                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-22-2005

Vente v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-4731




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                                      PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                  No. 03-4731


          RODOLFO VENTE VENTE,

                             Petitioner

                        v.

* ALBERTO R. GONZALES, Attorney General of the
               United States

                             Respondent

        *Substituted pursuant to Rule 43c, F.R.A.P.




     On Appeal from an Order entered before
       The Board of Immigration Appeals
              (No. A79 092 668)


            Argued December 7, 2004
 Before: AMBRO, and VAN ANTWERPEN, Circuit Judges
             SHADUR,** District Judge


                (Opinion filed July 22, 2005)

Philippe Weisz, Esquire (Argued)
American Friends Service Committee
Immigrant Rights Program
89 Market Street, 6th Floor
Newark, NJ 07102

      Attorney for Petitioner

Peter D. Keisler
  Assistant Attorney General
Scott R. McIntosh, Esquire
H. Thomas Byron, III, Esquire (Argued)
United States Department of Justice
Civil Division, Appellate Staff PHB 9134
601 D Street, N.W.
Washington, D.C. 20530-0001

Douglas E. Ginsburg, Esquire
John D. Williams, Esquire
United States Department of Justice
Office of Immigration Litigation

       **Honorable Milton I. Shadur, United States District
Judge for the Northern District of Illinois, sitting by
designation.

                                2
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044

       Attorneys for Respondent




                 OPINION OF THE COURT




AMBRO, Circuit Judge

       Rodolfo Vente Vente petitions for review of the decision
by the Board of Immigration Appeals (“BIA”) denying his
claims for asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”). Because the BIA’s
decision mischaracterized the nature of Vente’s asylum claim,
rendering meaningful review of that decision impossible, we
grant the petition.

       I. Factual Background & Procedural History

      Vente is a native of Colombia. He was born in 1973 in
Timbiqui, an area where the majority of the population is Afro-
Colombian. Vente lived in Cali, one of the largest cities in
Colombia, from 1993 to 1998. Beginning in January 1998, he


                              3
lived and worked in Cisneros, a small, predominantly Afro-
Columbian agricultural community.

        From mid-1999 to November 2000, Vente attended
meetings of a community group in Cisneros. He testified before
the Immigration Judge (“IJ”) that “the purpose of these meetings
was to ask to the government to give some help for health
purposes, also schools, to work [on] the water . . . system. Also
to get certificates of the land that we were working on.” Vente
stated that he stopped going to these meetings because
paramilitary groups said that they were going to kill those who
attended and told people in the community that they should
abandon their land. Vente also testified that he was shot in the
leg in March 1999, but he did not know who shot him.

       In December 2000, Vente received a threat from one of
the paramilitary groups accusing him of collaborating with
guerillas. He testified that he believed the group thought he was
a collaborator because he had attended the community group
meetings. According to Vente, that December a paramilitary
cadre destroyed the police station in Cisneros, killed three police
officers, and conducted a massacre in which nine people were
killed and twelve or thirteen people were wounded. These
events, coupled with the threat he had received, prompted Vente
to think about leaving the area.

       Vente reported the threat against him to the human rights
office in Buenaventura, the region of Colombia in which

                                4
Cisneros is located, on January 22, 2001. This office was
unable to offer him any protection and sent him to talk to other
government authorities. The district attorney’s office was also
unable to help Vente, so he returned home. Upon his return, his
brother informed him that two men had been looking for him.

       Vente then went to Cali to seek once more protection
from government authorities and was again unsuccessful. He
did receive some assistance in finding shelter and food from a
charitable organization, and he stayed in Cali for a brief period.
On February 7, 2001, Vente returned to Cisneros to see his
mother, who was ill. At this time, his uncle told Vente that it
was not advisable for him to stay in Cisneros for long because
Vente had been sent a note from a paramilitary group saying that
it was in the town and that there were other armed groups
around the town. A note dated February 6, 2001, from the
United Auto-Defenses of Colombia stated that the group knew
Vente had returned to the area and also warned him that he
would suffer consequences if he did not leave the region.

