Luz Marina Barros; Paulos De Jesus Barros v. Attorney General of the United States

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-4812
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LUZ MARINA BARROS; PAULOS DE JESUS BARROS,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A95-873-435 & A95-873-436)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 2, 2009
Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges.
(Opinion Filed: December 4, 2009)
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OPINION
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PER CURIAM.
Luz Barros, a native and citizen of Colombia, and her husband, Paulo De
Jesus Barros, a native and citizen of Portugal who resided in Colombia before entering
the United States, entered the country in 2002 and 2001 respectively. Both overstayed

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Paulo De Jesus Barros’ application for asylum is derivative of his wife’s application.1
Therefore, in this opinion “Barros” refers to Luz Marina Barros.
“FARC” stands for “Fuerzas Armadas Revolucionarias de Colombia.” The group2
was originally established “to serve as the military wing of the Colombian Communist
Party.” Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 668 (7th Cir. 2005).
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their visas and the Government issued them Notices to Appear. On June 28, 2002, Luz
Barros (“Barros”) filed an application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In her asylum application, and in her1
testimony before the Immigration Judge (“IJ”), Barros alleged that she feared that FARC
guerillas would kidnap and torture her and her husband if they returned to Colombia.2
Barros testified that guerillas targeted her and her husband because of the wealth they
acquired from their various businesses. Her first encounter with the guerillas was in
1999, when they called her home, threatened her, and demanded money. She also
testified that in 2000, the guerillas killed a cow on their property.
Barros testified that she and her husband first came to the U.S. in 1999 to
visit family. They did not apply for asylum at that time because they believed that the
situation in Colombia would improve. The couple returned to Colombia but came back to
the U.S. again in 2001, but again did not apply for asylum because they did not have any
documentation. Barros further testified that in 2002 she returned to Colombia to have
surgery and that she lived with her parents and two sisters without incident.
The IJ denied the Petitioners’ applications for relief. The IJ found that
while Petitioners’ successful business made them targets of guerillas seeking money, their

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affluence did not qualify as a protected ground for asylum purposes. The IJ further
questioned the validity of Barros’ fear given that she returned to Colombia after initially
leaving in 1999. The IJ also denied Petitioners’ claims for withholding of removal and
protection under CAT. Petitioners appealed to the Board of Immigration Appeals
(“BIA”) which adopted and affirmed the IJ’s decision. Petitioners appealed to this Court
and we granted the Government’s unopposed motion to remand the case to the BIA in
order to address whether wealthy landowners constitute a particular social group. (A.R. at
486-88.)
The BIA remanded the case to the IJ, who held a hearing on the merits of
whether the FARC would persecute Petitioners based on their land ownership or based on
Paulo de Jesus Barros’ Portuguese nationality. Barros testified that she feared that FARC
guerillas would target her because of both her husband’s nationality and her land
holdings. The IJ again denied relief, finding that there was no evidence to support
Barros’ claim that she would be targeted based on her husband’s Portugese nationality.
Further, the IJ also found that land ownership does not constitute a social group and that
the guerillas extorted money from Barros based on her wealth and not her land holdings.
The Petitioners appealed to the BIA which concurred with the IJ’s finding that FARC
targeted Barros because of her wealth and that wealthy landowners do not qualify as a
social group under the asylum statute. The BIA also agreed that Barros did not present
evidence that the couple would be targeted based on her husband’s Portuguese

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Inasmuch as Petitioners do not argue that the husband’s Portuguese nationality is a3
basis for relief, we do not consider the merits of that claim. See Konan v. Att’y Gen., 432
F.3d 497, 500 n.2 (3d Cir. 2005).
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nationality. Petitioners then filed a petition for review in this Court.
We have jurisdiction under 8 U.S.C. § 1252. We uphold the BIA’s
determinations if they are supported by reasonable, substantial, and probative evidence on
the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.
2008). Under the substantial evidence standard, the BIA’s determinations “must be
upheld unless the evidence not only supports a contrary conclusion, but compels it.”
Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (citing INS v. Elias-Zacarias,
502 U.S. 478, 481 n.1 (1992)).
To be granted asylum, Petitioners must show that they are “unable or
unwilling to return to [Colombia] . . . because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. §
1158(b)(1)(A). To be eligible for withholding of removal, Petitioners must demonstrate
that “there is a greater-than-fifty-percent chance of persecution” in Colombia based on
one of the protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998); see
also 8 U.S.C. § 1231(b)(3).
Petitioners argue that the BIA and IJ erred by ignoring evidence of their
membership in a social group of wealthy landowners and industrialists. (Petr.’s Br. at3

