2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-30-2008

Gomez-Zuluaga v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 07-2674

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-2674

 

CLAUDIA ROCIO GOMEZ-ZULUAGA,

 Petitioner

 v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

 

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A98 497 068)

Immigration Judge: Dorothy Harbeck

 

Argued January 10, 2008

Before: FISHER, HARDIMAN

and STAPLETON, Circuit Judges.

(Filed: May 30, 2008)
2

Rachelle Abrahami

Alessandra DeBlasio (Argued)

Shearman & Sterling

599 Lexington Avenue

New York, NY 10022

Attorneys for Petitioner

Jeffrey L. Menkin

Michael P. Lindemann

Ethan B. Kanter (Argued)

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

 

OPINION OF THE COURT

 
Although Petitioner’s surnames are hyphenated 1

(“Gomez-Zuluaga”) in the case caption, according to her

counsel, Ms. Gomez Zuluaga does not hyphenate her surnames

and we will likewise follow this practice.

3

FISHER, Circuit Judge.

Claudia Rocio Gomez Zuluaga (“Petitioner”) seeks 1

review of an order of the Board of Immigration Appeals

(“BIA”) affirming the denial of her request for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”). For the reasons that follow, we will

grant the petition in part and deny it in part.

I. BACKGROUND

Petitioner, a native and citizen of Colombia, was born on

July 3, 1987, in a rural region near San Francisco, Colombia.

During most of her life, the Fuerzas Armadas Revolucionarias

de Colombia (“FARC”), a leftist guerrilla revolutionary group,

was active throughout much of Colombia. The FARC was

officially formed in 1966 and has continuously and often

violently opposed the Colombian government since that time.

The FARC is designated as a terrorist organization by the United

States Government. While the FARC is active throughout

Colombia, it holds particular sway in many rural areas where it

effectively controls local politics and the civilian population. In

2002, after peace negotiations between the FARC and the

Colombian government broke down, violence escalated and the

FARC began to specifically target civilians. Although the
4

FARC has used a variety of methods to finance and prosecute its

guerilla war, one intimidation technique it has regularly used is

to ban women and girls from fraternizing with members of the

security forces, police officers, or officials of the Colombian

government. Such women have occasionally been deemed

“military targets.” Women who have transgressed the ban have

often been targeted for intimidation, kidnapping, rape, and

murder.

Petitioner’s first experience with the FARC occurred

when she was six years old. At that time, a number of armed

guerillas commandeered her family’s farm in rural La Bretana.

The guerrillas pressed the family members into service during

their occupation, requiring them to run a variety of errands for

them. At one point during this occupation, Petitioner heard a

gunshot, and minutes later witnessed the guerillas pass by the

farmhouse carrying a dead body in a cot. Although she did not

recognize the deceased person, the incident made Petitioner very

afraid. Shortly after this, Petitioner’s father, fearful that the

FARC would return, moved the family to another rural area, La

Granja.

During her time in La Granja, Petitioner witnessed and

experienced many more encounters and confrontations with the

FARC and the collateral effects of civil war. When she was

eleven, her family finally left La Granja due to the FARC’s

displacement of civilian populations. Petitioner’s parents

moved back to her birthplace, San Francisco, about an hour-anda-half drive from La Granja, while Petitioner went to live with

her sister two to three hours away in the relative safety of
5

Medellin. As she was still a very young person at the time, she

often went to visit her parents in San Francisco.

In August 2003, when Petitioner was sixteen, she began

dating a military officer who lived in La Granja. In February

2004, she went to San Francisco to visit her parents. While she

was at the family home, a man knocked on the door and told her

that she had to come with him. He then took her to an outdoor

playing field where she observed additional armed men and

many other women who had been brought there under similar

duress. The men identified themselves as being affiliated with

the FARC and told the women that the FARC knew that they

were “with military officials” and that such behavior was an

“insult” to the FARC. The men told them that being with the

soldiers was the equivalent of being against the FARC, and if

the women “did not end it with them,” then “something [would]

happen to [them] or their families.”

The FARC detained the women for nearly two hours,

during which time Petitioner recalls being very afraid and

worried. Adding to her fear, a number of the women informed

her that they had previously been kidnapped for dating military

officers. Moreover, Petitioner did not know how the FARC was

even aware of the fact that she had been dating a military

officer. Before releasing the women, the guerillas obliquely

warned them that they should remember what they had been

told, and that they should pay attention to it. Although

Petitioner had not been physically harmed, she feared for both

her own and her family’s safety. Believing the threat to be

genuine, she reluctantly broke off her relationship with the

military officer from La Granja.
6

Petitioner continued her studies in Medellin. By 2005,

her mother had moved in with her in Medellin because the

FARC set off a number of car bombs in San Francisco and

caused problems with the transportation system. Petitioner

began dating a police officer from Medellin, thinking that the

FARC would have no way of knowing of her activities in that

city. Throughout this time, Petitioner continued to visit her

father in San Francisco regularly. During one visit in the

summer of 2005, an armed man came to her father’s house and

threateningly intimated that she “would find it preferable” to do

as he instructed and accompany him. Although she was “scared

because of what happened to [her] the first time,” she agreed,

and they proceeded on foot to a hilly area on the outskirts of

town. There they met up with two other men, armed with

ammunition and grenades, who wore FARC colors and

identified themselves as members of the guerilla organization.

The men told her that “it appeared that [she] hadn’t paid

any attention to what they had told her the last time, and it

looked like she was still going out with . . . the police.”

Petitioner could not understand how these men knew about her

relationship in Medellin, but the men told her that they were

“aware of everything [she] did, [and] that they were watching

[her].” She became “very scared” that they were going to kill

her or do something to her. The men continued to detain her for

about an hour, and then released her, admonishing her that if she

“was in favor of the army or of the police, then [she] must be

against them.”

Upon returning to Medellin, Petitioner “backed off,” and

then, in August 2005, ended her relationship with the police
7

officer. She told him that the FARC had somehow learned of

their relationship, that they continued to watch her, and that they

told her that she could not date a police officer. He told her that

despite his position as a police officer, there was not much that

he could do to protect her, given that the FARC pervaded the

entire country and she would always be vulnerable.

