped by rebels and forced to fight

with them against government soldiers. The BIA had

held that Lukwago’s case was governed by Elias-Zacarias.

The Third Circuit found that “[t}here is nothing in the

Supreme Court opinion to suggest that forced

conscription by a guerilla organization cannot constitute

persecution,” merely that it cannot constitute persecution

on the grounds of political opinion. The Third Circuit

then held that Lukwago was a member of a different

protected class-asocial group consisting of youths whom

* 388 F.3d 629 (8th Cir. 2004)

* Id. at 63i.

'' 329 F.3d 157 (3d Cir. 2003)

the guerillas abducted and forced into military service.’

The Third Circuit has merely circumvented this Court's

opinion in Elias-Zacariasby defining the very group

which this Court held did not consitute a protected

group on account of political opinion as a protected

group on account of their membership in “a particular

social group.”

In Agbuya v. INS,” the Ninth Circuit held that a

Filipino was persecuted on account of imputed "political"

opinion when she was kidnapped and abused by

communist insurgents because she had taken actions,

during the course of her employment with a mining

company, which they considered to be contrary to the

benefit of laborers, even though there was no evidence

that she held a political opinion adverse to the

communists. The majority disregarded the dissent’s

argument, based on Elias-Zacarias that the case did not

involve political opinion but merely a labor dispute. The

majority wrote:

There is little doubt that Agbuya was

singled out by the guerillas for persecution

because of the unpopular actions she took

while an employee of Benguet. In the

context of the communist guerilla

insurgency in the Phillipines, however,

Agbuya’s personnel actions took on an

importance beyond the impact on the

miners. A reasonable factfinder would

have to conclude that the communist NPA

Id. at 171-3.

'S 241 F.3d 1224 (9th Cir. 2001).

interpreted Agbuya’s actions as an affront

to their cause: Agbuya as viewed as

politically aligned with the mining

company and the government, and against

the NPA."*

Other circuits have held that acting as an

informant for one side in a sustained conflict constitutes

an expression of political opinion. For example, in

Briones v. INS,"* the Ninth Circuit found that "Briones’s

activity as a confidential informer who sided with the

Philipine military in a conflict that was political at its

core certainly would be perceived as a political act by the

group informed upon ..." In Fadul v. INS,"*, the

Seventh Circuit stated, in dicta, that testimony that

petitioner was viewed as a government informant may

support a claim based on political opinion.

The Fourth Circuit has defined "political"

narrowly. The court held that when an applicant “has

not taken sides" in an “organized insurgency” and "the

conflict, though ubiquitous, is not aimed at controlling

the organs of state, an applicant cannot merely describe

his involvement with one side or the other to establish a

political opinion.” (App. All).

The political aspect of this case is unusual in that

the political struggle in which Mr. Perafan became

involved is two-dimensional: a struggle between the

' 241 F.3d at 1229-30.

'§ 175 F.3d 727 (9th Cir. 1999)

'© 210 F.3d 374 (7th Cir. 2000).

narcotraffickers-insurgents against the government of

Colombia and the narcotrafficker-insurgents struggle

against the United States, a struggle that is waged by the

United States government in Colombia. But there is no

question that narcotraffickers, whose cause, according to

the evidence at trial (App. A46-47;A39-40) has “melded”

with the anti-government insurgency which seeks to seize

the reins of government in Colombia, seek to harm Mr.

Perafan because they believe that he took sides against

them and with the United States government.

The Fourth Circuit's conclusion that Mr.

Perafan’s fear of persecution is not “on account of” a

“political opinion" ignores the reality that Perafan’s boss,

Cruz, was killed, Mr. Perafan’s own brother was killed,

and Mr. Perafan’s sister-in-law and mother were forced to

move as a result of death threats, all in retaliation for Mr.

Perafan's imputed cooperation with our government in

that struggle. There is no other basis for that

persecution--there was no evidence in the record to

support the conclusion that the narcotraffickers had any

other motive against the Perafan family other than

retaliation on account of their belief that Mr. Perafan

cooperated with the United States in its war against

them.

Mr. Perafan’s cooperation with the United States

government in the war which, the government’s own

witness testified, we are (or were at the time) prosecuting

in Colombia was an inherently political act. It was an

act performed in support of the policy of the American

and Colombian government and against the anti-

government insurgents/narcotraffickers in Colombia.

Mr. Perafan’s fear that he will face retaliation from the

insurgents/narcotraffickers “on account of” his imputed

cooperation with the United States is persecution “on

account of” the political opinion imputed to him that he

supported the American and Colombian governments and

did not support the insurgents/narcotraffickers. The

Fourth Circuit’s decision implies that if Mr. Perafan had

carried a sign which said “down with narcotraffickers"

and feared retaliation he would be eligible for asylum

because the retaliation would be “on account of" a

political expression, but since he took the more profound

and active step of actually assisting the United States

government in its war on drugs, his fear of retaliation is

not “on account of" political opinion. This reasoning

does not make sense.

The proper legal standard for political asylum is

whether the applicant has a well-founded fear of

persecution “on account of political opinion.” Mr.

Perafan is afraid of persecution because the

narcotraffickers believe that he cooperated with the DEA,

against them. They perceive that Mr. Perafan expressed a

political opinion by working with the United States

government against the narcotraffickers vho, according

to the government’s own testimony, are identical to the

political insurgents. The evidence in the record clearly

establishes that Mr. Perafan has a well-founded fear of

retaliation by the narcotraffickers.

The Fourth Circuit’s policy argument that

allowing Mr. Perafan’s claim would cause the

proliferation of asylum grants is mere hyperbole. A

review of the case law indicates that there are no other

cases where the United States government obtained a visa

for an individual who cooperated with an American law

enforcement investigation in a foreign country--on the

grounds that the person was in danger in the foreign

country--and then abandoned the person in the United

States without immigration status, even though the

person showed a well-founded fear of harm in the foreign

country and, indeed, the danger to the person was the

basis for our government bringing him here in the first

place. Mr. Perafan’s situation is unique--it would not

“cause the proliferation of asylum grants.” Even if the

recognition of imputed political opinion as a basis for

asylum would result in an increased number of asylum

grants, this was a result which Congress ai: cipated when

it enacted the Refugee Act of 1980. As this Court wrote

in INS v. Cardoza-Fonseca:

The [House] Committee carefully

considered arguments that the new

definition might expand the numbers of

refugees eligible to come to the United

States and force substantially greater

refugee admissions than the country could

absorb. . . . Congress has assigned the

Attorney General and his delegates the task

of making these hard individualized

decisions; although Congress could have

crafted a narrower definition, it chose to

authorize the Attorney General to

determine which, if any, eligible refugees

should be denied asylum."’

If the actual facts of Mr. Perafan’s case are

analyzed, and not distorted into a case which was not

presented at trial, it is self-evident that Mr. Perafan’s fear

of danger based on his cooperation with our government

is precisely the type of case which our asylum law ought

' 480 U.S. 421, 444-445 (1987).

to cover: such an application of asylum law promotes the

integrity of our government, so that we are not perceived

to abandon foreigners who assist us in pursuing our

policies overseas, and is consistent with the traditional

human rights basis of political asylum.

The Fourth Circuit, by focusing on Mr. Perafan’s

motives--confuses the motives which ought to be

examined in an asylum case. The panel mixes up the

proper focus of an asylum case, looking at the case

backwards; the panel does not focus on the motives of

the persecutors, who are the only people who can engage

in persecution “on account of” any reason, but instead

examines the motives of the applicant, which are not

relevant. The logic of this is obvious, even in an asylum

setting which is noncontroversial: if the Chinese

government ‘believed that an individual was an anti-

Communist dissident and intended to persecute the

person upon his return to China, he would be entitled to

asylum, even if the individual was not really a dissident

but the government mistakenly believed him to be one.

Thus, the proper focus is on the motives of the

persecutors, not the asylum seeker, and whether the

persecutors impute, rightly or wrongly, a political

opinion to the asylum seeker.

If Mr. Perafan lived in the Third, Eighth, or

Ninth Circuit, the Court of Appeals would have held

that the facts of his case constitute persecution on

account of political opinion. Since Mr. Perafan lives in

the Fourth Circuit, which has construed Elias-Zacarias

narrowly, he has been denied asylum and faces

deportation to near-certain death in Colombia.

II. THERE IS A SPLIT AMONG THE CIRCUITS

AS TO WHETHER AN IMPUTED POLITICAL

OPINION MAY FORM THE BASIS OF

POLITICAL ASYLUM IN THE UNITED

STATES.

There is a split among the Circuit Courts of

Appeals as to whether an imputed political opinion may

form the basis of political asylum.

In Elias-Zacarias this Court did not address

whether an asylum seeker must actually hold the political

opinion for which he is being persecuted, or whether the

mere belief by the persecutors that the victim held an

adverse political opinion would be sufficient. The Court

left this question of imputed political opinion open. The

Court wrote:

Nor is there any indication (assuming,

arguendo, it would suffice) that the guerillas

erroneously believed that Elias-Zacarias’

refusal was politically based.""*

In the thirteen years since Elias-Zacariaswas

decided, seven Circuits and the Board of Immigration

Appeals (BIA) have held that persecution on account of

imputed political opinion may be the grounds for

political asylum, even if the persecutors erronecusly

attribute the political belief to the victim."

'® $02 U.S. at 482.

'% Ravindran v. INS, 976 F.2d 754 (ist Cir. 1992):

Singh v. Gonzalez, 406 F.3d 191 (3d Cir. 2005); Lwin v.

INS, 144 F.3d 505, 509 (7th Cir. 1998); De Brenner v.

—_———

However, the Fourth Circuit, in this case, has

ruled that “a political opinion applicant must show" that

his acts "were grounded in principle, inspired by altruism,

or intended to advance a cause” (App. Al0). The Fourth

Circuit decision required Mr. Perafan to show that he

actually held a political opinion adverse to the

narcotraffickers/insurgents, not merely that the

narcotraffickers imputed a political opinion to him.

Thus, the Fourth Circuit has staked out a position

different from the other Circuits: on the question of

whether an erroneous belief by persecutors that a victim

held a political opinion “would suffice," to support an

asylum application, such a belief does not suffice in the

Fourth Circuit. Instead, an asylum applicant must show

that he actually holds a political opinion “grounded in

principle," “inspired by altruism,” or “intended to

advance a cause."

Although the Fourth Circuit has not explicitly

stated that an imputed political opinion may not form

the basis for an asylum claim, its holding in this case that

the applicant must actually hold a politial opinion

forecloses an asylum applicant in the Fourth Circuit from

claiming that a political opinion is imputed to him by his

persecutors.

Therefore, the Fourth Circuit's decision is at

variance with the Circuits that have recognized imputed

political opinion as a grounds for political asylum, and

Ashcroft, 388 F.3d 629 (8th Cir. 2004); Sangha v. INS, 103

F.3d 1482, 1489 (9th Cir. 1997); Elzour v. Ashcroft, 378

F.3d 1143 (10th Cir. 2004); Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (1 Ith Cir. 2001); Matter of S-P-,21 1 & N Dec.

486, BIA LEXIS 25 (BIA 1996).

begs the question left open by Elias-Zacarias:whether

imputed politcal opinion, even an erroneous imputation,

may form the basis for political asylum.

(il. THE FOURTH CIRCUIT APPLIED THE

BURDEN OF PROOF IN A MANNER

WHICH IS NOT CONSISTENT WITH THE

OTHER CIRCUITS.

The asylum statute provides no guidance as to the

burden of proof which an asylum must meet in an

asylum case. The Attorney General’s regulation for

establishing eligibility for asylum states that, "[t]he

burden of proof is on the applicant for asylum to

establish that he or she is a refugee."* The regulation

also provides that “[t]he testimony of the applicant, if

credible, may be sufficient to sustain the burden of proof

without corroboration."*' The phrase “burden of proof"

in 8 C.F.R. § 208.13(a)(2004) is ambiguous: it is not clear

whether the asylum seeker must meet a burden of

production (merely establish a prima facie case that he is

a refugee), a burden of going forward (which may shift

back and forth between the parties as the trial

progresses), or a burden of persuasion and, if a burden of

persuasion must be carried, whether that burden must be

met to the preponderance of the evidence standard.”

” 8C.F.R. § 208. 13(a)(2004).

" =

* These burdens of proof are described in Ambrose

v. Wheatley, 321 F. Supp. 1220, 1222 (D. Del. 1971); see

also Director v. Greenwich Collieries,12 U.S. 267, 272

(1994).

This problem was identified by Justice Stevens in

his dissent to Elias-Zacarias when he wrote:

The narrow, grudging construction of the

concept of “political opinion” that the

court adopts today is inconsistent with the

basic approach to the statute taken in JNS

v. Cardozo-Fonseca. . \n that case, relying

heavily on the fact that an alien’s status as

a “refugee” merely makes him eligible for a

discretionary grant of asylum--as contrasted

with the entitlement to a withholding of

deportation authorized by § 243(h) of the

Act--the Court held that the alien’s burden

of proving a well-founded fear of

persecution did not require proof that

persecution was more likely than not to

occur. We explained:

"Our analysis of the plain language of the

Act, its symmetry with the United Nations

Protocol, and its legislative history, lead

inexorably to the conclusion that to show a

‘well-founded fear of persecution,’ an alien

need not prove that it is more likely than

not that he or she will be persecuted in his

or her home country. We find these

ordinary canons of statutory construction

compelling, even without regard to the

longstanding principle of construing any

lingering ambiguities in deportation statutes

in favor of the alien."*

3 §02 U.S. at 487.

A. BURDEN OF PROOF IN ASYLUM

CASES BEFORE 1987.

