2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-2-2010

Marco Espinosa-Cortez v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 08-4170

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2010

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2010 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Marco Espinosa-Cortez v. Atty Gen USA" (2010). 2010 Decisions. Paper 1078.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1078
PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-4170

_____________

MARCO TULIO ESPINOSA-CORTEZ, 

LUZ MARINO LOPEZ-TIBADUIZA, &

XIMENA DEL PILAR ESPINOSA-LOPEZ, 

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review of an Order

of the Board of Immigration Appeals

(Agency Case Numbers A98-542-368, 

A98-542-369, A98-543-097)

Argued March 24, 2010

Before: RENDELL, AMBRO, and FUENTES, Circuit Judges
-2-

(Opinion Filed: June 2, 2010)

Peter M. Rogers, Esq. [ARGUED]

Rogers & Rogers, P.C.

437 Grand Street

Suite 1806

Pittsburgh, PA 15219

Counsel 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

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

OPINION OF THE COURT

FUENTES, Circuit Judge: 
 There are two petitions under review in this 1

matter—that of Espinosa-Cortez (which includes his wife as a

derivative claimant) and that of his adult daughter, Ximena. 

The petitions arise out of the same set of facts, which center

around Espinosa-Cortez’s social and business activities and his

connections to the Colombian military and government. For the

sake of simplicity, we refer to Petitioners collectively as

-3-

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. Although we review the 1
“Espinosa-Cortez,” except where it is necessary to identify them

individually. 

-4-

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 EspinosaCortez’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
-5-

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 highranking 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
The IJ expressly stated that she found Espinosa- 2

Cortez’s testimony “with respect to the FARC’s pursuit of him

to become their informant” to be credible. (App. at 74.) 

The transcript of the immigration proceedings is replete 3

with errors, and numerous words of the testimony are simply

labeled “indiscernible.” Petitioners complained during the

proceedings that Espinosa-Cortez’s testimony was being poorly

translated, and they raised this issue (as well as a concern over

the inadequacy of the transcript) on appeal before the BIA, but

they do not raise it here. 

-6-

series of threatening telephone calls from the FARC. When he 2

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, it is evident that Espinosa-Cortez rejected the 3

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 underlined portion of the testimony quoted here 4

appears to contain an error in translation or transcription, in that

the first word clearly should be “I,” not “they.” It makes little

sense for the FARC to have informed Espinosa-Cortez that he

would not inform for them because they go against his

principles—obviously, Espinosa-Cortez said this to the caller,

not the reverse. This reading is supported by the next sentence,

which explains why “at no time” would Espinosa inform for the

FARC. As we explain below, however, whether or not this

portion of Espinosa-Cortez’s testimony was mistranslated is

immaterial to our analysis. 

-7-

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, EspinosaCortez 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,
-8-

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 EspinosaCortez 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, EspinosaCortez 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,
-9-

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.
Since an applicant’s burden of proof for withholding of 5

removal is higher than that for asylum, the IJ determined that the

Petitioners were ineligible for withholding of removal. The IJ

likewise denied their applications for relief under the CAT,

since it was not the Colombian government that threatened to

harm Petitioners. Espinosa-Cortez does not appeal these two

rulings. 

-10-

(Id. at 78-79.) Having found that the persecution EspinosaCortez faced was not on account of his political beliefs, the IJ

concluded that he was ineligible for asylum. 

5

Espinosa-Cortez appealed the IJ’s ruling to the BIA,

which affirmed. The BIA reasoned as follows:

[T]he respondent did not demonstrate that the

FARC was motivated to threaten him by any

political opinion imputed to him or because of his

prior support and participation in mayoral

campaigns on behalf of the Liberal Party. The

respondent did not adequately show that his

political opinion played any significant role in his

business connections with the military. Nor did

he sufficiently show that the FARC would view

him as a political supporter of the government if

he did not serve as an informant . . . . Thus, while

the lead respondent claims that the FARC

attributed a political opinion to him based on his

strong connections with the Colombian

government and that his refusal to cooperate was

perceived as an intention to support the
-11-

government, the evidence of record does not

adequately support his claim. See I.N.S. v.

Elias-Zacarias, 502 U.S. 478, 482 (1992).

