Delgado v. Mukasey

Decision Date28 November 2007
Docket NumberDocket No. 05-4393-ag.
Citation508 F.3d 702
PartiesMaria Del Pilar DELGADO, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States of America, Respondent.
CourtU.S. Court of Appeals — Second Circuit

Alan Michael Strauss, (Stanley H. Wallenstein, on the brief), New York, N.Y., for Petitioner.

Keith I. McManus, Office of Immigration Litigation, U.S. Department of Justice, (Nelson Pérez-Sosa, on the brief), for Rosa E. Rodriguez-Velez, United States Attorney for the District of Puerto Rico, San Juan, P.R., for Respondent.

Before: CALABRESI, RAGGI, and HALL, Circuit Judges.

CALABRESI, Circuit Judge:

This case raises the question of whether an asylum seeker who was kidnapped in order to set up the computer network of a terrorist organization, and who, after her temporary release, has refused to cooperate further with that organization, has a reasonable fear of future persecution on the basis of imputed political opinion: opposition to the terrorist organization that kidnapped her. Since neither the Board of Immigration Appeals ("BIA") nor the Immigration Judge ("IJ") considered this asserted basis for relief, and since Petitioner did not have an opportunity to flesh out this argument at the hearing on the merits of her claim, we remand to the BIA with instructions to remand to an IJ for further findings of fact. We also remand for reconsideration of Petitioner's Convention Against Torture ("CAT") claim.

I. BACKGROUND

Maria Del Pilar Delgado ("Petitioner" or "Delgado"), a native and citizen of Colombia arrived in the United States in April 2002. In December 2002, she sought asylum, withholding of removal, and relief under the CAT. Her experiences in Colombia with the Revolutionary Armed Forces of Colombia ("FARC"), an anti-government terrorist organization responsible for large numbers of civilian casualties, political murders, and forced disappearances, were the bases of her claims. Removal proceedings were initiated against Petitioner in June 2003, and a merits hearing took place on March 3, 2004, before IJ Brigitte Laforest.

Petitioner's attorney did not attend the hearing on the merits of Petitioner's claims. Two witnesses that Petitioner's attorney planned to call, Petitioner's mother and brother, also did not appear, apparently because Petitioner was unaware that her attorney wanted them there. The IJ proceeded without them, and on direct examination she solicited the following account from Petitioner.

In January 2002, three men and two women dressed in military clothing abducted Petitioner at gunpoint and transported her to a FARC camp in the countryside. They told her that she had been kidnapped because of her computer skills (at that time, Petitioner worked as a computer systems expert at a bank in Colombia), and that she would be setting up the FARC's computer network. According to Petitioner's asylum statement, the kidnappers threatened her by telling her that they knew who she was, where she lived, and where she worked; they said "[t]hey had been watching [her] and if [she] did not help them, [her] family would be preparing [her] funeral." Petitioner indicated she did not want to help the FARC because she "do[es] not support any organization that deals in murder."

After three days, the computer equipment had not arrived, so the FARC soldiers released Petitioner with instructions that they would contact her again and that she must not report them to the police; they reiterated that they could easily find her and that if she betrayed them she would be killed. Upon her release, Petitioner fled the town where the FARC soldiers left her and went to a friend's house in another town. The following week, Petitioner learned that a man and a woman had asked Petitioner's roommate in her original town where Petitioner was. They indicated that the FARC's computer equipment had arrived. Someone had also called her mother's house looking for her. Petitioner filed an incident report with the local authorities, but "they did not give it much importance" because she was "just a civilian person."

Significantly, for the purpose of our analysis, the IJ found that Petitioner was credible and that her fears were subjectively genuine. Nevertheless, the IJ denied Petitioner's application for asylum and withholding of removal because Petitioner "was not kidnapped because of her political opinion, . . . her race, her religion, her nationality, or her membership in a particular social group." See In re Delgado, No. A 96 241 761 (Immig. Ct. New York City Mar. 3, 2004). "[F]or that reason and for that reason alone," the IJ stated, "I find that this respondent does not qualify for political asylum in the United States." Id. The IJ also found that Petitioner was not eligible for relief under the CAT because the FARC had not acted with the consent or acquiescence of the government.

