Castillo-Arias v. U.S. Atty. Gen.

• Decision Date: 20 April 2006
• Docket Number: No. 04-14662.,04-14662.
• Citation: 446 F.3d 1190
• Parties: Diego F. CASTILLO-ARIAS, Martha L. Rincon-Escobar, Andres F. Castillo-Rincon, Diego F. Castillo-Rincon, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1190

446 F.3d 1190

Diego F. CASTILLO-ARIAS, Martha L. Rincon-Escobar, Andres F. Castillo-Rincon, Diego F. Castillo-Rincon, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.

No. 04-14662.

United States Court of Appeals, Eleventh Circuit.

April 20, 2006.

Michael D. Ray, Law Office of Michael D. Ray, Miami, FL, for Petitioners.

Lyle D. Jentzer, David V. Bernal, Russell J.E. Verby, Douglas E. Ginsburg, U.S. Dept. of Justice, Civ. Div., OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before BIRCH and MARCUS, Circuit Judges, and NANGLE^*, District Judge.

BIRCH, Circuit Judge:

Previously, we remanded this case to the Board of Immigration Appeals ("BIA") to determine whether noncriminal informants working against the Cali drug cartel constitute a "particular social group" within the meaning of that phrase in the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. The BIA concluded they did not. In this appeal, applying deferential review, we ask whether the BIA's interpretation of this statutory provision is reasonable. Concluding that it is, we DENY, with consternation, the petition for review of the BIA's order dismissing the appeal of Diego F. Castillo-Arias, Martha L. Rincon-Escobar, Andres F. Castillo-Rincon, and Diego F. Castillo-Rincon (collectively "Castillos") from the immigration judge's ("IJ's") order denying their application seeking asylum and withholding of deportation.

I. BACKGROUND

We incorporate the following facts and procedural history, which are not in dispute, from our previous decision in this case:

Diego Castillo-Arias ("Castillo-Arias") was born and raised in Cali, Colombia, the headquarters of the infamous Cali drug cartel.¹ Joined by his wife, Martha Rincon-Escobar, and his two sons, Andres Castillo-Rincon and Diego Castillo-Rincon, Castillo-Arias operated a bakery in Cali and resided in the city until 1996. During that time,

¹ Our recitation of the facts is drawn from Castillo-Arias's testimony before the Immigration Judge. The court found Castillo-Arias to be a credible witness. On appeal, the Government does not challenge Castillo-Arias's credibility or his account of the facts. Therefore, the facts are undisputed.

Castillo-Arias was an acquaintance of Arturo Davila, a former policeman in the Cali Police Department who, after being fired for corruption, became the chief of security for the Cali cartel. Castillo-Arias also happened to be a good friend of Vladimir Martinez Meza, who was responsible for investigating and prosecuting narcotics traffickers in Cali.

Between 1990 and 1994, Davila would visit Castillo-Arias's bakery on the weekends and chat openly and brazenly about his involvement with the Cali cartel. During these conversations, Davila would identify people, places and events related to the cartel's exportation of narcotics from Colombia to the United States and Europe. Castillo-Arias, as a civic-minded citizen of Cali, passed the information he learned from Davila along to Meza. He told Meza about Davila's statements that the cartel had declared war against the Colombian government and that the cartel would kill politicians who oppose it. Castillo-Arias also disclosed the extent, location and size of the assets of the Cali cartel, including banks, bank accounts, mansions, haciendas, and villas both within and outside Colombia.

Casti110-Arias's good deeds would not go unpunished. On May 15, 1995, as Castillo-Arias was watching his son Andres ride his bicycle in the street, a car suddenly blocked their path and three men emerged armed with pistols and an automatic weapon. The men tried to force Castillo-Arias into the car, but he resisted and was pushed to the ground and beaten. His beating caused Andres to scream loudly, and one of the men pistol-whipped Andres in the face. Andres's scream and the accompanying commotion prompted people in the neighborhood to emerge from their homes, and the men fled in their car. As they departed, they told Castillo-Arias that things would only get worse for him and his family. Castillo-Arias then took his son to a clinic, where he needed reconstructive surgery to repair his mouth and jaw.

The Castillos went to Castillo-Arias's parents' home in the northern section of Cali for the rest of the month. Castillo-Arias attempted to rent his bakery while they were away, but his lessees were intimidated by individuals who would inquire about him, and on more than one occasion, a lessee was harmed after he refused to divulge information regarding Castillo-Arias's whereabouts. Although Castillo-Arias had never been involved in politics and had never testified against the cartel in a drug trial, Meza recommended that Castillo-Arias go into hiding and, ultimately, leave Colombia.² After Castillo-Arias made two trips to the United States in 1995, the Castillos entered the United States in February 1996 as B-2 visitors for pleasure with authorization to remain in the country until August 8, 1996.

