Carlos M. Zapata-Marulanda; Gloria I. Galeano De Zapata v. Attorney General of the United States

IMG-007 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2476
___________
CARLOS M. ZAPATA-MARULANDA;
GLORIA I. GALEANO DE ZAPATA,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. 97-849-375 and 97-849-376)
Immigration Judge: Alberto Riefkohl
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
November 2, 2009
Before: FUENTES, ROTH and VAN ANTWERPEN, Circuit Judges
(Opinion filed: January 11, 2010)
_________
OPINION
_________
PER CURIAM
Petitioners Carlos Zapata-Marulanda and Gloria Galeano de Zapata (“petitioners”),
husband and wife, are natives and citizens of Colombia. They seek review of a final

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Zapata-Marulanda is the lead petitioner, and Galeano de Zapata sought derivative1
asylum pursuant to 8 U.S.C. § 1158(b)(3)(A).
FARC is “a leftist guerrilla revolutionary group, . . . active throughout much of2
Colombia. The FARC was officially formed in 1966 and has continuously and often
violently opposed the Colombian government since that time. The FARC is designated as
a terrorist organization by the United States Government. While the FARC is active
throughout Colombia, it holds particular sway in many rural areas where it effectively
controls local politics and the civilian population.” Gomez-Zuluaga v. Att’y Gen., 527
F.3d 330, 335 (3d Cir. 2008).
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order of removal. Because we conclude that substantial evidence supports the BIA’s
determination that petitioners do not have a well-founded fear of future persecution and,
as a result, that they are not entitled to asylum, we will deny their petition for review.
I.
Petitioners last entered the United States on April 26, 2003. In November 2003,
they were served with a Notice to Appear, charging them as overstays in violation of 8
U.S.C. § 1227(a)(1)(B). Petitioners conceded removability and applied for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”). In1
the alternative, petitioners requested voluntary departure. In support of their requests,
Zapata-Marulanda, as lead petitioner, argued that he had been persecuted by guerrillas
from the Revolutionary Armed Forces of Colombia (“FARC”) on account of an imputed2
political opinion.
According to Zapata-Marulanda, this persecution began in 1997 after he – in his
position as a supervisor in a textile factory – reported a loss of inventory in the fabric used

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to make uniforms for the armed forces of Colombia. The army intelligence unit (rather
than the police) conducted an investigation and discovered that several workers were
stealing the material and selling it to the guerrillas; this allowed the guerrillas to sew and
tailor authentic-looking uniforms. The workers were eventually fired and arrested.
Somehow the guerrillas discovered Zapata-Marulanda’s involvement in the investigation
and targeted him as a “military objective” for his actions. Zapata-Marulanda received
threatening phone calls, during which the stolen fabric was referenced, and three
unknown men appeared at Zapata-Marulanda’s workplace looking for him.
Because of his fear of retribution from the guerillas, Zapata-Marulanda was forced
to quit his job of 26 years, and he and his wife moved from place to place (including three
trips to the United States). Zapata-Marulanda alleged that despite these moves, FARC
caught up with him in July of 2001 while he was in Barranquilla. At that time, three men
– who were allegedly guerrillas looking for Zapata-Marulanda – were in a shootout with
police across the street from where petitioner was hiding out. All three were fatally
wounded. For the next year or so, petitioners moved around to ensure their own safety
and eventually relocated to the United States for good in 2003.
After a hearing during which Zapata-Marulanda testified to these events, the
Immigration Judge (“IJ”) denied petitioners all relief with the exception of voluntary
departure. The IJ characterized petitioners’ case as one amounting to “a request for
protection under or similar to our whistle blower laws.” (IJ Op. at 6.) The IJ further

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While the IJ noted that a newspaper article that Zapata-Marulanda submitted in3
support of the July 2001 shootout was never rebutted by DHS, he nonetheless stated that
the article (also characterized as “the best evidence in the case”) had internal problems.
Although the article reported that the shootout occurred on July 28, Zapata-Marulanda
stated that it happened on July 29. Moreover, the IJ noted that the article mentioned
Zapata-Marulanda by name and intimated that he had been targeted for assassination, but
he nonetheless criticized the article for failing to indicate the reason for the attempted
assassination and the force behind that attempt. Despite these observations, the IJ did not
make an adverse credibility determination.
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commented that the “main issue in these cases is whether the connection between the
alleged persecutor and the [petitioners] has been established. Id. at 7. The IJ concluded
that Zapata-Marulanda’s testimony was not supportive of such a “link.” Without3
discussing petitioners’ prayer for relief in the form of withholding of removal or under the
CAT, the IJ denied petitioners’ requests for relief and ordered them removed after a 60-
day period of voluntary departure.
The BIA dismissed petitioners’ appeal. Citing to Matter of Fuentes, 19 I&N Dec.
658, 661 (BIA 1988), the BIA concluded that Zapata-Marulanda did not suffer past
persecution on account of a protected ground. It further concluded that, in any event, the
acts described by Zapata-Marulanda did not detail mistreatment of sufficient severity to
constitute past persecution. The BIA likewise determined that Zapata-Marulanda does
not have a well-founded fear of future persecution, reasoning that he has never been
physically harmed in Colombia, and any alleged fear is belied by petitioners’ repeated
travels back and forth between the United States and Colombia after the July 2001
shootout, before finally coming to the United States and seeking asylum in 2003. Finally,