In January 2006, Petitioner again visited her father in San

Francisco. During her stay, an armed man approached her in

broad daylight at the local church and ordered her to go with

him. Despite the fact that there were other people nearby,

Petitioner was “very scared” by the more brazen nature of this

encounter and agreed to go with him. The armed man covered

her eyes, and gripping her by her hands, began to lead her out of

town. Because she was blindfolded, Petitioner could not tell

where the man was taking her. After nearly two hours of

walking, they arrived at a small empty house where they were

met by a number of other armed men. Petitioner was chained to

a bed, and when she asked why she had been abducted, the men

remained silent. This continued until the next day, when

Petitioner again asked them why they had abducted her, since

she hadn’t been going out with anyone. The men told her “that

wasn’t it, that they had intentions for me with them.” The men

kept Petitioner chained to the bed for the duration of her time

there, only allowing her to be unchained to go to the bathroom,

and always with one of the guerillas present.

Petitioner continued to beg for her life throughout this

ordeal. Eventually, she told the men that she was a student and

that she was studying to be a dental hygienist. She further told

them that she was the only person in her family to make it so far
8

in school. She implored them to let her go so that she could

complete her studies, trying to think of “anything I could so they

would let me go.” Upon learning that Petitioner was studying

to be a health professional, the men began to talk amongst

themselves, and one of the men remarked that it was “very

good.” The men then left Petitioner alone again for a while.

After returning, they informed her that they were going to

release her, and that once she completed her studies (within five

months of the abduction), she was to return and work for them.

Keeping her eyes covered, the men unchained her, and then left

her near the town. In all, the FARC had confined Petitioner for

eight days.

During the time that she was away, armed guerillas

visited Petitioner’s father at his home and told him that they had

kidnapped her. They warned him that if he told anybody, they

would kill her. As a result, her father became very worried

when she did not immediately return. After being released,

Petitioner made her way to her father’s house, where her father

was “very happy” to see her and to learn that she had not been

physically injured. Neither she nor her family reported the

incident to the police for fear of reprisal. She recalled that she

only told her family a “little bit” because of the traumatic nature

of the experience and she did not give details. In her words,

“[n]obody knew.”

The very next day, Petitioner departed for Medellin.

Since that time, she has not returned to San Francisco and has

not seen her father again. Although she remained in contact

with him for another two months, his calls suddenly ceased
9

around March 2006, and no one in her family has received any

communication from him.

The day she left for Medellin, Petitioner received a phone

call on her cell phone from a person identifying himself as a

member of the FARC. He told her that she was being watched

and that the FARC knew everything about her life. They called

her one to three times per month, telling her that they were

watching her and waiting for her to finish her studies, and

constantly reminding her of her promise to work for them.

When she finally finished her studies, she “realized that [she]

had to leave the country” because the fact that the FARC had

tracked her to Medellin meant that she was not safe in any part

of the country. The FARC had effectively threatened her

everywhere that she had ever lived, including La Bretana,

Medellin, La Granja, and San Francisco. She believed that the

FARC would pursue her relentlessly, having previously

threatened or attacked other members of her family, including

her sister, uncle, and cousin. Her sister’s husband had been

kidnapped and their house had been bombed. Her uncle had

been shot for refusing to cooperate with the FARC. Her cousin

had been forced to work for the FARC. When her cousin

escaped from this involuntary servitude, the FARC murdered

him. She believed that now that she had graduated, if she

refused to work for the FARC, “what happened to her cousin

would happen to [her], also.”

In June 2006, Petitioner decided to go to the United

States. A year before, after the first two abductions, she had

tried and failed to obtain a visa. This time, fearing for her life,

she paid a man nearly $1,000 for a counterfeit Spanish passport.
Petitioner remained in detention during this period, and 2

her sister (living in Boston), to whom Petitioner had entrusted

her mobile phone, received a number of calls from FARC

members who continued to threaten Petitioner.

10

She entered the United States on July 22, 2006, through Newark

International Airport where she was detained upon discovery of

her actual identity. During an interview with authorities,

Petitioner explained her reasons for entering the United States

illegally, and that she feared what might happen to her if she

were returned to Colombia. A few days later, the FARC again

attempted to contact her on her cell phone, which she had given

to her sister. They told her sister that Petitioner “should appear,

that it would be better if [she] appeared.”

Petitioner was placed in removal proceedings and granted

a hearing date of December 19, 2006 before an immigration

judge (“IJ”) (an additional hearing regarding the Petitioner’s

refugee status category was held on December 27, 2006).2

Petitioner requested asylum, withholding of removal, and relief

under the CAT. She submitted a psychiatric evaluation, an

affidavit from an expert on Latin America, and a brief in support

of her claim, with Amnesty International and the United States

State Department documentation attached.

On January 4, 2007, the IJ issued a decision and order

denying Petitioner’s application for asylum, withholding of

removal, and relief under the CAT. The IJ found Petitioner’s

testimony to be “credible” and determined that the events that

she described were consistent with the reports, and plausible
This change was made by the REAL ID Act of 2005, 3

Pub. L. No. 109-13, § 101(a)(3), 119 Stat. 231, 303.

11

given country conditions inside of Colombia. She found,

however, that as a matter of law Petitioner could not establish

that she was a refugee under the Immigration and Nationality

Act (“INA”) because she was not able to show that the FARC’s

actions against her were motivated by a political opinion that

had been imputed to her, or by her membership in a particular

social group.

In support of her decision, the IJ purportedly relied on

INA § 208(b)(1)(B)(i), stating that in order to qualify for refugee

status, the applicant “must demonstrate that a protected ground

was or would be the central reason for the persecution.” As

refugee status is a prerequisite for any successful asylum

application or request for withholding of removal under INA

§ 241(b)(3), the IJ concluded that Petitioner’s claims on these

two bases must necessarily fail. The IJ also denied Petitioner’s

CAT claim, finding that the Petitioner failed to show that she

was “more likely than not to be tortured” upon her return to

Colombia by “someone from the government,” relying on

Matter of S-V-, 22 I. & N. Dec. 1306 (BIA 2000).

On May 15, 2007, the BIA upheld the IJ’s decision. The

BIA acknowledged that the IJ had incorrectly cited INA

§ 208(b)(1)(B)(i), which actually states that a protected ground

must constitute “at least one central reason” for the persecution

alleged, rather than, as the IJ stated, “the central reason.” The 3

BIA essentially found this error to be harmless in light of its
Petitioner was detained upon entry into the United States 4

and remained in detention during this process, despite attempts

by her counsel to have her released. On July 17, 2007,

Petitioner was granted a Stay of Removal during the pendency

of her appeal with this Court pursuant to INA § 242(b)(3)(B)

and thus continued to remain in detention in the United States.

