Angela Adriana Rivera Melo v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 31, 2018
• Docket: 17-14133
• Status: Unpublished

Opinion

Case: 17-14133 Date Filed: 10/31/2018 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14133 Non-Argument Calendar ________________________

Agency No. A203-034-057

ANGELA ADRIANA RIVERA MELO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(October 31, 2018)

Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 17-14133 Date Filed: 10/31/2018 Page: 2 of 10

Angela Melo, a native and citizen of Colombia, petitions for review of the

Board of Immigration Appeals’ decision to deny her asylum and withholding of

removal claims. After careful review, we grant the petition and remand for further

proceedings.

I.

Melo grew up in Colombia as part of a politically active family. 1 Her father

was a member of the Colombian Liberal Party and served as a councilman at

varying points in time for two different municipalities, La Mesa and Anolaima. As

a child, Melo accompanied her father to party meetings. She eventually followed

in her father’s footsteps and joined the party as well.

Her family’s political connections helped secure Melo a job after she

finished law school. At her father’s request, the mayor of Anolaima, who was also

a member of the Colombian Liberal Party, appointed Melo to serve as the police

and traffic inspector for the municipality. Part of Melo’s responsibilities as

inspector included corpse retrieval. As a result, when the office received word in

February 2000 of a dead body found in one of Anolaima’s rural districts, Melo was

dispatched to the scene of the homicide. While there, she noticed a bracelet

bearing the word “FARC” resting on the ground by the body. FARC refers to the

Revolutionary Armed Forces of Colombia, an anti-government guerilla group.

1 The BIA presumed Melo was credible, as do we. The factual background therefore draws heavily from her testimony before the immigration judge (“IJ”). 2 Case: 17-14133 Date Filed: 10/31/2018 Page: 3 of 10

Melo tagged the bracelet as evidence and attached it to a report, both of which she

then forwarded to the prosecutor’s office.

The next day, she returned to her office and found a folded piece of paper on

her desk. The letter was signed “FARC, Front 42” and warned her not to file

evidence of the bracelet if she wished to avoid certain consequences. Melo

ignored the threat because it “was against [her] principles and ethics,” and did not

bring the note to the attention of her superiors.

Two months passed without incident. In April, however, five young men

cornered Melo while she rode the bus home from work. The bus was mostly

empty, and the men surrounded Melo by sitting in front of her, next to her, and

directly behind her. They greeted her by name and asked her why she was being

so “disobedient.” They wondered why she didn’t pay attention to the orders “fired

at [her]” and expressed their hope that “nothing [would] happen” to her as a result

of her disobedience. Before they left the bus, they warned her one last time to do

as they said and advised her that if she wanted to stay in their good graces, she

could choose to work for them.

A month later, an unknown man approached Melo while she was conducting

a land survey and told her, “Doctor, we have not forgotten you.” Melo

immediately thought the man was a member of FARC. Alarmed by this series of

events, Melo informed the Army commander and a local government

3 Case: 17-14133 Date Filed: 10/31/2018 Page: 4 of 10

representative of the encounter. They assigned her a police officer as security

detail in response. However, the officer was only permitted to guard Melo during

her work hours.

Nonetheless, the threats continued to escalate. In late May of the same year,

Melo received an anonymous phone call at her work place warning her not to be

“too confident” and telling her she would “soon . . . have more news from us.”

Frightened, Melo asked for leave and fled to her friend’s place, which was located

far from Anolaima. While there, she received another phone call. This time, the

caller asked how her vacation was going and informed her that in a few days, some

“associates” would meet her at her office so she could issue them health insurance

cards normally reserved for low-income people. The anonymous caller

specifically told Melo, “I imagine that you have not forgotten us, because we have

not forgotten you, . . . [e]specially for what you did. . . . Don’t fail us. We’ll

know.”

Melo returned to work in August. She informed the mayor and police

commander of these threats, and was assigned a police officer for protection once

again. In September, a woman came into her office and requested a health

insurance card. Melo informed the woman she could not issue the card because it

was not part of her responsibilities as inspector. Upon hearing this, the woman

became enraged and exclaimed, “Did the bosses talk to you? What do you think,

4 Case: 17-14133 Date Filed: 10/31/2018 Page: 5 of 10

that we’re playing games? We’re the FARC, Front 42. And . . . you . . . have

become a military target.”