Petitioner appealed to the BIA, arguing that she had established a well-founded fear of future persecution on account of her political resistance to the FARC and of her membership in a particular social group (experts in computer science). She also contended that the IJ violated her right to due process by failing to inform her that she could request a continuance when her attorney did not appear at her hearing. In addition and in any case, she requested a remand because her counsel had given her constitutionally ineffective assistance. The BIA adopted and affirmed the IJ's decision, adding that Petitioner's testimony showed that she had been kidnapped because of her computer skills, not her political opinion, and that the particular social group she described was not cognizable because its members possess only "broadly-based characteristics." See In re Delgado, No. A 96 241 761 (B.I.A. July 18, 2005), aff'g No. A 96 241 761 (Immig. Ct. New York City Mar. 3, 2004) (internal quotation marks omitted). The BIA further found that even if the FARC targeted Petitioner on account of a protected ground, she would be ineligible for asylum since kidnapping does not rise to the level of persecution. The BIA denied Petitioner's CAT claim because the record was "devoid of any evidence" from which it could infer that she would suffer harm "with the acquiescence of the Colombian government." Id. The BIA did not consider Delgado's allegations regarding ineffective assistance of counsel or the IJ's failure to notify her about her right to a continuance. This appeal followed.

II. DISCUSSION
A. Standard of Review

Where, as here, the BIA has adopted and supplemented the IJ's decision, we review the decision of the IJ as supplemented by the BIA. Gao v. Gonzales, 440 F.3d 62, 64 (2d Cir.2006). And because the IJ found Petitioner to be credible, we treat the events she experienced in the past as undisputed facts. Id. We review the factual findings of the IJ or the BIA under the substantial evidence standard, which means that "a finding will stand if it is supported by reasonable, substantial, and probative evidence in the record when considered as a whole." Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted). This standard "require[s] a certain minimum level of analysis from the IJ and BIA," as well as "some indication that the IJ considered material evidence supporting a petitioner's claim." Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir.2005). We review de novo questions of law and the application of law to undisputed fact. Secaida-Rosales, 331 F.3d at 307.

B. Asylum and Withholding of Removal

Asylum is a discretionary form of relief that hinges on persecution in the applicant's country of nationality. An asylum applicant may establish eligibility by showing that she has suffered past persecution or has a well-founded fear of future persecution, on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42). "An applicant who has been found to have established such past persecution shall also be presumed to have a well-founded fear of persecution on the basis of the original claim." 8 C.F.R. § 208.13(b)(1). Once an applicant has established eligibility, however, it remains within the Attorney General's discretion to deny asylum.

Requests for withholding of removal under 8 U.S.C. § 1231(b)(3) often rely on the same grounds as asylum and depend on the same types of proof, but withholding of removal is a mandatory form of relief, and it requires the applicant to clear a higher bar. Specifically, if an applicant shows that "it is more likely than not" that her "life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion," the Attorney General must withhold removal. 8 C.F.R. § 1208.16(b).

The applicant bears the burden of demonstrating eligibility for asylum and withholding of removal, but an applicant's testimony alone may be sufficient to carry this burden. 8 C.F.R. §§ 208.13(a), 208.16(b). We also recognize that "the IJ has an affirmative obligation to help establish and develop the record in the course of such proceedings," Secaida-Rosales, 331 F.3d at 306, especially when, as here, an alien is unrepresented by counsel, United States v. Copeland, 376 F.3d 61, 71 (2d Cir.2004).

Petitioner argues that she has demonstrated a well-founded fear of future persecution on account of (1) the political opinion that the FARC has now imputed or will impute to her upon her return,2 and (2) the government's unwillingness to control the FARC, exposing her to likely violent retaliation.3 We have "accept[ed] the proposition that an imputed political opinion, whether correctly or incorrectly attributed, can constitute a ground of political persecution." Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir.2005) (internal quotation marks omitted). The IJ did not consider this argument, however.

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