On November 13, 2007, she filed a pro se motion to lift the Stay

of Removal so that she might be released from detention. In this

motion, Petitioner acknowledged that she understood that lifting

the stay of removal would subject her to removal to Colombia

immediately and she had fully considered the consequences of

her request. She averred that despite the fact that her “fear of

persecution is as strong as ever[,]” the detention was, in her

words, “affecting me physically and destroying me mentally”

and suggested that her detention in the United States served as

a daily and unwelcome reminder of the indignity of detention at

the hands of the FARC. In December 2007, prior to oral

argument, we granted the motion to lift the Stay of Removal and

on January 3, 2008, Petitioner was removed to Colombia.

12

agreement with the IJ’s finding that the events “d[id] not arise

to persecution on account of a protected ground.” The BIA also

found that Petitioner did not have a well-founded fear of

persecution on account of a protected ground. Finally, the BIA

summarily affirmed the IJ’s determination that Petitioner had

not shown that it was more likely than not that she would be

tortured upon her return to Colombia and thus affirmed the IJ’s

denial of her CAT claim. The BIA then ordered Petitioner’s

removal to Colombia. Petitioner timely filed a petition for

review on June 4, 2007.4
Because a final order of removal creates “sufficient collateral

consequences,” Petitioner’s removal does not moot her petition

for review. See Amanfi v. Ashcroft, 328 F.3d 719, 724-25 n.1

(3d Cir. 2003).

13

II. JURISDICTION AND STANDARD OF REVIEW

The BIA properly exercised jurisdiction over Petitioner’s

appeal from the IJ’s decision pursuant to 8 C.F.R. § 1003.1(b).

Filja v. Gonzales, 447 F.3d 241, 253 (3d Cir. 2006). We have

jurisdiction to review the BIA’s decision under INA § 242(a).

Because the BIA adopted some of the findings of the IJ and

made additional findings, we will review the decisions of both

the BIA and the IJ. Santana Gonzalez v. Att’y Gen., 506 F.3d

274, 276 (3d Cir. 2007).

We review legal determinations by the BIA de novo.

Escobar v. Gonzales, 417 F.3d 363, 365 (3d Cir. 2005).

Whether an applicant’s proffered “particular social group” is

cognizable under INA § 101(a)(42)(A) is a question of law, and

is therefore subject to de novo review. Id. at 365 (citing Wang

v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004)). Such de novo

review of the BIA’s legal determinations is of course “subject

to established principles of deference” set out in Chevron v.
These principles, as reiterated in Lukwago v. Ashcroft,

5

boil down to the following axiom: “[I]f the statute is silent or

ambiguous with respect to the specific issue, the question for the

court is whether the agency’s answer is based on a permissible

construction of the statute.” 329 F.3d 157, 167 (3d Cir. 2003)

(quoting Chevron, 467 U.S. at 843).

14

National Resources Defense Council, 467 U.S. 837 (1984). See 5

Wang, 368 F.3d at 349.

The petitioner has the burden of establishing

“persecution” and a “well-founded fear of persecution,” which

includes, but is not limited to, “threats to life, confinement,

torture, and economic restrictions so severe that they constitute

a threat to life or freedom.” Yu v. Att’y Gen., 513 F.3d 346, 348

(3d Cir. 2008); see also Lukwago v. Ashcroft, 329 F.3d 157, 167

(3d Cir. 2003). Whether a petitioner has established these

elements is a question of fact, and the agency determination

must be upheld if it is supported by “substantial evidence” in the

record. Lukwago, 329 F.3d at 167. Our review is confined

solely to the administrative record, INA § 242(b)(4)(A), and we

must treat the BIA’s findings of fact as “conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary.” INA § 242(b)(4)(B); Lukwago, 329 F.3d at 167.

III. DISCUSSION

On appeal, Petitioner challenges the BIA’s decision

denying her application for asylum, withholding of removal, and
15

relief under the CAT. Because the IJ found Petitioner credible,

a determination left undisturbed by the BIA, we treat

Petitioner’s testimony as true and accurate for purposes of our

analysis.

A. ASYLUM

INA § 208(b) gives the Attorney General or the Secretary

of Homeland Security discretion to grant asylum to an alien who

qualifies as a “refugee” under INA § 101(a)(42)(A). Under this

section, an applicant must show that at the time of her

application, she is a

“person who is outside [the] country of [her]

nationality . . . who is unable or unwilling to

return to, and is unable or unwilling to avail

himself or herself of the protection of, that

country 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). These categories – race, religion,

nationality, membership in a particular social group, and

political opinion – are often described as “enumerated grounds”

or “protected grounds.” See, e.g., Lukwago, 329 F.3d at 167.

Petitioner must show any persecution occurred or will occur not

only “on account of” a protected ground, but that the protected

ground constitutes “at least one central reason for persecuting

the applicant.” INA § 208(b)(1)(B)(i).
Although the IJ seems to conflate the past and future 6

“particular social group” claims, both the bifurcated structure of

the asylum statute and our case law support an applicant’s right

to allege membership in different social groups depending on

whether they are making a “past persecution” claim or a “wellfounded fear of future persecution” claim. See Lukwago, 329

F.3d at 167.

16

Petitioner first claims that she qualifies for asylum

because she has been persecuted by the FARC in the past on

account of (1) a political opinion imputed to her by the FARC

based on her romantic association with government-affiliated

officers, and (2) her membership in a particular social group that

she defines as “[Colombian] women who have the shared past

experience of relationships with military and police men.” She

also claims that she qualifies for asylum because she has a wellfounded fear of future persecution on account of imputed

political opinion and membership in a particular social group.

For purposes of her future persecution claim, Petitioner posits

that “upon her ‘escape’ from the FARC . . . [Petitioner] became

a member of a narrower social group than the one proposed with

respect to the past persecution she suffered.” The group she

proffers for her future persecution claim is “women who have

escaped involuntary servitude after being abducted and confined

by the FARC.” She explains that this narrower social group is

“defined by a shared past experience [of being abducted and

threatened, and that] her membership can be attributed to her

escapee ‘status.’”6
17

We will first examine Petitioner’s past persecution claim

and assess whether any of the incidents Petitioner alleges rise to

the level of persecution. For those incidents that do rise to the

level of persecution, we will consider whether they were

motivated by Petitioner’s social group or imputed political

opinion. If Petitioner fails to establish past persecution on

account of a protected ground, we will then consider the

separate question of whether Petitioner has established a wellfounded fear of future persecution on account of a protected

ground.