The mayor told Melo FARC was just trying to scare her and that they

wanted a favor from her. He also told her they could not afford to give her

additional officers for protection. In the meantime, Melo received numerous

pamphlets, notes, and phone calls castigating her for disobeying instructions and

ordering her to “work for us.” Approximately half a year later, a bomb exploded at

a conference Melo was scheduled to attend. Three people died and many were

wounded. Melo escaped unscathed because she had been delayed by bad weather

while traveling to the forum. Feeling “totally cornered and accosted [by FARC],”

Melo resigned from her position a few months later and moved to Bogotá to stay

with family.

While living in Bogotá, Melo received a sympathy card signed by Front 42.

The card explained that the bomb had been meant for her and that she would not

escape the next one. Convinced she had indeed become a military target, Melo

soon fled to the United States, arriving on September 27, 2001. She applied for

asylum on May 28, 2002, alleging persecution based on political opinion and her

status as a former government employee who refused to assist FARC. The

Immigration and Naturalization Service denied her application on September 26,

2002.

5 Case: 17-14133 Date Filed: 10/31/2018 Page: 6 of 10

On August 23, 2011, the Department of Homeland Security (“DHS”)

commenced removal proceedings against Melo and issued her a Notice to Appear.

DHS charged her with removability under 8 U.S.C. §§ 1227(a)(1)(B) and

1227(a)(1)(G)(ii) for overstaying her nonimmigrant visa and entering into a false

marriage for the purpose of procuring an immigrant visa. Through counsel, Melo

admitted both charges and renewed her 2002 application for asylum, withholding

of removal, and protection under the Convention Against Torture (“CAT”) as relief

from removal. Following a hearing, the IJ denied Melo’s applications and ordered

her removed to Colombia. The BIA affirmed the IJ’s order of removal solely on

the basis Melo had failed to establish she suffered persecution on account of a

protected ground for her asylum and withholding claims, otherwise known as the

“nexus” requirement. 2

Melo timely petitioned for review.

II.

Where, as here, the BIA does not expressly adopt the IJ’s opinion, our

review is limited only to the BIA’s decision, except to the extent the BIA “adopts

the IJ’s reasoning.” See Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).

We review de novo the BIA’s conclusions of law, and any factual determinations

2 Melo did not appeal the IJ’s denial of her CAT claim to the BIA. 6 Case: 17-14133 Date Filed: 10/31/2018 Page: 7 of 10

under the substantial evidence test. See Zhou Hua Zhu v. Attorney Gen., 703 F.3d

1303, 1307 (11th Cir. 2013).

III.

A petitioner seeking asylum or withholding of removal “must establish a

nexus between a statutorily protected ground and the feared persecution.”

Mehmeti v. U.S. Attorney Gen., 572 F.3d 1196, 1200 (11th Cir. 2009) (per

curiam). Relying solely on this requirement, the BIA denied Melo’s asylum and

withholding applications for failing to “show[] that her political opinion was at

least one central reason for any past harm or feared future harm.” The BIA

assumed Melo’s proposed social group of former Colombian government

employees who refused to help FARC was legally cognizable. It nonetheless

affirmed the IJ’s decision because the IJ “did not clearly err in finding a failure to

show that FARC was not motivated simply by a desire not to be implicated in

criminal activity.”

Melo argues the BIA erred because she presented sufficient evidence to

demonstrate that she suffered past persecution based at least in part on either her

political opinion or her status as a former government employee who refused to

assist FARC. This claim consists of two separate arguments, one legal and the

other factual. The legal question is whether the BIA applied the correct standard

when assessing whether Melo sufficiently showed a nexus between the harm she

7 Case: 17-14133 Date Filed: 10/31/2018 Page: 8 of 10

suffered and a protected ground. Because we conclude the agency did not, we

need not address whether substantial evidence supports the BIA’s factual

determinations. 3

The crux of the BIA’s mistake is this: Melo’s asylum and withholding

claims are governed by the law as it existed prior to the enactment of the REAL ID

Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. Because Melo filed her asylum

application in 2002, and the REAL ID Act did not take effect until May 11, 2005,

the agency was required to apply the pre-REAL ID Act standard for nexus—

which, as the government acknowledges in its brief, the agency did not. See Kaur

v. Gonzales, 418 F.3d 1061, 1064 n.1 (9th Cir. 2005).4

Before the enactment of the REAL ID Act, a petitioner like Melo could

demonstrate persecution on account of a protected ground as long as she could

3 We note, however, Melo provided ample evidence FARC targeted her for reasons that went beyond a simple desire to avoid criminal prosecution. She testified FARC escalated its threats and detonated a bomb meant for her after she declined to issue one of its members a health insurance card. Similarly, she was not told she had become a military target of FARC’s until after the health insurance incident. She received countless notes, pamphlets, and calls ordering her to obey FARC’s directives and threatening harm if she did not. Indeed, the BIA acknowledged in its decision that Melo’s testimony “further reflects that FARC continued to harass her because of her refusal to work with them.” Because the BIA assumed Melo’s proposed social group of former Colombian government employees who refused to assist FARC was legally cognizable, it is difficult to see how substantial evidence could support the agency’s determination that there was no nexus between the harm Melo suffered and Melo’s status as a member of that group. 4 In a footnote, the government suggests Melo does not challenge the BIA’s use of an erroneous legal standard. But, as the government acknowledges, Melo repeatedly cites the correct standard and argues that her evidence can meet it. We take this as a challenge to the BIA’s legal error. See Fed. Sav. & Loan Ins. Corp. v. Haralson, 813 F.2d 370, 373 n.3 (11th Cir. 1987). 8 Case: 17-14133 Date Filed: 10/31/2018 Page: 9 of 10

show that “the harm was motivated, at least in part, by an actual or implied

protected ground.” Matter of N-M-, 25 I. & N. Dec. 526, 530 (BIA 2011)

(quotation marks omitted); see also Tan v. U.S. Attorney Gen., 446 F.3d 1369,

1375 (11th Cir. 2006) (adopting same standard). Thus, a petitioner could qualify

for asylum as long as one of the motives for harm was protected, even if that

motive was not necessarily a driving force behind the persecutor’s actions. See In

re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 n.9 (BIA 2007) (clarifying the

difference); see also H.R. Rep. No. 109-72, at 162–63 (same).

The REAL-ID Act has since established a petitioner applying for asylum

after May 11, 2005 must show that his or her “race, religion, nationality,

membership in a particular social group, or political opinion was or will be at least

one central reason for persecuting the applicant.” In re J-B-N & S-M-, 24 I. & N.

Dec. at 212 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). In other words, the protected

ground must be a primary or essential part of the persecutor’s motivation. A

number of courts have recognized that this language “places a more onerous

burden on the asylum applicant than the ‘at least in part’ standard . . . previously

applied.” Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009); see Shaikh

v. Holder, 702 F.3d 897, 901 (7th Cir. 2012) (“Indeed, the word ‘central’ requires

applicants to show, not just that a protected status played some part in motivating a

9 Case: 17-14133 Date Filed: 10/31/2018 Page: 10 of 10

persecutor but that it played more than a superficial or minor part.”); Shaikh v.

Holder, 588 F.3d 861, 864 (5th Cir. 2009).

Melo’s 2002 asylum application should have been analyzed under the “at

least in part” nexus standard. Instead, the BIA required Melo to show that her

protected grounds were “at least one central reason” for her persecution. 5 This was

legal error, and it necessitates reversal.

We therefore grant Melo’s petition for review and remand her asylum and

withholding claims to the BIA for reconsideration in light of this opinion.

PETITION GRANTED AND REMANDED.

5 It is not entirely clear which standard the BIA applied to Melo’s claimed protected social group of former Colombian government employees who refused to assist FARC. Because the BIA agreed with the IJ’s reasoning on this point, we may look to the IJ’s decision for guidance. See Zhou Hua Zhu, 703 F.3d at 1307. Here, the IJ found that Melo failed to show the requisite nexus between her proposed social group and the harm she suffered because “it is unclear that FARC was targeting [her] solely because she is a member of that group.” This was clearly erroneous. As this Court has explained, “[o]ne of th[e] five [protected] grounds need not be the only motivation for the persecution.” Sanchez Jimenez v. U.S. Attorney Gen., 492 F.3d 1223, 1233 (11th Cir. 2007). This is true of both pre- and post-REAL ID asylum applications. See In re J-B-N & S-M-, 24 I. & N. Dec. at 213 (explaining the REAL ID Act continues to protect “aliens whose persecutors were motivated by more than one reason”). 10