In INS v. Cardozo-Fonseca,*this Court was asked

to determine whether an alien seeking asylum under INA

§ 208(a) was required to meet he same “burden of proof"

as an alien seeking withholding of deportation under

INA § 243(h). In holding that an asylum seeker had a

lesser burden of proof, this Court held "'the persecution

or well-founded fear of persecution’ standard governs the

Attorney General’s determination whether an alien is

eligible for asylum."* In reaching the conclusion that the

standards for withholding of deporation and asylum were

different, the Court reasoned:

In contrast, the refererce to “fear” in the §

208(a) standard obviously makes the

eligibility determination turn to some

extent on the subjective mental state of the

alien. “The liguistic difference between the

words ‘well founded fear’ and ‘clear

probability’ may be as striking as that

between a subjective and an objective frame

of reference .. . . We simply cannot

conclude that the standards are identical."

* 480 U.S. 421, 430-31 (1987) ("[O}ne can certainly

have a well-founded fear of an event happening when

there is less than a 50% chance of the occurrence taking

place.")

*% Id. at 428.

The BIA agrees that the term "fear," as

used in this staute, referes to "a subjective

condition, an emotion characterized by the

anticipation or awareness of danger.” That

the fear must be “well-founded” does not

alter the obvious focus on the individual’s

subjective beliefs, nor does it tranform the

standard into a “more likely that not” one.

One can certainly have a well-founded fear

of an event happening when there is less

than a 50% chance of the occurrence taking

place. As one leading authority has

pointed out:

"Let us ... presume that it is known that

in the applicant’s country of origin every

tenth adult male person is put to death or

sent to some remote labor camp .... In ~

such a case it would be only too apparent

that anyone who has managed to escape

the country in question will have ‘well-

founded fear of being persecuted’ upon his

eventual return."*°

B. HOW THE BURDEN OF PROOF IS

UNCERTAIN.

The ambiguity created by this Court’s holding

that “the persecution or well-founded fear of persecution

standard governs" an asylum seeker’s eligibility for relief

is that the Court did not clarify whether this was a

"burden of production,” a "burden of going forward,” a

"purden of persuasion,” or a "burden of proof," and, if a

burden of proof, what level of proof would satisfy the

burden. As a result of this ambiguity, the Circuit Courts

have reached different conclusions as to what amount of

proof is required in asylum cases,

1. BURDEN OF PROOF.

The burden of proof has often been used to

describe two concepts:

(1) the burden of persuasion, which under

the traditional view never shifts from one

party to the other, at any stage of the

proceedings, and (2) the burden of going

forward with the evidence, which may shift

back and forth between the parties as the

trial progresses.”

However, due to much confusion over the use of

the term, this Court has expressed a preference to limit

the meaning of “burden of proof” to only the “burden of

persuasion."** Thus, for example, in construing the

phrase "burden of proof” in § 7(c) of the Administrative

7) Ambrose v. Wheatley, 321 F. Supp. 1220, 1222 (D.

Del. 1971); seealso, Director v. Greenwich Collieries 512

U.S. 267, 272 (1994).

78 Id. at 274-75: seealso Webre Steib Co. v.

Commisioner, 324 U.S. 154, 171 (1945): Commercial

MolassesCorp. v. N.Y. Tank Barge Corp. ,314 U.S. 104,

111 (1941); Radio Corp. of America v. Radio Engineering

Laboratories, Inc. ,293 U.S. 1, 7-8 (1934); Brosnan v.

Brosnan, 263 U.S. 345, 349 (1923): Hill v. Smith, 260 U.S.

592, 594 (1923).

Procedures Act ("APA"), this Court wrote: “[w]e

interpret Congress’ use of the term "burden of proof’ in

light of this history, and presume Congress intended the

phrase to have the meaning generally accepted in the

legal community at the time of enactment."”

2. BURDEN OF PERSUASION.

The party with the burden of persuasion must

convince the fact-finder to view the facts in a way that

favors that party. In civil cases, the moving party must

usually prove his case "by a preponderance of the

evidence," while criminal cases are subjected to the higher

standard of “beyond a reasonable doubt."® The party

bearing the burden of persuasion retains that burden

throughout the duration of the case, regardless of

whether the burden of going forward shifts.*

3. BURDEN OF GOING FORWARD.

The burden of going forward has been described

as the same as the burden of production.*” However, the

burden of going forward may shift during the course of a

22 Director v. Greenwich Collieries ,512 U.S. a 275.

*® BLACK’S LAW DICTIONARY (8th ed. 2004).

** Commercial MolassasCorp. v. NY Tank Barge

Corp. ,314 at 110-11.

2 Director v. Greenwich Collieries 512 U.S. at 272.

trial.*

4.BURDEN OF PRODUCTION.

The determination of whether a party has satisfied

the burden of production is purely a legal issue, which

does not involve an assessment of the credibility of the

evidence tendered. The trial judge is merely required to

assess whether the evidence introduced, if "taken as true,

would permit the conclusion,’ sought by the party

offering the evidence."** The burden of production

remains static throughout the duration of the case, and it

referes to meeting a threshhold of elemental proof before

an issue can be submitted to the fact-finder.

As this Court held in Cardozo-Fonseca,*%t makes

sense that a burden of production should be applied in

asylum cases because the applicant is only required to

make a prima facie showing that he is eligible for asylum

and the Attorney General retains discretion as to whether

to grant asylum. The applicant should be able to get to

the stage of the proceeding where the Attorney General

may exercise his discretion by merely carrying a burden

> Barnes v. U.S.,12 U.S. 837, 846 n. 11 (1973):

Konigsbergv. California, 366 U.S. 36, 40 n.4 (1960).

* St. Mary’sHonor Center v. Hicks, 509 U.S. 502, 509

(1993).

3° Id. (emphasisin original).

of production.*’

C. IT [Is UNCLEAR WHETHE*® AN

ASYLUM APPLICANT MUST MEET A

BURDEN OF PRODUCTION OR A

BURDEN OF PERSUASION.

Since Cardoza-Fonsecajhe Courts of Appeals and

the BIA have disagreed on the burden of proof to be

applied in asylum cases. The First,** Second,” Third,”

Eighth,*’ Eleventh Circuits,’ and the BJA* have held

that an alien must meet a preponderance of the evidence

standard, even though this Court held otherwise in

*” §C.F.R. § 208.14(a)(2004).

*® See,e.g. Diab v. Ashcroft, 397 F.3d 35 (lst Cir.

2005); Settenda v. Ashcroft, 377 F.3d 89 (ist Cir. 2004).

% See,e.g. Zhang v. INS, 386 F.3d 66 (2d Cir. 2004);

Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004);

We Biao Chen v. INS, 344 F.3d 272 (2d Cir. 2003).

“ See,e.g.,Chen v. Ashcroft, 376 F.3d 215 (3d Cir.

2004).

*! See,e.g.,Kondakova v. Ashcroft, 383 F.3d 792 (8th

Cir. 2004).

*? See,e.g.,.D-Muhumed v. U.S. Attorney General, 388

F.3d 814 (11th Cir. 2004).

* In reM.D.,2\ 1&N Dec. 1180 (BIA 1998) (BIA

held that alien bears the burden of proof to establish

eligibility for asylum).

Cardozo-Fonseca. Decisions from the First,“ Second,“

Third,” Seventh,” Eighth,“ Ninth,“ Tenth Circuits,”

and the BIA,*' have held that an alien must merely meet

a burden of producing some evidence of persecution on

“ See,e.g. Mukamusoni v. Ashcroft, 390 F.3d 119 (ist

Cir. 2004); Hernandez-Barrerav. Ashcroft, 373 F.3d 9 (ist

Cir. 2004).

* See,e.g.Jin Shui Qiu v. Ashcroft, 329 F.3d 140 (2d

Cir. 2003); Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994);

Michaelv. Slattery, 852 F. Supp. 211 (S.D.N.Y. 1994).

* See,e.g. Leia v. Ashcroft, 393 F.3d 427 (3d Cir.

2004); Berishajv. Ashcroft, 378 F.3d 314 (3d Cir. 2004).

* See,e.g. Lin v. Ashcroft, 385 F.3d 748 (7th Cir.

2004); Gontcharova v. Ashcroft, 384 F.3d 873 (7th Cir.

2004); Ememe v. Ashcroft, 358 F.3d 446 (7th Cir. 2004).

** See,e.g. Ahmadshah v. Ashcroft, 396 F.3d 917 (8th

Cir. 2005); El-Sheikh v. Ashcroft, 388 F.3d 643 (8th Cir.

2004); Awale v. Ashcroft, 384 F.3d 792 (8th Cir. 2004).

* See,e.g.,Yeimane-Berhe v. Ashcroft, 393 F.3d 907

(9th Cir. 20040; Kaiser v. Ashcroft, 390 F.3d 653 (9th Cir.

2004); Shire v. Ashcroft, 388 F.3d 1288 (9th Cir. 2004).

(10th Cir. 2004).

* See,e.g.Jn re A.E.M.,21 1&N Dec. 1157 (BIA

1998)(BIA reversed Immigration Judge’s finding that

burden of production was not satisfied); /n re O.D.,21

I&N Dec. 1079 (BIA 1998)(BIA reversed an Immigration

Judge’s decision to deny asylum based on credibility).

account of an enumerated ground, so as to establish

eligibility for asylum, and the Attorney General may

then exercise discretion as to whether to grant asylum.

Here, the Immigration Judge improperly required

Mr. Perafan to meet a burden of persuasion (App. A30).

However, the judge found that Mr. Perafan met the

burden of persuasion, feared persecution on the basis of

an imputed political opinion, and was eligible for asylum

(App. A46-49). The BIA applied a “more likely than

not" standard of proof and found that Perafan did not

prove this claim under that standard (App. A18); the BIA

did not rule that his claim was not grounded in a

political opinion (App. A1l9), but that the quantum of

evidence was insufficient. Therefore, the BIA’s

application of the more likely than not standard of proof

was “manifestly contrary to the law and an abuse of

discretion, "*

The Fourth Circuit's decision in this case,

affirming the BIA’s application of the “more likely than

not" standard, has placed itself in opposition to the

Supreme Court’s ruling in Cardozo-Fonsecaand with the

Courts that have allowed a burden of production to be

applied in asylum cases. The Fourth Circuit’s decision

that “a political opinion applicant must show" that it is

more likely than not that his acts "were grounded in

principle, inspired by altruism, or intended to advance a

cause" expands the drift away from the Supreme Court’s

ruling in Cardozo-Fonsecaand imposed a burden on Mr.

Perafan that is not required by the statute, the applicable

regulations, or by the applicable Supreme Court

precedent of Cardozo-Fonseca.

? 8 U.S.C. § 1252(b)(4)(D).

If Mr. Perafan lived in one of the Circuits which

followed this Court’s rule in Cardozo-Fonsecaand where

he would have only been required to produce credible

evidence that the narcotraffickers/insurgents wished to

kill him because they believed he had cooperated with

the DEA, he would have met his burden of production

and the Immigration Judge’s decision to exercise

discretion in favor of Mr. Perafan would not have been

subject to reversal. Mr. Perafan would have been entitled

to asylum, even if the evidence in the case did not meet

the preponderance of evidence standard of proof. By

holding Mr. Perafan to the preponderance of the evidence

standard, the Fourth Circuit violated this Court’s ruling

in Cardozo-Fonsecahat an asylum applicant need not

meet that standard.

This Court should grant this petition and resolve

the confusion among the Courts of Appeals as to what

standard of proof must be applied in asylum cases.

CONCLUSION

FOR THE REASONS stated herein the

petitioners pray that this Court will grant this petition

and review the decision of the United States Court of

Appeals for the Fourth Circuit.

Respectfully Submitted,

APOLINAR PERAFAN

SALDARRIAGA, et al.,

By: ye —

Gary M. Bowman, Esq.,

Counsel of Record

VSB No. 28866

306 Market Street

Roanoke, Virginia 240i!

Tel: (540) 343-7949

Fax: (540) 344-6144

In The

Supreme Cowt of the Wnited States

APOLINAR PERAFAN SALDARRIAGA; LUZ

VELASQUEZ CARMONA, ADRIANNA MENESES

VELASQUEZ; MAURICIO PERAFAN

VELASQUEZ, Petitioners,

ALBERTO GONZALES, ATTORNEY GENERAL,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

APPENDIX

Gary M. Bowman, Counsel of Record

Gary M. Bowman, Attorney at Law

306 Market Street

Roanoke, Virginia 24011

(540) 343-7949

Counsel for Petitioner

———————— ——-

TABLE OF CONTENTS FOR APPENDIX.

Order, U.S. Court of Appeals for the Fourth

Circuit, denying Petition for Rehearing en Banc,

Se a Seca voted hocvethesodebeceeces Al

Opinion, U.S. Court of Appeals for the Fourth

Circuit, dated March 29, 2005 ......cccccccccs A2

Decision, U.S. Department of Justice,

Board of Immigration Appeals, dated

GE “Flees eb Ceks et obi ebb eeNE CS Al4

Decision, U.S. Department of Justice, Executive

Office of Immigration Review, U.S. Immigration

Se Cn ns cb we eee behebecdsee A21

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

June 1, 2005

No. 04-1182

A76-898-250

A76-898-204

A76-898-203

A76-898-202

APOLINAR PERAFAN SALDARRIAGA; LUZ

VELASQUEZ CARMONA; ADRIANNA MENESSES

VELASQUEZ; MAURICIO PERAFAN VELASQUEZ,

Petitioners

Vv.

ALBERTO R. GONZALES, Attorney General,

Respondent

ON PETITION FOR REHEARING EN BANK

The appellants’ petition for rehearing en banc was

submitted to this Court. As no member of this Court

requested a poll on the petition for rehearing en banc, IT

IS ORDERED that the petition for rehearing en banc is

denied.

Entered for a panel composed of Judge Wilkinson,

Judge Williams, and Judge Traxler.

For the Court,

/s/_ Patricia S. Connor

CLERK

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1182

APOLINAR PERAFAN SALDARRIAGA,

LUZ VELASQUEZ CARMONA, ADRIANNA

MENESSES VELASQUEZ; MAURICIO

PERAFAN VELASQUEZ,

Petitioners,

ALBERTO R. GONZALES, Attorney General

Respondent.

On Petition for Review of an Order of

The Board of Immigration Appeals.