1. PAST PERSECUTION

One way a petitioner may qualify for asylum is by

showing past persecution, which “gives rise to a rebuttable

presumption of a well-founded fear of future persecution.” Li

v. Att’y Gen., 400 F.3d 157, 163 (3d Cir. 2005). The INA does

not define “persecution.” Id. at 170 (“Congress chose not to

define ‘persecution’ in the Refugee Act, nor has any legislative

definition been enacted in the interim.”). We have held that

persecution, while not inclusive of every act that our society

might regard as unfair, unjust, unlawful, or unconstitutional,

generally includes treatment like death threats, involuntary

confinement, torture, and other severe affronts to the life or

freedom of the applicant. See Lin v. INS, 238 F.3d 239, 244 (3d

Cir. 2001).

Petitioner claims that all three of her involuntary

detentions by the FARC constitute persecution. The

government argues that none of the FARC’s treatment of

Petitioner was so harmful as to rise to the level of persecution.
In Li we noted that “[r]ather than consider such threats 7

past persecution . . . unfulfilled threats are generally within that

category of conduct indicative of a danger of future

persecution.” 400 F.3d at 165 (internal quotation marks

omitted). This characterization applies similarly here. See infra

18

We disagree with both of these claims. As we will explain,

while Petitioner’s first two encounters do not rise to the level of

persecution, her eight-day abduction at the hands of the FARC

does rise to the level of persecution.

While we have stated that threats may constitute

persecution, “we have limited the types of threats constituting

persecution to only a small category of cases, and only when the

threats are so menacing as to cause significant actual suffering

or harm.” Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir.

2006) (citing Li, 400 F.3d at 164) (internal quotation marks

omitted). Both Chavarria and Li are instructive as to where the

line should be drawn.

In Li, the petitioner, a Chinese national, was repeatedly

threatened by authorities with physical mistreatment,

sterilization, and detention after the birth of his fourth child.

400 F.3d at 165-70. In addition, he was subjected to actual

economic hardship in the form of deprivation of certain benefits.

Id. While we held that the actual economic hardship constituted

persecution, the unfulfilled “threats of physical mistreatment,

detention, or sterilization described by Li do not appear to have

been sufficiently imminent or concrete for the threats themselves

to be considered past persecution.” Id.7
our discussion of future persecution.

19

In Chavarria, the petitioner, a Guatemalan national,

witnessed two women being attacked by government

paramilitaries and came to their aid. 446 F.3d at 513. A few

days later, Chavarria saw familiar-looking men conducting

surveillance of his house and subsequently learned that the

women he had helped had been human rights workers opposed

to the government. Id. Later, after briefly moving to the United

States out of fear for his safety, he returned to Guatemala and a

second incident occurred. Id. This time, armed men forced him

into the back seat of his car, put a gun to his head, robbed him,

and threatened to kill him if they ever saw him again. Id.

Chavarria believed that these men were affiliated with the

paramilitaries, and fearing for his life, again fled to the United

States. Id.

In assessing the question of whether the actions against

Chavarria rose to the level of persecution, we found that the act

of surveillance alone did not constitute persecution because

“even if considered a threat, [it] was not highly imminent nor

menacing enough to rise to the level of persecution.” Id. at 519.

However, we found that the explicit death threat during the

second incident did rise to the level of persecution because “it

was both highly imminent, concrete and menacing and

Chavarria suffered harm from it.” Id. at 520. We explained that

“[t]his threat is unlike the threats we encountered in Li, which

were merely verbal and not concrete because here, the attackers

actually robbed Chavarria, pointed a gun to his face, and

threatened him with death if he told his story.” Id.
20

Applying these standards to the present case, Petitioner’s

first two encounters with the FARC do not rise to the level of

persecution. First of all, the FARC’s apparent surveillance of

Petitioner to determine whether she was dating government

officers, while certainly threatening and violative of Petitioner’s

privacy, is similar to the surveillance in Chavarria which we

found did not rise to the level of persecution. 446 F.3d at 519.

More importantly, while FARC guerillas twice rounded up

Petitioner at gunpoint along with other women and warned her

not to fraternize with government officers, these detentions were

brief and Petitioner was not physically injured or robbed as

Chavarria was. Id. at 513. In addition, the record indicates that

the guerillas were armed, but it does not suggest the guns were

brandished or used in the same threatening manner as in

Chavarria. Id. The first two detentions are close to the line, but

on balance are more similar to the situation in Li, where the

threats were oblique and not imminent, and the petitioner was

not appreciably harmed. Such brief detentions, where little or

no physical harm occurs, generally do not rise to the level of

persecution. See Jarbough v. Att’y Gen., 483 F.3d 184, 191 (3d

Cir. 2007) (holding that two brief detentions of petitioner by the

Syrian government, while “harassing and intimidating,” did not

rise to the level of persecution).

These earlier incidents do not rise to the level of

persecution, but Petitioner’s eight-day abduction and

confinement does. Petitioner testified that an armed man forced

her to walk for two hours, eyes covered and hands bound, before

chaining her to a bed in an unfamiliar house in the hills. There,

she remained blindfolded, while a number of armed men

repeatedly threatened her, menacingly informed her that “they
21

had intentions” with her, and told her that they wanted her to

“stay with them.” The men even remained with her when she

periodically went outside to the bathroom. The FARC guerillas

confined her under these conditions for eight days.

While we have explained that detentions alone do not

necessarily constitute persecution, this unlawful abduction rises

to the level of persecution because of the duration of

confinement, the deprivation of Petitioner’s freedom of

movement and sight, the invasion of Petitioner’s privacy, the

implicit and overt threats made against her person, the ominous

warnings upon her release that the FARC would be “very

attentive” to her, and that she was obliged to return to serve their

cause upon completion of her studies. See, e.g., Lukwago, 329

F.3d at 169 (“Even if forced conscription by a guerrilla

organization alone would not qualify a victim for asylum that

does not mean that, in appropriate circumstances, it cannot

constitute persecution.”); Yu, 513 F.3d at 348 (holding that

confinement can constitute persecution).

Moreover, “we do not consider the [final incident] in

vacuo; we weigh it in conjunction with the prior incidents.”

Toure v. Att’y Gen., 443 F.3d 310, 318 (3d Cir. 2006) (finding

that petitioner’s flight after “harassment continued and

escalated” reinforced the claim). Weighing this final incident in

the context of the prior incidents shows that Petitioner’s

allegations regarding the imminence and menacing nature of the

threats are justified. The overall trajectory of the harassment

against her “continued and escalated” with each new incident,

from which we can infer both the imminence and the

concreteness of the threat at the time of the eight-day
22

confinement. Therefore, it is clear that this final incident rises

to the level of persecution.