(App. at 3.) The BIA likewise affirmed the IJ’s denial of

Espinosa-Cortez’s application for withholding of removal and

CAT relief, see Note 5, supra, and rejected Espinosa-Cortez’s

argument that inadequate translation and transcription affected

the fairness of the proceedings, see Note 3, supra. EspinosaCortez thereafter filed this timely petition for review of the

BIA’s decision. 

II.

A.

We have jurisdiction to review a final order of removal

under 8 U.S.C. § 1252(a)(1). “Because the BIA issued an

opinion, rather than a summary affirmance, we review the BIA’s

(rather than the IJ’s) decision.” Rranci v. Att’y Gen., 540 F.3d

165, 171 (3d Cir. 2008) (citing Li v. Att’y Gen., 400 F.3d 157,

162 (3d Cir. 2005)). 

Our review of the BIA’s denial of Petitioners’ asylum

application is highly deferential. “We affirm any findings of

fact supported by substantial evidence and are ‘bound by the

administrative findings of fact unless a reasonable adjudicator

would be compelled to arrive at a contrary conclusion.’”

Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009)

(quoting Yan Lan Wu v. Ashcroft, 393 F.3d 418, 421 (3d Cir.

2005)); see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative

findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.”). Whether, for
-12-

asylum purposes, a petitioner has proven that he or she has a

well-founded fear of persecution “is a question of fact, and the

agency determination must be upheld if it is supported by

‘substantial evidence’ in the record.” Gomez-Zuluaga v. Att’y

Gen., 527 F.3d 330, 340 (3d Cir. 2008) (quoting Lukwago v.

Ashcroft, 329 F.3d 157, 167 (3d Cir. 2003)). We have,

however, emphasized that “the requirement that the BIA’s

decision be supported by substantial evidence is not an empty

one.” Chavarria v. Gonzalez, 446 F.3d 508, 517 (3d Cir. 2006).

“[D]eference is not due where findings and conclusions are

based on inferences or presumptions that are not reasonably

grounded in the record, viewed as a whole,”

Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 290 (3d Cir.

2007) (citation omitted), and the BIA is not permitted simply to

ignore or misconstrue evidence in the asylum applicant’s favor.

See, e.g., Chavarria, 446 F.3d at 519; BinRashed v. Gonzales,

502 F.3d 666, 673 (7th Cir. 2007).

B.

Espinosa-Cortez contends that the BIA’s decision that he

lacked a reasonable fear of future persecution on account of his

actual or imputed political beliefs is not supported by substantial

evidence in the record. In particular, he argues that the BIA

employed too narrow an understanding of what constitutes a

political opinion, and that the BIA overlooked the significance

of his close tiesto the Colombian government in concluding that

he had not been targeted because of an imputed political

opinion. We review the law that governs Espinosa-Cortez’s

asylum claim and address the merits of his petition for review in

turn below. 
-13-

1.

“The Attorney General has the discretion to grant asylum

to any alien who ‘is a refugee within the meaning of section

1101(a)(42)(A)’” of the Immigration and Nationality Act

(“INA”). Camara, 580 F.3d at 201 (quoting 8 U.S.C. §

1158(b)(1)(A)). The INA defines the term “refugee” as follows:

[A]ny person who is outside any country of such

person’s nationality . . . and 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.

8 U.S.C. § 1101(a)(42)(A). 

Under the terms of this provision, Espinosa-Cortez may

show that he is eligible for asylum by proving either that he was

previously persecuted on account of a statutorily enumerated

ground, or that he has a well-founded fear of future persecution

on account of a statutorily enumerated ground. Persecution

“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.’” Gomez-Zuluaga, 527 F.3d at 340

(quoting Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir. 2008)).

An asylum applicant who establishes that he or she was

previously persecuted on account of a statutorily enumerated

ground triggers a rebuttable presumption that the applicant has

a well-founded fear of future persecution. See Lukwago, 329

F.3d at 174 (citation omitted). 
-14-

An asylum applicant who cannot establish past

persecution does not enjoy the benefit of such a presumption but

may still demonstrate eligibility for asylum by establishing that

he or she has a well-founded fear of future persecution. In order

to show that a fear of future persecution is “well-founded,” 8

U.S.C. § 1101(a)(42)(A), a petitioner must demonstrate that his

or her “fear is both subjective[ly] and objectively reasonable,

which [he or] she may do by using testimonial, documentary, or

expert evidence.” Gomez-Zuluaga, 527 F.3d at 346 (internal

citations omitted). In order to satisfy the subjective prong of

this inquiry, the petitioner must show “that the fear is genuine.”

Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003) (citation

omitted). To satisfy the objective prong, the petitioner must

show that “a reasonable person in the alien’s circumstances

would fear persecution if returned to the country in question.”

Id. (citation omitted). 

However, “an applicant for asylum need not prove that

the persecution he or she suffered (or fears suffering in the

future) occurred solely on account [of] one of the five grounds

enumerated in the INA.” Singh v. Gonzales, 406 F.3d 191, 197

(3d Cir. 2005) (citation omitted). Rather, the applicant must

only demonstrate that the protected ground constitutes “at least

one central reason for persecuting the applicant.” 8 U.S.C. §

1108(b)(1)(B)(I). The asylum applicant bears the burden of

proving eligibility for asylum, and “[t]estimony, by itself, is

sufficient to meet this burden, if credible.” Singh, 406 F.3d at

195 (quotation marks and citations omitted). 

2.

Turning to the merits of the instant petition for review,
The General Counsel of the Immigration and 6

Naturalization Service (“INS”) recognized as early as 1993 that

an imputed political opinion is an acceptable basis for an asylum

claim. See INS General Counsel Legal Opinion (January 19,

1993), reprinted in 70 Interpreter Releases 498.

-15-

we conclude that the BIA’s determination that the FARC did not

target Espinosa-Cortez on account of a political opinion it

imputed to him is not supported by substantial evidence in the

record. We have long recognized that a person can be eligible

for asylum if he faces the prospect of persecution on account of

imputed, as well as actual, political beliefs. See, e.g., Lukwago,

329 F.3d at 181 (“[P]ersecution may be on account of a political

opinion the applicant actually holds or on account of one the

[persecutor] has imputed to him.”) (citation omitted). The

majority of our sister circuits have likewise held that “an alien

may base a persecution claim on imputed political opinion.”6

Chen v. Holder, --- F.3d ----, 2010 WL 1688491, at *5 (7th Cir.

Apr. 28, 2010); accord Haider v. Holder, 595 F.3d 276, 285 (6th

Cir. 2010); Marroquin-Ochoma v. Holder, 574 F.3d 574, 577

(8th Cir. 2009); Singh v. Mukasey, 543 F.3d 1, 6 (1st Cir. 2008);

Delgado v. Mukasey, 508 F.3d 702, 706 (2d Cir. 2007); Rivera

v. U.S. Att’y Gen., 487 F.3d 815, 820 (11th Cir. 2007);

Cordon-Garcia v. I.N.S., 204 F.3d 985, 991-92 (9th Cir. 2000).

In determining whether an asylum applicant was

persecuted because of an imputed political opinion, we focus on

whether “the persecutor attributed a political opinion to the

victim, and acted upon the attribution.” Amanfi v. Ashcroft,

328 F.3d 719, 729 n.4 (3d Cir. 2003) (citation omitted). This
-16-

focus on whether the persecutor (or would-be persecutor)

attributes a political view to the victim makes clear that “the

INA ‘makes motive critical’ and an asylum applicant must

provide ‘some evidence of [motive], direct or circumstantial.’”

Gomez-Zuluaga, 527 F.3d at 343 (quoting Elias-Zacarias, 502

U.S. at 483). Although cognizant of this emphasis upon a

persecutor’s motive, the Courts of Appeals have at the same

time recognized that “it would be patently absurd to expect an

applicant . . . to produce [] documentary evidence” of a

persecutor’s motives, Chavarria, 446 F.3d at 521 (quotation

marks and citations omitted), since “persecutors are hardly likely

to submit declarations explaining exactly what motivated them

to act.” Parussimova v. Mukasey, 555 F.3d 734, 742 (9th Cir.

2009) (quotation marks and citation omitted). Accordingly, in

certain cases, “the factual circumstances alone may constitute

sufficient circumstantial evidence of a persecutor’s . . .

motives.” Canales-Vargas v. Gonzales, 441 F.3d 739, 744 (9th

Cir. 2006) (further explaining that “circumstantial evidence of

motive may include, inter alia, the timing of the persecution and

signs or emblems left at the site of persecution”) (quotation

marks and citations omitted); see also Chavarria, 446 F.3d at

521. 