(A-76-898-202; A-76-898-203; A-76-898-204:

A-76-898-250)

Argued: February |, 2005

Decided: March 29, 2005

Before WILKINSON, WILLIAMS, and TRAXLER,

Circuit Judges.

Petition denied by published opinion. Judge Wilkinson

wrote the opinion, in which Judge Williams and Judge

Traxler joined.

COUNSEL

ARGUED: Gary Michael Bowman, Roanoke, Virginia,

for Petitioners. Kristin Ann Cabral, UNITED STATES

DEPARTMENT OF JUSTICE, Civil Division,

Washington, D.C., for Respondent. ON BRIEF: Peter D.

Keisler, Assistant Attorney General, Carl H. Mcintyre,

Jr., Senior Litigation Counsel, UNITED STATES

DEPARTMENT OF JUSTICE, Office of Immigration

Litigation, Civil Division Washington, D.C., for

Respondent.

OPINION

WILKINSON, Circuit Judge:

In this appeal from a final order of removal, we

must determine whether the Board of Immigration

Appeals (“BIA”) erred in rejecting petitioner's claim for

political asylum. Petitioner claims to fear reprisal by

Colombian drug criminals for his association with the

Drug Enforcement Agency (“DEA”) and his employment

by one of its informants. However, petitioner has not

demonstrated how his connection to the drug trade or his

collaboration with the DEA stemmed from a political

position he espouses. Because such a showing is vital to

an asylum claim grounded in “political opinion,” 8 U.S.C.

§ 1101(a)(42)(A) (2000), the BIA did not err in denying

petitioner’s application. We therefore affirm the BIA’s

decision and deny the petition for review.

Petitioner Apolinar Perafan-Saldarriaga is a native

of Colombia, where he worked as a singer and

restaurateur. After performing at an October 1995 party,

Perafan met Javier Cruz, who offered petitioner a job as

an escort and driver. Petitioner accepted and

accompanied his boss on various trips in 1995 and early

1996.

In furtherance of the employment relationship,

Cruz invited petitioner to travel to Roanoke, Virginia, and

work in a restaurant that Cruz was opening there. In

February 1996, shortly before departing for the United

States with his wife. Perafan drove Cruz to a meeting

attended by two known drug dealers. At this meeting,

petitioner observed an exchange of a metal box typically

used to transport drugs. He noticed the same type of box

while unpacking equipment at the Roanoke restaurant

later in the month. Perafan worked in the restaurant for

some eight months in 1996 before Cruz fired him over a

labor dispute.

In the month after petitioner lost his job, the

Roanoke Times published articles reporting that Cruz was

an informant for the DEA. This report was well-founded:

the DEA had arrested Cruz and his boss Leonardo Rivera

for drug-related offenses in 1991. In return for leniency

in sentencing, the agency had persuaded the two men to

assist in investigating the cartel that empic,ed them. The

ensuing undercover scheme was successful and yielded

material information concerning the criminal activity of

the cartel.

In the process of winding down the operation, the

DEA had secured passage, including temporary visas, to

the United States for Cruz, Perafan (whom Cruz had

recently hired as a driver), and Perafan’s wife. For some

time after their arrival in February 1996, Cruz had

continued to operate as an informant from the Roanoke

restaurant. But Cruz’s work was imperiled by the

Roanoke Time 's 1996 expos and his cover was completely

blown when the Colombian press picked up the story

from the Associated Press. The DEA moved Cruz to

Miami for his safety and the restaurant ceased to operate.

Recently out of work, concerned about the reports

in the local media which had confirmed Cruz's

connection to the drug world, and eager to remain in the

United States, Perafan approaches’ the DEA agent in

Roanoke who was involved with the undercover

operation. Petitioner offered to cooperate with the agency

in its investigation of Colombian drug trafficking and

professed knowledge gained during his employment by

Cruz. After several interviews, however, the agent in

charge determined that Perafan possessed no useful

information that was not already known by the DEA. In

mid-1997, the officer informed petitioner and his wife

that the agency could not assist them in immigration

matters.

Cruz, meanwhile, had become concerned about

the impact of his press exposure on his 1991 sentencing

deal. Despite the publication of the Roanoke Times

articles in the local Colombian media, Cruz returned to

his native land in 1997. He continued his involvement in

the drug trade there for some two years, before he was

murdered by a bodyguard in 1999.

In April 1999, the Immigration and Naturalization

Service (“INS”) issued petitioner a notice to appear.’ The

notice alleged that Perafan was a non-immigrant under 8

U.S.C. § 1101(a)(15)(b) (2000), who had remained in the

United States longer than permitted, making him

removable under 8 U.S.C. § 1227(aX1)(B) (2000).

Petitioner conceded his removability, but applied for

asylum under 8 U.S.C. § 1158(a)(1) (2000) for himself

and derivatively his wife and children. See 8 C.F.R. §

208.3(a) (2001).

The Attorney General has discretion to grant

asylum to applicants who establish “refugee” status. 8

U.S.C. § 1158(b)(1) (2000). A “refugee” is one “who is

unable or unwilling to return to” his native 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.” Jd. § 1101(a)(42)(A). Perafan alleged that his

employment by Cruz, an outed DEA informant, put him

at risk of reprisal by Colombian drug dealers and made

him a “refugee” under this statutory definition.

The removal proceedings and the asylum petition

were referred to an Immigration Judge (“IJ”). The U

heard testimony and issued a decision on July 30, 2001.

The IJ found that Perafan had successfully demonstrated a

well-founded fear of reprisal against him by drug dealers

in Colombia for his association with Cruz. Moreover, the

retaliation would be “on account of {a} political opinion,”

as § 1101(a)(42)(A) requires. The judge therefore granted

Perafan asylum.

' The agency was still known by this acronym during the

administrative proceedings in this case. We therefore use the term

“INS,” despite the fact that the agency has since been renamed and

reorganized. See 6 U.S.C_A. § 291 (West Supp. 2004), 8C.F.R.§ 1.1

(2005).

A panel of the BIA reversed. A majority of the

panei found implausible Perafan’s allegation that he

would face retaliation at the hands of drug dealers in

Colombia on account of a protected statutory ground.

The BIA therefore entered an order rejecting the asylum

claim. Petitioner now seeks review of that order in this

court.

IL.

Circuit courts hear appeals from the BIA’s final

orders of removal. See 8 U.S.C. § 1252(a)(1), (6)(2

(2000); Huaman-Cornelio v. BIA, 979 F.2d 995, 999 (4

Cir. 1992). When the BIA has adjudged asylum

eligibility, our review of its decision is narrow. See 8

U.S.C. § 1252(b)(4) (2000); Belbruno v. Ashcroft, 362

F.3d 272, 284 (4" Cir. 2004). We determine only

whether the BIA’s decision is “manifestly contrary to the

law and an abuse of discretion.” § 1252(b)(4)(D). When

? The government contends that this court is without jurisdictien.

Because the IJ decided the case on the asylum issue, he declined to

address petitioner's alternative application for voluntary departure.

See 8 U.S.C. § 1229¢ (2000). However, the BIA’s reversal on the

asylum issue revived the voluntary departure application. The BIA

accordingly remanded to the IJ “to allow [petitioner] an opportunity

to apply for voluntary departure.” The government argues that,

because this matter is pending before the UJ, federal jurisdiction,

which is limited to review “of a final order of removal,” is lacking.

Jd. § 1252(a)(1). Our sister circuits have already considered whether

a BIA order denying relief from deportation, but remanding the case

for voluntary departure proceedings or other subsidiary

determinations, is immediately appealable. See Del Pilar v. United

States, 326 F.3d 1154, 1156-57 (11" Cir. 2003) (per curiam),

Castrejon-Garcia v. INS, 60 F.3d 1359, 1361-62 (9" Cir. 1995),

Perkovic v. INS, 33 F.3d 615, 618-20 (6" Cir. 1994). These

precedents indicate that federal jurisdiction is proper in such

circumstances and, finding their reasoning persuasive, we apply this

conclusion here.

the BIA has rejected an asylum claim, we therefore

uphold its decision unless the petitioner has presented

evidence “so compelling that no reasonable factfinder

could fail to find” the elements required for asylum in

petitioner’s favor. JNS v. Elias-Zacarias 502 U.S. 478,

483-84 (1992); Belbruno, 362 F.3d at 278; Huaman-

Cornelio, 979 F.2d at 999. These standards reflect the

BIA’s expertise in the area of immigration, its status as

the Attorney General's designee in deportation decisions,

and the special caution we observe in matters relating to

foreign relations, for which the other branches of our

government bear primary responsibility. See Huaman-

Cornelio, 979 F.2d at 999; M.A. v. INS, 899 F.2d 304,

313-14 (4" Cir. 1990) (en banc).

LI.

Perafan alleges that the BIA erred by overturning

the IJ’s decision to grant him asylum. He contends the

BIA should have respected the IJ’s findings concerning

witness credibility and credited the IJ’s conclusion that

petitioner’s fear of reprisal in Colombia was well-

founded. By failing to do so, he says, the BIA exceeded

its own scope of review and impermissibly overrode

factual determinations committed to the IJ. See 8 C.F.R.

§ 1003.1(d)(3) (2005). Petitioner reiterates to us the

ubiquity of drug crime in Colombia and describes the

violent tactics of drug dealers there. He maintains that he

will be targeted because of his association with Cruz if he

must return to Colombia. He asks that we reject the

BIA’s contrary holding.

Quite apart from the question of petitioner’s

apprehensions of reprisal, his asylum claim founders on

more fundamental grounds. For in addition to proving a

well-founded fear of persecution, a party seeking refugee

status must also demonstrate that the persecution is “on

account of” one of the protected grounds ~ “race, religion,

nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1101(a)(42)(A) (2000). To

satisfy the statutory test, an applicant must make a two-

fold showing. He must demonstrate the presence of a

’ protected ground, and he must link the feared persecution,

at least in part, to it. See Elias-Zacarias, 502 U.S. at 482-

83; Rivera-Moreno v. INS, 213 F.3d 481, 486 (9” Cir.

2000).

When the protected ground is political opinion, the

first showing is prototypically met by evidence of verbal

or openly expressive behavior by the applicant in

furtherance of a particular cause. See, e.g, Camara v.

Ashcroft, 378 F3d 361, 364 (4" Cir. 2004)

(“demonstrating with students” and participating in a

“protest march” for ethnic rights demonstrates political

opinion for asylum purposes). Less overtly symbolic acts

may also reflect a political opinion. See Briones v. INS,

175 F.3d 727, 728-29 (9" Cir. 1999) (en banc) (holding

that applicant’s provision of material information

concerning a political insurgency reflected political

opinion). But whatever behavior an applicant seeks to

advance as political, it must be motivated by an ideal or

conviction of sorts before it will constitute grounds for

asylum. Because of this requirement, we recently

reemphasized that “[flears of retribution over purely

personal matters or general conditions of upheaval and

unrest do not constitute cognizable bases for granting

asylum.” Belbruno, 362 F.3d at 284 (quoting Huaman-

Cornelio, 979 F.2d at 1000). Indeed, actions motivated

by an employment interest, see Adhiyappa v. INS, 58 F 3d

261, 267 (6° Cir. 1995), or other “personal benefit,” see

Perlera-Escobar v. Executive Office for Immigration, 894

F.2d 1292, 1298 (11 Cir. 1990) (per curiam), do not

merit protection as a political refugee.

Al0

In appealing his denial of asylum, petitioner

reiterates the unfortunate predicament he faced when he

found himself unemployed and tainted by association

with Cruz, a known DEA informant. Yet Perafan never

suggests that his initial acceptance of Cruz’s job offer, his

continued employment after it became clear that Cruz

trafficked in narcotics, his decision to travel to Roanoke

pursuant to his employment, and his attempt to avoid

removal from the United States by cooperating with the

DEA were motivated by anything other than self-

regarding ends.

Petitioner has not argued that his decisions in this

course of action were grounded in principle, inspired by

altruism, or intended to advance a cause, as a political

opinion applicant must show. And, even if we entertained

the generous assumption that Perafan’s cooperation with

the DEA stemmed from a disapproval of the drug cartel,

such a stance on his part still could not constitute a

political opinion under § 1101(a)(42)(A). Indeed, to

credit such disapproval as grounds for asylum would

enlarge the category of political opinions to include

almost any quarrel with the activities of almost any

organization.

Not only would the proliferation of asylum grants

under this expansive reading interfere with the other

branches’ primacy in foreign relations, see M.A., 899 F.2d

at 313-14, it would also strain the language of §

1101(aX(42)(A). The statute requires persecution to be on

a discrete basis and to fall within one of the enumerated

categories. This particularity demonstrates that the asylum

statute was not intended as a panacea for the numerous

personal ltercations that invariably characterize

economic and social relationships. See Huaman-

Cornelio, 979 F.2d at 1000, see also Ontunez-Tursios v.

Ashcroft, 303 F.3d 341, 352 (S" Cir. 2002). Even when a

All

widespread conflict between a foreign government and an

opposing non-state actor overshadows these relationships,

as is the case in Colombia, a party seeking political

opinion asylum must do more than describe how this

overshadowing has affected his life. To receive

protection as a refugee, he must also demonstrate that he

has a particular stake in the conflict and a position on how

governance in that country ought to occur. Accord Cruz-

Navarro v. INS, 232 F.3d 1024, 1030 (9" Cir. 2000)

(rejecting asylum claim for applicant who “did not testify

that he had particular political beliefs or opinions, much

less political motives” for his actions).

