Gomez-Zuluaga v. Attorney General of U.S.

• Citation: 527 F.3d 330
• Decision Date: 30 May 2008
• Docket Number: No. 07-2674.,07-2674.
• Parties: Claudia Rocio GOMEZ-ZULUAGA, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

527 F.3d 330

Claudia Rocio GOMEZ-ZULUAGA, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 07-2674.

United States Court of Appeals, Third Circuit.

Argued January 10, 2008.

Filed: May 30, 2008.

Rachelle Abrahami, Alessandra DeBlasio (Argued), Shearman & Sterling, New York, NY, for Petitioner.

Jeffrey L. Menkin, Michael P. Lindemann, Ethan B. Kanter (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

Claudia Rocio Gomez Zuluaga ("Petitioner")¹ seeks review of an order of the Board of Immigration Appeals ("BIA") affirming the denial of her request for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). For the reasons that follow, we will grant the petition in part and deny it in part.

I. BACKGROUND

Petitioner, a native and citizen of Colombia, was born on July 3, 1987, in a rural region near San Francisco, Colombia. During most of her life, the Fuerzas Armadas Revolucionarias de Colombia ("FARC"), a leftist guerrilla revolutionary group, was active throughout much of Colombia. The FARC was officially formed in 1966 and has continuously and often violently opposed the Colombian government since that time. The FARC is designated as a terrorist organization by the United States Government. While the FARC is active throughout Colombia, it holds particular sway in many rural areas where it effectively controls local politics and the civilian population. In 2002, after peace negotiations between the FARC and the Colombian government broke down, violence escalated and the FARC began to specifically target civilians. Although the FARC has used a variety of methods to finance and prosecute its guerilla war, one intimidation technique it has regularly used is to ban women and girls from fraternizing with members of the security forces, police officers, or officials of the Colombian government. Such women have occasionally been deemed "military targets." Women who have transgressed the ban have often been targeted for intimidation, kidnapping, rape, and murder.

Petitioner's first experience with the FARC occurred when she was six years old. At that time, a number of armed guerillas commandeered her family's farm in rural La Bretana. The guerrillas pressed the family members into service during their occupation, requiring them to run a variety of errands for them. At one point during this occupation, Petitioner heard a gunshot, and minutes later witnessed the guerillas pass by the farmhouse carrying a dead body in a cot. Although she did not recognize the deceased person, the incident made Petitioner very afraid. Shortly after this, Petitioner's father, fearful that the FARC would return, moved the family to another rural area, La Granja.

During her time in La Granja, Petitioner witnessed and experienced many more encounters and confrontations with the FARC and the collateral effects of civil war. When she was eleven, her family finally left La Granja due to the FARC's displacement of civilian populations. Petitioner's parents moved back to her birthplace, San Francisco, about an hour-and-a-half drive from La Granja, while Petitioner went to live with her sister two to three hours away in the relative safety of Medellin. As she was still a very young person at the time, she often went to visit her parents in San Francisco.

In August 2003, when Petitioner was sixteen, she began dating a military officer who lived in La Granja. In February 2004, she went to San Francisco to visit her parents. While she was at the family home, a man knocked on the door and told her that she had to come with him. He then took her to an outdoor playing field where she observed additional armed men and many other women who had been brought there under similar duress. The men identified themselves as being affiliated with the FARC and told the women that the FARC knew that they were "with military officials" and that such behavior was an "insult" to the FARC. The men told them that being with the soldiers was the equivalent of being against the FARC, and if the women "did not end it with them," then "something [would] happen to [them] or their families."

The FARC detained the women for nearly two hours, during which time Petitioner recalls being very afraid and worried. Adding to her fear, a number of the women informed her that they had previously been kidnapped for dating military officers. Moreover, Petitioner did not know how the FARC was even aware of the fact that she had been dating a military officer. Before releasing the women, the guerillas obliquely warned them that they should remember what they had been told, and that they should pay attention to it. Although Petitioner had not been physically harmed, she feared for both her own and her family's safety. Believing the threat to be genuine, she reluctantly broke off her relationship with the military officer from La Granja.

Petitioner continued her studies in Medellin. By 2005, her mother had moved in with her in Medellin because the FARC set off a number of car bombs in San Francisco and caused problems with the transportation system. Petitioner began dating a police officer from Medellin, thinking that the FARC would have no way of knowing of her activities in that city. Throughout this time, Petitioner continued to visit her father in San Francisco regularly. During one visit in the summer of 2005, an armed man came to her father's house and threateningly intimated that she "would find it preferable" to do as he instructed and accompany him. Although she was "scared because of what happened to [her] the first time," she agreed, and they proceeded on foot to a hilly area on the outskirts of town. There they met up with two other men, armed with ammunition and grenades, who wore FARC colors and identified themselves as members of the guerilla organization.

The men told her that "it appeared that [she] hadn't paid any attention to what they had told her the last time, and it looked like she was still going out with ... the police." Petitioner could not understand how these men knew about her relationship in Medellin, but the men told her that they were "aware of everything [she] did, [and] that they were watching [her]." She became "very scared" that they were going to kill her or do something to her. The men continued to detain her for about an hour, and then released her, admonishing her that if she "was in favor of the army or of the police, then [she] must be against them."

Upon returning to Medellin, Petitioner "backed off," and then, in August 2005, ended her relationship with the police officer. She told him that the FARC had somehow learned of their relationship, that they continued to watch her, and that they told her that she could not date a police officer. He told her that despite his position as a police officer, there was not much that he could do to protect her, given that the FARC pervaded the entire country and she would always be vulnerable.

In January 2006, Petitioner again visited her father in San Francisco. During her stay, an armed man approached her in broad daylight at the local church and ordered her to go with him. Despite the fact that there were other people nearby, Petitioner was "very scared" by the more brazen nature of this encounter and agreed to go with him. The armed man covered her eyes, and gripping her by her hands, began to lead her out of town. Because she was blindfolded, Petitioner could not tell where the man was taking her. After nearly two hours of walking, they arrived at a small empty house where they were met by a number of other armed men. Petitioner was chained to a bed, and when she asked why she had been abducted, the men remained silent. This continued until the next day, when Petitioner again asked them why they had abducted her, since she hadn't been going out with anyone. The men told her "that wasn't it, that they had intentions for me with them." The men kept Petitioner chained to the bed for the duration of her time there, only allowing her to be unchained to go to the bathroom, and always with one of the guerillas present.

Petitioner continued to beg for her life throughout this ordeal. Eventually, she told the men that she was a student and that she was studying to be a dental hygienist. She further told them that she was the only person in her family to make it so far in school. She implored them to let her go so that she could complete her studies, trying to think of "anything I could so they would let me go." Upon learning that Petitioner was studying to be a health professional, the men began to talk amongst themselves, and one of the men remarked that it was "very good." The men then left Petitioner alone again for a while. After returning, they informed her that they were going to release her, and that once she completed her studies (within five months of the abduction), she was to return and work for them. Keeping her eyes covered, the men unchained her, and then left her near the town. In all, the FARC had confined Petitioner for eight days.

During the time that she was away, armed guerillas visited Petitioner's father at his home and told him that they had kidnapped her. They warned him that if he told anybody, they would kill her. As a result, her father became very worried when she did not immediately return. After being released, Petitioner made her way to her father's house, where her father was "very happy" to see her and to learn that she had not been physically injured. Neither she nor her family reported the incident to the police for fear of reprisal. She recalled that she only told her family a "little bit" because of the traumatic nature of the experience and she did not give details. In her words, "[n]obody knew."

The very next day, Petitioner departed for Medellin....