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Because Petitioners filed their asylum application before the passage of the REAL4
ID Act of 2005, they are required to show that the persecution was caused “at least in
part” by membership in a protected group. Ndayshimiye, 557 F.3d at 129.
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14.) This argument, however, does not address the BIA’s holding that respondents did
not show the required “nexus” between their alleged persecution and a statutorily
protected ground. See Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir. 2009) (“a
key task for any asylum applicant is to show a sufficient ‘nexus’ between persecution and
one of the listed protected grounds.”) That is, even if Petitioners’ status as wealthy4
landowners meets the definition of a “social group” under the asylum statute, they have
not produced evidence that the unfortunate incidents Barros’ testified to were a result of
their membership in that group. As the Government notes, Barros’s own opinion that the
guerillas targeted her family “for who we are, for what we have,” is not sufficient
evidence of a connection between the alleged persecution and a social group. See Babani
v. Gonzales, 492 F.3d 20, 22 (1st Cir. 2007) (per curiam) (petitioner’s opinion is
insufficient evidence to show that mistreatment was connected to a protected ground).
Petitioners rely on the Seventh Circuit’s decision in Tapiero de Orejuela v.
Gonzales, 423 F.3d 666 (7th Cir. 2005), to support their argument. In that case, the
Seventh Circuit held that educated, wealthy, landowners in Colombia could qualify as a
social group under the asylum statute. Id. at 673. The FARC guerillas in Orejuela
threatened the petitioners because the father of the family was a “renowned” cattle
rancher and the family was part of a “privileged group” that had gone to schools and

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universities. Id. at 672. Moreover, the guerillas murdered the husband, tracked the
family’s movements, and repeatedly threatened the sons. Id. at 670.
In the instant case, Petitioners attempt to establish that they belong to the
same social group as the petitioners in Orejuela by providing evidence of their education,
their landownership, and of their business activities. They also point to incidents in
which thieves burglarized their home, and assailants killed a cow on their property,
kidnapped the family dog, and threatened them with kidnapping over the telephone. The
missing piece, however, is any indication that the incidents were a result of their
landownership or business holdings instead of wealth, which they concede does not,
standing alone, satisfy the requirements for a “social group.” (Petr.’s Br. at 27.) While
we agree with Petitioners that the alleged persecutors need not spell out their motives in
order for the BIA to find social group motivated persecution, in the absence of any
evidence linking the incidents to Petitioner’s status as wealthy landowners, the record
does not compel a different result. See Abdille, 242 F.3d at 494 (“ordinary criminal
activity does not rise to the level of persecution necessary to establish eligibility for
asylum”); see also Hincapie v. Gonzales, 494 F.3d 213, 219 (1st Cir. 2007) (“After all,
guerillas and common criminals are equally apt to resort to violent means to accomplish
their goals, and it is the alien’s burden to give the adjudicator some basis for
differentiation in a given case.”)
We are also unpersuaded by Petitioners’ argument that they face a

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likelihood of future persecution in Colombia because of their landownership and wealth.
Petitioners’ voluntary return to Colombia in 1999, 2001, and Barros’ return in 2002,
(A.R. at 579-82), strongly suggests that they do not have a fear of future persecution and
cannot, therefore, satisfy the subjective prong of the ‘well-founded fear’ test. See Toloza-
Jimenez v. Gonzales, 457 F.3d 155, 161 (1st Cir. 2006) (holding that the fact that Toloza
“traveled twice to the United States . . . and yet she returned to Colombia each time,
strongly indicat[ed] that she has no fear of persecution.”). Finally, Petitioners’ failure to
demonstrate eligibility for asylum necessarily means that they failed to qualify for
withholding of removal. See Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir.
2006).
For these reasons we will deny the petition for review.

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