NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3291

___________

J.P.S., a/k/a S.J.P.,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A99-473-409)

Immigration Judge: Honorable Margaret R. Reichenberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 17, 2010

Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges

(Opinion filed: June 22, 2010)

___________

OPINION

___________

PER CURIAM

J.P.S., a Colombian citizen, petitions for review of the Board of Immigration

Appeals’s (“BIA”) decision affirming the denial of his applications for asylum,

withholding of removal, and protection under the United Nations Convention Against
J.P.S. has not challenged, before the BIA or this Court, the Immigration 1

Judge’s denial of his CAT claim. 

“FARC is a leftist guerilla organization that originally was established to 2

serve as the military wing of the Colombian Communist Party.” Tapiero de Orejuela v.

Gonzales, 423 F.3d 666, 668 (7th Cir. 2005). Where FARC exercises control, it “in

effect displaces civil government. Even where FARC does not fully displace the civilian

government, it nevertheless operates without [sic] impunity as a result of a reign of terror.

. . .” Id. 

2

Torture (“CAT”). For the following reasons, we will grant the petition for review. 1

I.

J.P.S. entered the United States in August 2006 and was immediately taken into

custody. An asylum officer determined that he had a credible fear of persecution and

released him on bond to pursue his application for asylum, withholding of removal, and

protection under the CAT. 

At his removal proceedings, J.P.S. claimed that he had been persecuted due to his

homosexuality by the Colombian police and Fuezas Armadas Revolucionarias de

Colombia (“FARC”). He testified that, in 2004, drug dealers associated with FARC 2

moved into his Medellin neighborhood, and that after identifying him as a homosexual,

they verbally harassed and threw stones at him. In early 2005, J.P.S.’s brother, Ruben,

informed the Medellin police that FARC had infiltrated the neighborhood and that its

members were dealing drugs. J.P.S. testified that Ruben informed on FARC in an effort

to stop them from harassing him. FARC members instead shot Ruben to death. Two

weeks later, J.P.S.’s second brother, Luis, drunkenly confronted FARC members
3

regarding the murder of Ruben and their harassment of J.P.S. FARC members responded

by killing Luis. After Luis’s murder, FARC members began threatening J.P.S. by stating,

“faggot, faggot, what happened to your brother is going to happen to you,” and that they

were going to “put a stick in [his] behind.”

Meanwhile, in early 2005, after gathering in a public park known for tolerance of

homosexuality, J.P.S. and several friends were taken into police custody. J.P.S. testified

that he was held at the police station for approximately twelve hours and was verbally

abused for being gay—the police stated that they “didn’t want to see the faggots” and that

they “had to clean their neighborhoods.” The police also threw cold water on him and

forced him to sit in wet clothes. Before he was released, he was told that if he or his

friends spoke out about what had happened, they were the ones who “were going to

suffer.”

In December 2005, J.P.S. moved to Bogota because the situation in Medellin was

“becoming unbearable.” He chose Bogota because a friend in the same profession was

able to find work there. J.P.S. testified that although Bogota was more progressive than

Medellin, it was not without anti-gay bias and violence. He recounted one instance in

which a friend was killed after leaving a disco with a young man. He also asserted that he

was forced to run into discos to avoid confrontations with anti-gay groups. 

After spending one month in Bogota, J.P.S. returned to Medellin to help care for

his mother. In Medellin, the “aggressions” by FARC “intensified.” They told him that if
4

he did not want to end up like his brothers, he must either pay a weekly quota or deal

drugs for them. If he complied with their demands, they would allow him to “be gay and

in peace.” When J.P.S. ignored their demands, FARC members began physically

assaulting him. From April to August 2006, J.P.S. was assaulted eight-to-ten times while

at the bus stop, walking to and from his house, and in front of his house. The most

serious incident occurred at the door to his house when FARC members hit him, kicked

him in the stomach, and scraped his hand with a razor. Soon after he was attacked at the

bus stop, J.P.S. left for the United States. 

The Immigration Judge (“IJ”) denied J.P.S.’s requests for relief, concluding that

the incidents he described did not rise to the level of persecution and that evidence of

current country conditions undermined his claimed fear of future persecution. The BIA

affirmed the IJ’s decision and dismissed J.P.S.’s appeal. Although the IJ did not

specifically make such a finding, the BIA assumed that J.P.S. was mistreated on account

of the protected ground of his sexual orientation, but agreed that J.P.S.’s experiences were

not sufficiently severe to constitute past persecution. The BIA also concluded that the IJ

did not err in finding that J.P.S. failed to demonstrate a well-founded fear of future

persecution.