For an applicant who has been forced to declare

his allegiance in an expressly political struggle between

an organized insurgency and government forces,

demonstration of a political opinion may be more

straightforward. See Briones, 175 F.3d at 728-29. But

when, as here, the applicant has not taken sides in such

manner — much less under duress — and the conflict,

though ubiquitous, is not aimed at controlling the organs

of state, an applicant cannot merely describe his

involvement with one side or the other to establish a

political opinion. See Estrada-Escobar v. Ashcroft, 376

F.3d 1042, 1047 (10 Cir. 2004) (rejecting asylum for

applicant who “fails to link his persecution to anything

other than his status as a police officer” involved in civil

strife); Rivera-Moreno, 213 F.3d at 486 (“[iJt is clear that

persecution for failure to contribute nursing services [to

guerrillas} is not a _ protected ground under §

1101(a)(42)A)”); Cruz-Diaz v. INS, 86 F.3d 330, 332 (4

Cir. 1996) (per curiam) (“The guerillas’ conscription of

[applicant] as a child, his fleeing from the guerrillas, and

his hiding from both the guerrillas and the army . . . does

not establish a political opinion on his part.”) Here the

absence of a political end, even from petitioner’s own

description of his motivations, demonstrates that his best

Al2

evidence amounts to no more than a description of how

the conflict in Colombia has impacted his life. Because

he has not further explained how his involvement with

this conflict stems from a political opinion he has

adopted, he cannot be entitled to the protection of asylum.

Finally, it bears mention that, even if petitioner

were found to have manifested a political opinion as the

statute requires, there is no indication that the cartel

members would persecute him in response to that

manifestation. Yet such a nexus between political

opinion and feared persecution, required by the statutory

phrase “on account of,” § 1101(a)(42)(A), is no less an

important element of an asylum claim than the applicant's

display of a political opinion in the first place. See Elias-

Zacarias, 502 U.S. at 482-83; Huaman-Cornelio, 979

F.2d at 1000. Indeed, to secure refugee status, “an

applicant must tie the persecution to a protected cause . .

{and] show the persecutor had a protected basis . . . in

mind in undertaking the persecution.” Rivera-Moreno,

213 F.3d at 486 (citation omitted) (emphasis added)

Thus, even if Perafan’s cooperating with the DEA were

somehow to be deemed sufficiently political, his

protection as a refugee would not necessarily follow. For

the inscrutability of the political opinion he claims implies

that any persecution he fives is due to the fact of his

cooperation with the government, rather than the content

of any opinion motivating that cooperation See

Adhiyappa, 58 F.3d at 268 (rejecting asylum claim where

“it was [applicant’s] status as an informant, not his

political opinion,” that provoked persecution by political

separatists).

Al3

IV.

We appreciate Perafan’s desire to remain outside

Colombia and away from the foment of the drug trade.

But statutes sometimes require saying no, even to a hard

luck case. We are not empowered to bestow the privilege

of residing in the United States in violation of the

standards that Congress has announced in §

1101(aX42)A). Being involved in the drug wars of a

foreign country with their webs and patterns of violence

and recrimination is not the same thing as being

persecuted on account of a political opinion. Applying

the statute to the facts before us, in light of the deference

we accord administrative asylum determinations, we find

no error in the BIA’s decision not to grant Perafan refugee

status. The order of the BIA is therefore affirmed and the

petition for review is

DENIED.

Al4

U.S. DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW

Falls Church, Virginia 22041

Decision of Board of Immigration Appeals

Files: A76 898 202-— Arlington Date: JAN 13 2004

A76 898 203

A76 898 204

A76 898 250

Inre) APOLINAR PERAFAN SALDARRIAGA

LUZ VELASQUEZ CARMONA

ADRIANNA MENESES VELASQUEZ

MAURICIO A. PERAFAN VELASQUEZ

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENTS:

Gary M. Bowman, Esquire

ON BEHALF OF DHS:

Karl D. Klauck, Assistant District Counsel

CHARGE:

Notice:

Sec. 237(aX1)(B), I&N Act [8 U.S.C. § 1227(aX(1\B)}-

In the United States in violation of law (all respondents)

APPLICATION:

Asylum, withholding or removal, protection under

the Convention Against Torture, voluntary

departure

Al5

The Department of Homeland Security (“DHS,”

formerly the Immigration and Naturalization Service) has

filed an appeal from a decision, dated July 30, 2001, in

which an Immigration Judge granted the respondents

asylum. The lead respondent claimed he fears being

targeted in Colombia as a result of his employment by a

drug-dealer who worked as an informant for the DEA.

Upon review, we find that the respondent’ did not

establish a well-founded fear of persecution in Colombia.

Because we find the respondent ineligible for asylum we

do not address the DHS argument that he did not establish

that he merits an exception to the 1-year-time bar on filing

for asylum. The appeal will therefore be sustained and

the record will be remanded to allow the respondents to

apply for voluntary departure.

* The lead respondent will be referred to throughout this decision as

the respondent, the claims of the other respondents are either

derivative of the lead respondent's claim or similar to his.

Al6

The respondent testified that he came to the

United States with a tourist visa, in order to perform labor

as a cook for an individual whom he knew to be a major

drug trafficker‘ (Tr. at 30, 64). The respondent indicated

that he personally had nothing to do with drug trafficking,

that he learned of the drug trafficking only days before

entering the United States, and that he feared retaliation

from his employer or his colleagues, so he did nothing to

quit his job or to inform the authorities of the fact that the

restaurant he worked in was associated with drug

irafficking. Eventually the respondent discovered that his

employer was an informant for the DEA as wel! as being

a drug trafficker, The respondent's employer was

featured in a newspaper article detailing his connections

to the DEA. Shortly thereafter, the respondent

approached the DEA. According to the testimony of a

DEA agent, the respondent at first denied any knowledge

of his employer’s drug trafficking (Tr. at 172). Later, he

admitted to one occasion on which he drove his employer

* In the discussion of the discretionary aspects of this case, the

Immigration Judge made several unsupported statements. The

immigration Judge's statement that the respondent entered the

country legally with a temporary visa issued to him by the DEA is,

while not incorrect, irrelevant in light of the fact that the respondent

did not know he was entering on a DEA visa. See Tr. at 29-30, of Tr

realized his visa did not allow him to work in the United States, and

he certainly knew that his visa was procured for him by a drug

trafficker (Tr. at 30). The Immigration Judge's implication that the

respondent did not know he was working for a drug dealer and was

caught up, unbeknownst, in events beyond his control is also

unsupported by the record. See Tr. at 23, 172-3 (respondent knew

details of drug trafficking before he came to the United States and

his knowledge until a second visit to the DEA when he was told that

the DEA would not help him if he did not tell them what he knew).

Al7

to a meeting where drug trafficking was discussed (Tr. at

173, 191).

According to the DEA agent, the respondent's

information was redundant and not very useful. The

agent testified that the type of visa the respondent hoped

to obtain (179-180) was rarely granted and is never

granted in a case like the respondent’s, where the specific

threat is not clearly articulated (Tr. at 179-180).

Upon review of this case, we find that the record

does not support a finding that the respondent has a well-

founded fear of persecution in Colombia on account of an

enumerated ground. The evidence in the record indicates

that many Colombians work in law enforcement or

otherwise engage in activities that narcotraffickers

disapprove of, and the majority of those individuals do

not encounter the persecution the respondent claims to

fear. We recognize that conditions in Colombia are

difficult, in many areas, for the law-abiding population

there, but general conditions of strife are generally

insufficient to establish a claim for asylum. Further, the

respondent’s speculation that he was connected in the

minds of the narcotraffickers with the DEA is not

supported by persuasive evidence. The respondent was

not mentioned in the newspaper report in which he

learned that his employer was a DEA informant, or in any

subsequent report (Tr. at 52). The respondent’s wife

testified that the narcotraffickers could not know if the

respondent was involved with drugs or not, so of course

they would assume he was (Tr. at 77). However, such a

negative assumption was apparently not made in regard to

individuals with even greater associations with drugs than

the respondent (Tr. at 178).

Al8

We do not find the testimony of the witnesses in

this case regarding alleged suspicious activities in

Colombia to be sufficiently detailed or convincing to be

sufficient to meet his burden of proof. As the

Immigration Judge stated, all that was presented was

‘double and triple hearsay.” Further, the respondent’s

allegations that he is certain he would be targeted appears

to be an embellishment that evolved over time. Cf Tr. at

81 and 200-201. In this regard, we note that the

testimony in this case was often unclear or inconsistent

about recent important events and dates. Inconsistencies

related to peripheral details like the payment the

respondent and his wife received (cf Tr. at 35, 98), and

also to central issues like whether he would have come to

the United States if he knew his employer was a drug

dealer (cf Tr. at 23, 64) and when he admitted to

knowledge of the criminal activity of his employer (cf Tr.

at 23, 172-3). We disagree with the Immigration Judge

that these inconsistencies were explainable or

understandable. Rather, the testimony in this case was

clearly insufficiently accurate to persuade us that the

respondent would be targeted in Colombia. He did not

rebut testimony in the record that discussed the relative

safety of some parts of Colombia, and he did not rebut

testimony that other individuals, more closely involved

with his employer than himself, had returned to Colombia

and not been harmed. See Tr. at 178. Finally, his

admitted voluntary association with a narcotrafficker, and

his failure to volunteer any information to authorities until

he felt it was in his own best interest, severely undermines

the persuasiveness of his testimony. For these reasons,

we find the respondent did not convincingly make the

case that he would be targeted in Colombia as an imputed

informant.

Al9

For analogous reasons, we find that the respondent

has not provided evidence sufficient to meet his burden of

demonstrating that he is more likely than not to be

tortured by, or at the instigation of, or with the consent or

acquiescence of, a public official or other person acting in

an official capacity if he were to return to Colombia. See

8 C.F.R. §§ 208.16(c)(4), 208.18(a)(1). He consequently

has not established eligibility for protection in the United

States under the Convention Against Torture, inasmuch as

he has not shown that it is more likely than not that he

would be tortured in Colombia. See Article 3 of the

United Nations Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment,

adopted and opened for signature Dec. 10, 1984, GA

Res. 39/46, annex, 39 U.N. GAOR Supp. No. 51, at 197,

U.N. Doc. A/RES/39/708 (1984) (entered into force June

26, 1987; for the United States Apr. 18, 1988)

(“Convention Against Torture”).

In sum, we find that the respondent did not

establish eligibility for the relief sought. We do not

dispute that the respondent has submitted evidence that

Colombia has many difficulties with criminal groups,

some of them very powerful. Nor do we dispute that the

respondent has (albeit freely) associated himself with

those groups and therefore he may have a subjective fear

of retaliation from those groups. However, based upon

the testimony in the record and the background evidence

submitted, we find that he has not met the relevant

burdens of proof. However, we will remand the record to

allow the respondents an opportunity to apply for

voluntary departure.

A20

ORDER: The appeal of the Department of

Homeland Security is sustained

FURTHER ORDER: The record is remanded to

the Immigration Court to allow the respondents an

Opportunity to apply for voluntary departure

FOR THE BOARD

Board Member Juan P. Osuna respectfully

dissents without separate opinion and would affirm the

Immigration Judge for the reasons set forth in his well-

reasoned decision.

A21

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE OF IMMIGRATION

REVIEW

United States Immigration Court

901 North Stuart Street, Suite 1300

Arlington, Virginia 22203

IN THE MATTER OF:

PERAFAN SALDARRIAGA, Apolinar (LEAD)

VELASQUEZ CARMONA, Luz

MENESES VELASQUEZ, Adrianna

PERAFAN VELASQUEZ, Mauricio

Respondents

Ne Ne Ne ee Ne ee Ne”

IN REMOVAL PROCEEDINGS

File Nos.: A76 898 202

A76 898 203

A76 898 204

A76 898 250

CHARGE:

Section 237(a)(1)(B) of the Immigration and

Nationality Act (INA or Act), as an alien who

remained in the United States longer than

permitted.

APPLICATIONS:

Asylum, pursuant to INA § 208(a);

Withholding of Removal, pursuant to INA §

241(b)(3),

Withholding of Removal under the Convention

Against Torture (Torture) Convention),

pursuant to 8 C_F_R. § 208.16 (2001),

Voluntary Departure, pursuant to INA § 240B.

A22

APPEARANCES

ON BEHALF OF RESPONDENT:

Gary M. Bowman, Esq.

204 S. Jefferson Street, 12" floor

Roanoke, VA 24011

ON BEHALF OF THE SERVICE:

Assistant District Counsel

Immigration and Naturalization Service

4420 N. Fairfax Drive, Room 500

Arlington, VA 22203

WRITTEN DECISION OF THE IMMIGRATION

JUDGE

This is a removal proceeding instituted against the

above-named Respondents in accordance with Section

240 of the Immigration and Nationality Act. These

proceedings commenced when the Immigration and

Naturalization Service (INS or Service) filed Notices to

Appear (NTA’s) with the Immigration Court on May 4,

1999. The Service charges Respondents with

removability pursuant to INA § 237(a)(1)(B), as aliens

who unlawfully remained in the United States longer than

was permitted by their nonimmigrant visas. Respondents

are a family unit consisting of a husband, a wife, and their

two children, all natives and citizens of Colombia. The

lead Respondent and his wife entered the United States at

Miami, Florida, on February 16, 1996, as non-immigrant

visitors pursuant to Section 101(a)(15)(B) of the Act with

permission to remain in the country until August 16,

1996. The lead Respondent’s two children entered the

United States at Miami, Florida, on December 14, 1998,

as non-immigrant B-2 visitors.

A23

At a Master Calendar Hearing on August 20,

1999, Respondents, through counsel, acknowledged

proper service of the NTA’s, admitted the factual

allegations contained therein, and conceded removability

as charged. Based on these admissions, the Court finds

that each Respondent's removability has been established

by clear and convincing evidence. See 8 C.F.R. §

240.8(a) (2001).

Prior to the initiation of these removal

proceedings, the lead Respondent submitted an

application for political asylum on behalf of his family.

That application was referred to this Court along with the

NTA’s. A spouse or child of an alien who is granted

asylum may, if not otherwise eligible for asy!um, be

granted the same status as the applicant. See 8 C.F.R. §

208 .3(a) (2001). Respondents seek asylum, pursuant to

INA § 208(a), withholding of removal, pursuant to INA §

241(b)\(3), and withholding of removal under the Torture

Convention, pursuant to 8 C_F_R. § 208.16 (2001).

Because the lead Respondent filed the asylum application

on behalf of his family, this decision will focus primarily

on the lead Respondent. Unless otherwise noted,

Respondent hereinafter refers to the lead Respondent.

