Cordoba v. Holder

• Decision Date: 13 August 2013
• Docket Number: 10–73112.,Nos. 08–74384,s. 08–74384
• Citation: 726 F.3d 1106
• Parties: Edgar Rene CORDOBA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. Antonio Medina Gonzalez, Petitioner, v. Eric H. Holder, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

726 F.3d 1106

Edgar Rene CORDOBA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

Antonio Medina Gonzalez, Petitioner,

v.Eric H. Holder, Jr., Attorney General, Respondent.

Nos. 08–74384, 10–73112.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted April 11, 2013.

Filed Aug. 13, 2013.

Susan E. Hill (argued), Hill & Piibe, Immigration Attorneys, Los Angeles, CA, Saad Ahmad (argued), Saad Ahmad & Associates, Fremont, CA, for Petitioners.

Tony West, Assistant Attorney General, Civil Division, Stephen J. Flynn, Assistant Director, Melissa Neiman–Kelting, Assistant Director, and Imran R. Zaidi (argued), Trial Attorneys, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondents.

On Petitions for Review of Orders of the Board of Immigration Appeals. Agency Nos. A096–085–156, A022–997–885.

Before: Stephen Reinhardt and Mary H. Murguia, Circuit Judges, and Jack Zouhary, District Judge.^*

OPINION

REINHARDT, Circuit Judge:

These cases, consolidated for purposes of disposition, both present the question of whether landownership may form the basis for membership in a particular social group for purposes of eligibility for asylum. Because the agency did not have the benefit of our recent en banc decision in Henriquez–Rivas v. Holder when it adjudicated petitioners' claims, we grant the petitions for review and remand for the BIA to reconsider its determinations.

I.

The Attorney General may, in his discretion, grant asylum to applicants determined to be refugees within the meaning of the Immigration and Nationality Act (“INA”), INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). An individual qualifies as a refugee when he is “unable or unwilling to return to [his last country of residence] ... 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.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); see Navas v. INS, 217 F.3d 646, 654 (9th Cir.2000). These cases involve two individuals whose asylum applications were denied because the BIA held that the particular social groups in which they claimed to be members did not qualify as “particular social group[s]” within the meaning of the statute.

A.

Edgar Rene Cordoba, a native and citizen of Colombia, petitions for review of the decision of the Board of Immigration Appeals (BIA) denying his claims for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Cordoba's primary claim is that he and his family were persecuted by the Revolutionary Armed Forces of Colombia (the “FARC”), because they are wealthy, educated landowners and businesspeople.

Cordoba was born into a family that had significant landholdings, including several family properties and farms, in and near Cali, Colombia, as well as some family businesses. Cordoba was educated in the United States and then returned to Colombia, where he inherited and ran the family business. According to Cordoba, whose testimony was deemed credible by the Immigration Judge (IJ), he was well-known in the area as the owner and principal manager of these properties and businesses, and his name appeared on the deeds to the properties and business licenses.

According to country conditions materials submitted by Cordoba, the FARC claims to represent the rural poor against Colombia's wealthy classes, and accordingly targets wealthy landowners, foreigners, and people in political office. These materials document that the FARC is responsible for hundreds of kidnappings, hijackings, and other attacks on civilians each year, as well as numerous political assassinations.

Cordoba's testimony recounted numerous incidents, dating back to the 1990s, in which he and his family had been targeted by the FARC. In 1992, Cordoba's father was kidnapped by the FARC and held for approximately one month, until some friends arranged for his liberation by paying a ransom. Not long thereafter, Cordoba took over the family landholdings and businesses from his father. He relates that in the mid–1990s, members of the FARC intercepted trucks from Cordoba's transportation business and demanded payment in return for the trucks' safe passage through FARC-controlled territory. When Cordoba refused to comply, the FARC destroyed two of his company's trailers by rolling them down a mountain—leading Cordoba to shut down the transportation part of his business.