In finding that Espinosa-Cortez failed to establish that

FARC’s motives for pursuing him related to actual or imputed

political beliefs, the BIA relied almost exclusively upon the

Supreme Court’s decision in Elias-Zacarias; in defending the

BIA’s decision, the Government likewise rests heavily upon

Elias-Zacarias. Owing to its importance in this case, therefore,

a detailed review of that decision is in order. 

In Elias-Zacarias, the petitioner was a young man from
-17-

Guatemala who was approached by guerrillas and urged to join

their movement. 502 U.S. at 479. The petitioner resisted this

attempt at recruitment because, according to his testimony, “the

guerrillas are against the government and he was afraid that the

government would retaliate against him and his family if he did

join the guerrillas.” Id. at 480. The IJ and the BIA concluded

that the guerrillas’ attempted recruitment did not constitute

persecution on account of the petitioner’s political beliefs, but

the Ninth Circuit “ruled that acts of conscription by a

nongovernmental group constitute persecution on account of

political opinion, and determined that Elias-Zacarias had a

‘well-founded fear’ of such conscription.” Id. 

The Supreme Court reversed. As the Court explained,

Elias-Zacarias had not only failed to demonstrate that he resisted

the recruitment efforts on account of his political beliefs, but his

testimony revealed just the opposite to be true—that he resisted

out of fear of governmental retaliation (which is not a political

opinion):

Even a person who supports a guerrilla movement

might resist recruitment for a variety of

reasons—fear of combat, a desire to remain with

one’s family and friends, a desire to earn a better

living in civilian life, to mention only a few. The

record in the present case not only failed to show

a political motive on Elias-Zacarias’ part; it

showed the opposite. He testified that he refused

to join the guerrillas because he was afraid that

the government would retaliate against him and

his family if he did so. Nor is there any indication

(assuming, arguendo, it would suffice) that the
 It bears repeating, however, that evidence of the 7

persecutor’s motive may be—and, for practical purposes, will

necessarily be—circumstantial, not direct. See Chavarria, 446

F.3d at 521 (noting that “persecutors are hardly likely to provide

their victims with affidavits attesting to their acts of

-18-

guerrill a s erro n e o u sly b e li e v e d that

Elias-Zacarias’ refusal was politically based.

Id. at 482. The Court likewise rejected the petitioner’s

suggestion that the guerrillas would automatically construe his

resistance to their recruitment efforts as being political in nature.

The Court explained that such resistance could just as easily be

explained by “indifference, indecisiveness, and risk averseness,”

and that Elias-Zacarias had failed to present any evidence “that

the guerrillas [would] persecute him because of [his] political

opinion, rather than because of his refusal to fight with them.”

Id. at 483. 

The BIA more or less treated Elias-Zacarias as

dispositive of Espinosa-Cortez’s asylum claim, and the

Government urges that we do the same. As the BIA concluded

and the Government argues, there are certain obvious

similarities between this case and Elias-Zacarias. As in EliasZacarias, Espinosa-Cortez was subjected to an effort at

recruitment by a guerrilla organization, and, as in our case, the

attempted recruitment in Elias-Zacarias was accompanied by

threats. See id. at 480. And, as was true in Elias-Zacarias,

Espinosa-Cortez produced no direct evidence that the guerrillas

targeted him, at least in part, on account of their perception of

his political views. Id. at 483. At first blush, then, the 7
persecution”) (quotation marks and citations omitted). A

petitioner is not required to produce direct evidence of a

persecutor’s motive, but is instead permitted to rely upon

circumstantial evidence. See Elias-Zacarias, 502 U.S. at 483-84.

-19-

similarities between the two cases lend some support to the

BIA’s rejection of Espinosa-Cortez’s asylum claim. 

There are, however, important factual distinctions

between Elias-Zacarias and this case that the BIA did not

consider. These factual distinctions lead us to conclude that “a

reasonable adjudicator would be compelled” to find that the

FARC’s pursuit of Espinosa-Cortez stemmed, at least in part,

from a political opinion it imputed to him. Camara, 580 F.3d at

201 (citation omitted). Elias-Zacarias, in other words, is not

dispositive of Espinosa-Cortez’s claim, and the BIA overlooked

the significance of certain critical facts in the record that clearly

distinguish Espinosa-Cortez’s case from Elias-Zacarias. 

