Tamara-Gomez v. Gonzales

• Decision Date: 18 April 2006
• Docket Number: No. 05-60352.,05-60352.
• Citation: 447 F.3d 343
• Parties: Henry Augusto TAMARA-GOMEZ, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 343

447 F.3d 343

Henry Augusto TAMARA-GOMEZ, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 05-60352.

United States Court of Appeals, Fifth Circuit.

April 18, 2006.

COPYRIGHT MATERIAL OMITTED

Paul S. Zoltan, Law Office of Paul S. Zoltan, Dallas, TX, for Petitioner.

Ann Cruce Roberts, Lubbock, TX, Thomas Ward Hussey, Dir., U.S. Dept. of Justice, OIL, Washington, DC, Ann M. Estrada, U.S. INS, Dallas, TX, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before REAVLEY, JOLLY and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Henry Tamara-Gomez, a native and citizen of Colombia, brings this petition for review of an order of the Board of Immigration Appeals (BIA) affirming, without opinion, the decision of the Immigration Judge (IJ) denying his application for asylum, withholding of removal, and protection under the Convention Against Torture. In this appeal, arising out of the drug wars of Colombia, we decide that although the petitioner satisfies the requirement of persecution by the insurrectionist terrorists, his claim for asylum and withholding of removal cannot succeed because he has failed to establish a nexus between that persecution and a statutory ground for relief. Further, the petitioner's claim for relief under the Convention Against Torture likewise fails as there has been insufficient state action as required to demonstrate torture under the Convention. Consequently, we DENY the petition for review.

I

Henry Tamara-Gomez served in the Colombian Air Force, providing mechanical support for helicopters. After leaving the Air Force, Tamara-Gomez was employed as a helicopter mechanic by DynCorp Aerospace as a part of a program of United States assistance to Colombian law enforcement in Bogota, Colombia. As a part of his duties, Tamara-Gomez provided mechanical support for helicopters operated by the Colombian National Police (CNP) in their various law enforcement activities. Tamara-Gomez was occasionally required to ride with the CNP on helicopter missions to perform repairs. Although a civilian, Tamara-Gomez was required to wear a CNP uniform during these trips.

In July 2001, Tamara-Gomez accompanied the CNP on a helicopter mission into a remote village to recover the bodies of five CNP officers killed by the Colombian narco-terrorist guerrilla group Fuerzas Armadas Revolucionarias de Colombia (the Revolutionary Armed Forces of Columbia) known as FARC.¹ After landing in the village Tamara-Gomez noticed three men suspiciously filming the CNP crew with two cameras. Tamara-Gomez alerted the CNP who were able to capture one of the men, a FARC member. The prisoner turned to Tamara-Gomez and shouted, "We know who you are," and, "You will suffer retaliation." The other men, presumably FARC members, disappeared into the jungle.

Approximately one month after the July 2001 incident Tamara-Gomez began to receive threatening calls, specifically mentioning the jungle mission. These calls were received on Tamara-Gomez's personal cell phone. In time, the actors located Tamara-Gomez, identified his family, and began calling the Tamara-Gomez home threatening both Tamara-Gomez and his family. Fearing for his life and the lives of his family members, Tamara-Gomez sought police protection from the CNP, but was informed that the CNP lacked the resources to provide individual security to families. Tamara-Gomez moved his family to another house. However, within weeks the threats of harm resumed. This time, in addition to threatening calls, Mrs. Tamara-Gomez received demands for money, death threats to her husband, and threats to kidnap her two sons and train them to fight for FARC. The actors identified themselves as FARC members. Tamara-Gomez removed his sons from school and kept them inside his home as much as possible.

In January 2002, a bicycle bomb exploded in the Tamara-Gomez's new neighborhood, killing five (none of the victims were members of Tamara-Gomez's family). After this incident which Tamara-Gomez felt was aimed at his family, Tamara-Gomez sent his wife and children to Miami, Florida on visas obtained prior to the FARC threats. Although he visited his family once in the United States, Tamara-Gomez remained in Colombia to work and lived on a military base for protection. Although unhappy with the separation, Tamara-Gomez testified that housing on the military base was not available for his entire family.