Cordoba's wife and children were the target of three separate confrontations in early 2001, two of which involved armed individuals. In January, his wife was driving in Cali when she was surrounded by individuals on two motorcycles and in a pickup truck. The individuals hit their pistols against her car windows in an attempt to scare her, and demanded that she pull over so that they could “take [her] for a drive.” She was able to escape only by hitting the accelerator and speeding down the wrong side of the street—against traffic. Cordoba's wife called the police, but they did not come. The next month, his wife, driving the same car, was again followed by motorcycles after picking up her children from a well-known and prestigious school; she escaped by driving her car into a ditch and fleeing on foot. In March, Cordoba's wife was attacked yet again, this time by two masked gunmen. They came up to the door of Cordoba's store, showed his wife their gun, and demanded entry. She grabbed a gun from behind the counter and exchanged gunfire with the two men. The gunmen eventually fled the scene. Cordoba's wife called the police, who responded to the scene and wrote up a report, but, to Cordoba's knowledge, there was no prosecution or further investigation of the incident.

One month later, individuals associated with the FARC began contacting Cordoba directly by regularly calling the business phone at the convenience store he owned. The individuals identified themselves as members of the FARC militia; as Cordoba testified, the callers stated that “[t]hey knew who I was and where I lived and where I worked, [and] where my kids went to school.” They called him a “toad” (meaning “snitch”), and demanded money from him. Despite Cordoba's refusal of the callers' demands, they continued to call, to the point where Cordoba began instructing his employees not to answer the phone. Within a few days, Cordoba began receiving telephone calls at his home. In these calls, FARC members repeatedly called Cordoba a “toad,” demanded financial contributions to their cause, and threatened that he would “pay the consequences of not contributing or assisting them.” Cordoba began instructing his family not to answer the home phone. He and his family began regularly changing apartments in order to evade the FARC.

Having no faith in the ability of the police to protect him, Cordoba and his family fled to the United States on visitor visas in June 2001. They returned that December, believing that the FARC might no longer be targeting them. The FARC, however, did not cease targeting Cordoba when he returned to Colombia. On December 17, 2001, as Cordoba and his father were driving up to one of their farms outside Cali (a citrus farm and poultry farm that supplied local supermarkets), they witnessed five “suspicious” men standing at the entrance to their farm, questioning the farm administrator. Cordoba and his father accordingly did not stop at the farm as they had intended. The administrator later told Cordoba that the men knew that the farm belonged to Cordoba and wanted to talk to him; the men also asked the administrator questions about Cordoba: “about my whereabouts, where they can get ahold of me and how ... they can [r]each me.” When Cordoba reported this incident to the unit of the Colombian police that handles kidnapping and extortion cases, he was advised that his farm was located in an area within the FARC's control, and that his story was similar to that of many individuals who were later kindnapped by the FARC. He was cautioned that he should not return to the farm “under any circumstances.”

In January 2002, Cordoba received another phone call from the FARC—this time at his real estate and leasing office in Cali. The caller asked for Cordoba by name, and told him that he had been targeted to contribute to the FARC's cause, with an expected “contribution” of 200 million pesos (approximately $100,000). Cordoba instructed his secretary not to answer the phone and eventually disconnected his work number; he also decided to ask the local prosecutor's office to initiate a formal investigation. The officers advised him to leave the country, stating that they had many cases like his, that they could not handle them all, and that “[t]here's no protection. We can't offer you any protection.” Cordoba, along with his wife and children, fled to the United States shortly thereafter.

Although, at the time of his hearing, Cordoba's parents remained in Colombia, his father did not frequently leave home. Cordoba's father submitted a letter stating that the family continued to receive telephone calls from strangers seeking Cordoba's current address. Further, on two different occasions, three men visited Cordoba's mother at her business, asking for Cordoba and threatening to kill him; these men also threatened to kidnap his mother in order to extort money from him. Cordoba testified that, since his departure, the family had been required to shut down some of the businesses they once operated, because they could find no one willing to risk running a business that had been targeted by the FARC. As Cordoba stated with regard to one of his businesses, “It was basically marked by the FARC. Nobody wanted to take [it]. We couldn't even rent the place because they knew what type of problem [we] had.”

On September 5, 2002, Cordoba filed an application for asylum, withholding of removal, and CAT relief. In his asylum and withholding...