However, as we pointed out in Lukwago, a demonstration

of past persecution alone is not sufficient to qualify an applicant

for asylum. 329 F.3d at 170. We must also “look beyond the

applicant’s conduct to the persecutor’s motives.” Id. As the

Supreme Court has stated, the INA “makes motive critical” and

an asylum applicant must provide “some evidence of [motive],

direct or circumstantial.” INS v. Elias-Zacarias, 502 U.S. 478,

483 (1992).

Both the BIA and IJ held that Petitioner’s application

failed as a matter of law because she did not show her political

opinion or her particular social group constituted “at least one

central reason” for her persecution by the FARC. The IJ stated

that

“as a matter of law, her claim for asylum, and her

claim for withholding of removal pursuant to

Section 241(b)(3) fail because she cannot prove

that she was persecuted because of her political

opinion or because of her alleged membership in

a particular social group.”

First, the IJ found that women who date military or police

officers do not constitute a particular social group. The IJ noted

that this was not a recognized category under Escobar, 417 F.3d
According to our survey in Escobar,

8

“Courts have excluded from the classification:

young, urban El Salvadoran males of military age

who had not served in the military,

Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir.

1986); youths with gang identification tattoos,

Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir.

2003); voluntary members in a taxi cab

cooperative that refused to yield to guerrillas,

Matter of Acosta, 19 I. & N. Dec. 211 (1985); and

adult women raped and brutalized as children in

El Salvador, Gomez v. INS, 947 F.2d 660 (2nd

Cir. 1991).

Courts have recognized the following social

groups: a family targeted for harassment and

violence because they were related to an allegedly

racist boss in South Africa, Thomas v. Gonzales,

409 F.3d 1177 (9th Cir. 2005); children with

“disabilities that are serious and long-lasting or

permanent in nature and parents who care for

them,” Tchoukhrova v. Gonzales, 404 F.3d 1181,

2005 WL 913449 (9th Cir. 2005); Somali women

under threat of genital mutilation, Mohammed v.

Gonzales, 400 F.3d 785 (9th Cir. 2005); a familial

sub-clan in Somalia, In re H-, Applicant, 21 I. &

N. Dec. 337 (BIA 1996); and former members of

23

at 367, and stated that because the group is not based on an 8
El Salvador's national police, Matter of Fuentes,

19 I. & N. Dec. 658 (BIA 1988).”

Escobar, 417 F.3d at 367.

It is difficult to see how this first distinction is relevant, 9

and the IJ does not explain it further.

24

immutable characteristic, it cannot qualify as a particular social

group. The IJ opined that “women,” like “youth,” was too large

and diverse a group to constitute the basis of a particular social

group. See Lukwago, 329 F.3d at 172. The IJ also relied on the

logic that because the BIA had previously held that police

officers are not a particular social group, women who date them

cannot be. See Matter of Fuentes, 19 I. & N. Dec. 658 (BIA

1988). The IJ concluded that “one who dates” cannot be an

immutable characteristic.

The IJ also found that Petitioner was not persecuted

because of her political opinion or an imputed political opinion.

She reasoned that the FARC had simply stated that they wished

Petitioner to work for them, giving no insight into the FARC’s

motivations. The IJ took issue with Petitioner’s reliance on

Chavarria, distinguishing it first on the basis that the

persecutors in Chavarria were government affiliates, while the

persecutors here are opposed to the government. The IJ also 9

posited that here, unlike Chavarria, “the most severe act of

persecution had nothing to do with respondent’s dating of police

and military officers.” The IJ stated that Petitioner’s eight-day

confinement, during which her captors eventually explained that
25

they wanted her to “stay with them” was guerilla recruitment, as

distinct from harassment for dating government officers; and

guerilla recruitment, without more, is generally not a basis for

finding imputed political opinion. See, e.g., Elias-Zacarias, 502

U.S. at 481 (holding that a guerrilla organization’s attempt to

conscript a person into its military forces does not necessarily

constitute persecution on account of political opinion). The BIA

agreed with the IJ’s findings and added that

“the applicant has not sufficiently shown that

guerilla forces imputed a hostile political opinion

to her or targeted her for harm on account of her

membership in a particular social group. Rather,

as the applicant indicated, she was threatened by

guerillas for making what they perceived as being

disrespectful relationship choices and in an

attempt to recruit the applicant for her health

related background.”

Petitioner has presented sufficient record evidence that

the earlier incidents in which she was detained by the FARC

were motivated by the FARC’s desire to dissuade her and other

young women from dating, and thus affiliating themselves with

government officers. However, as we held that these earlier

incidents do not rise to the level of persecution, they do not

provide a basis for establishing refugee status, regardless of the

motivation behind them.

Because Petitioner’s eight-day abduction and

confinement does rise to the level of persecution, we may

consider whether Petitioner has shown that the FARC was
It is not necessary to determine whether this is a 10

cognizable “particular social group” under the statute, because

there is substantial evidence in the record to conclude that the

FARC was not motivated by Petitioner’s membership in a

particular social group when they abducted her for eight days,

but was instead motivated by a desire to recruit her.

26

motivated by a protected ground when it perpetrated this

incident. We agree with the IJ and the BIA that there is

substantial evidence on the record that this final incident was not

centrally motivated by any imputed political opinion or social

group status based on Petitioner’s dating of government officers,

but rather by a desire to recruit Petitioner. During the first two

incidents, the FARC clearly expressed to the women that it was

rounding them up to warn them not to date government officers.

But during the eight-day abduction, Petitioner asked the

guerillas if she was being punished for dating a military officer,

and they told her “that wasn’t it.” Moreover, Petitioner “hadn’t

been going out with anyone,” unlike prior to the previous

incidents.