. . . .

On December 10, 1996, in accordance with 8 U.S.C. § 1229(a)(1), the Immigration and Naturalization Service ("the INS") issued show cause orders to the Castillos, charging them under 8 U.S.C. § 1227(a)(1)(B) with having remained in the United States for a longer time than permitted. At the show cause hearing, the Castillos admitted the factual allegations in the show cause orders and conceded the charge of deportability. At that time, through counsel, they requested relief from deportation in the form of asylum, withholding of deportation, or at the very least, voluntary departure.³

Following a hearing on their requests for relief, [the IJ] denied the Castillos' applications for asylum and withholding of deportation. Initially, the IJ noted that an alien is eligible for asylum under 8 U.S.C. § 1158(b)(1) only if he or she is a "refugee," which is defined as an alien who is unable or unwilling to return to his or her country of origin 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." 8 U.S.C. § 1101(a)(42)(A). The IJ concluded that even if the Castillos have a fear of harm, that harm does not arise on account of race, religion, nationality, membership in a particular social group, or political opinion. Instead, the IJ concluded, the threat to the Castillos was

² Meza left Colombia for Spain, and it appears that Davila may have been murdered.

³ It also appears that Castillo-Arias, on behalf of his entire family, had filed an application for asylum with the INS before the show cause orders were issued.

based on "retaliation" or "retribution" due to Castillo-Arias's voluntary decision to be an informant against the cartel. (Admin Rec. at 103, 104). On this basis, the IJ denied the Castillos' applications for asylum. And because the Castillos failed to meet the lower burden of proof for establishing eligibility for asylum, the IJ denied withholding of deportation because they could not satisfy the higher burden of proof to qualify for such relief. See 8 U.S.C. § 1253(h)(1) (1994); Al Najjar v. Ashcroft, 257 F.3d 1262, 1303 (11th Cir. 2001). The IJ granted the Castillos' requests for voluntary departure and entered an alternative order of deportation to Colombia.

The Castillos timely filed an appeal to [the BIA]. On appeal, Castillo-Arias and his family argued that they qualified as "refugees" under 8 U.S.C. § 1101(a)(42)(A) because they suffered a well-founded fear of persecution based on (1) a political opinion imputed to Castillo-Arias by the drug cartel and (2) his membership in a particular social group, namely, a group composed of non-criminal informants. The BIA rejected their first argument, holding that the people who threatened the Castillos did so "out of personal motives and not due to any political opinion imputed to [Castillo-Arias]." (Admin. Rec. at 9.) Although the BIA did not separately address their claim based on membership in a particular social group, the BIA ultimately concluded that the record contained insufficient evidence that there was any motivation other than revenge for the aid Castillo-Arias provided to the government, and wrote that "[w]e agree with the Immigration Judge's well-reasoned decision that the respondents have failed to adequately establish that they suffered past persecution or that they have a well-founded fear of persecution on account of a ground protected under the Immigration and Nationality Act." (Id. at 8-9.) As a result, the BIA affirmed the IJ's decision and dismissed the appeal.

Castillo-Arias v. U.S. Att'y Gen., 82 Fed. Appx. 221 (11th Cir.2003) (per curiam) (certain footnotes omitted or renumbered).

In that prior appeal, we held that the facts of the case were essentially undisputed, and the only issue was the application of the INA. Castillo-Arias, at 221. We affirmed the BIA's conclusion that Castillo-Arias was not persecuted on account of his political opinion. Id. at 221. However, we held that the BIA's conclusion that Castillo-Arias was targeted by the cartel solely out of revenge was not supported by substantial evidence. Id. at 221. Though there was evidence of revenge, a reasonable factfinder would be compelled to conclude that Castillo-Arias produced evidence that the harm was motivated by his membership in a group composed of noncriminal informants. Id. at 221. We then remanded the case to the BIA to decide the sole issue here on appeal, i.e., if noncriminal informants constitute a "particular social group" within the meaning of the phrase in the INA, 8 U.S.C. § 1101(a)(42)(A). Castillo-Arias, at 221.

On remand, the BIA concluded that noncriminal informants did not constitute a "particular social group." The BIA relied on Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439, 447 (BIA 1987), as...