De Santamaria v. U.S. Attorney General

525 F.3d 999, 2008 U.S. App. LEXIS 8657
Court of Appeals for the Eleventh Circuit·Decided April 22, 2008·No. 06-16221·Published·Cited by 185 cases

Opinion

STORY, District Judge:

This Court suasponte vacates its prior opinion, published at 512 F.3d 1308 (11th Cir.2008), and enters the following opinion in its place.

This is an asylum case, in which we have been asked to determine whether Ximena Sanz de Santamaría, a Colombian lawyer and political activist, was politically persecuted by the Revolutionary Armed Forces of Colombia when she was repeatedly threatened, twice physically attacked, terrorized by the torture and murder of a family Mend who refused to give information on her whereabouts, and finally, kidnapped and beaten only to narrowly escape with her life by the intervention of the Colombian military. The Immigration Judge (“IJ”), despite finding that these acts occurred, concluded that they did not rise to the level of persecution. The IJ also found that Santamaría could not demonstrate a subjective fear of future persecution because she left and returned to Colombia on several occasions between the time these incidents occurred. The Board of Immigration Appeals (“BIA”) affirmed. Because the record compels us to conclude otherwise, we grant Santamaria’s petition, vacate the denial of her asylum application, vacate the order of removal, and remand to the BIA for proceedings consistent with this opinion.

I. BACKGROUND

Santamaría is a native and citizen of Colombia. At her hearing before the IJ, Santamaría testified that she was an active member of the Colombian Liberal Party and various other political and social groups. She was formerly married to the Colombian ambassador to Peru and often met with Colombian political leaders in Bogota. In 1993, while studying law, San-tamaría joined the New Democratic Force, a group devoted to advancing democratic government in Colombia. Santamaría often traveled to Mosquera, a town on the outskirts of Bogota, to speak with teenagers in support of the democratic leadership of Colombia and against joining rebel groups such as the Revolutionary Armed Forces of Colombia (“FARC”). Santama-ría also raised funds on behalf of impoverished people in Mosquera and assisted in efforts to construct new schools there. In 1997, after completing her law degree, Santamaría founded Ayuda Con Amor (“Help With Love”), an organization that raised money to assist the poor in Mosqu-era and other municipalities surrounding Bogota. By 1998, she was regularly holding meetings with citizens of Mosquera to discuss local political affairs. She also campaigned for the reelection of the mayor of Mosquera, who opposed FARC’s presence in the region.

Santamaría testified that it was on account of these activities that she became a political target of FARC. Soon after she began traveling to Mosquera to hold meetings, Santamaría started receiving threats by mail and telephone, warning her that FARC would retaliate if she did not end her political activities. In November of 1998, Santamaría had her first face-to-face encounter with FARC rebels. While she was driving away from her home in Bogota, three men dressed in camouflage and wearing FARC bracelets intercepted San-tamaría. The men surrounded her vehicle, *1004 and one forced Santamaría out of her car by her hair. He threw her face-first onto the ground, and jarred his foot into Santa-maria’s back. The man identified himself as Commander Julian from the Fifth Front of the FARC, insulted Santamaría for her work in support of the Colombian government, and told her that she was an “enemy of the people.” He warned Santa-maría that she would be killed if she was caught again in Mosquera. After the incident, Santamaría was taken to the hospital and treated for wounds to her face and back.

After the November 1998 encounter, Santamaría changed residences and had a bulletproof door installed on her apartment door in Bogota. 1 But she continued traveling to Mosquera, albeit less visibly. To evade detection, she used different vehicles for transportation and often refrained from speaking publicly. Still, she received phone threats at her parents’ farm in Bogota. In July of 1999, she returned to Bogota to find red graffiti reading “Death to Help With Love” painted on her parents’ home. She found similar graffiti threatening the organization she had founded painted on the main square of Mosquera.

Santamaría testified that she feared that FARC rebels would carry out their threats. She visited a psychiatrist, who treated her for anxiety. In the two months that followed, Santamaría left Colombia on at least three occasions. She traveled to the United States once in August of 1999 and twice in September of 1999. She testified that she traveled abroad in part to evade detection by FARC rebels, and in part to relieve the increasing stresses of her Colombian life. But despite the threats she received from FARC, Santamaría returned to Colombia, determined to continue her political and philanthropic activities.

On December 1, 1999, several FARC members showed up at Santamaria’s farm looking for Santamaría. Santamaria’s groundskeeper and long-time family friend, Mario, was there alone with his son. The men demanded to know Santamaria’s whereabouts. Mario resisted, and the men began torturing Mario. When Mario continued to refuse to disclose Santamaria’s location, the men shot Mario to death in the presence of his son.

As the result of Mario’s killing, Santa-maría again sought psychiatric help. Her family encouraged her to leave Colombia. Instead, she attempted to change her appearance by cutting her hair and dying it black and resolved to continue her work in Mosquera. On December 10, 1999, she quietly planned to make a trip to Mosqu-era with several members of Help With Love to deliver grants to several children in Mosquera. She told no one of their plans. On the way to the meeting, the bus she was riding stopped at a grocery store where she knew the owner. She entered the store and found the owner unusually quiet, but nervously attempting to communicate something to Santamaría. At that point, a man who had been loitering in the store stepped up and shot the store owner. Approximately nine other men appeared. They identified themselves as members of FARC and read aloud a list of four wanted individuals, including Santamaría. After identifying Santamaría, one said to her, “we’ve told you not to show yourself again you bourgeois governmental bitch.” The men took Santamaría into the back, forced her onto the ground, and began beating her with the butts of their guns. Eventually, the men loaded Santamaría into a *1005 van. One told Santamaría that they were going to a camp in the mountains, where she would first meet the local FARC commander and then be killed. After the van traveled about two miles, Santamaría heard gunshots, and the van stopped. The FARC men left the van and engaged in a firefight with the Colombian military. One Colombian soldier ran up to the van and freed Santamaría. She was eventually airlifted out by helicopter to a hospital in Bogota and treated for trauma and wounds to her face and thorax.

Santamaria’s anxiety grew worse. In March of 2000, Santamaría left Colombia to spend some time in the United States, but returned to Colombia and stayed for several more months. She continued to receive threatening phone calls.

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De Santamaria v. U.S. Attorney General, 525 F.3d 999, 2008 U.S. App. LEXIS 8657 (11th Cir. 2008).

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