May 27, 2014
The National Immigrant Justice Center and pro bono partners from Sidley Austin LLP filed a petition for review at the U.S. Court of Appeals for the Seventh Circuit on behalf of a Colombian woman and her derivative husband and daughter. N.L.A.’s family owned land in Colombia that FARC guerillas wished to tax and acquire. The FARC first targeted N.L.A.’s uncle for extortion. When he resisted, they murdered him. The FARC next pressured N.L.A.’s father to relinquish the title to his land to them. When he refused, FARC guerillas kidnapped him and interrogated him. Under duress, N.L.A.’s father disclosed information about his children, including N.L.A., and said that title to the land belonged to N.L.A. and her sister. The FARC guerillas released N.L.A.’s father, telling him N.L.A. and her sister would be killed if they did not pay the FARC or transfer the land to them.
After N.L.A.’s father communicated the FARC's threat to N.L.A. and her sister, both women and their families fled. N.L.A.’s sister remained in Colombia, but assumed a different name, moves her family often, changes mobile phones regularly, and registered her business under the name of an associate.
N.L.A. and her family fled to the United States and applied for asylum. In her asylum claim, counsel argued N.L.A. had experienced past persecution on account of her membership in several particular social groups related to her status as a landowner and as the daughter of a landowner. The Immigration Judge (IJ), affirmed by the Board of Immigration Appeals (BIA), denied asylum after finding that N.L.A. was basing her claim on “derivative harm” and holding that she could relocate within Colombia to avoid persecution.
In its decision, the Court of Appeals for the Seventh Circuit found the record compelled contrary conclusions. The Court found the BIA erred in concluding that the persecution of N.L.A.’s family members and related threats to her did not constitute persecution of N.L.A. The Court was troubled by the “derivative harm” concept. Casting the torture and murder of N.L.A.’s family members and the accompanying threats to her as merely "derivative" misapprehends the nature and seriousness of the harm to N.L.A. The Court noted that its precedent holds that credible threats of death or grave harm can constitute persecution and found that the torture and murder of N.L.A.’s family members demonstrates that the threats issued by the FARC – which named N.L.A. directly – were credible and rise to the level of persecution. The Court further found that just because N.L.A. was not herself touched when her father and uncle were harmed does not mean those acts do not count as persecution of N.L.A. On the contrary, the Court noted, “watching a loved one suffer is more harmful that suffering oneself.” Because of the nature of the harm inflicted and the fact that it was directed towards N.L.A. to demonstrate that she would be next if she did not cooperate, it constitutes past persecution.
The Court also rejected the BIA’s finding that N.L.A. could avoid future harm by relocating within Colombia. The BIA relied on the fact that N.L.A.’s sister remains in Colombia and has not been located by the FARC as proof of this assertion. However, the Court found it “simply defies logic” to conclude that N.L.A.’s sister – who moves and changes phones frequently, lives under an assumed name, and has her business listed under the name of as associate – has successfully and safely relocated internally. Abundant precedent establishes that living in hiding is not safe relocation and “[o]ne need not be secreted in an attic behind a hidden bookcase to be living in hiding.”
The court proceeded to find that, contrary to the BIA’s holding, N.L.A.’s persecution was on account of her membership in a particular social group (PSG). Though the precise definition of N.L.A.’s PSG shifted throughout her case, the Court found that since the various characteristics of each group were considered, the PSG claim could persist and the characteristic of being a Colombian landowner may form the basis of a viable PSG. The Court relied on its en banc decision in Cece v. Holder, 733 F.3d 662 (7th Cir. 2013)(en banc), to dismiss the notion that a PSG must be narrow in order to be valid. The court reiterated that it would be “antithetical to asylum law to deny refuge to a group of persecuted individuals who have valid asylum claims merely because too many have valid claims.” Additionally, because PSG membership is but one of many elements of asylum, recognizing a large PSG does not mean that every member would seek – much less receive – asylum.
Finally, the Court surveyed prior Colombian asylum cases involving persecution by the FARC (Escobar v. Holder, 657 F.3d 537 (7th Cir. 2011); Tapiero de Orejuela v. Gonzales, 425 F.3d 666 (7th Cir. 2005)) and found the record may not support a finding that the Colombian government is willing and able to protect N.L.A. from FARC persecution.
In light of the sundry errors by the BIA, the Court granted N.L.A’s petition for review and remanded the matter to the BIA.
Counsel filed the petition for review on July 26, 2011. A three-member panel of judges from the Seventh Circuit heard oral arguments on January 20, 2012 and the petition for review was granted on March 3, 2014, over two years after the case was argued. N.L.A. is represented by Lisa Koop and Charles Roth of NIJC and Kelly Huggins of Sidley Austin LLP.
Read the full opinion here.
NIJC note: The N.L.A. decision is particularly encouraging because it reaffirms the Seventh Circuit’s analysis in PSG asylum claims following the issuance of Matter of M-E-V-G-, 26 I.&N. Dec. 227 (BIA 2014), and Matter of W-G-R-, 26 I.&N. Dec. 208 (BIA 2014) by the BIA. Those decisions purport to require that a PSG be “socially distinct” and also seek to impose an illogical and unworkable “particularity” requirement. NIJC believes the new BIA decisions do not change the asylum analysis in the Seventh Circuit. We articulate that argument in our practice advisory, which is located here.
N.L.A. also demonstrates the importance of establishing a strong record at the USCIS Asylum Office (AO) and IJ levels. Here, the Court was able to identify the link between the torture and murder of N.L.A.’s family members and the FARC’s targeting of N.L.A. because N.L.A.’s testimony and affidavit demonstrated that link. The detailed description of the steps N.L.A.’s sister has taken to avoid detection by the FARC made is possible for the Court to recognize the absurdity the BIA’s allegation that she was living “openly.” Furthermore, N.L.A.’s country condition expert, the many conditions articles and reports she entered into the record, and the consistent and detailed testimony of N.L.A. made it possible for the Court to conclude that the BIA had ignored record evidence about the Colombian government’s ability and willingness to control the FARC.