While the Petitioner’s treatment at the hands of the

guerrillas is no doubt abhorrent and repugnant to our

sensibilities, Petitioner has not established that this past

treatment occurred because the guerillas believed that she held

a particular political opinion or because she was a woman who

dated government officers. Here, the evidence suggests that 10

the FARC was simply motivated by a desire to “fill their ranks,”

which is not a protected ground under the statute. EliasZacarias, 502 U.S. at 482.
Because Petitioner convinced the FARC to release her 11

based on a promise to return and join them that she never

intended to keep, we believe her actions here are tantamount to

an escape from forced conscription. Thus, the circumstances

here are functionally equivalent to the circumstances in

27

2. WELL-FOUNDED FEAR

OF FUTURE PERSECUTION

While Petitioner has failed to show past persecution

motivated by a protected ground, that is not the end of the

analysis. A showing of past persecution merely triggers a

rebuttable presumption that Petitioner has a well-founded fear

of future persecution. Lukwago, 329 F.3d at 174 (citing 8

C.F.R. § 208.13(b)(1)). While this presumption is often

determinative of a petitioner’s asylum claim, it is not necessary

for a petitioner to show past persecution if she can nonetheless

show a well-founded fear of future persecution without the

benefit of such a presumption. Id. Such are the circumstances

of the case before us.

Petitioner is not relieved of her burden of showing, as a

threshold matter, that her race, religion, nationality, membership

in a particular social group, or political opinion will be one of

the central reasons motivating her persecutors to target her. Id.

For purposes of her future persecution claim, Petitioner has

proffered a different “particular social group” from the one

offered in support of her past persecution claim. That group is

“women who have escaped involuntary servitude after being

abducted and confined by the FARC.” Because this group is 11
Lukwago, 329 F.3d at 164 (Lukwago was able to escape from

forced conscription “while collecting firewood”).

28

based in part on events that happened in the past, it is effectively

a “status or condition” that is sufficiently immutable to be

considered a particular social group. See Escobar, 417 F.3d at

367 (holding that generally, “those who possess immutable

characteristics such as race, gender or a prior position, status or

condition” can be considered members of a particular social

group); see also Matter of Acosta, 19 I. & N. Dec. 211, 333

(BIA 1985) (“The shared characteristic . . . might be a shared

past experience such as former military leadership or land

ownership.”).

Moreover, this group is narrow and distinctive, and while

clearly related to the FARC’s past mistreatment of numerous

individuals, it exists independently of the persecution that

Petitioner fears that she will suffer in the future as a member of

this particular social group. As we explained in Lukwago,

“We agree that under the statute a ‘particular

social group’ must exist independently of the

persecution suffered by the applicant for asylum.

Although the shared experience of enduring past

persecution may, under some circumstances,

support defining a ‘particular social group’ for

purposes of fear of future persecution, it does not

support defining a ‘particular social group’ for

past persecution because the persecution must

have been ‘on account of” a protected ground.
29

INA § 101(a)(42)(A). Therefore, the ‘particular

social group’ must have existed before the

persecution began.”

329 F.3d at 172. It is precisely Petitioner’s escapee status that

is likely to motivate the FARC to seek her and persecute her in

the future. Unlike in the past persecution context, her escapee

status has already attached, and a fortiori will have existed

before any future persecution occurs.

This scenario parallels Lukwago. In that case, we

accepted, for purposes of showing a well-founded fear of future

persecution, Lukwago’s proffered “particular social group”:

“children from Northern Uganda who have escaped from

involuntary servitude after being abducted and enslaved by the

LRA [Lord’s Resistance Army, a group of anti-government

guerillas].” Id. at 174-75. There is no relevant distinction

between this group and the social group that Petitioner has

proffered here. Both groups encompass former captives of

guerilla groups who escaped from that captivity and are

therefore stigmatized by the experience. Based on the degree of

similarity between Lukwago’s and Petitioner’s situations, we see

no reason why membership in the group, “women who have

escaped involuntary servitude after being abducted and confined

by the FARC,” cannot form the basis for establishing refugee

status in a future persecution claim.

In order to show that a fear is “well-founded” under the

asylum statute, Petitioner must show that her fear is both

subjective and objectively reasonable, Abdille v. Ashcroft, 242

F.3d 477, 495-96 (3d Cir. 2001), which she may do by using
30

testimonial, documentary, or expert evidence, Lukwago, 329

F.3d at 177. Where documentary evidence is insufficient,

credible and persuasive testimony from the petitioner may be

sufficient to establish both objective and subjective fear. Id.

“To satisfy the objective prong, a petitioner must show he or she

would be individually singled out for persecution or demonstrate

that there is a pattern or practice in his or her country of

nationality . . . of persecution of a group of persons similarly

situated to the applicant on account of” a protected ground. See

Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006). A

“pattern or practice” of persecution must be “systematic,

pervasive, or organized.” Id. (quoting Lie v. Ashcroft, 396 F.3d

530, 537 (3d Cir. 2005).

We first examine the IJ’s and the BIA’s decisions that

Petitioner had not established that she had a well-founded fear

of future persecution. In its brief two-sentence analysis, the IJ

determined that despite the threats against her, Petitioner did not

establish a well-founded fear because the threats are “not based

on her immutable characteristics.” The BIA affirmed the IJ’s

analysis in a single sentence, finding that “the record does not

support the applicant’s claim of having a well-founded fear of

persecution on account of a protected ground.” While neither

the IJ nor the BIA has provided us a detailed analysis on this

point, we construe these decisions to reject both Petitioner’s

proffered social group and her claim that her fear was wellfounded. Such truncated review of Petitioner’s well-founded

fear cannot be the basis for rejecting her claim, which, as we

will explain, is supported by both the law and the record.
31

Applying the above framework to Petitioner’s case, we

first hold that Petitioner has established a subjective fear of

future persecution through her testimony before the IJ:

Q. And what do you think would happen to

you if you – what did you think would

happen to you if you didn’t join the FARC

as you wanted after you graduated?

A. That they were going to kill me, that is to

say what happened to my cousin most

likely would happen to me, also.

Petitioner’s cousin had previously been forced to join the

FARC, and after he was able to escape, the FARC killed him.

She later reiterated her own personal fears:

Q. And what do you think the FARC would

do if you were forced to return to

Colombia?

A. Well, the most likely thing would be that

they would kill me. The same thing

happened to my cousin. He escaped from

them, and they killed him, and here I

escaped from them, also.

These statements, which the IJ herself found to be credible, are

sufficient to establish that Petitioner subjectively feared

persecution. Lukwago, 329 F.3d at 177.
32

Petitioner’s specific fear is also objectively reasonable.

First, Petitioner testified that the FARC had harmed or

threatened members of her family: her brother-in-law was

abducted, her sister’s house was bombed, her uncle was shot

three times, her cousin was killed as punishment for escape, and

shortly after Petitioner left, her father disappeared. All of these

incidents show that the FARC is both willing and able to exact

retribution on those individuals who defy it and makes it a

practice to do so. That these incidents involve members of

Petitioner’s own family only reinforces the imminence and

proximity of the threat to Petitioner specifically.