The first such fact is Espinosa-Cortez’s close, direct

affiliation with, and support of, the Colombian government and

military. Quite unlike the record in Elias-Zacarias, in which

there was no suggestion whatsoever that the petitioner had any

ties to the Guatemalan government, Espinosa-Cortez made his

living by supporting the Colombian government, military, and

military academy through the provision of food and other

services. Although we have not made the point expressly, the

Ninth Circuit haslong “found persecution of those who work for

or with political figures to be on account of the political opinion

of their employer even if the nature of their work for or with that

person is not in itself political.” Navas v. I.N.S., 217 F.3d 646,
-20-

659 n.19 (9th Cir. 2000); accord Sagaydak v. Gonzales, 405

F.3d 1035, 1042 (9th Cir. 2005) (“Viktor was aligned with the

political opinion of his employer simply by the fact that he

worked as a government official enforcing government

policies.”); Cordon-Garcia, 204 F.3d at 992 (Where a teacher

taught literacy classes for a government-funded organization,

her “presumed affiliation with the Guatemalan government—an

entity the guerrillas oppose—is the functional equivalent of a

conclusion that she holds a political opinion opposite to that of

the guerrillas, whether or not she actually holds such an

opinion.”) (quotation marks omitted); Velarde v. INS, 140 F.3d

1305, 1312 (9th Cir. 1998).

Cordon-Garcia is instructive on this point and highly

relevant to our case. The petitioner in that case worked for

CONALFA, a government-funded literacy agency in Guatemala.

Cordon-Garcia, 204 F.3d at 988. She was approached by a

guerrilla who, like the FARC agents in our case, informed her

“that the guerrillas wanted her to work for them instead of for

CONALFA.” Id. at 989. The guerrilla informed the petitioner

that the guerrillas opposed her literacy work, threatened her, and

told her that she would have to “decide which one you’re going

to work with.” Id. The petitioner fled to the United States and

applied for asylum; the IJ rejected her asylum claim and the BIA

affirmed.

The Ninth Circuit granted the petition for review, holding

that Cordon-Garcia had been persecuted on account of a progovernment political opinion that the guerrillas had imputed to

her by virtue of her employment with a government-funded

organization. As the court explained, “[a]bsent her affiliation

with the government and its push for literacy among
-21-

Guatemalans, Petitioner likely would not have come to the

guerrillas’ attention.” Id. at 992. In an analysis that is directly

applicable to Espinosa-Cortez’s asylum claim, the Court

observed that

Petitioner’s “presumed affiliation” with the

Guatemalan government—an entity the guerrillas

oppose—is the functional equivalent of a

conclusion that she holds a political opinion

opposite to that of the guerrillas, whether or not

she actually holds such an opinion. This is the

crux of the idea covered by the doctrine of

“imputed political opinion” in refugee and asylum

law. Accordingly, we hold that any reasonable

factfinder would have to conclude that Petitioner

suffered persecution, at least in part, due to this

imputed political opinion.

According to the BIA, Petitioner’s experiences

resulted from “attempted recruitment,”

“displeasure with the respondent’s profession,”

and nothing more than “the general strategy of the

Guatemalan guerrillas to create civil disorder.”

These descriptions are not borne out by the record

in this case. Petitioner plainly suffered this

experience specifically because of her affiliation

with the government . . . . Each of the BIA’s

attempts to nullify the political overtones of

Petitioner’s experiences overlooks both the fact

that she was affiliated with the government and

the obvious inference that her continued teaching

meant opposition to the guerrillas’ goals.
-22-

Id. at 992 (internal citations omitted). 

We agree with this analysis, and, as was the case in

Cordon-Garcia, we believe that a reasonable factfinder would be

compelled to conclude that the political opinions that the

guerrillas imputed to Espinosa-Cortez were “at least one central

reason” for the FARC’s threats. 8 U.S.C. § 1108(b)(1)(B)(I).