       Vente returned to Cali but testified that he did not feel
safe there. On February 20, 2001, he left Colombia and flew to
the United States. The Immigration & Naturalization Service
(“INS”)1 served Vente with a Notice to Appear on March 1,


  1
   As a result of the Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2135 (2002), the INS has ceased to exist
as an agency within the Department of Justice, and its

                                5
2001, and he conceded removability but applied for asylum,
withholding of removal, and relief under the CAT. A hearing
on these claims was held before the IJ on February 21, 2002, and
he rendered an oral decision denying Vente relief.

        The IJ determined that Vente had not suffered past
persecution even assuming that his testimony was credible
regarding the threatening letters he received from paramilitary
groups. The IJ further found that some parts of Vente’s story
were credible while others were not. For example, the IJ did not
credit Vente’s statement in his asylum application that
paramilitary groups were still looking for him after he left
Cisernos. The IJ also noted the gap of eighteen months between
the time that Vente started attending the community group
meetings and the time he started receiving threats. Finally, the
IJ concluded that Vente had an obligation to live elsewhere in
Colombia, which he did not do, before coming to the United
States.

        Vente appealed, and the BIA also denied his claims for
relief. It overturned the IJ’s “mixed credibility” finding as to
Vente’s testimony, noting that the IJ’s finding appeared to be
based on Vente’s statement that he was shot in the leg in March
1999 and thus the finding had to be vacated as Vente had not


enforcement functions have been transferred to the Bureau of
Immigration and Customs Enforcement within the Department
of Homeland Security.

                               6
attempted to tie that event to his claims for relief. The BIA went
on to determine that, even though Vente was credible, he had
not satisfied his burden of proof.

        The BIA also concluded that Vente had not suffered past
persecution, noting that: (1) he conceded that he had never been
personally harmed by any paramilitary group; and (2) his ability
to live in Cali from 1993 to 1998, and again just before his
departure from Colombia, suggested “either that the ‘threat’ of
persecution was not country-wide or that he was not a serious
target of political violence.” 2 The BIA then concluded that
Vente also had not established a well-founded fear of
persecution because (1) the general unrest in Colombia did not
provide a basis for asylum or withholding of removal, and (2)
Vente’s “two brothers and his parents remain in Colombia and
there is no evidence that they have been harmed.”

      Vente’s petition for review of the BIA’s denial of his
asylum claim is now before us.3

  2
   Vente does not appear to challenge the BIA’s determination
that he had not suffered past persecution. See Pet’r Br. at 36
(arguing that the IJ erred in construing Vente’s asylum claim as
being based on past persecution rather than on his fear of future
persecution).
  3
   Although Vente makes a general request that we reverse the
BIA’s order in its entirety, his petition for review focuses on his
asylum claim and makes no specific argument that the BIA’s

                                7
           II. Jurisdiction & Standard of Review

       Under 8 U.S.C. § 1252(a), we have jurisdiction to hear a
petition for review from a final order of the BIA. We must
uphold the BIA’s factual findings if they are supported by
substantial evidence. Singh-Kaur v. Ashcroft, 385 F.3d 293, 296
(3d Cir. 2004). That is, the BIA’s denial of asylum can be
reversed “only if the evidence presented by [petitioner] was such
that a reasonable factfinder would have to conclude that the
requisite fear of persecution existed.” INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992); see also Abdille v. Ashcroft, 242 F.3d
477, 484 (3d Cir. 2001) (“[T]he BIA’s finding must be upheld
unless the evidence not only supports a contrary conclusion, but
compels it.”).

                        III. Discussion

        The Attorney General and his delegates may grant asylum
to any alien who qualifies as a refugee under the Immigration
and Nationality Act (“INA”). 8 U.S.C. § 1158(b)(1). A refugee
is an alien who is “unable or unwilling” to return to his or her



denials of his claims for withholding of removal and CAT
protection were incorrect. We therefore deem those claims
waived and address only the asylum claim. See Laborers’ Int’l
Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d
Cir. 1994) (a passing reference to an argument in a party’s brief
is insufficient to bring the issue before this Court).

