FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 6, 2007

THOMAS K. KAHN

CLERK

 Honorable Tom Stagg, United States District Judge for the Western District of *

Louisiana, sitting by designation.

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-12907

________________________

Agency No. A97-204-149

GLORIA ARCIBELLY LOPEZ, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL,

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(July 6, 2007)

Before CARNES and WILSON, Circuit Judges, and STAGG , District Judge. *

CARNES, Circuit Judge:
 The IJ’s order states that Lopez was attacked by two women, but Lopez’s own 1

testimony, which we must accept as true, indicates that she was attacked by two women and a

man. 

2

Gloria Arcibelly Lopez, a Colombian native, joined the Colombian Liberal

Party in 1995 as a community coordinator, providing humanitarian assistance to

residents of poor communities and conducting seminars on the principles of the

Liberal Movement. In January 1998 she began receiving threatening phone calls

from the Revolutionary Armed Forces of Colombia, the FARC. The callers

instructed her to abandon her activities with the Liberal Party. Lopez did not

report the calls to the police. 

In April 1999, Lopez returned to Colombia after spending six months in the

United States with her mother. She resumed her Liberal Party activities, and in

September of that year, after leaving a community event, she was approached by a

man and a woman who identified themselves as FARC members, insulted her, and

told her that she should resign from the Liberal Party and not come back to the

area. Lopez continued her work. On November 27, 1999, she was confronted by

a man and two women. They told her: “We are from FARC revolutionary 1

militias and we already warned you that you should not return to these places.” 

Then they began hitting her about the face and arms, eventually throwing her to

the ground. Nothing was stolen from Lopez, but as a result of the attack she was
3

forced to seek medical attention. The medical report found: “[c]onclusive trauma

on [her] face, thorax and arms,” lacerations on her forearm and elbow, and at least

some bruising. Again, Lopez did not file a police report.

After that attack, Lopez withdrew from her political activities for some time.

Then in June 2001, Lopez resumed her humanitarian work. Even though she tried

to be more discrete, local residents warned her that members of the FARC were

asking about her. The FARC made threatening phone calls both to Lopez’s place

of work and to a rental property she owned, which resulted in Lopez once more

stopping her community involvement for a while. Again, she made no police

report.

In August 2002 Lopez and her mother began conducting training

workshops, which were supported by the Liberal Party, to teach local women how

to manage their household finances. She was warned by her students on October

12, 2002 that she needed to be careful, and on October 19, 2002, at the end of a

session, three armed men burst into the classroom and told Lopez: “We are

members of FARC’s urban militia[;] we sent you a message last week with one of

our students. We don’t want any shit workshops in our territory because what you

are doing is trying to brainwash our people and buy votes for those SOB

politicians.” Lopez left Colombia and arrived in the United States on November
4

8, 2002. 

On July 15, 2003, the Department of Homeland Security issued Lopez, who

had overstayed her visa, a notice to appear. At a hearing in October 2003 Lopez

appeared and conceded her removability. She sought asylum, withholding of

removal, and relief under the Convention Against Torture. Although the IJ failed

to make an explicit credibility finding, she stated: “we are to take everything that

she has told the Court today at face value.” Even though she accepted Lopez’s

testimony as true, the IJ found that she had failed to meet her burden of proof in

establishing refugee status and denied all three of her requests.

More specifically, the IJ determined that Lopez’s activities were

community-based and not political in nature. She also held that the harm alleged

by Lopez was insufficient, because the phone calls did not establish past

persecution and Lopez had failed to show that the physical attack was more than a

random act of violence. The IJ said that Lopez’s failure to report the November

1999 attack to the police in Colombia hurt her case, because “[i]n the absence of a

police investigation, the Court cannot make a determination whether this was

politically motivated or whether the respondent was a victim of a crime.” 

Nonetheless, the IJ all but made that determination, stating in the next sentence:

“It appears the respondent was a victim of a crime because in this case she does
5

not even contact the authorities in order to obtain their protection first before

traveling outside of her home country to obtain the protection of the United

States.” 

Lopez timely appealed the IJ’s decision to the BIA, challenging the denial

of her asylum and withholding of removal claims but abandoning her CAT claim. 

The BIA adopted and affirmed the IJ’s decision, noting that although the IJ failed

to make an express credibility finding, credibility was not at issue. The BIA also

stated: “we agree with the Immigration Judge that because the respondent did not

seek protection from law enforcement authorities in Colombia after her encounters

with the [FARC] . . . she failed to demonstrate that the Colombian government is

unable or unwilling to protect her.” This appeal followed.

Lopez now contends that the BIA erred (1) in finding that she did not suffer

past persecution sufficient to merit asylum and (2) in denying her petition for

relief on the ground that she had failed to seek help from the Colombian

authorities, which she claims would have been futile. 

I.

