Posada-Martinez v. Attorney General of United States

370 F. App'x 332
CourtCourt of Appeals for the Third Circuit
DecidedMarch 11, 2010
DocketNo. 09-1102
StatusPublished

This text of 370 F. App'x 332 (Posada-Martinez v. Attorney General of 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.

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Posada-Martinez v. Attorney General of United States, 370 F. App'x 332 (3d Cir. 2010).

Opinion

OPINION

PER CURIAM.

Fredy Horacio Posada-Martinez petitions for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will grant the petition for [334]*334review and remand the matter to the BIA to address Posada-Martinez’s motion to remand with respect to his claim under the Convention Against Torture (CAT).

Posada-Martinez, a native of Colombia, entered the United States in December 2005. He was charged as removable as an alien without valid entry documents. He conceded removability and applied for asylum, withholding, and CAT relief. He argued that he had been threatened in Colombia by the guerrillas of the Revolutionary Armed Forces of Colombia (FARC) on account of his political opinion and his membership in a particular social group. After a hearing, the IJ found Po-sada-Martinez credible but denied relief. Posada-Martinez appealed to the BIA and filed a motion to remand based on his brother’s murder in Colombia.

The BIA dismissed the appeal. It concluded that the threats and physical assault Posada-Martinez experienced in the past were not severe enough to constitute persecution. The BIA concluded that the IJ’s determination that the guerillas were only interested in Posada-Martinez’s money was not clearly erroneous. The BIA rejected Posada-Martinez’s argument that he was targeted by the guerrillas because he was a union leader or based on an actual or imputed political opinion. The BIA denied Posada-Martinez’s motion to remand based on his brother’s murder in Colombia. It determined that the murder did not constitute persecution and that Po-sada-Martinez was unable to show that one central reason for his brother’s death was on account of a protected ground. Posada-Martinez filed a timely petition for review.

We have jurisdiction pursuant to 8 U.S.C. § 1252. To establish eligibility for asylum, Posada-Martinez must demon-sti'ate either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See Vente v. Gonzales, 415 F.3d 296, 300 (3d Cir.2005). He needs to show that the protected ground was or will be at least one central reason for the persecution. 8 U.S.C. § 1158(b)(l)(B)(i). For withholding of removal, he must demonstrate that it was more likely than not that his life would be threatened in Colombia on account of one of these protected grounds. Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003); 8 U.S.C. § 1231(b)(3)(A). To be eligible for withholding of removal under the Convention Against Torture, Posada-Martinez needs to show that it is more likely than not that he would be tortured if removed to Colombia. 8 C.F.R. § 208.16(c)(2).

We review the BIA’s factual determinations under the substantial evidence standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003)(en banc). The BIA’s findings are considered conclusive unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We exercise de novo review over the BIA’s legal decisions. Toussaint v. Attorney General, 455 F.3d 409, 413 (3d Cir.2006).

At his hearing, Posada-Martinez testified that he had worked on his family’s farm and had been the president of a community group called the Union for Community Action (Union). A.R. at 129. He stated that his first direct encounter with the guerillas was in August 2004. The guerillas were friendly, asked him how things were on the farm and at the Union, and stated that they wanted an economic or financial collaboration. A.R. at 134. Posada-Martinez believed their request was extortion but did not take it seriously or pay them any money. He testified that during a subsequent encounter the guerillas told him if he did not pay, they would [335]*335harm him and his family. The guerillas asked for approximately $50,000. A.R. at 135. Posada-Martinez believed that the guerillas thought he had access to money because the farm was going well and he had access to the Union’s money. He stated that during the most hostile encounter he was hit on the shoulders with the back of a gun. A.R. at 136. Posada-Martinez had no contact with the guerillas while the military was patrolling the area during May and June of 2005 but they returned once the military left. A.R. at 136-37.

Posada-Martinez submitted documents to support his claims. In a letter dated May 2005, the guerillas stated that they had heal'd that Posada-Martinez was influential in his job. They stated that he must pay one hundred million pesos within forty-five days. They indicated that they knew he had access to the budget of the Union. They warned him that if he went to the police, he and his family would pay the consequences. A.R. at 189. In July 2005, Posada-Martinez received another communication from the guerillas asking for money. In a letter dated August 28, 2005, the guerillas noted that he had not complied with their last request and that he should consider himself their “military objective” for not fulfilling his duty. A.R. at 192. In response, Posada-Martinez moved to another city. When his former employees told him that the guerillas were looking for him, he left and came to the United States.

Past Persecution

Posada-Martinez argues that he is entitled to asylum based on past persecution on account of his membership in a particular social group of landowning farmers and community leaders. We need not reach the question of whether the threats made against Posada-Martinez constituted past persecution or whether union leaders1 may be considered a particular social group. He is unable to show that the record compels a finding that his membership in a particular social group was a central reason for any past persecution. The BIA determined that the guerrillas’ inquiry into Posada-Martinez’s position in the Union did not show that his position was a central reason for their actions. The BIA upheld the IJ’s finding that the guerrillas were interested only in Posada-Martinez’s money. This finding is supported by the evidence described above.

Posada-Martinez argues that he testified that the guerrillas targeted him because he ran the farm and was president of the Union. He also points out that the guerrillas noted that he was influential in his job. However, this statement was followed by a demand for money and the guerrillas noting that they knew Posada-Martinez had access to the Union’s money. A.R. at 189.

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