                               8
country of origin “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). Aliens have the burden of
supporting their asylum claims. Gao v. Ashcroft, 299 F.3d 266,
272 (3d Cir. 2002). “Testimony, by itself, is sufficient to meet
this burden, if ‘credible.’” Id. (citing 8 C.F.R. § 208.13(a)).

       To establish eligibility for asylum, an applicant must
demonstrate past persecution by substantial evidence or a well-
founded fear of future persecution that is both subjectively and
objectively reasonable. Lukwago v. INS, 329 F.3d 157, 177 (3d
Cir. 2003). The persecution must be “committed by the
government or forces the government is unable or unwilling to
control.” Gao, 299 F.3d at 272 (internal quotation omitted).

        We now turn to the arguments Vente advances in favor
of reversal: (1) the BIA erred in failing to conduct an
independent corroboration inquiry after overturning the IJ’s
negative credibility determination; (2) the BIA’s determination
that he did not meet his burden of proof was based on a factually
flawed characterization of his asylum claim; and (3) the BIA
erred in determining that Vente had an internal resettlement
alternative.

       A.     Corroboration

       Vente asserts that the BIA committed reversible error

                               9
under Miah v. Ashcroft, 346 F.3d 434 (3d Cir. 2003), and
Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001), because it did
not conduct an independent corroboration analysis after
reversing the IJ’s mixed credibility determination and finding
that he had testified credibly. This contention, which his
counsel acknowledged at oral argument was not Vente’s
strongest position, we easily dispense with.

       In Abdulai, we set out a three-part inquiry that the BIA
must engage in when it determines that the production of
corroborating evidence is necessary for an otherwise credible
asylum applicant to meet his/her burden of proof. 239 F.3d at
554.4 Subsequently, in Miah we held that when the BIA
rejected an IJ’s adverse credibility finding, it should have (1)
reached its own conclusions on corroboration by performing an
Abdulai analysis, or (2) remanded the case to the IJ for a new
corroboration analysis, instead of merely reiterating the IJ’s
findings on whether there had been sufficient corroboration.
346 F.3d at 440. Our concern in Miah was the effect that a
changed credibility determination—from unfavorable to


  4
    In such a case, the BIA must conduct the following analysis:
“(1) an identification of the facts for which it is reasonable to
expect corroboration; (2) an inquiry as to whether the applicant
has provided information corroborating the relevant facts; and
if he or she has not, (3) an analysis of whether the applicant has
adequately explained his or her failure to do so.” Abdulai, 239
F.3d at 554 (internal quotation marks omitted).

                               10
favorable—would have on the degree of corroboration required
of an asylum applicant when the IJ had already required the
submission of corroborating evidence. Id.

       By contrast, corroboration was never an issue in Vente’s
case. Neither the IJ nor the BIA requested the submission of
corroborating evidence, and the case was decided at both levels
on the basis of Vente’s testimony alone. Nothing in Miah
suggests that the BIA, after reversing an IJ’s credibility finding,
must always conduct an independent corroboration analysis (or
remand to the IJ for a corroboration analysis) when
corroborating evidence was never an issue in the case. Indeed,
such a rule would make mandatory what we characterized in
Abdulai as an optional inquiry into corroborating evidence. See
239 F.3d at 554 (holding that “the BIA may sometimes require
otherwise-credible [asylum] applicants to supply corroborating
evidence in order to meet their burden of proof”) (emphasis
added).

       Because Miah and Abdulai, taken together, do not stand
for the proposition that the BIA must always conduct an
independent corroboration analysis after vacating an IJ’s adverse
credibility finding, Vente’s argument that the BIA should have
performed such an analysis in his case, where corroboration was
never an issue, is unpersuasive.          What the BIA did
here—determining that Vente testified credibly but still did not
meet his burden of proof—is not unusual. Cf. Ahmed v.
Ashcroft, 341 F.3d 214, 216 (3d Cir. 2003) (affirming BIA

                                11
decision holding that alien who testified credibly nonetheless
did not satisfy the burden of proof required of asylum applicants
because he had not shown that the adverse treatment he feared
rose to the level of persecution). We must therefore consider
Vente’s argument that the BIA’s determination was incorrect
because it was based on a factually flawed characterization of
his asylum claim.

