De Santamaria v. U.S. Atty. Gen.

Decision Date22 April 2008
Docket NumberNo. 06-16221.,06-16221.
Citation525 F.3d 999
PartiesXimena Sanz DE SANTAMARIA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
CourtU.S. Court of Appeals — Eleventh Circuit

Before EDMONDSON, Chief Judge, DUBINA, Circuit Judge, and STORY,* District Judge.

STORY, District Judge:

This Court sua sponte vacates its prior opinion, published at 512 F.3d 1308 (11th Cir.2008), and enters the following opinion in its place.

This is an asylum case, in which we have been asked to determine whether Ximena Sanz de Santamaria, a Colombian lawyer and political activist, was politically persecuted by the Revolutionary Armed Forces of Colombia when she was repeatedly threatened, twice physically attacked, terrorized by the torture and murder of a family friend who refused to give information on her whereabouts, and finally, kidnapped and beaten only to narrowly escape with her life by the intervention of the Colombian military. The Immigration Judge ("IJ"), despite finding that these acts occurred, concluded that they did not rise to the level of persecution. The IJ also found that Santamaria could not demonstrate a subjective fear of future persecution because she left and returned to Colombia on several occasions between the time these incidents occurred. The Board of Immigration Appeals ("BIA") affirmed. Because the record compels us to conclude otherwise, we grant Santamaria's petition, vacate the denial of her asylum application, vacate the order of removal, and remand to the BIA for proceedings consistent with this opinion.

I. BACKGROUND

Santamaria is a native and citizen of Colombia. At her hearing before the IJ, Santamaria testified that she was an active member of the Colombian Liberal Party and various other political and social groups. She was formerly married to the Colombian ambassador to Peru and often met with Colombian political leaders in Bogota. In 1993, while studying law, Santamaria joined the New Democratic Force, a group devoted to advancing democratic government in Colombia. Santamaria often traveled to Mosquera, a town on the outskirts of Bogota, to speak with teenagers in support of the democratic leadership of Colombia and against joining rebel groups such as the Revolutionary Armed Forces of Colombia ("FARC"). Santamaria also raised funds on behalf of impoverished people in Mosquera and assisted in efforts to construct new schools there. In 1997, after completing her law degree, Santamaria founded Ayuda Con Amor ("Help With Love"), an organization that raised money to assist the poor in Mosquera and other municipalities surrounding Bogota. By 1998, she was regularly holding meetings with citizens of Mosquera to discuss local political affairs. She also campaigned for the reelection of the mayor of Mosquera, who opposed FARC's presence in the region.

Santamaria testified that it was on account of these activities that she became a political target of FARC. Soon after she began traveling to Mosquera to hold meetings, Santamaria started receiving threats by mail and telephone, warning her that FARC would retaliate if she did not end her political activities. In November of 1998, Santamaria had her first face-to-face encounter with FARC rebels. While she was driving away from her home in Bogota, three men dressed in camouflage and wearing FARC bracelets intercepted Santamaria. The men surrounded her vehicle and one forced Santamaria out of her car by her hair. He threw her face-first onto the ground, and jarred his foot into Santamaria's back. The man identified himself as Commander Julian from the Fifth Front of the FARC, insulted Santamaria for her work in support of the Colombian government, and told her that she was an "enemy of the people." He warned Santamaria that she would be killed if she was caught again in Mosquera. After the incident, Santamaria was taken to the hospital and treated for wounds to her face and back.

After the November 1998 encounter, Santamaria changed residences and had a bulletproof door installed on her apartment door in Bogota.1 But she continued traveling to Mosquera, albeit less visibly. To evade detection, she used different vehicles for transportation and often refrained from speaking publicly. Still, she received phone threats at her parents' farm in Bogota. In July of 1999, she returned to Bogota to find red graffiti reading "Death to Help With Love" painted on her parents' home. She found similar graffiti threatening the organization she had founded painted on the main square of Mosquera.