For the reasons discussed below, the Court will

grant relief in the form of asylum.

STATEMENT OF FACTS

A. Respondent's Application for Asylum

Respondent bases his application for asylum on

imputed political opinion. He claims that he would be

persecuted if he returned to Colombia because drug

traffickers would impute a political opinion to him based

on his employment by Javier Cruz (Cruz), a known

A24

informant for the United States Drug Enforcement

Agency (DEA).

The Respondent's application for asylum stated

that he worked for Cruz in Colombia and that Respondent

and his wife came to the United States with Cruz in 1996

to work in his restaurant. In August 1996, Cruz was

exposed in the media as a former drug trafficker turned

DEA informant. Respondent claimed to fear retaliation

by drug gangs in Colombia who had been affected by the

DEA investigation. He stated that his family in Colombia

had received threats concerning his involvement with

Cruz and that the Colombian police would not be able to

protect him if he returned. He also claimed that he

cooperated with the DEA investigation of Cruz and was

told he would be given legal immigration status in return.

When he later realized he would not be given legal status,

he filed the asylum application.

The application also included two front page

articles from the Roanoke Times, dated November 8,

1996, and November 9, 1996. Both articles feature

photograr‘ss of Javier Cruz and describe his arrest in

connection with a 1987 shooting death, his involvement

with the drug trade from Colombia, and his subsequent

cooperation with the DEA. Additional newspaper articles

from early 1997 report developments in Cruz’s trial in

Roanoke.

B. Respondent's Testimony

Respondent testified on February 9, 2000, that he

had worked as a singer in Colombia until he was hired by

Javier Cruz in October 1995. Respondent worked for

Cruz as a driver, apparently both in connection with

Cruz’s ranch and for members of Cruz’s family, until

early 1996, when Cruz offered Respondent and his wife a

A25

job at his restaurant in Roanoke, Virginia. In February

1996, some fifteen days before they departed for the

United States, Respondent drove Cruz to a meeting at

which he recognized at least two known drug traffickers.

He had seen their pictures on local television as part of a

story about drug trafficking. Respondent testified that he

has never been involved in the drug trade, and before that

meeting he had no idea that Cruz was involved in drug

trafficking. Nonetheless, because he wanted the

opportunity to work in the United States, he and his wife

accompanied Cruz to the United States later that month.

Respondent testified that he and his wife were

employed by Cruz in Roanoke for eight months. He

testified that he and his wife worked in Cruz’s restaurant

as cooks, but they quit in September 1996 because of long

hours and low pay. Shortly after that, articles appeared in

the Roanoke Times describing Cruz as a DEA informant.

Respondent testified that he feared retaliation in

Colombia for his connection to Cruz, so he contacted the

DEA office in Roanoke and offered to help with the

investigation in exchange for protection. He met with

Special Agent Dan Lincoln (Agent Lincoln) in January

1997 and identified the two men he had seen at the

February 1996 meeting with Cruz. He also identified a

box that Cruz had brought to the United States from

Colombia, which Respondent deduced had been brought

as a dernonstration of how a shipment of drugs would be

transported. Respondent was unable to offer any

additional information. Respondent testified that at this

meeting Agent Lincoln offered to help with his

immigration status. Respondent returned to the DEA

office several times to ask about his immigration status

but received no definite answer unti! the final visit, in July

or August 1997, at which time he was told the DEA could

not help him.

A26

Respondent testified that he was afraid to return to

Colombia because he believed that Cruz told the drug

traffickers that Respondent had been the informant rather

than Cruz. He testified that in 1998 a group of men

appeared at his sister-in-law’s house in Buga Valle, his

home town, and threatened to kill Respondent when he

returned. A group of men also came to his mother’s

house in Buga Valle and asked about him, and

Respondent advised his mother to move to Bogota for her

own safety. Respondent also testified that he heard Cruz

had been killed some time after returning to Colombia

and that members of Respondent's family had attended

the funeral.

Respondent briefly testified again on December 4,

2000, that he feared Cruz had told the drug bosses

Respondent was the informant, and that he could think of

no other reason why anyone would threaten him or his

family.

C Testimony of Respondent Luz Velasquez Carmona,

Lead Respondent's Wife

Mrs. Velasquez Carmona testified on February 9,

2000, that she and her husband came to the United States

on February 16, 1996, and that they worked for Cruz in

the Roanoke restaurant as cooks until September 7, 1996,

when they quit over low pay. She testified that her sister

in Colombia saw reports in the local media that Cruz had

been an informant, and that people were asking if

Respondent still worked for Cruz. She testified that

because she and Respondent were afraid, they went to the

DEA for protection. They were told the DEA would help

them, but after a year they were finally told no help was

available.

A27

D. Testimony of Adiela Velasquez Carmona, Lead

Respondent's Sister-in-law

Ms. Velasquez Carmona testified on December 4,

2000, that she came to the United States from Colombia

in January 1998 with Respondent's two children. She had

been caring for the children while Respondents were in

the United States. She testified that in September !997 a

man came to her place of employment and asked whether

Respondent and his wife still worked for Cruz. This

individual told Ms. Velasquez Carmona that Cruz was an

informant for the DEA. In mid-September, three men

came to her house and asked where they could find

Respondent. She told them she didn’t know, but they

insisted she must know because she was taking care of his

children. They left but threatened to return. She testified

that in October 1997 the same men returned and again

asked how they could find Respondent. She again told

them she didn’t know, and with “strong words” they

insisted that one way or another she would tell what she

knew. She testified that shortly after that, two men on a

motorcycle stopped her son as he left school and asked if

he was Respondent's son. When he said he was not, they

asked how they could find Respondent's son.

Ms. Velasquez Carmona testified that after these

events she removed the children from school, gave her

employer notice that she wanted to quit, and began

preparations to come to the United States. She reported

these events at the local police station but was told

nothing could be done without proof. She testified that in

late October 1997 the same men returned to her house and

told her that if she did not open her mouth they would

“shut it up forever.” She then moved to her brother’s

house and remained there until she left Colombia for the

United States. She testified that she had seen the men

before but did not know their names or backgrounds. She

A28

also testified that after she moved to her brother’s house,

some men began asking Respondent’s mother questions

about Respondent’s location. As a result, Respondent's

mother moved to Bogota from Buga Valle, probably in

February 1998.

Ms. Velasquez Carmona also identified four

documents from Colombia as the official death record of

Cruz. They referred to a violent death on August 5, 1999.

E. Affidavit of Esther Mariel Saldarriaga, Lead

Respondent's mother

On December 4, 2000, Respondent, through

counsel, introduced into evidence an affidavit from Esther

Mariel Saldarriaga, Respondent’s mother, who declared

that she had moved from Buga Valle to Bogota following

threats from unknown people who came to her house

asking for her son. According to her affidavit, they asked

where he was, whether he was still working for Cruz, and

also for his address in the United States. She described

the men as very rude and stated they threatened her life if

her son did not appear.

F. Testimony of Agent Lincoln

Special Agent Lincoln testified on December 4,

2000, by telephone from his office in Norfolk, Virginia.

He testified that in 1991 the DEA arrested two

Colombians, Cruz and Leonardo Rivera, who resided in

Roanoke. Pursuant to an agreement with the Attorney

General, the agency kept the arrests quiet and began using

the two men to gain information about drug traffickers.

In September 1992 the DEA sent Cruz to Colombia as

part of a money laundering sting operation known as “E]

Cid.” In 1996, the DEA prepared to bring the operation

to a close and move Cruz back to Roanoke. Agent

A29

Lincoln asked Cruz if anyone associated with him in

Colombia would be in danger if the operation had to be

closed suddenly. Cruz felt his household staff might be in

danger, so the DEA arranged for temporary visas for four

people, including Respondent and his wife.

Agent Lincoln testified that the DEA continued to

use Cruz as a cooperating informant until the front page

article appeared in the Roanoke Times in late 1996. The

article was picked up by the Associated Press and

reprinted in E} Tiempo, a major newspaper in Bogota,

Colombia. He testified that Cruz relocated to Miami,

Florida and eventually returned to Colombia because he

was afraid the negative publicity would force the judge to

give him a longer sentence in the original drug charges.”

According to an investigation by the Colombian police,

Cruz told the traffickers that the other Colombian arrested

in 1991, Rivera, had been the informant. Cruz then

operated with the traffickers for another year or more,

until he was killed by one of his own bodyguards over a

dispute with a rival drug faction.

Agent Lincoln testified that Respondent came to

the DEA office in Roanoke after Cruz had been exposed

in the local paper. He originally considered Respondent

to be a potential witness, but Respondent could only

identify one individual, Benito Chavez, whom he had

seen with Cruz. He later explained to Respondent that he

did not believe he was in danger in Colombia and that it

was unlikely the DEA could extend their visas but that he

would check with the INS. Respondent returned to the

DEA office several times to inquire his immigration

status, and Agent Lincoln told him that the DEA had no

grounds to extend his visa. He asked Respondent if there

* Since 1991, Cruz had been cooperating with the DEA in exchange

for a lighter sentence but had not yet been sentenced on the original

1991 charges.

A30

had been any threats against his family but was told only

that some men had asked about him at his family’s house.

Agent Lincoln did not believe Respondent would be in

danger if he returned to Colombia, in part because nothing

had happened to other employees of Cruz who stayed in

the country or to Cruz’s family. He also testified that

drug traffickers operate throughout Colombia and that

less common in the cities than it had been several years

earlier. He agreed it was difficult to separate drug

trafficking and political insurgency but could not testify

about the level of Colombian government involvement

with drug trafficking across the country. In his

experience, the government had been cooperative in

dealing with the DEA.

LEGAL ANALYSIS

Respondent's asylum application will also be

treated as a request for withholding of removal, pursuant

to INA § 241(b)(3) of the Act, and for protection unde-

the Torture Convention pursuant to 8 C.F.R. § 208.16

(2001). For the reasons discussed below, the Court will

grant relief in form of asylum, and will therefore not

reach withholding of removal under INA § 241(6)(3) or

the Torture Convention.

Asylum

1. Applicable Standards

An alien requesting asylum bears the evidentiary

burden of proof and persuasion in connection with any

application under section 208 of the Act. See 8 C.F.R. §

208. 13(a); see also Matter of S-M-J, 21 I&N Dec. 722

(BIA 1997), Matter of Acosta, 19 1I&N Dec. 211, 215

(BIA 1985), modified on other grounds, Matter of

A31

Mogharrabi, 19 I&N Dec. 439, 446 (BIA 1987). To

qualify for a grant of asylum, an alien must credibly

demonstrate that he or she is a “refugee” within the

meaning of section 101(a)(42)(A) of the Act. See INA §

208(b)( 1); see also INA § 101(aX(42)(A), 8 CFR. §

208.13(a). As such, the alien must demonstrate that the

alleged persecution or well-founded fear of persecution is

“on account of [his or her] race, religion, nationality,

membership in a particular social group, or political

opinion.” INA § 101(a)(42)(A). Additionally, the alren

must establish that he or she is unable or unwilling to

avail himself or herself of the protection of the alien's

country of nationality or last habitual residence. Id.

Moreover, the alien's fear of persecution must be country-

wide, See Matter of Acosta, supra, at 235, see also Matter

of Fuentes, 19 L&N Dec. 658 (BIA 1988). The alien must

demonstrate that he or she is eligible for asylum as a

matter of discretion. See INA § 208(b)(1); see also INS

y. Cardoza-Fonseca, 480 U S. 421, 423 (1987). Finally,

the alien must have filed his asylum application within

one year of his arrival in the United States. See INA §

208(a)(2\B), 8 C.F_R. § 208.4(a)(2) (2001).

2. Credibility

In all applications for asylum, the Court must

make a threshold determination of the alien's credibility.

See Matter of O-D-, 21 I&N Dec. 1079 (BIA 1998), see

also Matter of Pula, 19 IL&N Dec. 467 (BIA 1987). An

applicant's own testimony is sufficient to meet his or her

burden of proving his or her asylum claim if it is

believable, consistent, and sufficiently detailed to provide

a plausible and coherent account of the basis of his or her

fear. See Matter of Dass, 20 I&N Dec. 120, 124 (BIA

1989), see also 8 C_F_R. § 208.13(a). However, testimony

is not considered credible when it *- inconsistent,

contradictory with current country conditions, or

A32

inherently improbable. See Matter of S-M-J-, supra.

While omissions of facts in an asylum application or

during testimony might not, in themselves, support an

adverse credibility determination, the omission of key

events coupled with numerous inconsistencies may

provide a specific and cogent reason to support an adverse

credibility finding. See Matter of A-S-, 21 1&N Dec.

1106 (BIA 1998).

3. Corroboration

In determining whether an asylum applicant has

met his or her burden of proof, the Board of Immigration

Appeals (BIA or Board) has recognized the difficulties

that an alien may face in obtaining documentary or other

corroborative evidence to support the alien’s claim of

persecution. See Matter of Dass, supra. As such,

unreasonable demands are not placed on an asylum

applicant to present evidence to corroborate particular

experiences (e.g.. corroboration from the persecutor). See

Matter of S-M-J-, supra. In fact, lack of corroborative

evidence is not necessarily fatal to an asylum application,

as uncorroborated testimony that is credible, persuasive,

and specific may be sufficient to sustain the burden of

proof to establish a claim for asylum. See 8 C.F.R. §

208. 13(a); see also Matter of Mogharrabi, supra, at 444-

445.

However, where it is reasonable to expect

corroborating evidence for certain alleged facts pertaining

to the specifics of an applicant’s claim, such evidence

should be provided. See Matter of S-M-J-, supra; see also

Matter of M-D-, 21 I&N Dec. 1180 (BIA 1998). If such

evidence is unavailable, the applicant must explain its

unavailability, and the Immigration Judge must ensure

that the applicant’s explanation is included in the record.

