N.L.A. v. Eric Holder, Attorney General. Immigration, asylum, persecution by FARC.
N.L.A. was given permission to file this appeal without using her full name because of the fear of retribution by the Revolutionary Armed Forces of Colombia (FARC). Her uncle had been kidnapped and killed, and her father had experienced a harrowing kidnapping by FARC for refusing to pay a "vacuna"--an extortion to prevent FARC violence. The father and uncle were farmers, and FARC had demanded these payments and interrogated the father about the ownership of the land and the whereabouts of his family members.
This began a period in which N.L.A. and her family lived undercover under assumed names and used only unlisted cell phones to communicate. Eventually, N.L.A. went to the U.S. embassy to request asylum, but was told that she needed a lawyer to commence the process. The lawyer advised her that since she was eligible for a tourist visa, she should go to the U.S. and file the asylum claim there. The family abandoned its property and left for the safety of the United States, where she filed for asylum. After she was safely in the United States, neighbors in Colombia reported that suspicious looking people had continued poking around the farm. However, there had been no violence against family members since she arrived in the United States. Her petition for asylum was denied by an immigration judge and by the Board of Immigration Appeals, and she appealed to the Seventh Circuit Court of Appeals.
The immigration judge had denied the claim because the only threats had been against the father, and not against N.L.A. personally.
The court first noted that the immigrant must show that he or she can't return to the home country because of persecution or a well-founded fear of persecution. The court also noted that credible threats of imminent death or grave physical harm are sufficient to show persecution. And the court agreed with N.L.A. that the kidnappings and murder of her uncle and father were warnings to her that she was targeted to be next if she didn't pay the vacuna, since she was also an owner of the farm property. As the court put it, this was a direct message to N.L.A. that "if you do not pay the vacuna, this will happen to you as well."
The immigration judge and appeals board had dismissed the claim as being "derivative" of the father's claim. But the court disagreed. It held that this was a threat to N.L.A. herself, under these circumstances. And the only reason that N.L.A. wasn't threatened directly was because she went into hiding immediately after the father's kidnapping.
The court went on to say that in addition to the past persecution, these facts amounted to a well-founded fear of future persecution. The court pointed to expert testimony that FARC has an extensive network of spies, and it would only be a matter of time until they found her.
To gain asylum, the persecution must be on account of membership in a certain group, one of which is social group. The court held that land ownership can constitute a social group for purposes of the asylum laws. Finally, the Court held that N.L.A. had shown sufficient evidence that the Colombian government was unable to protect her from these threats. Even though FARC has been somewhat weakened, the expert witness testified as to the group's tenacity. For these reasons, the court granted the petition for review and remanded the case to the Board of Immigration Appeals.
No. 11-2706 (7th Cir. Mar. 3, 2014)
Please see the original opinion for the court's exact language.
Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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