657 F.3d 537 (7th Cir. 2011), 10-3751, Escobar v. Holder

Docket Nº:10-3751.
Citation:657 F.3d 537
Opinion Judge:WOOD, Circuit Judge.
Party Name:Sergio ESCOBAR, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
Attorney:Alexander A. Boni-Saenz (argued), Lisa J. Palumbo, Attorneys, Legal Assistance Foundation of Metropolitan Chicago, Chicago, IL, for Petitioner. Kathryn DeAngelis, Corey L. Farrell, Stefanie N. Hennes (argued), Erica B. Miles, OIL, Attorneys, Department of Justice, Civil Division, Immigration Liti...
Judge Panel:Before EASTERBROOK, Chief Judge, and WOOD and TINDER, Circuit Judges. EASTERBROOK, Chief Judge, concurring in the judgment.
Case Date:September 07, 2011
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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657 F.3d 537 (7th Cir. 2011)

Sergio ESCOBAR, Petitioner,

v.

Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 10-3751.

United States Court of Appeals, Seventh Circuit.

September 7, 2011

Argued May 31, 2011.

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[Copyrighted Material Omitted]

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Alexander A. Boni-Saenz (argued), Lisa J. Palumbo, Attorneys, Legal Assistance Foundation of Metropolitan Chicago, Chicago, IL, for Petitioner.

Kathryn DeAngelis, Corey L. Farrell, Stefanie N. Hennes (argued), Erica B. Miles, OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before EASTERBROOK, Chief Judge, and WOOD and TINDER, Circuit Judges.

WOOD, Circuit Judge.

Sergio Escobar fled Colombia after the Revolutionary Armed Forces of Colombia (FARC, short for Fuerzas Armadas Revolucionarias de Colombia) pursued him relentlessly, subjecting him to multiple hijackings at gunpoint, directing death threats at him and his family, and burning

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his trucks. Escobar then applied for asylum, asserting that the government sat by and allowed FARC to persecute him because of his affiliation with the Liberal Party and his status as a pro-government trucker who refused to cooperate with FARC. The Immigration Judge (IJ) found Escobar credible and determined that he was eligible for asylum. The Board of Immigration Appeals (Board) rejected the IJ's decision and ordered Escobar removed. As the Board saw it, Escobar had not endured persecution at the hands of FARC. Even if he had, the Board continued, his persecution occurred only because FARC wanted his trucking services, not because of his membership in any group recognized by the asylum statute. We conclude that the Board's finding that Escobar was not persecuted, or that if he was, that his persecution was not on account of the protected grounds of his membership in a particular social group and his political beliefs, failed to take account of all the evidence in the record. We therefore grant the petition for review and remand to the Board for further consideration of Escobar's case.

I

Escobar is a Colombian national from the small town of Cerrito. He attended the university in the flourishing city of Cali. After receiving his degree in marketing, Escobar decided to pursue his dream of owning his own business, and so he bought two trucks to start a small transportation service. Unfortunately, Escobar soon crossed paths with FARC and his dream turned to nightmare.

Colombia has been ravaged by internal political and criminal conflict. The battle that rages has many different actors: the government's security troops, paramilitary groups, revolutionary guerrilla groups, and drug traffickers. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, THE STATE OF THE WORLD'S REFUGEES ch. 7 (2006). One of the more powerful actors is FARC. Originally established to serve as the military wing of the Colombian Communist Party, it is now a free-standing leftist revolutionary organization attempting to overthrow the Colombian civil government. FARC is well-organized and sophisticated; in the areas under its control, FARC displaces civil government and rules on its own. Liz Harper, Colombia's Civil War: FARC, available at http:// www. pbs. org/ newshour/ bb/ latin_ america/ colombia/ players_ farc. html. Its tactics are brutal. FARC regularly kidnaps, ransoms, and assassinates local party officials and members. AMNESTY INTERNATIONAL, AMNESTY INTERNATIONAL REPORT 2011: THE STATE OF THE WORLD'S HUMAN RIGHTS 108-12 (2011); BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, 2009 HUMAN RIGHTS REPORT: COLOMBIA (2010), available at http:// www. state. gov/ g/ drl/ rls/ hrrpt/ 2009/ wha/ 136106. htm. This has led the United States to designate FARC as a Foreign Terrorist Organization. U.S. Dep't of State, Foreign Terrorist Organizations (May 19, 2011), available at http:// www. state. gov/ s/ ct/ rls/ other/ des/ 123085. htm. FARC spies on political party meetings in order to keep tabs on their affairs and identify members of influence and importance, some of whom will be future victims.