Second, Petitioner has consistently received threatening

phone calls and messages since her abduction. The FARC

contacted her between one and three times a month and told her

that they were watching her and knew everything about her.

They reminded her of her “commitment” to them and that they

had been able to watch her and find her everywhere she had

lived: La Bretana, La Granja, Medellin, and San Francisco.

Even after she fled to the United States, the FARC contacted her

by cell phone, which her sister, who had been keeping the phone

for her, answered. The FARC representative ominously told her

that Petitioner “should appear, that it would be better if [she]

appeared.” This testimony reinforces not only that it is

reasonable to believe that the FARC will continue to track and

monitor Petitioner, but that the FARC’s threats are credible in

the sense that they have consistently shown a capability and an

inclination to locate and punish Petitioner.

Finally, the articles and reports submitted by Petitioner

corroborate the reasonableness of her fears. The 2004 State
33

Department Report on Colombia says that FARC does in fact

practice forced conscription and that the FARC commanders

often threatened to kill deserters and their families. In addition,

the State Department Report states that the FARC guerillas have

been known to threaten, beat, rape, and sexually abuse women

for fraternizing with government and police officers. While in

this future persecution context Petitioner is asserting that her

persecution will be motivated by her escapee status and not for

any previous fraternization, these reports still serve to bolster

Petitioner’s claim that the FARC is generally inclined to follow

through on vendettas and mete out punishment for perceived

transgressions of all sorts, and that such practices are systemic

and pervasive.

The final question is whether this future persecution is

likely to occur on account of a protected ground. The IJ

determined that Petitioner’s claim was not based on her

“immutable characteristics,” but we disagree. For the reasons

explained supra, we accept that for purposes of future

persecution, Petitioner is a member of the group, “women who

have escaped involuntary servitude after being abducted and

confined by the FARC,” and that this is a “particular social

group” under the INA. Thus, contrary to the IJ’s finding, the

action that Petitioner reasonably fears, reprisal from the FARC

for having escaped, is inextricably linked to her status as an

escapee. Her escapee status is immutable, and the record shows

that the FARC is willing to carry out such retribution against

deserters and escapees generally, including the specific example

of Petitioner’s own cousin. Petitioner has thus shown that she

has a well-founded fear of future persecution on the ground that

she belongs to the “particular social group” of “women who
We have previously noted that “[a]s is often the case, 12

[the petitioner’s] political opinion argument is entwined with his

social group claim.” Lukwago, 329 F.3d at 181. Because we

hold that Petitioner has established a well-founded fear of

persecution based on her particular social group, it is not

necessary to analyze the imputed political opinion claim.

34

have escaped involuntary servitude after being abducted and

confined by the FARC.”

The objective experiences of Petitioner’s family

members, the threats she herself has received, and the country

reports detailing the FARC’s tendency to take revenge for

perceived wrongs against it, combine to satisfy the requirement

that her fear of persecution be objectively reasonable. Thus, the

BIA’s determination that Petitioner did not have a well-founded

fear of persecution on account of her particular social group was

not supported by substantial evidence.

12

However, the regulations state that “an applicant does not

have a well-founded fear of persecution if the applicant could

avoid persecution by relocating to another part of the applicant’s

country of nationality, . . . if under all the circumstances it would

be reasonable to expect the applicant to do so.” 8 C.F.R.

§ 208.13(b)(1). While Petitioner presented some evidence that

the FARC’s influence was pervasive in Colombia, and that she

had already relocated a number of times and had still been

consistently threatened, the BIA did not reach this issue below.

Therefore, on remand, the BIA should consider the issue of

relocation. Lukwago, 329 F.3d at 181.
35

B. WITHHOLDING OF REMOVAL

The standard for a claim of withholding of removal under

INA § 241(b)(3) is higher than the standard for asylum.

Balasubramanrim v. INS, 143 F.3d 157, 165 (3d Cir. 1998). As

with asylum, Petitioner must show that any persecution is on

account of a protected ground, but in addition, she must show

that such persecution is “more likely than not” to occur.

Lukwago, 329 F.3d at 182. Thus, an applicant who cannot meet

the standard for asylum will necessarily be unable to meet the

standard for withholding of removal. Id. Because we have

determined that there is substantial evidence to support the

conclusion that Petitioner has not shown past persecution, she

cannot meet the standard for withholding of removal on this

claim.

But we have determined that Petitioner has a wellfounded fear of future persecution on the basis of her status as

a former FARC prisoner who escaped. Because the BIA

rejected her withholding of removal claim with respect to future

persecution when it rejected her asylum claim, upon remand, the

BIA should give full consideration to Petitioner’s withholding

of removal claim with respect to future persecution, taking into

account the fact that the threats she has received are directly

related to her membership in a social group, “women who have

escaped involuntary servitude after being abducted and confined

by the FARC.”
36

C. PROTECTION UNDER THE CAT

Petitioner’s final claim is for withholding of removal

under the CAT. In order to succeed on this claim, she must

show that it is more likely than not that she will be tortured if

removed to Colombia, and that such torture will occur with the

consent or acquiescence of the government. Fadiga v. Att’y

Gen., 488 F.3d 142, 160 n.4 (3d Cir. 2007). The “more likely

than not” standard is equivalent to the “clear probability”

standard used for withholding of removal, “and both standards

are equivalent to a ‘preponderance of the evidence.’” Id.

(quoting INS v. Stevic, 467 U.S. 407, 424 & n.19 (1984)).

Unlike her other two claims, Petitioner need not show that she

is a “refugee” to sustain her CAT claim or that any torture was

on account of a protected ground. Silva-Rengifo v. Att’y Gen.,

473 F.3d 58, 64 (3d Cir. 2007). The regulations define torture

as

“any act by which severe pain or suffering,

whether physical or mental, is intentionally

inflicted on a person for such purposes as

obtaining from him or her or a third person

information or a confession, punishing him or her

for an act he or she or a third person has

committed or is suspected of having committed,

or intimidating or coercing him or her or a third

person, or for any reason based on discrimination

of any kind, when such pain or suffering is

inflicted by or at the instigation of or with the

consent or acquiescence of a public official or

other person acting in an official capacity.”
37

8 C.F.R. § 208.18(a)(1).

Here, the IJ denied Petitioner’s CAT claim because she

failed to show that she would be

“personally at risk of torture at the hands of the

government. To meet her burden of proof, an

applicant must . . . establish that someone from

the government and someone in her particular

alleged circumstances is more likely than not to

be tortured in the country designated for removal

by the government. [Petitioner] here has made no

such showing.”

