Friday, August 20, 2010

Espinosa-Cortez: BIA Required To Conclude Anti-FARC Colombian Targeted In Part For His Imputed Political Beliefs

Espinosa-Cortez v. Holder
June 2, 2010

Judges Rendell, Ambro, and Fuentes. Opinion by Judge Fuentes.

For Mr. Espinosa-Cortez, Peter M. Rogers (argued) of Peters & Rogers, PC in Pittsburgh. For the government, Dalin R. Holyoak (argued), Kristen Giuffreda Chapman, Regina Byrd, and Francis W. Fraser.

The IJ and the BIA concluded a man from Colombia did not have a reasonable fear he would be persecuted due to his political beliefs, which a key part of his asylum claim.

The Third Circuit overturned the BIA even though it took a deferential approach. The Third Circuit concluded that the BIA's ruling was so out of line that it a reasonable adjudicator would be compelled to arrive at a contrary conclusion. The BIA was very far out of line.

Although someone who fears threats from a guerilla organization trying to recruit him does not automatically qualify for asylum, certain facts here would compel a reasonable adjudicator to conclude FARC's pursuit of Mr. Espinosa-Cortez was at least partly motivated by a political opinion it believed he held. For example, his close, direct affiliation with and support of the Colombian government and military. Although he was not directly employed by the government, he was closely affiliated with the government, provided support to it, and depended on it for his livelihood.

Two other distinctions are that he engaged in protracted resistance to FARC's resistance efforts (not merely being approached by guerrillas on a single occasion as in the case of Elias-Zacarias). Also, he made his anti-FARC views known to the persecutors when he rejected their requests.


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