       B.     The Asylum Claim

       As stated earlier, the BIA’s decision that Vente did not
have a well-founded fear of persecution if returned to
Colombia—and that he was therefore not eligible for
asylum—rested on two findings: (1) the general unrest in
Colombia did not provide a basis for asylum; and (2) Vente’s
parents and brother remain in Colombia, and there is no
evidence that they have been harmed. These findings miss the
mark.

       First, the record clearly shows that Vente’s asylum claim
is based not on allegations of general social unrest in Colombia
but on the specific threats that he received from paramilitary
organizations that identified him as having collaborated with the
guerillas.5 The Government’s argument to the contrary—that


  5
  As discussed above, the persecution that Vente fears must be
committed by the Colombian government or forces that
government is unwilling or unable to control in order for him to

                               12
the BIA’s finding that Vente’s claim was based on general
unrest is supported by substantial evidence because some of the
threats from the paramilitaries in the record are directed
generally at residents of the area in which Vente lived—is
unavailing. The Government is correct that some of the threats
from the paramilitary groups were directed at the residents of the
region in which Vente lived. See A.R. at 144–47 (letters from
the “United Auto Defense of Colombia” threatening residents of
“the region of Valle del Cauca”). However, one of the threats
includes Vente’s name on a list of people identified by a
paramilitary organization as having collaborated with the
guerillas. See id. at 142–43. Another of the threats is
specifically directed against Vente and states that he should not
have returned home to see his mother. See id. at 118 (letter
addressed to “Mr. Rodolfo Vente Vente[,] Known Residence[,]
Buenaventura Valle del Cauca” and ordering him to leave the
region or “suffer the consequences”).6


be eligible for asylum. The Government makes no argument
that Vente is not eligible for asylum because the persecution he
fears is not attributable to such actors. In addition, there is
evidence in the record that the Colombian government has done
little to address the problem of links between its military and
paramilitary groups. See A.R. at 268 (Human Rights Watch,
The “Sixth Division”: Military-[P]aramilitary Ties and U.S.
Policy in Colombia, Sept. 2001).
  6
    The translation of this threat, dated February 6, 2001, reads
in pertinent part as follows:

                               13
For your information, the central
command of the united auto-
defenses of Colombia-AUC, have
met with the purpose of discussing
your personal disobedience of
having returned to the department
of the Valley of Cauca after having
named you a person not apt to live
in this department when it was
found that you were an auxiliary to
the guerilla which operates in this
zone according to the investigations
done by this command.             The
Central Command has determined
for the first and only time to pardon
your life taking into account the
delicate state of health of your
mother. But at the same time, we
demand that you disappear from the
department, to not return to the
zone you were asked to vacate nor
return to the place where your
mother lives, for the second and
last time, in a 24 hour term, starting
today, 6 th of February 2001, at
11:00[] p.m.[;] otherwise, we are
not responsible and you will suffer
the consequences.


                 14
       Moreover, Vente’s testimony focused on the threat in
which he was named as a collaborator. The general social and
political unrest in Colombia was a component of his testimony
only insofar as he testified that paramilitary groups operate
throughout the country and that the Colombian government did
not have the resources to protect him. In any event, there is no
indication in the BIA decision that its conclusion that Vente
could not succeed—because general unrest does not provide a
basis for asylum—was drawn from the more general threats in
the record.

        Second, the BIA’s focus on the fact that Vente’s family
members remain in Colombia, and that they apparently have not
suffered any harm, is misplaced. The status of Vente’s family
is irrelevant to an inquiry into whether his own fear of
persecution by paramilitary organizations upon return to
Colombia is subjectively and objectively reasonable. Vente
does not claim that the persecution he allegedly faces is on
account of kinship ties (in other words, Vente does not argue
that he fears persecution on account of membership in a
particular social group) or that his family members were ever
targeted in the way that he was.