See Matter of S-M-J-, supra. The absence of such

A33

corroboration can lead to a finding that an applicant has

failed to meet his or her burden of proof. Id. at 725

4. Persecution

The meaning of “persecution,” as developed

through United States case law, contemplates harm or

suffering inflicted upon an individual in order to punish

him or her for possessing a belief or characteristic a

persecutor seeks to overcome. See Matter of Acosta,

supra, at 223. Persecution within the meaning of the Act

does not encompass all treatment that society regards as

unfair, unjust, or even unlawful or unconstitutional. See

Matter of V-T-S-, 21 1&N Dec. 792 (BIA 1997)

Persecution is not limited to physical harm, but may

include mental suffering or even economic deprivation so

severe as to constitute a threat to an individual's life or

freedom. Id, at 222. Prosecution for violating laws of

general applicability does not constitute persecution,

unless the punishment is imposed for invidious reasons or

is grossly disproportionate to the proscribed conduct. Id.

a. Past Persecution

An applicant shall be found to be a refugee on the

basis of past persecution if the applicant can establish that

he or she has suffered persecution in the past in the

applicant’s country of nationality or, if stateless, in his or

her country of last habitual residence, on account of race,

religion, nationality, membership in a particular social

group, or political opinion, and is unable or unwilling to

return to, or avail himself or herself of the protection of,

that country owing to such persecution. See 8 CFR. §

208, 13(b)(1) (2001). An applicant who is found to have

established such past persecution shall also be presumed

to have a well-founded fear of persecution on the basis of

the original claim. If the applicant's fear of persecution is

A34

unrelated to the past persecution, the applicant bears the

burden of establishing that the fear is well-founded. Id.

b. Well-Founded Fear of Persecution

An applicant has a well-founded fear of

persecution if. (1) the applicant has a fear of persecution

in his or her country of nationality or, if stateless, in his or

her country of last habitual residence, on account of race,

religion, nationality, membership in a particular social

group, or political opinion, (2) there is a reasonable

possibility of suffering such persecution if he or she were

to return to that country, and (3) he or she is unable or

unwilling to return to, or avail himself or herself of the

protection of, that country because of such fear. See 8

C.F.R. § 208.13(6)(2)(i) (2001). In general, the

applicant's fear should be considered well-founded if the

applicant can establish, to a reasonable degree, that his or

her continued stay in that country has become intolerable

for the applicant on the basis of one of the enumerated

grounds, or would for the same reasons, be intolerable if

he or she returned there. See Handbook on Procedures

and Criteria for Determining Refugee Status, Office of the

United Nations High Commissioner for at q 42, p.

12-13. (Geneva, January 1992) (“Handbook”). An

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 or, if stateless, another part of the applicant's

country of last habitual residence, if under all the

circumstances it would be reasonable to expect the

applicant to do so. See 8 C.F.R. § 208. 13(b)(2ii) (2001).

To establish a well-founded fear of persecution, an

applicant must present credible testimony that

demonstrates that his fear of harm is of a level that

amounts to persecution, that the harm is on account of a

A35

protected characteristic, that the persecutor could become

aware or already is aware of the characteristic, and that

the persecutor has the means and inclination to persecute.

See Matter of Mogharrabi, supra, at 446, see also Matter

of Acosta, supra, at 226. A well-founded fear of

persecution must be both subjectively genuine and

objectively reasonable. See INS v. Cardoza-Fonseca,

supra. To demonstrate a subjective fear of persecution, an

applicant must demonstrate a genuine apprehension or

awareness of the risk of persecution. See Matter of

Acosta, supra, at 221. The objective component requires

a showing by credible, direct, and specific evidence in the

record that the alien’s fear of persecution is reasonable.

See DeValle v. INS, 901 F.2d 787, 790 (9" Cir. 1990).

¢. On Account of

An applicant for asylum must demonstrate that he

or she is unable or unwilling to return to, and is unable or

unwilling to avail himself or herself of, the protection of

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 § 101(a)(42)(A); see also 8 C.F.R. §

208. 13(b)(2)(i)(A) (2001). Even treatment that is

regarded as “morally reprehensible” is not “persecution”

within the meaning of the Act unless it occurs “on

account of” one of the five enumerated grounds in the

Act. See Matter of T-M-B-, 21 I&N Dec. 775 (BIA

1997). While an applicant need not directly prove the

motive of his or her persecutors, some evidence of it is

required, whether direct or circumstantial. See INS v.

Elias-Zacarias, 502 U.S. 478, 483 (1992).

A36

| Discretion

Statutory and regulatory eligibility for asylum

based on a well-founded fear of future persecution does

not necessarily compel a grant of asylum. See INS v.

Cardoza-Fonseca, supra. An applicant for asylum has the

burden of establishing that the favorable exercise of

discretion is warranted. See Matter of Pula, supra; see

also Matter of Shirdel, 19 I&N Dec. 33 (BIA 1984). In

exercising discretion, it is appropriate to examine the

totality of the circumstances and actions of an alien in his

flight from the country where persecution is feared.

Matter of Pula, supra.

General humanitarian reasons, independent of the

circumstances that led to the applicant's refugee status,

such as his or her age, health, or family ties, should also

be considered in the exercise of discretion. See Matter of

Pula, supra. Although the totality of circumstances and

actions of an alien in his or her flight from the country

where persecution was suffered to the United States are to

be considered, and may weigh against a favorable

exercise of discretion, “the danger of persecution should

generally outweigh all but the most egregious of adverse

factors.” Id. at 474.

6. Discussion

a. One-year Deadline

In order to be eligible for asylum, an applicant

must show by clear and convincing evidence that the

application has been filed within | year of the appiicant’s

arrival in the United States, or that he or she qualifies for

an exception, such as changed or extraordinary

circumstances. See 8 C.F.R. § 208.4(aX(2) (2001).

Changed circumstances must materially affect the

A37

applicant’s eligibility for asylum and may include

changes in the applicant's country of nationality or

changes in the applicant's own circumsiances. See 8

C.F.R. § 208.4(a)(4) (2001). The applicant must then file

an asylum application within a “reasonable period” given

those circumstances. See 8 C_F_R. § 208.4(a)(4)(ii)

(2001).

In this case, Respondent's eligibility for asylum

depends in part upon circumstances that arose more than

one year after his entry into the United States in February

1996. His claim of imputed political opinion is based in

part upon what Cruz told his former associates upon his

return to Colombia in late 1997. Furthermore,

Respondent's personal circumstances changed

significantly when his family began receiving threats in

1997 and 1998. Respondent's sister-in-law testified that

on various occasions in September and October 1997,

several men appeared at her place of employment, her

house and at her son's school asking about Respondent

and his family and threatening her when she refused to

give them information. As a result, she went into hiding at

her brother’s house until she left for the United States in

January 1998. Respondent's mother began receiving

similar inquiries and threats, apparently in late 1997 and

early 1998, and as a result she moved to Bogota in

February 1998. Less than one year after this last event,

Respondent filed for asylum in the United States.

Considering these factors, this Court finds that

Respondent qualifies for an exception to the one year

deadline based on the emergence of threats against his

family in Colombia more than one year after he entered

the United States. The Court also finds that he filed his

asylum application within a reasonable period given the

changing circumstances of his family in Colombia and the

A38

disruption caused by his children moving to the United

States.

Respondent also contends that he believed,

however mistakenly, that the DEA would help him obtain

immigration status in exchange for assistance with the

Cruz investigation. Testimony from both Agent Lincoln

and Respondent's wife confirm that Respondent

repeatedly visited the DEA office to inquire about his

immigration status. Respondent apparently presents this

“reliance” on DEA assistance as an extraordinary

circumstance exception to the one-year deadline. See 8

C.F.R. § 208.4(a)(5) (2001). Because this Court finds

Respondent eligible under the changed circumstance

exception, it expresses no opinion on whether this

alternative argument would also qualify as an

extraordinary circumstance exception under 8 C F.R. §

208 4(a)(5).

b. Credibility and Corroboration

The Court finds Respondent to be credible

Although minor uncertainties surfaced during

Respondent's testimony with respect to the time elapsed

between his arrival in the United States, the exposure of

Cruz in the media, and Respondent's visits to the DEA,

these appeared to be the result of poor estimation of the

passage of time rather than any material inconsistencies or

misrepresentations. Testimony by other witnesses

corroborated Respondent's story and provided reasonably

consistent dates for the principal events. Respondent's

wife described their arrival in Virginia, their employment

at Cruz’s restaurant, and their subsequent trips to the DEA

office. Agent Lincoln confirmed the DEA operation

involving Cruz, the visa arrangements made for

Respondent and his wife in 1996, and the visits by

Respondent to the DEA office in early 1997. While

A39

Agent Lincoln insisted he never promised Respondent

any help with his immigration status, he did agree to ask

the INS liaison about possible immigration arrangements.

Respondent may have misinterpreted this offer or

exaggerated its importance, but his asylum claim does not

rest upon this event. Similarly, Agent Lincoln testified

that Respondent reported no threats against his family

during their meetings, but testimony indicates that the

threats against Respondent’s sister-in-law began later, in

September 1997.

Respondent’s testimony also corresponds to the

general country conditions described in contemporaneous

State Department reports. See Group Exhibit 5,

Department of State Country Report on Human Rights

Practices for Colombia, February 1999 (1998 Country

Report). The 1998 Country Report states that

“longstanding and widespread internal armed conflict and

rampant violence — both criminal and political — persisted.

The principal participants were government security

forces, paramilitary groups, guerrillas, and narcotics

traffickers.” Id. at |. In 1998 widespread violence

involving these groups caused over two thousand deaths

and displaced 300,000 civilians. Id. at 3. Some of this

violence occurred in Valle del Cauca, the province

containing Respondent's municipality of Buga, including

the murder of a reporter who had written exposes on drug

traffickers. Id, at 20.

Other, more recent State Department publications

confirm that violence by “narcotraffickers, guerrillas,

paramilitary groups and other criminal elements” affects

“all parts of the country” and is “widespread and

increasing.” See Group Exhibit 5-A, Department of State

Consular Information Sheet for Colombia, February 2000,

at 1, 2. The most recent State Department Country Profile

describes extremely violent and dangerous country

A40

conditions: “Because of the violent nature of the narcotics

traffickers and guerrillas whose activities and agenda are

often influenced by the availability of drug money, almost

any abuse alleged by asylum applicants from Colombia

could have occurred or at least would not be inconsistent

with the country conditions.” See Group Exhibit 5-B,

Department of State Profile of Asylum Claims and

Country Conditions, June 1997 (Country Profile), at 7.°

The Country Profile specifically mentions Valle de

Cauca, Respondent's home province, as one of the most

violent areas. Id. at 8. Although generally violent

conditions are insufficient to establish a claim for asylum,

they do lend credence to Respondent's description of

threats targeted specifically at him. See Matter of S-V-,

Interim Decision 3430 (BIA 2000).

Finally, Respondent provided evidence

corroborating the specifics of his claim when it was

reasonable to expect him to do so, as required by BIA

precedent. See Matter of S-M-J-, supra, Matter of M-D-.

supra. Aside from the corroborating testimony of three

witnesses, Respondent provided an affidavit from his

mother in Colombia describing threats against her and her

subsequent relocation to Bogota. Respondent also

introduced during testimony four official documents from

Buga and Chinchina, two municipalities in Colombia,

certifying the violent death of Javier Cruz in August 1999

Although the INS objected to the lack of certified

translation accompanying these four documents, Agent

Lincoln also testified that Cruz had been killed in 1999

° The Country Profile also cautions that “|u)pon careful scrutiny,

many allegations by applicants of mistreatment by narcotics

traffickers alone turn out to involve criminal activity not covered by

the relevant INA grounds for asylum.” Country Profile. at 6. As

discussed below, the Respondent must show that he fears persecution

based on onc of the protected grounds rather than mere criminal

activity.

A4l

c. Persecution

Once a threshold finding of credibility has been

reached, an applicant for asylum must establish that his

fear is well-founded and that the harm feared constitutes

persecution See Matter of Mogharrabi, supra, at 446, see

also Matter of Acosta, supra, at 226. A well-founded fear

of persecution must be both subjectively genuine and

objectively reasonable. See INS v. Cardoza-Fonseca,

supra. To demonstrate a subjective fear of persecution, an

applicant must demonstrate a genuine apprehension or

awareness of the risk of persecution See Matter of

Acosta, supra, at 221. Respondent testified to a specific

fear that he would be killed by former associates of Cruz

because of his imputed association with the DEA.

Respondent's prior actions also confirm the existence of a

subjective fear According to testimony by several

witnesses, Respondent repeatedly approached the DEA in

Roanoke in an attempt to avoid his return to Colombia,

and he advised his mother to move to Bogota in response

to threats. Through telephone calls to Buga, Respondent

was also aware of the threats against his sister-in-law and,

by extension, his children. The Court finds that

Respondent has a subjective fear of persecution.

The objective component requires a showing by

credible, direct, and specific evidence in the record that

the alien's fear of persecution is reasonable. See DeValle

v_INS, supra, at 790. When directed at individuals whose

identity is known to the persecutors, specific threats may

give rise to a well-founded fear of persecution, even if

pee cn memy d= lh scueg shoo

frontation. See Sotelo-Aquije v. Slattery, 17 F.3d 33,

37 (24 Cir 1994), Arteaga v. INS, 836 F.2d 1227, 1232

(9" Cir. 1988), Aniga Turcios v. INS, 829 F.2d 720, 723

(9 Cir. 1987). Moreover, threats do not necessarily have

to be conveyed directly to the target individual in order to

A42

generate a well-founded fear See Sotelo-Aquije, supra

(threats delivered to victim’s house), Artiga Turcios,

supra (applicant saw from a distance guerrillas who were

looking for him), Canjura-Flores v_ INS, 784 F.2d 885 (9"

Cir. 1985) (National Guard came looking for applicant at

his home). Instead, the objective component of a well-

founded fear rests upon specific evidence that the alien is

individually targeted, bolstered by evidence suggesting

that a reasonable person in the same circumstances would

have such a fear. See Carranza-Hernandez v. INS, 12

F.3d 4 (2d Cir. 1993).

