508 F.3d 702 (2nd Cir. 2007), 05-4393, Delgado v. Mukasey

Docket Nº:05-4393-ag.
Citation:508 F.3d 702
Party Name:Maria Del Pilar DELGADO, Petitioner, v. Michael B. MUKASEY, [1] Attorney General of the United States of America, Respondent.
Case Date:November 28, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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508 F.3d 702 (2nd Cir. 2007)

Maria Del Pilar DELGADO, Petitioner,

v.

Michael B. MUKASEY, 1 Attorney General of the United States of America, Respondent.

No. 05-4393-ag.

United States Court of Appeals, Second Circuit.

November 28, 2007

Argued: August 6, 2007

Petition for review of a decision of the Board of Immigration Appeals, affirming an Immigration Judge's denial of Petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture. Petitioner, who fled her country after being kidnapped by anti-government terrorists to set up their computer network, argues, inter alia, that the Immigration Judge erred in finding that she failed to establish a well-founded fear of persecution or a likelihood of torture. We hold that the Board of Immigration Appeals improperly denied Petitioner's application without considering whether she had a well-founded fear of future persecution on account of imputed political opinion. We also hold that the agency's denial of Petitioner's CAT claim must be vacated because the agency appears to have misstated the record, and the agency's application of the law does not seem to comport with our most recent rulings. The petition for review is GRANTED and the case is REMANDED to the BIA, with instructions to remand to an Immigration Judge for further findings of fact.

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Alan Michael Strauss, (Stanley H. Wallenstein, on the brief), New York, N.Y., for Petitioner.

Keith I. McManus, Office of Immigration Litigation, U.S. Department of Justice, (Nelson Pérez-Sosa, on the brief), for Rosa E. Rodriguez-Velez, United States Attorney for the District of Puerto Rico, San Juan, P.R., for Respondent.

Before: CALABRESI, RAGGI, and HALL, Circuit Judges.

CALABRESI, Circuit Judge :

This case raises the question of whether an asylum seeker who was kidnapped in order to set up the computer network of a terrorist organization, and who, after her temporary release, has refused to cooperate further with that organization, has a reasonable fear of future persecution on the basis of imputed political opinion: opposition to the terrorist organization that kidnapped her. Since neither the Board of Immigration Appeals ("BIA") nor the Immigration Judge ("IJ") considered this asserted basis for relief, and since Petitioner did not have an opportunity to flesh out this argument at the hearing on the merits of her claim, we remand to the BIA with instructions to remand to an IJ for further findings of fact. We also remand for reconsideration of Petitioner's Convention Against Torture ("CAT") claim.

I. BACKGROUND

Maria Del Pilar Delgado ("Petitioner" or "Delgado"), a native and citizen of Colombia,

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arrived in the United States in April 2002. In December 2002, she sought asylum, withholding of removal, and relief under the CAT. Her experiences in Colombia with the Revolutionary Armed Forces of Colombia ("FARC"), an anti-government terrorist organization responsible for large numbers of civilian casualties, political murders, and forced disappearances, were the bases of her claims. Removal proceedings were initiated against Petitioner in June 2003, and a merits hearing took place on March 3, 2004, before IJ Brigitte Laforest.

Petitioner's attorney did not attend the hearing on the merits of Petitioner's claims. Two witnesses that Petitioner's attorney planned to call, Petitioner's mother and brother, also did not appear, apparently because Petitioner was unaware that her attorney wanted them there. The IJ proceeded without them, and on direct examination she solicited the following account from Petitioner.

In January 2002, three men and two women dressed in military clothing abducted Petitioner at gunpoint and transported her to a FARC camp in the countryside. They told her that she had been kidnapped because of her computer skills (at that time, Petitioner worked as a computer systems expert at a bank in Colombia), and that she would be setting up the FARC's computer network. According to Petitioner's asylum statement, the kidnappers threatened her by telling her that they knew who she was, where she lived, and where she worked; they said "[t]hey had been watching [her] and if [she] did not help them, [her] family would be preparing [her] funeral." Petitioner indicated she did not want to help the FARC because she "do[es] not support any organization that deals in murder."

After three days, the computer equipment had not arrived, so the FARC soldiers released Petitioner with instructions that they would contact her again and that she must not report them to the police; they reiterated that they could easily find her and that if she betrayed them she would be killed. Upon her release, Petitioner fled the town where the FARC soldiers left her and went to a friend's house in another town. The following week, Petitioner learned that a man and a woman had asked Petitioner's roommate in her original town where Petitioner was. They indicated that the FARC's computer equipment had arrived. Someone had also called her mother's house looking for her. Petitioner filed an incident report with the local authorities, but "they did not give it much importance" because she was "just a civilian person."

Significantly, for the purpose of our analysis, the IJ found that Petitioner was credible and that her fears were subjectively genuine. Nevertheless, the IJ denied Petitioner's application for asylum and withholding of removal because Petitioner "was not kidnapped because of her political opinion, . . . her race, her religion, her nationality, or her membership in a particular social group." See In re Delgado, No. A 96 241 761 (Immig. Ct. New York City Mar. 3, 2004). "[F]or that reason and for that reason alone," the IJ stated, "I find that this respondent does not qualify for political asylum in the United States." Id. The IJ also found that Petitioner was not eligible for relief under the CAT because the FARC had not acted with the consent or acquiescence of the government.

Petitioner appealed to the BIA, arguing that she had established a well-founded fear of future persecution on account of her political resistance to the FARC and of her membership in a particular social group (experts in computer science). She also contended that the IJ violated her right to due process by failing to inform

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her that she could request a continuance when her attorney did not appear at her hearing...

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