As was true in Cordon-Garcia, Espinosa-Cortez was not directly

employed by the Colombian government, but he was closely

affiliated with the government, provided support to the

government, and he depended upon the government for his

livelihood. Id. at 988. And as in Cordon-Garcia, it was

exclusively Espinosa-Cortez’s affiliation with, and access to, the

Colombian government and military that brought him “to the

guerrillas’ attention” in the first place. Id. at 992. There is

absolutely no suggestion from the record that the FARC would

have pursued Espinosa-Cortez to become an informant if he had

not been so closely associated with the government and military,

and, indeed, the entirety of the evidence is to the contrary. To

conclude, as the BIA did, that there was “no political link to the

FARC’s threats,” (App. at 3), would require either that one turn

a blind eye to the factual circumstances surrounding the FARC’s

pursuit of Espinosa-Cortez, or that one adopt an impermissibly

narrow construction of the term “political opinion.” See

Delgado v. Mukasey, 508 F.3d 702, 707 (2d Cir. 2007) (being

pro-government and anti-FARC is a political opinion for asylum

purposes). 

Indeed, as Espinosa-Cortez argues, we have determined

that the BIA erred in failing to impute political opinions under

more tenuous circumstances than those presented in this case.

In Chavarria, the petitioner “was essentially apolitical,” but,
-23-

acting as a good Samaritan, he came to the aid of two women

who were being attacked by government-sponsored

paramilitaries in Guatemala. Chavarria, 446 F.3d at 513. The

two women, it turns out, were members of CONAVIGUA, an

anti-government human rights organization, and the petitioner

was subsequently followed and threatened by the paramilitaries

who had attacked the women. Id. We held that Chavarria’s fear

was “clearly on account of an imputed political opinion” and

rejected the IJ’s and BIA’s determinations to the contrary,

finding that the agency’s conclusions were not supported by

substantial evidence. Id. at 521. We explained:

Here, Chavarria testified that, before the first

incident with the CONAVIGUA women, he was

essentially apolitical. As we noted earlier, he then

offered substantial and compelling testimony that

after the incident he was put under surveillance by

the same men who perpetrated the attack on the

CONAVIGUA women. There is no evidence

casting any doubt on this testimony, and we think

it clear that the paramilitaries targeted Chavarria

because they ascribed to him an association with

the CONAVIGUA group that, at minimum, could

be anti-government sympathies.

Id. It goes without saying that Espinosa-Cortez’s long-term

affiliation with, and support of, the Colombian government was

much more significant than was Chavarria’s fleeting association
Moreover, in suggesting that Espinosa-Cortez was 8

required to “show that his political opinion played [a] significant

role in his business connections with the military” in order to

prove that the FARC imputed a pro-government, anti-FARC

opinion to him, the BIA misstated the premise of an imputed

political opinion. (App. at 3.) At the root of the concept of

persecution on account of imputed political opinion is the fact

that “persecution may be on account of a political opinion the

applicant actually holds or on account of one the [persecutor]

has imputed to him.” Lukwago, 329 F.3d at 181 (citation

omitted). Espinosa-Cortez was not required to prove that his

business connections with the government resulted from a

political opinion he held in order to show that the FARC

imputed a political opinion to him based upon his close ties to

the government. See Cordon-Garcia, 204 F.3d at 992.

-24-

with two members of the CONAVIGUA group. In short, the 8

BIA overlooked the obvious political overtones in the FARC’s

pursuit of Espinosa-Cortez, who would have been of no interest

to the guerrillas but for his long-standing, close association with

the Colombian government. Cordon-Garcia, 204 F.3d at 992.

There are two additional significant facts, overlooked by

the IJ and the BIA, that distinguish this case from EliasZacarias. First, unlike the petitioner in Elias-Zacarias, EspinosaCortez engaged in protracted resistance to the FARC’s

recruitment efforts. In Elias-Zacarias, the petitioner was

approached by guerrillas on a single occasion; Elias-Zacarias

refused their single effort at recruitment (without, apparently,

expressing any political views) and fled to the United States.
-25-

See Elias-Zacarias, 502 U.S. at 479-80. By contrast, in this

case, the Espinosa-Cortez family was approached by the FARC

on multiple occasions, including the occasion in which the

FARC agents approached Ximena on the street, and EspinosaCortez was repeatedly asked to serve as an informant and to

cease providing food to the military. Second (and more

importantly), although the translation of his testimony could be

clearer, it is apparent that Espinosa-Cortez, unlike EliasZacarias, made his anti-FARC views known to his persecutors

in rejecting their advances. In describing one of his exchanges

with a FARC caller, Espinosa-Cortez testified as follows: “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.” (App. at 138.) 