Escobar was an active member in Colombia's Liberal Party, one of the two parties that dominate the Colombian political establishment. Living in rural Colombia where transportation can be difficult to come by, Escobar often drove members of the Liberal Party to rallies and meetings. His service to the Liberal Party bore fruit, for he obtained one of his principal trucking contracts, which was with a sugar refinery from Cauca, through his Liberal Party contacts. In March 1998, Escobar drove some Liberal Party members to and from a political meeting. It was there,

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Escobar believes, that FARC noticed him. After the meeting, five or six FARC members stopped Escobar at an improvised roadblock and threatened him at gunpoint that they would kill him if he did not transport their cargo. The leader of the FARC squadron told Escobar that from that point forward he was to serve FARC's transportation needs. He further warned Escobar that he would be killed if he refused to comply or reported the encounter to the authorities. In fear for his life, Escobar transported the cargo, after which FARC released him. Escobar followed orders and did not report this incident to the authorities. From that point, he tried to avoid further contact with FARC by taking alternate trucking routes.

This tactic worked only for a time. Some months later, Escobar again ran into FARC, was hijacked at gunpoint, and was forced to transport cargo to a distant FARC hideout. A few months later, he was hijacked a third time. This time, when approaching the FARC roadblock, Escobar unsuccessfully tried to maneuver around the FARC soldiers. This angered them and prompted them to threaten to kill Escobar and his family. After this encounter Escobar contacted the authorities. He filed a complaint with the Police Department of the city of Candelaria, but nothing came of it.

A few months later, Escobar learned that members of a paramilitary group that opposed FARC came to his place of business in his absence. They suspected Escobar of collaborating with FARC and threatened to kill him. Caught in the middle of these rival forces, Escobar went into hiding. But FARC had not forgotten about him. FARC soldiers went looking for him, visiting his former home and place of business. They communicated to his friends and business contacts that he had better come out of hiding or else something ominous might happen to him or his trucks. Escobar believed this to be a trap; if he came out of hiding, he feared, he would be killed. He stayed in the shadows, but FARC made good on its threat by burning his trucks. Just to ensure that it made a lasting impression on Escobar, FARC also branded its insignia on the ruined vehicles.

Escobar immediately fled Colombia. He bought a plane ticket to Panama and from there traveled to the United States on a tourist visa. In early June 2000, he landed in Miami with permission to stay in the country until December 2000. While there, he spoke to a reporter for the Miami Herald about his interactions with FARC. The reporter put him in touch with agents of the Drug Enforcement Administration (DEA) who were interested in FARC's involvement with drug trafficking. Not familiar with U.S. immigration law, Escobar thought that his cooperation with the feds would allow him to remain in the United States as a legal resident. After receiving no further contact from the DEA, in mid-May 2002, Escobar filed an asylum application. In early August 2002, the former Immigration and Naturalization Service (now Citizenship and Immigration Services) issued Escobar a Notice to Appear and placed him under removal proceedings pursuant to 8 U.S.C. § 1227(a)(1)(B). In the meantime, Escobar continued to assist U.S. law enforcement, meeting with FBI agents and providing details about the FARC members he had encountered.

On May 11, 2009, an Immigration Judge granted Escobar's asylum application. Though Escobar failed to file his application within one year of arriving in the United States, the IJ held that Escobar's asylum application could be processed because of changed circumstances. On the merits, the IJ found Escobar credible and concluded that he had been persecuted on

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account of two protected grounds: his political beliefs as a member of the Liberal Party, and his membership in the particular social group of truckers who refused to cooperate with FARC and collaborated with law enforcement. Finally, the IJ ruled that, contrary to the government's allegations, Escobar had not provided material support to FARC.

The government appealed the IJ's decision to the Board, which vacated the IJ's grant of asylum and ordered Escobar removed. The Board agreed with the IJ that Escobar's asylum application qualified for the exception to the one-year filing period because of changed circumstances, and it upheld the IJ's determination that Escobar was credible. Nevertheless, the Board did not think that Escobar had shown that he was persecuted. It reasoned that the burning of his trucks was a form of nonphysical, economic disadvantage insufficiently severe to be considered persecution. The Board added that even if Escobar was persecuted, any such persecution was not on account of his political beliefs or his membership in a particular social group. For these reasons, the Board concluded that Escobar was ineligible for asylum and ordered him removed. This petition for review followed.

II

A

To be eligible for asylum, an applicant must show that he is a refugee within the meaning of the Immigration and Nationality Act (INA). 8 U.S.C. § 1158(b)(1)(A); 8 C.F.R. § 1208.13(b). The INA defines a " refugee"...

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