Espinosa-cortez v. Attorney Gen. Of The United States

• Decision Date: 02 June 2010
• Docket Number: No. 08-4170.,08-4170.
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Marco Tulio ESPINOSA-CORTEZ, Luz Marino Lopez-Tibaduiza, & Ximena Del Pilar Espinosa-Lopez, Petitionersv.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

607 F.3d 101

Marco Tulio ESPINOSA-CORTEZ, Luz Marino Lopez-Tibaduiza, & Ximena Del Pilar Espinosa-Lopez, Petitionersv.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 08-4170.

United States Court of Appeals, Third Circuit.

Argued March 24, 2010.

Opinion Filed June 2, 2010.

Peter M. Rogers, Esq. [Argued], Rogers & Rogers, P.C., Pittsburgh, PA, for Petitioners.

Dalin R. Holyoak, Esq. [Argued], Kristen Giuffreda Chapman, Esq., Regina Byrd, Esq., Francis W. Fraser, I, Esq United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Before RENDELL, AMBRO, and FUENTES, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge:

Marco Tulio Espinosa-Cortez, his wife, Luz, and his adult daughter, Ximena, are natives and citizens of Colombia. Between 2002 and 2003, the Espinosa-Cortez family was repeatedly threatened by agents of the Fuerzas Armadas Revolucionarias de Colombia (“FARC”) in an effort to coerce Espinosa-Cortez, who had close connections to the Colombian government and military, into becoming a FARC informant. Once it became clear that the Colombian government would not take steps to protect his family, Espinosa-Cortez liquidated his assets, fled with his family to the United States, and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The immigration judge (“IJ”) denied his application, and the Board of Immigration Appeals (“BIA”) affirmed, concluding that Espinosa-Cortez had not shown that he would be persecuted on account of actual or imputed political beliefs if he were removed to Colombia.

Espinosa-Cortez seeks review on one issue-whether substantial evidence supports the BIA's conclusion that Espinosa-Cortez lacks a reasonable fear that he would be persecuted on account of his actual or imputed political beliefs if he were to return to Colombia.¹ Although we review the BIA's decision under a highly deferential standard, we conclude that the BIA's decision is not supported by substantial evidence, and we will grant the petition for review.

I.

A.

We begin by reviewing Espinosa-Cortez's testimony. We note at the outset that the IJ found the majority of Espinosa-Cortez's testimony credible, and unless otherwise noted, the testimony we review below was found credible.

Espinosa-Cortez's troubles with the FARC trace back to 1984, when a vehicle he was driving was ambushed and he was kidnapped. Espinosa-Cortez was held captive by the FARC for approximately one month until a ransom was paid to secure his release. Espinosa-Cortez conceded during his testimony that the 1984 kidnapping was motivated by his wealth, not his political beliefs; indeed, he was not politically active in any meaningful way in 1984. After the kidnapping, however, and as a result of his dislike for the FARC, he became increasingly active in Liberal Party politics, giving money to various Liberal Party candidates and participating in a variety of political campaigns. According to Espinosa-Cortez's testimony, these campaigns would frequently receive generalized threats from the FARC, although he personally received no direct threats from the FARC while participating in the campaigns. Espinosa-Cortez did not testify in significant detail as to his participation in Liberal Party politics, mentioning it only in passing during his direct testimony. The IJ did not find his testimony concerning “the degree of his political activity” to be credible in light of the fact that he “mentioned his political participation only incidentally.” (App. at 75.)

In addition to his direct participation in political campaigns, Espinosa-Cortez had wide-ranging connections with the Colombian military and government as a result of his social and business activities. Espinosa-Cortez had long participated in equestrian events in Colombia and was a member of the Federal Equestrian Board; Espinosa-Cortez testified that he and his wife would attend equestrian events every weekend, where they would socialize with government ministers and high-ranking military personnel.

More importantly for purposes of Petitioners' asylum claims, Espinosa-Cortez also developed relationships with governmental and military figures through his business activities. In particular, Espinosa-Cortez owned a catering business that supplied food to governmental and military institutions, and he owned a store within the military academy that sold food to cadets. Through his work as a food supplier, Espinosa-Cortez, his family, and his employees had “free access” to the military academy at all hours, (App. at 138); that is, as a food supplier to government and military institutions, Espinosa-Cortez and his family had ready access to, and frequently worked in, those institutions.