J.P.S., through counsel, now petitions for review of the BIA’s final order of

removal.
J.P.S. incorrectly asserts that the BIA substantially adopted and affirmed the 3

decision of the IJ and that we should thus review the IJ’s and the BIA’s decisions. See

Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Because the BIA did not defer to the

IJ’s findings or adopt the IJ’s opinion, we review the BIA’s decision only. See Abdulai v.

Ashcroft, 239 F.3d 542, 545, 549 (3d Cir. 2001). 

5

II.

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. §

1252(a)(1). We review the BIA’s decision for substantial evidence, considering whether

it is “supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Balasubramanrim v. I.N.S., 143 F.3d 157, 161 (3d Cir. 1998)

(internal quotation and citation omitted). The decision must be affirmed “unless the 3

evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft,

333 F.3d 463, 471 (3d Cir. 2003) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.

2001)). 

An applicant for asylum has the burden of establishing that he is unable or

unwilling to return to his home 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[.]” 8 U.S.C. § 1101(a)(42)(A). Persecution “connotes extreme

behavior, including threats to life, confinement, torture, and economic restrictions so

severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft, 341 F.3d 214,

217 (3d Cir. 2003) (internal quotation and citation omitted). 

Here, the BIA agreed that the IJ properly denied J.P.S.’s claims because his
Because the BIA made no explicit finding as to J.P.S.’s credibility, we 4

proceed as if his testimony were credible. Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d

Cir. 2003). 

6

experiences did not rise to the level of persecution. See Lie v. Ashcroft, 396 F.3d 530,

536 (3d Cir. 2005). The BIA relied, in large part, on the lack of severity of J.P.S.’s 4

injuries. Concentrating solely on the lack of severe physical harm, however, minimized

the nature of the situation and ignored much of the evidence supporting J.P.S.’s claim. 

See Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002) (requiring the BIA to

demonstrate that it has “reviewed the record and grasped the movant’s claims). For

example, the BIA did not acknowledge that the people who physically and verbally

assaulted J.P.S. had murdered two of his brothers. While J.P.S. conceded that Ruben was

killed because he reported FARC’s drug dealing to the police, he testified that Luis was

killed at least in part because he tried to defend him. Regardless of why J.P.S.’s brothers

were killed, their murders made FARC’s subsequent targeting of J.P.S. particularly

foreboding. Thus, when viewed in a wider context, FARC’s constant threats and repeated

physical attacks on J.P.S.—even if they did not result in life-threatening injuries—may

rise to the level of persecution. See De Santamaria v. Att’y Gen., 525 F.3d 999, 1009

(11th Cir. 2008); cf. Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005) (stating that

isolated incidents that do not result in serious injury do not rise to the level of

persecution). The BIA’s failure to acknowledge significant aspects of J.P.S.’s claim

renders us unable to adequately to consider whether substantial evidence supports its
We do, however, conclude that substantial evidence supports the BIA’s 5

decision that J.P.S.’s detention by the Colombian police, in and of itself, does not rise to

the level of persecution. See Kibinda v. Att’y Gen., 477 F.3d 113, 119 (3d Cir. 2007). 

Because we have determined that the BIA’s decision regarding past 6

persecution is not supported by substantial evidence, we do not consider its determination

as to J.P.S.’s fear of future persecution. 7

determination that J.P.S. failed to establish past persecution. See Chavarria v. Gonzales,

446 F.3d 508, 517-18 (3d Cir. 2006) (remanding after determining that the BIA’s

mischaracterization and understatement of the evidence established that its decision was

not supported by substantial evidence); Chen v. I.N.S., 359 F.3d 121, 127-28 (2d Cir.

2004); Sevoian, 290 F.3d at 178.5

For the foregoing reasons, we conclude that the BIA did not adequately consider

J.P.S.’s application for asylum and withholding of removal. We therefore cannot accept

its determination that he failed to establish past persecution. Accordingly, we will grant 6

J.P.S.’s petition for review, vacate the BIA’s decision, and remand the case for further

proceedings.