The IJ never reached the question whether it was more likely

than not that Petitioner would be tortured if removed to

Colombia. Rather, the decision apparently rested on the fact that

Petitioner had not shown that any potential torture would occur

“at the hands of the government.”

This “at the hands of the government” language does not

acknowledge that, under the regulations, Petitioner need only

show that any torture will occur “at the instigation of or with the

consent or acquiescence” of the government, and need not be

directly carried out by the government’s “hands.” See 8 C.F.R.

§ 208.18(a)(1). For support, the IJ relied upon Matter of S-V-,

a case which itself acknowledges that a CAT claimant may

establish a claim based not only on torture at the instigation of

the government, but also on consent or acquiescence of the

government. 22 I. & N. Dec. at 1311 (“[R]egulations do require

that the harm be inflicted by or at the instigation of or with the
38

consent or acquiescence of a public official or other person

acting in an official capacity.”). Even assuming that the IJ’s

reliance on this case indicates that she considered whether

evidence in the record supported the risk of torture with the

consent or acquiescence of the government, we altered the

standard for acquiescence in Silva-Rengifo. 473 F.3d at 70

(“We are persuaded both by the foregoing history of the

Convention’s implementing legislation, and the sound logic of

our sister circuit courts of appeals, that the definition of

“acquiescence” adopted in Matter of S-V- was the wrong legal

standard to apply.”).

In Silva-Rengifo, we held that government acquiescence

no longer required actual knowledge of torturous conduct. 473

F.3d at 65. We further stated:

“The CAT does not require an alien to prove that

the government in question approves of torture, or

that it consents to it. Rather, as the court

concluded in Zheng v. Ashcroft, 332 F.3d 1186,

1194 (9th Cir. 2003), an alien can satisfy the

burden established for CAT relief by producing

sufficient evidence that the government in

question is willfully blind to such activities.”

Id.

Silva-Rengifo was decided after the IJ’s decision, but

prior to the BIA’s determination, and we must presume the BIA

was aware of it. However, the BIA did not address either

Matter of S-V- or Silva-Rengifo. The BIA instead issued a one-
“[T]he availability of judicial review (which is 13

specifically provided in the INA) necessarily contemplates

something for us to review.” Abdulai v. Ashcroft, 239 F.3d 542,

555 (3d Cir. 2001). When the BIA fails to adequately explain

its reasoning, such that it becomes “impossible for us to review

its rationale,” we will vacate and remand for further explanation

of the decision. Id.

39

sentence summary affirmance of the IJ’s decision: “the record

[does not]support the applicant’s claim that she more likely than

not faces torture in Colombia.” Because of the BIA’s lack of

explanation for its decision, we have very little to review other

than the decision of the IJ. As described above, the IJ’s decision

is likely erroneous on its face for failing to consider consent or

acquiescence, and regardless, in light of the subsequent filing of

Silva-Rengifo, the IJ at best applied the incorrect standard with

respect to government acquiescence.

As in Silva-Rengifo, we will not now “review the

evidence under the correct standard for acquiescence to

determine if there is substantial evidence to support the BIA’s

conclusion that [Petitioner] does not qualify for relief under the

Convention.” 473 F.3d at 71 (citing INS v. Ventura, 537 U.S. 12

(2002) (per curiam)). Instead, we will remand to the BIA to

give it an opportunity to better explain its decision.13

On remand, the BIA should consider whether Petitioner

is more likely than not to be tortured by the FARC if removed

to Colombia, and should apply the appropriate standard in

determining whether the Colombian government is likely to be
40

willfully blind to Petitioner’s risk of torture by the FARC. The

BIA should consider that the record contains evidence that both

the police officer and the military officer that Petitioner had

been dating were aware of the fact she had been kidnapped and

threatened, and even though both were government

representatives, each told her that there was nothing they could

do to protect her. Although these statements are different than

filing an official police report without response, these men

essentially told her that even if they went to the proper

authorities, these authorities would do nothing to stop it. This

may be circumstantial evidence that the Colombian government

was willfully blind to such treatment and that to pursue official

assistance would have been futile. See Valdiviezo-Galdamez v.

Att’y Gen., 502 F.3d 285, 293 (3d Cir. 2007) (finding that “the

police ignored five reports filed by Galdamez concerning

violence and threats by gang members” and that “[t]his could

arguably constitute government ‘acquiescence’ to torture as we

now know it”).

The BIA should also consider the documentary evidence

Petitionersubmitted, including the State Department Report and

the Amnesty International Report. The State Department Report

specifically states that the government of Colombia was aware

that the FARC routinely tortured, mutilated, and killed people.

The Report illustrates that this problem is pervasive in

Colombia, where paramilitaries sympathetic to the government

often engage in similar activities with tacit approval from the

government. The record also shows that there are often tacit

non-aggression pacts between the groups in some regions. The

mere fact that the Colombian government is engaged in a

protracted civil war with the FARC does not necessarily mean
41

that it cannot remain willfully blind to the torturous acts of the

FARC. Moreover, the record reveals that Colombian authorities

have been especially slow to end abuses against women or bring

perpetrators to justice. Such abuses include rape, sex slavery,

mutilation and the like. There is also very little support for

women who have been abused, and as Amnesty International

reports, “[t]he response of the authorities . . . can be as abusive

as the violence itself.” The BIA should also consider whether

Petitioner’s past harm constitutes torture, and whether the

apparent ability and inclination of the FARC to track

Petitioner’s movements increases the likelihood that she will

actually be tortured in the future.

IV. CONCLUSION

For the reasons set forth above, we will grant the petition

in part and deny it in part. With respect to Petitioner’s asylum

claim, we will deny the petition to the extent that it is based on

the past persecution claim. We will grant the petition with

respect to Petitioner’s well-founded fear of future persecution

on account of her particular social group, “women who have

escaped involuntary servitude after being abducted and confined

by the FARC.” We determine that she is a member of this group

and that she has shown a well-founded fear of persecution based

on this affiliation. However, we will remand to the BIA for

further proceedings to determine whether Petitioner’s relocation

to another part of Colombia would mitigate the risk of

persecution. On remand, the BIA should also consider

Petitioner’s withholding of removal claim with respect future

persecution on account of her particular social group. We will

also grant the petition with respect to the CAT claim,
42

specifically for reconsideration of this claim and application of

the appropriate standard. We will therefore remand to the BIA

for further proceedings consistent with this opinion.