Barros v. Attorney General of the United States

354 F. App'x 716
CourtCourt of Appeals for the Third Circuit
DecidedDecember 4, 2009
DocketNo. 08-4812
StatusPublished

This text of 354 F. App'x 716 (Barros v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barros v. Attorney General of the United States, 354 F. App'x 716 (3d Cir. 2009).

Opinion

OPINION

PER CURIAM.

Luz Barros, a native and citizen of Colombia, and her husband, Paulo De Jesus Barros, a native and citizen of Portugal who resided in Colombia before entering the United States, entered the country in 2002 and 2001 respectively. Both overstayed their visas and the Government issued them Notices to Appear. On June 28, 2002, Luz Barros (“Barros”) filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).1 In her asylum application, and in her testimony before the Immigration Judge (“IJ”), Barros alleged that she feared that FARC guerillas would kidnap and torture her and her husband if they returned to Colombia.2 Barros testified that guerillas targeted her and her husband because of the wealth they acquired from them various businesses. Her first encounter with the guerillas was in 1999, when they called her home, threatened her, and demanded money. She also testified that in 2000, the guerillas killed a cow on their property.

Barros testified that she and her husband first came to the U.S. in 1999 to visit family. They did not apply for asylum at that time because they believed that the situation in Colombia would improve. The couple returned to Colombia but came back to the U.S. again in 2001, but again did not apply for asylum because they did not have any documentation. Barros further testified that in 2002 she returned to Colombia to have surgery and that she lived with her parents and two sisters without incident.

[718]*718The IJ denied the Petitioners’ applications for relief. The IJ found that while Petitioners’ successful business made them targets of guerillas seeking money, their affluence did not qualify as a protected ground for asylum purposes. The IJ further questioned the validity of Barros’ fear given that she returned to Colombia after initially leaving in 1999. The IJ also denied Petitioners’ claims for withholding of removal and protection under CAT. Petitioners appealed to the Board of Immigration Appeals (“BIA”) which adopted and affirmed the IJ’s decision. Petitioners appealed to this Court and we granted the Government’s unopposed motion to remand the case to the BIA in order to address whether wealthy landowners constitute a particular social group. (A.R. at 486-88.)

The BIA remanded the case to the IJ, who held a hearing on the merits of whether the FARC would persecute Petitioners based on their land ownership or based on Paulo de Jesus Barros’ Portuguese nationality. Barros testified that she feared that FARC guerillas would target her because of both her husband’s nationality and her land holdings. The IJ again denied relief, finding that there was no evidence to support Barros’ claim that she would be targeted based on her husband’s Portuguese nationality. Further, the IJ also found that land ownership does not constitute a social group and that the guerillas extorted money from Barros based' on her wealth and not her land holdings. The Petitioners appealed to the BIA which concurred with the IJ’s finding that FARC targeted Barros because of her wealth and that wealthy landowners do not qualify as a social group under the asylum statute. The BIA also agreed that Barros did not present evidence that the couple would be targeted based on her husband’s Portuguese nationality. Petitioners then filed a petition for review in this Court.

We have jurisdiction under 8 U.S.C. § 1252. We uphold the BIA’s determinations if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008). Under the substantial evidence standard, the BIA’s determinations “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

To be granted asylum, Petitioners must show that they are “unable or unwilling to return to [Colombia] ... 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); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible for withholding of removal, Petitioners must demonstrate that “there is a greater-than-fifty-percent chance of persecution” in Colombia based on one of the protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998); see also 8 U.S.C. § 1231(b)(3).

Petitioners argue that the BIA and IJ erred by ignoring evidence of their membership in a social group of wealthy landowners and industrialists.3 (Petr.’s Br. at 14.) This argument, however, does not address the BIA’s holding that respondents did not show the required “nexus” between their alleged persecution and a statutorily protected ground. See Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir.2009) (“a key task for any asylum applicant is to show a sufficient [719]*719‘nexus’ between persecution and one of the listed protected grounds.”)4 That is, even if Petitioners’ status as wealthy landowners meets the definition of a “social group” under the asylum statute, they have not produced evidence that the unfortunate incidents Barros’ testified to were a result of their membership in that group. As the Government notes, Barros’s own opinion that the guerillas targeted her family “for who we are, for what we have,” is not sufficient evidence of a connection between the alleged persecution and a social group. See Babani v. Gonzales, 492 F.3d 20, 22 (1st Cir.2007) (per curiam) (petitioner’s opinion is insufficient evidence to show that mistreatment was connected to a protected ground).

Petitioners rely on the Seventh Circuit’s decision in Tapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir.2005), to support their argument. In that case, the Seventh Circuit held that educated, wealthy, landowners in Colombia could qualify as a social group under the asylum statute. Id. at 673. The FARC guerillas in Orejuela threatened the petitioners because the father of the family was a “renowned” cattle rancher and the family was part of a “privileged group” that had gone to schools and universities. Id. at 672. Moreover, the guerillas murdered the husband, tracked the family’s movements, and repeatedly threatened the sons. Id. at 670.

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Related

Toloza-Jimenez v. Gonzales
457 F.3d 155 (First Circuit, 2006)
Babani v. Gonzales
492 F.3d 20 (First Circuit, 2007)
Lopez De Hincapie v. Gonzales
494 F.3d 213 (First Circuit, 2007)
Yusupov v. Attorney General of the United States
518 F.3d 185 (Third Circuit, 2008)

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Bluebook (online)
354 F. App'x 716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barros-v-attorney-general-of-the-united-states-ca3-2009.