Santamaria testified that she feared that FARC rebels would carry out their threats. She visited a psychiatrist, who treated her for anxiety. In the two months that followed, Santamaria left Colombia on at least three occasions. She traveled to the United States once in August of 1999 and twice in September of 1999. She testified that she traveled abroad in part to evade detection by FARC rebels, and in part to relieve the increasing stresses of her Colombian life. But despite the threats she received from FARC, Santamaria returned to Colombia, determined to continue her political and philanthropic activities.

On December 1, 1999, several FARC members showed up at Santamaria's farm looking for Santamaria. Santamaria's groundskeeper and long-time family friend, Mario, was there alone with his son. The men demanded to know Santamaria's whereabouts. Mario resisted, and the men began torturing Mario. When Mario continued to refuse to disclose Santamaria's location, the men shot Mario to death in the presence of his son.

As the result of Mario's killing, Santamaria again sought psychiatric help. Her family encouraged her to leave Colombia. Instead, she attempted to change her appearance by cutting her hair and dying it black and resolved to continue her work in Mosquera. On December 10, 1999, she quietly planned to make a trip to Mosquera with several members of Help With Love to deliver grants to several children in Mosquera. She told no one of their plans. On the way to the meeting, the bus she was riding stopped at a grocery store where she knew the owner. She entered the store and found the owner unusually quiet, but nervously attempting to communicate something to Santamaria. At that point, a man who had been loitering in the store stepped up and shot the store owner. Approximately nine other men appeared. They identified themselves as members of FARC and read aloud a list of four wanted individuals, including Santamaria. After identifying Santamaria, one said to her, "we've told you not to show yourself again you bourgeois governmental bitch." The men took Santamaria into the back, forced her onto the ground, and began beating her with the butts of their guns. Eventually, the men loaded Santamaria into a van. One told Santamaria that they were going to a camp in the mountains, where she would first meet the local FARC commander and then be killed. After the van traveled about two miles, Santamaria heard gunshots, and the van stopped. The FARC men left the van and engaged in a firefight with the Colombian military. One Colombian soldier ran up to the van and freed Santamaria. She was eventually airlifted out by helicopter to a hospital in Bogota and treated for trauma and wounds to her face and thorax.

Santamaria's anxiety grew worse. In March of 2000, Santamaria left Colombia to spend some time in the United States, but returned to Colombia and stayed for several more months. She continued to receive threatening phone calls. On August 1, 2000, Santamaria reported the above-described incidents to the police.2 At the strong encouragement of her family, she finally fled to the United States on August 29, 2000.

After her departure, FARC continued to look for Santamaria in Colombia. While her mother lay sick in the hospital for an extended period of time, a FARC rebel telephoned her mother's doctor to determine whether Santamaria had visited. Santamaria testified that she wishes to return to Colombia — particularly to be with her mother — but that her fear of being killed by FARC has caused her to remain in the United States.

II. COURSE OF PROCEEDINGS

Santamaria was admitted to the United States on August 29, 2000, as a nonimmigrant B-2 visitor, with authorization to remain until February 28, 2001. On June 29, 2001, Santamaria filed an application for asylum, withholding of removal, and relief under the U.N. Convention Against Torture. At a hearing before the IJ, Santamaria testified as to the events described above.

The IJ found that Santamaria's testimony was credible and consistent with her application. Nevertheless, he denied Santamaria's application. In an oral decision entered on May 26, 2005, the IJ held that Santamaria was ineligible for asylum because she had failed to establish either past persecution or a well-founded fear of future persecution on account of one of the statutorily protected grounds. The IJ began his decision by summarizing Santamaria's testimony, including the incident with Commander Julian, the repeated death threats, the murder of Mario, and the eventual kidnapping and beating of Santamaria. He found that "the respondent did have some injuries, concerning these, which were documented, by a summary of medical reports, which the respondent obtained shortly [before] coming to the United States." (Admin. Rec. at 65.) Nevertheless, he concluded that these events "do not amount to persecution in the past." (Id.)

As for a well-founded fear of future persecution, the IJ found that Santamaria failed to demonstrate a subjective fear of future persecution. He reasoned that Santamaria's numerous...

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