Vente v. Gonzales

Decision Date22 July 2005
Docket NumberNo. 03-4731.,03-4731.
Citation415 F.3d 296
PartiesRodolfo Vente VENTE, Petitioner v. <SMALL><SUP>*</SUP></SMALL>Alberto R. GONZALES, Attorney General of the United States Respondent.
CourtU.S. Court of Appeals — Third Circuit

Philippe Weisz, (Argued), American Friends Service Committee, Immigrant Rights Program, Newark, NJ, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Scott R. McIntosh, H. Thomas Byron, III, (Argued), United States Department of Justice, Civil Division, Appellate Staff PHB 9134, Washington, D.C., Douglas E. Ginsburg, John D. Williams, United States Department of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, D.C., for Respondent.

Before AMBRO, and VAN ANTWERPEN, Circuit Judges and SHADUR,** District Judge.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Rodolfo Vente Vente petitions for review of the decision by the Board of Immigration Appeals ("BIA") denying his claims for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Because the BIA's decision mischaracterized the nature of Vente's asylum claim, rendering meaningful review of that decision impossible, we grant the petition.

I. Factual Background & Procedural History

Vente is a native of Colombia. He was born in 1973 in Timbiqui, an area where the majority of the population is Afro-Colombian. Vente lived in Cali, one of the largest cities in Colombia, from 1993 to 1998. Beginning in January 1998, he lived and worked in Cisneros, a small, predominantly Afro-Columbian agricultural community.

From mid-1999 to November 2000, Vente attended meetings of a community group in Cisneros. He testified before the Immigration Judge ("IJ") that "the purpose of these meetings was to ask to the government to give some help for health purposes, also schools, to work [on] the water ... system. Also to get certificates of the land that we were working on." Vente stated that he stopped going to these meetings because paramilitary groups said that they were going to kill those who attended and told people in the community that they should abandon their land. Vente also testified that he was shot in the leg in March 1999, but he did not know who shot him.

In December 2000, Vente received a threat from one of the paramilitary groups accusing him of collaborating with guerillas. He testified that he believed the group thought he was a collaborator because he had attended the community group meetings. According to Vente, that December a paramilitary cadre destroyed the police station in Cisneros, killed three police officers, and conducted a massacre in which nine people were killed and twelve or thirteen people were wounded. These events, coupled with the threat he had received, prompted Vente to think about leaving the area.

Vente reported the threat against him to the human rights office in Buenaventura, the region of Colombia in which Cisneros is located, on January 22, 2001. This office was unable to offer him any protection and sent him to talk to other government authorities. The district attorney's office was also unable to help Vente, so he returned home. Upon his return, his brother informed him that two men had been looking for him.

Vente then went to Cali to seek once more protection from government authorities and was again unsuccessful. He did receive some assistance in finding shelter and food from a charitable organization, and he stayed in Cali for a brief period. On February 7, 2001, Vente returned to Cisneros to see his mother, who was ill. At this time, his uncle told Vente that it was not advisable for him to stay in Cisneros for long because Vente had been sent a note from a paramilitary group saying that it was in the town and that there were other armed groups around the town. A note dated February 6, 2001, from the United Auto-Defenses of Colombia stated that the group knew Vente had returned to the area and also warned him that he would suffer consequences if he did not leave the region.

Vente returned to Cali but testified that he did not feel safe there. On February 20, 2001, he left Colombia and flew to the United States. The Immigration & Naturalization Service ("INS")1 served Vente with a Notice to Appear on March 1, 2001, and he conceded removability but applied for asylum, withholding of removal, and relief under the CAT. A hearing on these claims was held before the IJ on February 21, 2002, and he rendered an oral decision denying Vente relief.