In this case, Respondent's persecutors had specific

information about his residence and family members, and

they came looking for information about him at several

different locations, including his sister-in-law’s house, his

mother’s house, his sister-in-law’s place of employment,

and his son's school. Respondent's sister-in-law testified

that the men specifically asked about Respondent and

identified his connection with Cruz In several of these

encounters, the men directly threatened the lives of the

family members in an attempt to locate Respondent.

These threats occurred against a background of massive

violence perpetrated by drug traffickers and other groups

that make Colombia the “murder capital of the world.”

Country Profile at 2. Given this climate of violence, this

Court finds that Respondent's fear was objectively

reasonable. Furthermore, the Court finds that the specific

threats directed against Respondent distinguish his

situation from generalized threats of violence faced by

Colombians living in the area or returning from the

United States. See Matter of S-V-, supra.

The INS disputes the level of threat faced by

Respondent, citing testimony by Agent Lincoln that other

emp'oyees of Cruz more closely connected to his drug

operation remained in Colombia without incident.

A43

However, none of these individuals received individual

threats from drug traffickers. Furthermore, if Respondent

is correct that Cruz identified him as the DEA informant,

his position would differ significantly from that of Cruz’s

associates who remained in Colombia. Similarly, the fact

that Cruz’s family resides safely in Colombia does not

undermine Respondent's claim, since no one has claimed

they were identified as informants or targeted by drug

traffickers.

For the harm or suffering to be considered

persecution it must also be imposed either by the

government or by persons or organizations the

government is unable or unwilling to control. See

Mgoian v. INS, 184 F.3d 1029, 1036 (9" Cir. 1999).

Respondent alleges that he fears persecution by drug

traffickers who believe he worked as an informant for the

DEA. Although drug traffickers are not state actors, the

concept of state-sponsored persecution includes

persecution from groups or individuals whom the

government is unable or unwilling to control. See Sotelo-

Aquije, supra, Artiga-Turcios v. INS, supra; Matter of

Kasinga, 21 I&N Dec. 357 (BIA 1996), Matter of Villalta,

I&N Dec. 142 (BIA 1990).

While the Colombian government appears

officially committed to stopping drug trafficking,

widespread violence by drug traffickers throughout the

country indicates that the government is as yet unable to

control these groups. According to the most recent

Country Report, the government faces “serious challenges

to its control over the national territory,” by paramilitary

groups, guerrillas and narcotics traffickers. See Group

Exhibit 5-C, Department of State Country Report on

Human Rights Practices for Colombia, February 2001

(2000 Country Report), at |. As in previous years, the

report describes “rampant violence,” including armed

A44

action initiated in almost 1009 of Colombia’s 1085

municipalities. See 1d. The Country Profile reports that

“Colombian society has been overwhelmed by

widespread internal violence and rampant killings that

make it the murder capital of the world.” See Country

Profile at 2. In addition, while the national government

has declared itself opposed to drug traffickers, judges and

prosecutors are subject to threats and violent attacks,

“particularly when dealing with cases involving members

of the public security forces or of paramilitary, narcotics,

and guerrilla organizations.” See 2000 Country Report at

16. This situation often makes successful prosecution of

these groups extremely difficult. In a recent unpublished

opinion, the Ninth Circuit assumed drug traffickers in

Colombia formed a group the government was unwilling

or unable to control, though the court denied the petition

for review because the threats were based upon a refusal

to carry drugs rather than any imputed political opinion.

Sanchez v_ INS, 119 F.3d 7 (9" Cir. 1996, unpublished).

Finally, Respondent's sister-in-law reported the threats to

the local police but was told they could do nothing

without further proof. Based on this evidence, the

Colombian government appears unable to control the drug

traffickers threatening Respondent, and the Court finds

Respondent's fear that he would face persecution if he

returned to Colombia to be well-founded.

d. Nexus

Once an applicant for asylum demonstrates a well-

founded fear of persecution, he must also show that the

persecution is “on account of” race, religion, nationality,

membership in a particular social group, or political

opinion. See INA § 101(aX42)(A). Respondent claims

that because the narcotics traffickers believe he is an

informant for the DEA, they have imputed certain

political opinions to him and have targeted him for

AAS

persecution as a result. In order to make this claim,

Respondent must show both the acting as an informant for

the United States government constitutes a political

opinion, and that his persecutors have imputed that

opinion to him. This Court finds Respondent has met his

burden on both counts.

Neither the Board of Immigration Appeals (BIA

or Board) nor the Fourth Circuit Court of Appeals has

ruled on whether acting as an informant for one side in a

sustained conflict constitutes an expression of political

opinion. As a result, this Court may look to the decisions

of other circuits for guidance. In cases of civil war, the

Ninth Circuit has held that informing one side about the

other may be treated as a political stance. Briones v_ INS,

175 F.3d 727 (9 Cir. 1999). In Briones, although the

Court remanded for a credibility determination, it found

that “Briones’s activity as a confidential informer who

sided with the Philippine military in a conflict that was

political at its core certainly would be perceived as a

political act by the group informed upon...” Id, at 729.

See also McMullen v. INS, 658 F.2d 1312 (granting

asylum based on cooperation with the government against

the Provisional IRA) (9" Cir. 1981); Fadul v. INS, 210

F.3d 374 (7 Cir. 2000, unpublished) (noting that

testimony that petitioner was viewed as a government

informant may support a claim based on political opinion

but dismissing claim for lack of jurisdiction). But see

Adhiyappa v. INS, 58 F.3d 261 (6" Cir. 1995) (affirming

denial of asylum because petitioner’s decision to inform

on Tamil activists may have been motivated by non-

political reasons). The perception of the persecutor

determines whether an alien holds an imputed political

opinion, and one side in a political conflict may consider

clandestine informing for its enemy as equivalent to a

political statement of opposition.

A46

From the perspective of the drug traffickers,

Respondent’s association with the DEA was tantamount

to choosing the other side in their conflict with the

Colombian government. If, therefore, that conflict is

political, the opinions imputed to Respondent would

trigger the protection of United States asylum law. In

general, a government’s struggle against drug trafficking

is not inherently political, and courts have been reluctant

to find imputed political opinion in that context. In an

unpublished opinion, the Tenth Circuit found an

insufficiently strong connection between a local drug

pusher and anti-government groups in the Philippines to

sustain a claim for asylum based on political opinion for a

local prosecutor. Mauro v. INS, 232 F.3d 901 cio" Cir.

2000, unpublished). In another unpublished decision, the

Ninth Circuit denied a petition for review of an asylum

claim based on persecution of an informant by drug

traffickers in Honduras. See Torrez-Herrera v. INS, 985

F.2d 574 (9" Cir. 1993, unpublished). Given the vastly

different position of Colombia with respect to drug

trafficking, the Ninth Circuit decision does not persuade

this Court that acting as an informant on drug traffickers

may not involve an imputed political opinion. The

intensely political dimension of the drug trade in

Colombia means that acting as an informant for the

United States government implies a political stance in that

country’s severe internal conflict.

In Colombia, several different armed groups are in

open, violent conflict with one another and with the

government, over both political ideas and control of drug

operations. According to the most recent State

Department Report, paramilitary groups vied with

guerrillas for control of territory and drug operations in

several provinces, including Valle del Cauca, resulting in

hundreds of selective killings, as well as widespread

torture and abuse. 2000 Country Report at 8. Earlier

A47

reports noted that major guerrilla organizations received a

significant portion of their revenues from narcotics

production and trafficking. 1998 Report at |. The 1997

Country Profile reiterated that in rural areas some

guerrilla groups collaborated with narcotics traffickers.

Country Profile at 2.’ As for other judicial opinions, no

case directly addresses the position of an informant in

Colombia, though one court remanded for consideration

on the merits of the claim that drug traffickers in

Colombia would persecute the applicant based on his

previous work gathering information for the Colombian

police. Campos-Sanchez v. INS, 164 F.3d 448 (9" Cir.

1999). Finally, at Respondent's hearing, Agent Lincoln

testified to the “melding” of the drug trade and the

guerrillas and roted the heavy involvement of the

Colombian government in United States anti-drug

policies. Given the intricate connection between political

violence and drug violence in Colombia, and the well-

publicized, high levels of assistance granted the

Colombian government by the United States, the Court

finds that someone identified as an informant for the DEA

could be seen as actively cooperating in the fight against

drug traffickers, and by extension, against the armed

groups who benefit from it.

Even if acting as an informant for the United

States government implies a political opinion in

Colombia, Respondent must still demonstrate that the

drug traffickers attribute that opinion to him and are

willing to persecute him because of it. Respondent does

not have to show that he actually held or expressed that

Opinion, as persecution for imputed grounds may satisfy

” The Country Profile also noted the impact on asylum applications:

“The extensive cooperation between the guerrillas and drug

traffickers has had a significant influence on asylum claims from

Colombia, with most applicants alleging threats or mistreatment by

the guerrillas or narcotics traffickers or both.” Id. at 6.

A48

the definition of refugee. Matter of S-P-, 21 I&N Dec.

486, 489 (BIA 1996), Matter of A-G-, 19 I&N Dec. 502,

507 (BIA 1987). Moreover, even after the Supreme Court

stressed the motivation of the persecutor in Elias-

Zacarias, supra, the BIA held that when multiple motives

for persecution are possible, an applicant is not required

to prove the “actual, exact reason” persecution may occur.

Matter of S-P-, supra, at 489. See also Matter of Fuentes,

supra, at 662. Rather, “the applicant must produce

evidence from which it is reasonable to believe that the

harm was motivated, at least in part, by an actual or

imputed protected ground.” Matter of T-M-B-, supra, at

777.

Several factors indicate that Respondent's

persecutors acted out of his connection to Cruz and the

DEA. First, when Cruz was asked who might be in

danger from drug traffickers if the DEA had to terminate

the operation suddenly, he named his household staff,

including Respondent and his wife. As a result, the DEA

obtained temporary United States visas for both of them.

This strongly suggests that Cruz believed drug traffickers

would connect Respondent to him. Second, according to

testimony by Agent Lincoln, the newspaper story

exposing Cruz as a DEA informant was picked up by the

wire services and reprinted in the major Colombian

newspaper El Tiempo. Drug traffickers in Colombia

therefore would have been able to connect Cruz, and by

extension his personal staff, to the DEA. Third, when the

men who threatened Respondent’s sister-in-law were

asked why they were looking for Respondent, they

identified his employer as an informant for the DEA.

Finally, the timing of the threats against Respondent’s

family allows for the possibility that Cruz spread

misinformation among the drug traffickers about

Respondent’s activities. Cruz was exposed as a DEA

informant by the media in November 1996. Cruz then

A49

relocated to Miami, returning to Roanoke twice to testify

before the grand jury. Later in 1997, three weeks before

his sentencing, Cruz fled to Colombia in order to escape

what he feared would be a harsh sentence. Respondent’s

sister-in-law testified that her first encounter with the

threatening men occurred in September 1997, some ten

months after publication of the newspaper articles but

relatively proximate to Cruz’s arrival in Colombia.

Threats against Respondent’s sister-in-law and mother

continued until they both werit into hiding. Taken

together, these factors strongly suggest that the threats

against Respondent and his family were based on his

connection to Cruz. Moreover, they make it reasonable

and plausible to believe that Respondent’s persecutors

targeted him because of his willingness to associate

himself with Cruz and the DEA.

é. Country-wide Fear of Persecution

An applicant must also demonstrate that his fear of

persecution is country-wide. See Matter of Acosta, supra,

at 235; Matter of Fuentes, supra. Respondent claims that

drug traffickers operate throughout Colombia and that he

would not be able to relocate to another part of the

country. This Court agrees. As mentioned above, the

Country Profile describes Colombia as “overwhelmed by

widespread internal violence and rampant killings.” See

Country Profile at 2. The most recent Country Report

documents rampant violence by drug traffickers,

guerrillas, and paramilitaries, including armed attacks in

almost 1000 of 1085 municipalities. See 2000 Country

Report at 1. The February 2000 Consular Information

Sheet notes that violence by these groups affects “all parts

of the country.” See Consular Information Sheet at 1.

Agent Lincoln testified that he “could not think of any

place in Colombia where there is not some influence by

traffickers,” though he also testified the level of violence

ASO

in major cities had declined and were therefore “fairly

safe.”

The INS points out that Respondent’s mother has

lived in Bogota since some point in 1998, apparently

without incident. However, the fact that the assailants did

not continue to harass Respondent’s mother does not

imply that they would not make more concerted efforts to

locate Respondent, or that once located, they would not

be willing or able to reach Respondent inside the city.

Given the pervasive nature of the violence described in

the State Department reports, this Court finds that

Respondent faces the threat of persecution throughout the

country.

Accordingly, Respondent and his derivative

family members have established statutory eligibility for

asylum.

f Discretionary Factors

In addition to demonstrating statutory eligibility

for asylum, an alien must also show that he merits a

favorable exercise of the Court’s discretion. See Matter

of Pula, supra. Respondent and his wife entered this

country legally with temporary visas obtained from the

DEA, and his children entered on temporary visas

obtained by his sister-in-law. All members of

Respondent’s family traveled directly to the United States

from Colombia. The record contains no indication of any

fraud or misrepresentation by Respondent or his family.

In fact, nothing in the record indicates that Respondent

and his family are anything other than innocent persons

caught up in an undercover operation intended to lead to

the arrest and incarceration of drug dealers in Colombia.

As a result, the Court favorably exercises its discretion

and will grant relief in the form of asylum.

ASI

Since Respondents will be granted relief in the

form of asylum, the Court need not reach Respondents’

eligibility for withholding of removal under INA §

241(b)(3) or protection under the Torture Convention

After a careful review of the entire record, the

following order will be entered.

ORDER

It is Ordered:

that Respondents’ applications for asylum be

GRANTED.