When the BIA issues a decision, we review only that decision, except to the

extent the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we
6

will review the IJ’s decision as well.” Id. Here, because the BIA adopted and

affirmed the IJ’s decision, adding some of its own comments, we review both

decisions. Legal determinations are reviewed de novo. D-Muhumed v. United

States Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). However, any factual

determinations are reviewed under the substantial evidence test, and we “must

affirm the . . . decision if it is supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Al Najjar, 257 F.3d at 1283–84

(quotation marks omitted). That means a finding of fact will be reversed “only

when the record compels a reversal; the mere fact that the record may support a

contrary conclusion is not enough to justify a reversal. . . . ” Adefemi v. Ashcroft,

386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).

II.

Given that both the IJ and BIA accepted Lopez’s testimony as true, we must

do so as well. Once that is done the record compels the conclusion that the

November 1999 attack on her was politically motivated instead of a random,

criminal act. Lopez had just attended a community event earlier that evening. 

The attackers identified themselves as members of the FARC, and they told Lopez

that she had been “already warned.” That was an obvious reference to the

threatening phone calls she had received ordering her to stop her activities with
7

the Liberal Party, and to the man and woman from the FARC who, two months

before the attack, had confronted her and told her to resign from the Liberal Party

and not come back to the area. There is also the fact that during the attack nothing

was stolen from her, as it probably would have been during a mugging or other

type of robbery. The IJ should have found that the November 1999 attack on

Lopez was politically motivated. 

Because the IJ did not do so, she did not consider the attack in the past

persecution analysis. Instead, the IJ only considered the phone calls and verbal

threats as politically motivated, and concluded that those were insufficient to

constitute persecution. That is why the IJ was able to rely on Sepulveda v. United

States Attorney General, 401 F.3d 1226 (11th Cir. 2005) (per curiam), our

decision holding that verbal threats and threatening phone calls alone are

insufficient to show persecution. See id. at 1231. We decline to decide in the first

instance whether all of the threats Lopez received and the physical attack in

November 1999, which are to be considered together, amount to persecution. See

Ruiz v. Gonzales, 479 F.3d 762, 766 (11th Cir. 2007) (noting that the question is

whether the politically motivated conduct considered cumulatively amounts to

past persecution).
8

A remand is preferable so that the IJ can decide this issue in the first

instance. In Gonzalez v. Thomas, 547 U.S. 183, 126 S. Ct. 1613 (2006) (per

curiam), the Supreme Court summarily reversed the Ninth Circuit in an

immigration case for failing to apply the “ordinary ‘remand’ rule,” under which

“[a] court of appeals is not generally empowered to conduct a de novo inquiry into

the matter being reviewed and to reach its own conclusions. . . .” Id. at —, 126 S.

Ct. at 1614–15. Instead, the Court held that the IJ (with right of review to the

BIA) must first “determin[e] the facts and decid[e] whether the facts as found fall

within a statutory term.” Id. at 1615 (quotation marks and citations omitted). 

Here, that means we should allow the IJ to determine, among other facts, the

extent and severity of the November 1999 beating, and then apply to all of the

facts the law relating to persecution. Accord, INS v. Ventura, 537 U.S. 12, 16,

123 S. Ct. 353, 355 (2002) (per curiam) (summarily reversing the Ninth Circuit for

failing to apply the “ordinary remand rule,” and holding that “[g]enerally

speaking, a court of appeals should remand a case to an agency for decision of a

matter that statutes place primarily in agency hands”); Antipova v. United States

Att’y Gen., 392 F.3d 1259, 1265 (11th Cir. 2004) (noting that where there has not

been a proper determination as to political persecution, we remand for the IJ to

make one in the first instance). If we were to rush ahead and decide the
9

persecution issue ourselves, we might be viewed as committing the same sin of

overeagerness that got the Ninth Circuit summarily reversed in Ventura and then

again in Gonzalez. 

III.

A remand is also in order for another reason. “As a matter of immigration

policy, a government may expect that an asylum seeker be unable to obtain

protection anywhere in his own country before he seeks the protection of another

country.” Mazariegos v. United States Att’y Gen., 241 F.3d 1320, 1327 (11th Cir.

2001). As a result, in order to satisfy her burden of establishing asylum eligibility,

Lopez must show not only past persecution or a well-founded fear of future

persecution, but also that she is unable to avail herself of the protection of her

home country. Id.

The BIA ruled that because Lopez did not “seek protection from law

enforcement authorities in Colombia after her encounters with the [FARC] . . . she

failed to demonstrate that the Colombian government is unable or unwilling to

protect her.” Although it is not entirely clear, the ruling appears to be that the

failure to seek protection without more is enough to defeat a claim for asylum. If

so, that decision is not fully consistent with S-A-, 22 I. & N. Dec. 1328, 1335

(BIA 2000). Although the failure to report persecution to local government
10

authorities generally is fatal to an asylum claim, Mazariegos, 241 F.3d at 1327, the

BIA in S-A- held that it would be excused where the petitioner convincingly

demonstrates that those authorities would have been unable or unwilling to protect

her, and for that reason she could not rely on them. 22 I. & N. Dec. at 1335. 

Lopez contends that through her testimony and the country reports she has

convincingly made the showing required by S-A-, and that is a contention which

neither the IJ nor the BIA addressed. It should be addressed on remand. 

Accordingly, we GRANT the petition for review and REMAND to the BIA

for further consideration consistent with this opinion.