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the BIA concluded that petitioners necessarily failed to satisfy the standard for
withholding of removal, or to establish that it is more likely than not that Zapata-
Marulanda would be tortured by the government of Colombia upon returning to that
country. Petitioners filed this petition for review.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. §
1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). Because the BIA
provided its own analysis, we review the decision of the BIA. See Lukwago v. Ashcroft,
329 F.3d 157, 166 (3d Cir. 2003). We review the BIA’s factual findings for substantial
evidence, see Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir. 2007), upholding
them “unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.
2003) (en banc). We will treat Zapata-Marulanda’s testimony, summarized above, as
credible. See Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009) (“Under the Act, if
no adverse credibility determination is explicitly made, the applicant or witness shall have
a rebuttable presumption of credibility on appeal”) (emphasis added, quotation omitted).
III.
The only issue presented is whether the BIA’s determination that petitioners are

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By failing to challenge the BIA’s determination that they are ineligible for4
withholding of removal and CAT relief in their opening brief, petitioners have waived
those issues. See Ghana v. Holland, 226 F.3d 175, 180 (3d Cir. 2000) (“Rule 28(a) of the
Federal Rules of Appellate Procedure and our Local Appellate Rule 28.1(a) require
appellants to set forth the issues raised on appeal and to present an argument in support of
those issues in their opening brief”); see also Chen v. Ashcroft, 381 F.3d 221, 235 (3d
Cir. 2004).
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not entitled to asylum is supported by substantial evidence. We conclude that it is.4
To obtain asylum as refugees, petitioners must show that they are unable or
unwilling to return to Colombia because of past persecution or a well-founded fear of
future persecution. See 8 U.S.C. § 1101(a)(42). “[P]ersecution connotes extreme
behavior, including ‘threats to life, confinement, torture, and economic restrictions so
severe that they constitute a threat to life or freedom.’” Ahmed v. Ashcroft, 341 F.3d
214, 217 (3d Cir. 2003) (quotation omitted). A demonstration of a well-founded fear of
persecution, by itself, would entitle petitioners to asylum relief. See Camara, 580 F.3d at
202. A demonstration of past persecution, on the other hand, “raises a presumption of a
well-founded fear of future persecution” that shifts the burden to the Government.
Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003).
The alleged persecution must be “on account of a statutorily enumerated ground
that is committed by the government or by forces the government is unable or unwilling
to control.’” Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 288 (3d Cir. 2007)
(quotation omitted); see also Singh v. Gonzales, 406 F.3d 191, 197 (3d Cir. 2005) (“[A]n
applicant must show that the persecution was motivated, at least in part, by one of the

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protected characteristics”) (emphasis in original). Race, religion and political opinion are
all statutorily enumerated grounds. See 8 U.S.C. § 1101(a)(42)(A).
As already noted, the BIA relied on its decision in Matter of Fuentes to support its
conclusion that petitioners had “not suffer[ed] past persecution in Colombia on account of
a protected ground under the Act.” (BIA Op. at 2.) It reasoned that revolutionary
struggles involving guerrillas often involve violence against “civilian institutions that
support domestic stability and the strength of the existing government,” and that the
dangers those institutions face “are no more related to their personal characteristics or
political beliefs than are the dangers faced by military combatants.” Id. The BIA’s
reliance on Matter of Fuentes is misplaced as it does not appear that Zapata-Marulanda
was targeted by FARC because the textile plant where he worked made uniforms for the
military. It does not appear, however, that Zapata-Marulanda was targeted by FARC
because the textile plant where he worked made uniforms for the military. Rather, he,
and he alone, was targeted because the information he provided sabotaged FARC’s illicit
supply of military-issued materials that was being stolen by its operatives working within
that company.
But even assuming both that Zapata-Marulanda was targeted by FARC because of
an imputed political opinion, see, e.g., Delgado v. Mukasey, 508 F.3d 702, 707 (2d Cir.
2007) (petitioner who would be targeted by FARC in the future for betraying them, when
coupled with government’s unwillingness to control FARC, could show persecution for

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Moreover, petitioners’ children have resided in Colombia since the time of the5
alleged persecution without any harm. See Abdulrahman, 330 F.3d at 592 n.3
(presumption of well-founded fear of persecution can be rebutted with evidence that
petitioner can reasonably avoid persecution by relocating to another part of his or her
country); cf. Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (“[W]hen family members
remain in petitioner’s native country without meeting harm, and there is no individualized
showing that petitioner would be singled out for persecution, the reasonableness of a
petitioner’s well-founded fear of future persecution is diminished”).
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an imputed political opinion in the form of opposition to FARC), and that the July 2001
shootout is sufficient to constitute past persecution, see, e.g., Sanchez Jimenez v. Att’y
Gen., 492 F.3d 1223, 1233 (11th Cir. 2007) (attempted murder of petitioner by FARC
constitutes past persecution), the record reveals substantial evidence to rebut any
presumption that petitioners’ fear of future persecution is well-founded. See Camara, 580
F.3d at 202 (“a well-founded fear of future persecution is the touchstone of asylum”). As
advanced by the Government, and as specifically outlined by the BIA,
[Zapata-Marulanda]’s claim to a well-founded fear of future
persecution is undercut by the fact that he traveled to the United States
on three previous occasions, and returned to Colombia each time. All
three trips to the United States occurred during the time frame that
[Zapata-Marulanda] alleges the persecution was taking place in
Colombia. Finally, [Zapata-Marulanda] remained in Colombia for
nearly two years after the July 2001 shoot out [sic] between the police
and FARC before finally coming to the United States and filing for
asylum.
(BIA Op. at 2.) For those reasons, we agree with the BIA that petitioners do not have a
well-founded fear of future persecution.5
Accordingly, we will deny the petition for review.

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