Between 2002 and 2003, Espinosa-Cortez received a series of threatening telephone calls from the FARC.² When he received the first such call, he thought that the caller was playing a prank on him, but the FARC agent informed him that he was not joking and that the FARC wanted his help. The caller promised to get back in touch with him and hung up. In November 2002, the FARC agent called back and demanded, first, that Espinosa-Cortez act as an informant for the FARC and, second, that he cease providing food and other services to the army. The caller stated that Espinosa-Cortez's wife and daughter would be killed if he did not assist the FARC; the caller described Ximena's daily routine in detail, implying that the FARC had been following her. Although the translation or transcription of Espinosa-Cortez's testimony on this point could be clearer,³ it is evident that Espinosa-Cortez rejected the FARC's demands in no uncertain terms:

They wanted me, me to be an informant. And that we stop providing for the army and work with them and they needed-that they wanted part of the money that I had, that I made. They just stated that no moment would I accept because they go against my principles. At, at no time because with the experience that I had my hatred of them was complete and I, I wanted them to be enemies.

( Id. at 138 (emphasis added.)) ⁴

Prior to the November 2002 telephone call, Espinosa-Cortez had informed neither his wife nor the police of the prior threats. After that call, however, he “went into a panic” and informed his wife of the telephone calls. ( Id. at 134.) He also spoke to his friends in the military, who advised him that there was nothing to be done and that he should change his daily routine. In December 2002, he found on the windshield of his car a drawing of the route he took when driving to the military academy, which he understood to be an indication of the fact that he was being followed by the FARC. At this point, Espinosa-Cortez went to the military unit called Grupos de Acción Unificada por la Libertad Personal (“GAULA”), which is a specialized anti-kidnapping unit of the Colombian military. GAULA informed him that cases older than his took priority and that, in effect, nothing could be done to protect him or his family.

In February 2003, Espinosa-Cortez received a final call from the FARC in which the caller demanded that he work as an informant and “cooperate with them in every sense.” ( Id. at 136.) Subsequently, in May 2003, two well-dressed men approached Ximena on the street on her way home from school. The men told her to relay the message to her father that they were “not playing.” ( Id. at 156.) Alarmed by the fact that the FARC had escalated from making telephone calls to Espinosa-Cortez to making personal contact with Ximena, the family decided that they had to leave Colombia. They quickly liquidated their assets and flew to the United States, the only country where the three already had tourist visas.

B.

Shortly after their arrival in the United States, Espinosa-Cortez and Ximena filed separate petitions for asylum, withholding of removal, and CAT relief; Espinosa-Cortez's application was filed on behalf of himself and his wife. The hearings on the two petitions were consolidated, as the factual basis for Ximena's application is identical to that underlying her parents' application.

The IJ denied the applications. As we noted supra, the IJ found that Espinosa-Cortez's testimony concerning the FARC's pursuit of him to become their informant was credible, but she did not find his testimony concerning his Liberal Party campaign activities to be credible. The IJ concluded that Espinosa-Cortez's treatment by the FARC did not amount to past persecution on account of his political opinions, because (1) the 1984 kidnapping was motivated by money, not politics; and (2) the FARC's threats were not sufficiently imminent to constitute persecution.

The IJ further concluded that Petitioners had not demonstrated that they have a well-founded fear of future persecution on account of Espinosa-Cortez's actual or imputed political beliefs. The IJ observed that the FARC seeks to destabilize the country as a whole-she noted that “everyone from the president on down is under threat from FARC,” ( id. at 76)-and that generalized civil unrest does not constitute persecution. With regard to the threats that were levied at Petitioners in particular, the IJ concluded that there was no nexus between these threats and Espinosa-Cortez's actual or imputed political beliefs because “respondent's own political activity is very scanty.” ( Id. at 77.) Instead the IJ concluded that Espinosa-Cortez had been threatened because of his social and professional ties to the government, not his political beliefs:

Almost all the evidence reflects [that] FARC's motivation to recruit respondent as an informant was based on his commercial and social ties to police, military and government officials, and his access to these groups through his catering business. FARC does view the respondent as potentially useful to their goal, but did not deem him politically offensive.

( Id. at 78-79.) Having found that the persecution...