/s/ July 30, 2001

Date

/s/ M. Christopher Grant

M. Christopher Grant

United States 'mmigration Judge

= *

~ 4

ee ie

ia aa

aes

TTA ARTE

—

ba — our Ss

No. 05-266

Jn the Supreme Court of the Anited States

APOLINAR PERAFAN SALDARRIAGA, ET AL.,

PETITIONERS

ALBERTO R. GONZALES, ATTORNEY GENERAL

(. FFICS. 4

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

DONALD E. KEENER

FRANCIS W. FRASER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

—w

° -

QUESTION PRESENTED

Whether the court of appeals correctly affirmed the

Board of Immigration Appeals’ decision that petitioner’s

fear of retribution by drug traffickers did not establish

a well-founded fear of future persecution on account of

political opinion.

(I)

TABLE OF CONTENTS

Page

GRE ccc vcccccsvccescvevcasctccevesesvesesies 1

PID (i DCEs cndde boeddeds ested bbenbaservesceets 1

DD Accccubeeseeeudecsdodvatesetacs gbeseevsedses 2

EEE hen ccvebescccéchaseecdyovescccenvecvonccseess 7

SNL f bdbnwenkacadod acon ahs pebatbeborvoudctgoends 12

TABLE OF AUTHORITIES

Cases:

Acosta, In re, 19 1. & N. Dec. 211 (B.L.A. 1985),

overruled in part on other grounds by

In re Mogharrabi, 19 1. & N. Dec. 439

EE wate kites senduwhkinedks uh céeebe 3, 10, 11

Agbuya v. INS, 241 F.3d 1224 (9th Cir. 2004) ........... y

Castrejon-Garcia v. INS, 60 F.3d 1359

ES SE a can eb cadccie case se cebabetedeosens 7

De Brenner v. Ashcroft, 388 F.3d 629 (8th Cir. 2004) ..... )

Del Pilar v. United States, 326 F.3d 1154 (11th Cir.

POE occu ndddccdveche deste wescccdidscdsédawevtec 7

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .......... 11

INS v. Elias-Zacarias, 502 U.S. 478 (1992) .........- 8, 10

Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003) ....... 10

Mogharrabi, In re, 19 I. & N. Dee. 439

AA EN darn adidned vhawerkeresebieende si 3, 10, 11

Perkovic v. INS, 33 F.3d 615 (6th Cir. 1994) ............ iq

S-M-J, In re, 21 1. & N. Dec. 722 (B.A. 1997) ......... 10

Silva v. Ashcroft, 394 F.3d 1 (1st Cir. 2005) ............. 3

Villalta, In re, 20 1. & N. Dec. 142 (B.A. 1990) ......... 3

Y-G-, In re, 20 1. & N. Dec. 794 (B.1.A. 1994) ............ 3

Statutes and regulations: Page

Immigration and Nationality Act, 8 U.S.C. 1101

GI icccsdessadecvdatesheveveinebenctsacsucves 2

DUA IPRS Bcc cccendcceseescstne 2, 8, 11

8 U.S.C. 1103(a)(1) (2000 & Supp. 11 2002) ........ 2

8 U.S.C, 1103(g) (2000 & Supp. IT 2002) ........... 2

8 U.S.C. 1158(b) (2000 & Supp. I1 2002) ........... 2

PU cAMMEED Dkk adba ScbwdaceeLeaveddep cays 2

8 U.S.C. 1158(b)(2)(A) (2000 & Supp. I1 2002) ..... 2

8 U.S.C. 1158(b)(3) (Supp. II 2002) ....... ee pve 3

Sid DUM LRED Ci vebbscdonscrrcsepensaadee 3

Ss MING. chccnncevcerkexbasevsshideds 2

Us SA . kde bkdxe ceeds ceasedeeeets 2

Ra PAD leo avicsadcdtcessetentersetes 7

8 C.F.R.:

SG BESO? oc dc bcddetsdvacvscviceck@easuert 2

Section 208.16(b) ..... ae Na at i ea eal aa 2

In the Supreme Court of the Anited States

No. 05-266

APOLINAR PERAFAN SALDARRIAGA, ET AL.,

PETITIONERS

VU.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A2-

A13) is reported at 402 F.3d 461. The decisions of the

Board of Immigration Appeals (Pet. App. Al4-A20) and

the Immigration Judge (Pet. App. A21-A51) are unre-

ported.

JURISDICTION

The court of appeals entered its judgment on March

29, 2005. A petition for rehearing en banc was denied on

June 1, 2005 (Pet. App. Al). The petition for a writ of

certiorari was filed on August 25, 2005. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. The Immigration and Nationality Act, 8 U.S.C.

1101 et seq., defines a “refugee” as an alien who is un-

willing or unable to return to his or her 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). If the “Attorney Gen-

eral determines” that an alien is a “refugee,” 8 U.S.C.

1158(b)(1), he may, in his discretion, grant the alien asy-

lum in the United States, 8 U.S.C. 1158(b) (2000 & Supp.

II 2002). In addition to the discretionary relief of asy-

lum, mandatory withholding of removal is available if

“the alien’s life or freedom would be threatened in [the

country of removal] because of the alien’s race, religion,

nationality, membership in a particular social group, or

‘political opinion.” 8 U.S.C. 1231(b)(3)(A).

The decision whether to grant asylum to an alien in

removal proceedings rests with the Attorney General.

8 U.S.C. 1103(g), 1158(b)(2)(A) (2000 & Supp. II 2002);

8 U.S.C. 1229a(c)(4). Congress also provided that, in

the administration of the Immigration and Nationality

Act, the “determination and ruling by the Attorney Gen-

eral with respect to all questions of law shall be control-

ling.” 8 U.S.C. 1103(a)(1) (2000 & Supp. II 2002). Regu-

lations adopted by the Attorney General governing

claims for relief in removal proceedings place the bur-

den on the applicant for asylum to establish that he

or she is a refugee who faces a well-founded fear of per-

secution. To obtain withholding of removal, the appli-

cant bears the burden of establishing that he or she

qualifies as a refugee and that his or her life or freedom

would be threatened. 8 C.F.R. 208.13(a), 208.16(b).

For nurr ~2s of both forms of relief, “persecution”

ernment itself cr by groups or individuais that the gov-

ernment is unable or unwilling to control. See Jn re

Villalta, 20 I. & N. Dec. 142, 147 (B.1.A. 1990); In re

Acosta, 19 I. & N. Dec. 211, 222 (B.1.A. 1985), overruled

in part on other grounds, Jn re Mogharrabi, 19 1. & N.

Dec. 439 (B.1.A. 1987). Routine crimes and personal

vendettas do not amount to persecution on account of

political opinion. See Silva v. Ashcroft, 394 F.3d 1, 6

(1st Cir. 2005) (rejecting asylum claim based on appli-

cant’s whistle-blowing against corrupt employer as “es-

sentially a personal dispute”); In re Y-G-, 20 1. & N.

Dec. 794, 799-800 (B.1.A. 1994) (noting that “[aJliens

fearing retribution over purely personal matters will not

be granted asylum on that basis” and adding that

“{sJuch persons may have well-founded fears of harm,

but such harm would not be on account of race, religion,

nationality, membership in a particular social group, or

political opinion”).

2. Petitioners are Apolinar Perafan Saldarriaga, his

wife, and their two children. Petitioners are natives and

citizens of Colombia who entered the United States in

February 1996 on nonimmigrant B-2 visas with authori-

zation to remain until August 1996. Pet. App. A4, A22.

Petitioners were placed in immigration proceedings in

April 1999 as nonimmigrants who remained in the

United States for a longer time than authorized, in viola-

tion of 8 U.S.C. 1227(a)(1)(B). Pet. App. A6, A22.

Petitioner Saldarriaga then applied for asylum for

himself and for his wife and children derivatively. Pet.

App. A6; see 8 U.S.C. 1158(b)(3) (Supp. II 2002). Sal-

darriaga claimed that he had a well-founded fear of fu-

ture persecution because Colombian drug dealers might

seek retribution against him based on his employment

by an informant for the Drug Enforcement Administra-

tion (DEA) and on his own association with the DEA.

More particularly, Saldarriaga testified that, in Colom-

bia, he had been employed as a driver for a drug traf-

ficker, Javier Cruz. Pet. App. A4-A5. Cruz subse-

quently offered Saldarriaga employment in a restaurant

in Roanoke, Virginia, and Saldarriaga and his family

moved to the United States after being granted tempo-

rary visas. Jbid. Eight months later, Cruz fired

Saldarriaga in a labor dispute. Jbid. The next month,

the Roanoke Times reported that Cruz was a DEA in-

formant. /bid. Saldarriaga then offered to cooperate

with the DEA to help protect his immigration status.

Id. at A5. After several interviews, however, the DEA

“determined that |Saldarriaga] possessed no useful in-

formation that was not already known by the DEA.”

Ibid.

Saldarriaga testified at the immigration hearing that

he was afraid to return to Colombia because he believed

that Cruz had told other Colombian drug dealers that

Saldarriaga had worked as a DEA informant. Pet. App.

A26. Saldarriaga also testified that a group of men went

to his sister-in-law’s home in Colombia and threatened

to kill him. Jbid.'

A DEA agent testified at the hearing that Saldar-

riaga was unlikely to be in danger if returned to Colom-

' Although Saldarriaga claims (Pet. 12, 19) that his brother “was

killed on account of | Saldarriaga’s) relationship with the DEA,” he cites

nothing in the administrative record to support that allegation. Indeed,

in his opening brief in the court of appeals (at 8), Saldarriaga asserted

that his brother was killed after the decision of the immigration judge.

That allegation thus is not part of the administrative record under

review before this Court.

bia “because nothing had happened to other employees

of Cruz who stayed in the country or to Cruz’s family.”

Pet. App. A30. The agent noted that Cruz had been

killed two years after he returned to Colombia, but ex-

plained that Cruz’s death was not connected to his work _

with the DEA. Rather, Cruz was killed by one of his

own bodyguards in a dispute with a rival drug faction.

Id. at A5, A29.

3. The immigration judge granted the applications

for asylum. Pet. App. A21-A51. The immigration judge

ruled that Saldarriaga had established a well-founded

fear of future persecution based on an imputed associa-

tion with the DEA, id. at A41, because “someone identi-

fied as an informant for the DEA could be seen as ac-

tively cooperating in the fight against drug traffickers,”

id. at A47.

The Board of Immigration Appeals (Board) over-

turned the decision of the immigration judge. Pet. App.

A14-A20. The Board ruled that Saldarriaga’s “specula-

tion that he was connected in the minds of the narco-

traffickers with the DEA is not supported by persuasive

evidence,” id. at Al7, and that his allegation that he

would be targeted “appears to be an embellishment that

evolved over time,” id. at Al8. The Board also found

that Saldarriaga failed to “rebut testimony that other

individuals, more closely involved with his employer

than himself, had returned to Colombia and not been

harmed.” Jbid. Finally, the Board concluded that

Saldarriaga’s “failure to volunteer any information to

authorities until he felt it was in his own best interest{]

severely undermines the persuasiveness of his testi-

mony,” and that, considering the record as a whole, “the

testimory in this case was clearly insufficiently accurate

to persuade us that (Saldarriaga] would be targeted in

Colombia.” /bid. The Board then remanded the case for

the immigration judge to permit petitioners to apply for

voluntary departure. /d. at Al9.”

4. The court of appeals unanimously denied the peti-

tion for review. Pet. App. A2-A13. As an initial matter,

the court of appeals rejected the government’s argu-

ment that the Board’s remand to the immigration judge

to address voluntary departure deprived the court of

jurisdiction. /d. at A7. On the merits, the court ruled

that Saldarriaga failed to establish “how his connection

to the drug trade or his collaboration with the DEA

stemmed from a political position he espouses.” /d. at

A3. The court reasoned that, to constitute persecution

on the basis of political opinion, the targeted-behavior of

the applicant “must be motivated by an ideal or convic-

tion of sorts before it will constitute grounds for asy-

lum.” Jd. at A9.

The court also ruled that, even had Saldarriaga

“manifested a political opinion * * *, there is no indi-

cation that the cartel members would persecute him in

response to that manifestation.” Pet. App. Al2. The

court noted that “the inserutability of the political opin-

ion (Saldarriaga] claims implies that any persecution he

faces is due to the fact of his cooperation with the gov-

ernment, rather than the content of any opinion motivat-

ing that cooperation.” /bid. The court concluded that

“(bjeing involved in the drug wars of a foreign country

with their webs and patterns of violence and recrimina-

tion is not the same thing as being persecuted on ac-

count of a political opinion.” /d. at A13.

= One Board member issued a one-sentence dissent. Pet. App. A20.

ARGUMENT

The court of appeals’ decision is correct and consis-

tent with the decisions of this Court and of other courts

of appeals. Petitioners’ challenge to the court of ap-

peals’ affirmance of the Board’s determination that they

presented insufficient evidence of persecution on a pro-

tected ground is record-bound and does not warrant this

Court’s review.

1. As an initial matter, there is a jurisdictional ques-

tion that stands as a potential barrier to the Court’s re-

view. The Board, in the decision under review, reversed

the immigration judge’s grant of asylum, but remanded

the case to the immigration judge to allow petitioners to

apply for voluntary departure. Pet. App. Al9-A20. The

Immigration and Nationality Act grants the courts of

appeals jurisdiction to review only the issuance of a “fi-

nal order of removal.” 8 U.S.C. 1252(a)(1). Because-a

final determination of whether an alien will be removed

or, instead, will be permitted to depart volu. varily is

integral to the entry of a final order “of removal,” there

is a substantial question whether the court of appeals

had jurisdiction over petitioners’ appeal. But see Pet.

App. A7 n.2 (asserting jurisdiction); Castrejon-Garcia v.

INS, 60 F.3d 1359, 1361-1362 (9th Cir. 1995) (rejecting

the argument that a remand for consideration of volun-

tary deportation deprives the Board’s order of removal

of finality for purposes of appeal); cf. Del Pilar v.

United States Attorney General, 326 F.3d 1154, 1156-

1157 (Lith Cir. 2003) (per curiam) (remand for designa-

tion of country for removal does not deprive the order of

removal of finality for purposes of appeal); Perkovic v.

INS, 33 F.3d 615, 618-620 (6th Cir. 1994) (formal order

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