Although the record is not clear on the exact dates, at some point between the time his family went to the United States in March 2002 and late summer 2002, Tamara-Gomez learned that FARC had tracked down and murdered other participants (or the family members of participants) in the June 2001 CNP body-retrieval mission. Believing his life to be in danger, Tamara-Gomez entered the United States on a visitor's visa on July 24, 2002. A few weeks after his departure, a vandal broke into the Tamara-Gomez home and spray painted the words "Sapa Regaldo" (which translated means "Two-Bit Snitch") and the letters "FARC."

In addition to evidence of the acts aimed directly at him, Tamara-Gomez introduced nearly 500 pages of official reports detailing the brutality of FARC in Colombia.² Specifically, the reports speak of FARC's brutality, vandalism, and "continued practices of killing, attacking, and threatening off-duty police and military personnel, their families, and those who cooperate with them." The State Department reports identify a campaign FARC refers to as "Plan Pistola," which the State Department classifies as a "deliberate strategy" to kidnap, torture, and kill soldiers, police, and their families. The evidence outlines FARC's use of wiretapping, monitoring bank accounts, and surveillance of specific individuals to identify and target persons cooperating with the police or military. Specific instances of violence including the use of gas explosives in cars, bikes, and canisters appear throughout these reports.

In addition to these acts of violence, the evidence in the record continually speaks of FARC's "forcible recruiting" of children as young as twelve years old into their guerilla forces. Once captured or "recruited" these children become essentially the slaves of their commanders, and are subject to extreme physical and sexual abuse. The State Department report for 2002 mentions that in one year alone it was estimated that FARC kidnapped or "forcibly recruited" as many as 120 minors into their ranks. The report goes on to note that many families have reported having to move repeatedly, withdraw their children from school, and/or leave their community in order to flee FARC attempts to take their children. These and other details provided in the reports in the record corroborate the incidents reported by Tamara-Gomez and his family and paint a grim picture of the situation in Colombia. Additionally the reports mention exactly what Tamara-Gomez and his family experienced —"inadequate government action and resources to combat paramilitary activity and provide security."

Although his visa expired, Tamara-Gomez remained in the United States, and in June 2003 he applied for asylum. On August 1, 2003, Tamara-Gomez was charged with overstaying his visa and ordered to appear. Tamara-Gomez sought relief through the three primary avenues of relief available: 1) asylum under 8 U.S.C. § 1158(b); 2) withholding of removal under 8 U.S.C. § 1231(b)(3); and 3) the United Nations Convention Against Torture,³ which prevents removal to a country where the alien would face torture. The IJ denied all relief and the BIA affirmed without opinion. We will review each request for relief.

II

Because the BIA affirmed the IJ without opinion, we treat the IJ's decision as the final agency determination for purposes of review. See Zhang v. Gonzales, 432 F.3d 339, 343 (5th Cir.2005). Administrative findings of fact are conclusive unless a petitioner can show that "any reasonable adjudicator would be compelled to conclude to the contrary." See 8 U.S.C. § 1252(b)(4)(B). We have held that this standard essentially codifies the substantial evidence standard established by the Supreme Court in INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). See Zhang, 432 F.3d at 344. As such "[w]e use the substantial evidence standard to review the IJ's factual conclusion that the alien was not eligible for asylum, withholding of removal, and relief under the Convention Against Torture." Id.

A

Asylum is discretionary relief,⁴ available where 1) a person is "unwilling to return to" their home country "because of persecution or a well-founded fear of persecution"; and 2) the applicant has demonstrated that "race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant." See 8 U.S.C. § 1101(a)(42); and 8 U.S.C. § 1158(b). Although finding Tamara-Gomez credible and "accepting his account" of the facts,⁵ the IJ discarded all evidence of persecution.⁶ The IJ noted that Tamara-Gomez never claimed that he nor "any member of his family were ever beaten, shot at, kidnaped, or otherwise physically harmed"; and "more significantly" that Tamara-Gomez had voluntarily returned to Colombia for "economic reasons" after visiting his family in the United States. Consequently, the IJ noted that Tamara-Gomez was ineligible for asylum as he had failed to demonstrate past persecution, or a well-founded fear of future persecution. Reviewing these findings under the substantial evidence standard, we find that the evidence compels a finding to the contrary.

Tamara-Gomez was recognized and confronted in the jungle by a FARC member who threatened retaliation for Tamara-Gomez's actions. He, and other members of the CNP crew, were photographed by FARC members while assisting in a CNP...