Santamaria v. U.S. Atty Gen'l (11th Cir. 4/22/08) (sua sponte vacating earlier decision at 512 F.3d 1308 (11th Cir. 2008))

STORY (DCt), Edmondson, Dubina

The 11th Cir found that Colombian asylum applicant had suffered extreme mistreatment at hands of the FARC (counting the murder of her groundskeeper as persecution of her); found that 5 returns to Colombia did not show lack of subjective fear, where persecutions increased over time.

Read opinion here: 

1.  Record compelled conclusion that past events rose to the level of persecution.

   We think that these events, taken together, constitute extreme mistreatment. In so concluding, we reject the government’s contention that Santamaria did not endure past persecution because the record reflects “no significant physical attacks.” (Resp. at 15 n.8.) Even if Santamaria’s physical injuries were relatively minor, we have not required serious physical injury where the petitioner demonstrates repeated threats combined with other forms of severe mistreatment. E.g., Ruiz, 479 F.3d at 766 & n.2 (kidnapping); Sanchez Jimenez, 492 F.3d at 1233 (attempted murder); Mejia, 498 F.3d at 1255 (assault with firearms resulting in a broken nose). Santamaria suffered the trauma of repeated death threats, two physical attacks, the murder of a family friend, and a kidnapping cut short only by a harrowing escape. These acts are sufficiently extreme to constitute persecution. Based on this undisputed testimony before the IJ, we are compelled to find that Santamaria endured past persecution.

1a.  In footnote, found that killing of her groundskeeper, in attempt to discover her whereabouts, was evidence that she suffered persecution because she was also threatened at the time.

   We may consider a threatening act against another as evidence that the petitioner suffered persecution where that act concomitantly threatens the petitioner. See Ruiz, 479 F.3d at 762 (considering a rape of wife of petitioner’s friend during the kidnapping of petitioner as evidence of persecution); Niftaliev, 504 F.3d at 1211 (noting same); Delgado, 487 F.3d at 861-62 (considering severe beating of petitioner’s son as evidence that petitioner suffered persecution).

2.  Found that evidence compelled conclusion that persecution was due to her support of the Liberal Party in Colombia.

3.  Rejected the IJ's finding that because she returned to Colombia 5 times, she didn't have subjective fear of persecution - factually, several returns were before the worst persecution, and legally, while return is relevant, it does not "always and inherently" negate a fear of persecution.

   As a legal matter, we conclude that the IJ erred in determining that, despite Santamaria’s credible testimony that she feared persecution if she returned to Colombia, her acts in previously returning to Colombia on various occasions after traveling abroad nullified her proof of subjective fear of future persecution. An asylum applicant’s voluntary return to his or her home country is a relevant consideration in determining whether the asylum applicant has a well-founded fear of future persecution. See, e.g., Ngarurih v. Ashcroft, 371 R.3d 182, 188-89 (4th Cir. 2004); Hakeem v. INS, 273 F.3d 812, 816-17 (9th Cir. 2001). Voluntary returns to a home country may weaken or undermine an applicant’s claim of persecution. Id. However, we do not endorse the principle espoused by the IJ – that a voluntary return to one’s home country always and inherently negates completely a fear of persecution. Cf. Pavlova v. INS, 441 F.3d 82, 89 n. 5 (2d Cir. 2006) (“In light of strong attachments to their home countries, refugees may venture abroad in a state of uncertainty about the permanence of their departure, hoping that the persecution will abate so that they can return home.”).

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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.