There are two possible ways to interpret the first of these

sentences: either that Espinosa-Cortez stated directly to his

FARC pursuer that he would not inform for them because the

FARC went against his principles, or that a member of the

FARC stated to Espinosa-Cortez that Espinosa-Cortez would not

join the FARC because the FARC went against his principles.

Under either interpretation, the significant point is that

Espinosa-Cortez’s testimony demonstrates unmistakably that the

FARC was aware that Espinosa-Cortez’s refusal to work for the

guerrillas stemmed from his anti-FARC principles. Unlike in

Elias-Zacarias, where it was unclear whether the petitioner’s

resistance to the guerrillas was motivated by political beliefs or

“indifference, indecisiveness, and risk averseness,”

Elias-Zacarias, 502 U.S. at 483, in this case we know (and, more

importantly, the FARC knew) that Espinosa-Cortez’s resistance
-26-

was motivated at least in part by his anti-FARC sentiment. The

guerrillas’ continued threats in the face of Espinosa-Cortez’s

stated opposition to the FARC demonstrate a close nexus

between the FARC’s threats and Espinosa-Cortez’s political

opinions that was absent in Elias-Zacarias. 

In this respect, even if the BIA concluded that EspinosaCortez was not initially targeted on account of imputed political

beliefs (a conclusion that, as we noted above, is undermined by

the principles of Cordon-Garcia), he was eventually threatened,

at least in part, on account of his political beliefs. That is, a

reasonable adjudicator would be compelled to conclude that the

FARC, by threatening a government-affiliated person after that

person made his anti-FARC views known, had threatened

persecution at least in part on account of the victim’s political

beliefs. As the Second Circuit has explained:

[P]ersecution on account of one ground [does not]

preclude[] a well-grounded fear of future

persecution on account of another. [The

petitioner] did testify, as the BIA emphasized, that

the FARC [initially] targeted her because of her

knowledge of her computers, a reason unrelated

to political opinion. But she also testified that she

would be targeted by the FARC in the future for

betraying them, which, when coupled with the

government’s unwillingness to control the FARC,

could well qualify as persecution for an imputed

political opinion (opposition to the FARC). 

Delgado, 508 F.3d at 706-07. Threatening a person with death

for not collaborating with the FARC, after the recipient of the
-27-

threat made clear that his refusal was “because they go against

[his] principles,” is persecution on account of political beliefs.

(App. at 138.) 

Although our review of the BIA’s conclusion that a

person does not have a well-founded fear of persecution is

deferential, the BIA may not simply overlook evidence in the

record that supports the applicant’s case. See BinRashed, 502

F.3d at 673; see also Valdiviezo-Galdamez, 502 F.3d at 289;

Mema v. Gonzales, 474 F.3d 412, 419 (7th Cir. 2007) (“An

applicant for asylum is entitled to a reasoned analysis, not one

which wholly disregards relevant, probative evidence.”). In this

case, the BIA overlooked the inescapable political overtones in

the FARC’s pursuit of Espinosa-Cortez, and it completely

disregarded evidence showing that the FARC knew of EspinosaCortez’s anti-FARC principles, even asthe guerrillas threatened

him for not betraying those principles. Under these

circumstances, a reasonable factfinder would be compelled to

conclude that the threats levied by the FARC were motivated, at

least in part, by a political opinion the FARC imputed to

Espinosa-Cortez. See 8 U.S.C. § 1252(b)(4)(B).

In granting Espinosa-Cortez’s petition, we do not hold

that any person affiliated with a foreign government who is

threatened by an anti-government organization has necessarily

been threatened on the basis of imputed political opinion. In

this case, Espinosa-Cortez (1) testified about his long-term

association with the Colombian government and military, (2)

made his living by providing support to those institutions, (3)

would not have come to the guerrillas’ attention but for his

relationship with the government and military, (4) rebuffed

repeated overtures from the FARC to join with them, and (5)
-28-

expressly made his anti-FARC opinions known to the FARC

agents attempting to recruit him. Under these circumstances, the

BIA’s conclusion that the FARC’s threats were not centrally

motivated by a political opinion the guerrillas imputed to

Espinosa-Cortez is not supported by substantial evidence in the

record. 

III.

For the foregoing reasons, we will grant the petition for

review.