       In sum, the BIA’s findings, as discussed above, are
wholly unsupported by the record and essentially ignore the
actual basis of Vente’s asylum claim. “When deficiencies in the


A.R. at 118.

                              15
BIA’s decision make it impossible for us to meaningfully review
its decision, we must vacate that decision and remand so that the
BIA can further explain its reasoning.” Kayembe v. Ashcroft,
334 F.3d 231, 238 (3d Cir. 2003). That is the situation in which
we find ourselves here. Given that Vente’s asylum claim is
based on the specific threats he received from paramilitary
groups in Colombia, it is unclear why the BIA even addressed
the general unrest in Colombia or whether members of Vente’s
family suffered harm. We must therefore remand this case to
the BIA for a fresh look at Vente’s asylum claim—one that
focuses on the true underpinnings of that claim.

       C.     Internal Resettlement Alternative

        Although we have concluded that the deficiencies in the
BIA’s analysis of whether Vente has a well-founded fear of
persecution mandate a remand of this case to the BIA, we briefly
address his argument that the BIA erred in determining that he
had an internal resettlement alternative. Under the governing
asylum regulations, “[a]n 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.” 8 C.F.R. § 1208.13(b)(2)(ii). An
applicant who has not established past persecution “bear[s] the
burden of establishing that it would not be reasonable for him or
her to relocate, unless the persecution is by a government or is
government-sponsored.” 8 C.F.R. § 1208.13(b)(3)(i).



                               16
        The IJ concluded that Vente had an obligation to relocate
within Colombia. In its analysis of whether Vente had
established past persecution, the BIA noted that Vente had
“lived in Cali from 1993 until 1998, and again prior to his
departure to Colombia in February of 2001; he testified that he
had no problems with paramilitaries while living in Cali.” The
BIA went on to “find that [Vente]’s ability to live in Cali for a
number of years, and immediately prior to his departure from
Colombia, suggests either that the ‘threat’ of persecution was
not country-wide or that he was not a serious target of political
violence.” It is unclear whether the BIA meant, by making this
finding, to indicate its agreement with the IJ’s internal
resettlement analysis. A straightforward reading of the BIA’s
decision indicates that, rather than making an internal
resettlement determination, it merely found that Vente’s prior
residence in Cali was evidence that he had not suffered past
persecution.

       Thus, to the extent that the BIA appears not to have made
an explicit finding that Vente did not have a well-founded fear
of persecution because he could relocate to Cali, his argument
misconstrues the BIA’s decision. We note, however, that
Vente’s residence in Cali from 1993 to 1998, long before he
received the threats on which his asylum claim is based, is quite
irrelevant to whether he suffered past persecution due to the
threats and to whether relocation to Cali (or another part of
Colombia) was a reasonable possibility for him after he received
the threats. We also do not believe that Vente’s brief residence

                               17
in Cali, which was apparently without incident, prior to his
departure from Colombia in 2001 determines whether he has a
reasonable possibility of relocating to Cali.

       On remand, we encourage the BIA, if it deems necessary
an inquiry into Vente’s potential for internal relocation within
Colombia, to be more explicit in its reasoning on this issue and
to look only at the resettlement possibilities that currently exist
for Vente without reference to his place of residence there
before he received the threats at issue in his asylum claim. We
also reiterate that, on remand, it is Vente’s obligation to
demonstrate that he would not have avoided future persecution
by relocating to Cali in 2001, however brief that relocation may
have been.

                        IV. Conclusion

        Although Vente’s argument that the BIA should have
conducted an independent corroboration analysis in his case is
unpersuasive, he is correct that the BIA mischaracterized the
nature of his asylum claim. Because the BIA’s reasoning in
denying Vente’s asylum claim on the ground that he does not
have a well-founded fear of persecution if returned to Colombia
is without grounding in the record, and because we are unable
to discern why the BIA chose to focus in its decision on issues
that were at most tangentially relevant to Vente’s claim, we
grant the petition for review and remand this case to the BIA for
further proceedings consistent with this opinion. See INS v.

                                18
Ventura, 537 U.S. 12, 16 (2002) (per curiam).




                             19