The IJ determined that Vente had not suffered past persecution even assuming that his testimony was credible regarding the threatening letters he received from paramilitary groups. The IJ further found that some parts of Vente's story were credible while others were not. For example, the IJ did not credit Vente's statement in his asylum application that paramilitary groups were still looking for him after he left Cisernos. The IJ also noted the gap of eighteen months between the time that Vente started attending the community group meetings and the time he started receiving threats. Finally, the IJ concluded that Vente had an obligation to live elsewhere in Colombia, which he did not do, before coming to the United States.

Vente appealed, and the BIA also denied his claims for relief. It overturned the IJ's "mixed credibility" finding as to Vente's testimony, noting that the IJ's finding appeared to be based on Vente's statement that he was shot in the leg in March 1999 and thus the finding had to be vacated as Vente had not attempted to tie that event to his claims for relief. The BIA went on to determine that, even though Vente was credible, he had not satisfied his burden of proof.

The BIA also concluded that Vente had not suffered past persecution, noting that: (1) he conceded that he had never been personally harmed by any paramilitary group; and (2) his ability to live in Cali from 1993 to 1998, and again just before his departure from Colombia, suggested "either that the `threat' of persecution was not country-wide or that he was not a serious target of political violence."2 The BIA then concluded that Vente also had not established a well-founded fear of persecution because (1) the general unrest in Colombia did not provide a basis for asylum or withholding of removal, and (2) Vente's "two brothers and his parents remain in Colombia and there is no evidence that they have been harmed."

Vente's petition for review of the BIA's denial of his asylum claim is now before us.3

II. Jurisdiction & Standard of Review

Under 8 U.S.C. § 1252(a), we have jurisdiction to hear a petition for review from a final order of the BIA. We must uphold the BIA's factual findings if they are supported by substantial evidence. Singh-Kaur v. Ashcroft, 385 F.3d 293, 296 (3d Cir.2004). That is, the BIA's denial of asylum can be reversed "only if the evidence presented by [petitioner] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001) ("[T]he BIA's finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it.").

III. Discussion

The Attorney General and his delegates may grant asylum to any alien who qualifies as a refugee under the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1158(b)(1). A refugee is an alien who is "unable or unwilling" to return to his or her country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). Aliens have the burden of supporting their asylum claims. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). "Testimony, by itself, is sufficient to meet this burden, if `credible.'" Id. (citing 8 C.F.R. § 208.13(a)).

To establish eligibility for asylum, an applicant must demonstrate past persecution by substantial evidence or a well-founded fear of future persecution that is both subjectively and objectively reasonable. Lukwago v. INS, 329 F.3d 157, 177 (3d Cir.2003). The persecution must be "committed by the government or forces the government is unable or unwilling to control." Gao, 299 F.3d at 272 (internal quotation omitted).

We now turn to the arguments Vente advances in favor of reversal: (1) the BIA erred in failing to conduct an independent corroboration inquiry after overturning the IJ's negative credibility determination; (2) the BIA's determination that he did not meet his burden of proof was based on a factually flawed characterization of his asylum claim; and (3) the BIA erred in determining that Vente had an internal resettlement alternative.

A. Corroboration

Vente asserts that the BIA committed reversible error under Miah v. Ashcroft, 346 F.3d 434 (3d Cir.2003), and Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir.2001), because it did not conduct an independent corroboration analysis after reversing the IJ's mixed credibility determination and finding that he had testified credibly. This contention, which his counsel acknowledged at oral argument was not Vente's strongest position, we easily dispense with.

In Abdulai, we set out a three-part inquiry that the BIA must engage in when it determines that the production of corroborating evidence is necessary for an otherwise credible asylum applicant to meet his/her burden of proof. 239 F.3d at 554.4 Subsequently, in Miah we held that when the BIA rejected an IJ's adverse credibility finding, it should have (1) reached its own conclusions on corroboration by performing an Abdulai analysis, or (2) remanded the case to the IJ for a new corroboration analysis, instead of merely reiterating the IJ's findings on whether there had been sufficient corroboration. 346 F.3d at 440. Our concern in Miah was the effect that a changed...

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