Ana Milena Serna-Garcia v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 04-2254
___________
ANA MILENA SERNA-GARCIA,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A79-425-124)
(U.S. Immigration Judge: Honorable Henry S. Dogin)
_______________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 9, 2009
Before: Chief Judge SCIRICA, CHAGARES and ALDISERT, Circuit Judges
(Filed: September 24, 2009)
_________
OPINION OF THE COURT
_________
PER CURIAM.
Ana Milena Serna-Garcia petitions for review of the Board of Immigration
Appeals’ (“BIA”) final order of removal. We will grant her petition in part, deny it in
part, and remand for further proceedings.

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We recently summarized FARC’s role in the ongoing Colombian civil war in Gomez-1
Zuluaga v. Attorney General, 527 F.3d 330, 335 (3d Cir. 2008), and those background
observations apply equally to the record in this case.
2
I.
Serna-Garcia is a native and citizen of Colombia. She arrived in the United States
in 2001 without a valid entry document, and the Government instituted removal
proceedings. Serna-Garcia concedes removability, but seeks asylum, statutory
withholding of removal, and withholding of removal under the Convention Against
Torture (“CAT”). Serna-Garcia claims that she fears being kidnaped and tortured by the
leftist guerilla revolutionary group known as the Fuerzas Armadas Revolucionarias de
Colombia (“FARC”) on account of her imputed political opinion and membership in a
particular social group.1
Serna-Garcia’s mother moved to the United States in 2000, leaving Serna-Garcia
(then twenty years of age) to care for her four-year-old sister. Serna-Garcia also lived
with her older brother. Their family is affluent, and they own three homes in Colombia
and have wealthy relatives in the United States. Serna-Garcia claims that she fled to the
United States after receiving approximately six threatening phone calls over a period of
approximately six weeks. The callers did not identify themselves, but she believes them
to be members of FARC. The callers demanded that she pay 15 million pesos and
threatened that, if she refused, they would kidnap and otherwise harm her or her sister.

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3
Serna-Garcia believes that she was targeted for these threats because she is a single young
woman of financial means.
Serna-Garcia testified to the foregoing at her hearing before the Immigration Judge
(“IJ”). (A.153, 160-63.) She also acknowledged that, though she does not support
FARC, she has never taken any action against it. (A.151.) The IJ acknowledged FARC’s
pervasive use of kidnaping and extortion and found credible Serna-Garcia’s testimony
that FARC had threatened her. The IJ denied asylum and statutory withholding, however,
because he concluded that those threats were motivated merely by FARC’s desire to fund
its operations and not by any political opinion held by Serna-Garcia. The IJ also stated
that wealth could not form the basis for a political asylum claim, though he never
specifically addressed Serna-Garcia’s claim that she is a member of a particular social
group. The IJ denied Serna-Garcia’s CAT claim on the sole basis that she had not shown
any threat from the Colombian government (as opposed to FARC).
Serna-Garcia also testified about other circumstances, which the IJ found not to be
credible. She testified that her brother is associated with FARC, that he is violent and has
abused her, and that he once threatened to take their younger sister from her. (A.157-59.)
Serna-Garcia did not present these allegations as an independent claim for relief, although
the IJ appears to have believed she did. The IJ rejected her testimony about her brother
because Serna-Garcia had not mentioned her brother during her airport or credible fear
interviews and had provided no corroboration (for example, by calling her mother as a

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We stayed this petition at Serna-Garcia’s request for approximately four years while2
she pursued an application for an adjustment of status based on her marriage to a United
States citizen. That application has now been denied, and we have lifted the stay. The
parties have filed supplemental briefs, and this petition is ripe for disposition.
4
witness). Serna-Garcia also testified that, while she was in college, FARC members
sometimes disrupted classrooms with guns and bombs and caused the school to close for
a period of months. The IJ did not specifically reject this testimony, but dismissed it as an
attempt to “interject ideology into this case,” which he rejected. Serna-Garcia appealed,
and the BIA summarily affirmed. She now petitions for review.2
II.
We have jurisdiction under 8 U.S.C. § 1252. “Where, as here, the BIA affirms the
IJ’s decision without opinion, we review the IJ’s decision as the final agency
determination.” Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008). In doing so, we
review legal issues de novo, subject to established principles of deference, and review any
factual determinations for substantial evidence, which means that we may not disturb
them unless “‘any reasonable adjudicator would be compelled to conclude to the
contrary.’” Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 339-40 (3d Cir. 2008) (quoting
8 U.S.C. § 1252(b)(4)(B)). Under principles of agency review, we may not reach issues
that the IJ did not address. See INS v. Ventura, 537 U.S. 12, 16 (2002). Thus, if the IJ
failed to address a claim or applied the wrong legal standard, we must remand for the BIA
to address the claim or apply the proper standard in the first instance. See Valdiviezo-

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For this reason, we reject the Government’s repeated invitations to affirm on the basis3
of issues that the IJ did not reach.
Serna-Garcia did not raise any issue regarding political opinion before the BIA, so4
there is some question of whether she has exhausted this claim. See 8 U.S.C. §
1252(d)(1). But see Singh v. Gonzales, 413 F.3d 156, 160 n.3 (1st Cir. 2005) (finding
jurisdiction over claims not raised before the BIA where the BIA summarily affirmed the
IJ’s decision) (cited in Lin v. Att’y Gen., 543 F.3d 114, 123 (3d Cir. 2008)). We need not
5
Galdamez v. Att’y Gen., 502 F.3d 285, 291 (3d Cir. 2007) (citing Ventura, 537 U.S. at
16). Serna-Garcia raises essentially four arguments, which we will address in turn.3
A. Asylum and Statutory Withholding of Removal
Each of Serna-Garcia’a first two arguments is addressed both to her claim for
asylum and for statutory withholding of removal. Those forms of relief are available only
to aliens who have been persecuted or face persecution on account of a statutorily-
protected ground—i.e., “race, religion, nationality, membership in a particular social
group, or political opinion[.]” See Gomez-Zuluaga, 527 F.3d at 340, 348. The IJ did not
reach the issues of whether Serna-Garcia’s potential mistreatment rises to the level of
persecution or whether she has a well-founded fear of persecution or showed it more
likely than not to occur. See id. at 345, 348-49. Instead, he denied these claims on the
sole basis that such mistreatment would not be “on account of” any statutorily-protected
ground.
Serna-Garcia argues that the IJ erred in two respects. First, she argues that the IJ
erred because FARC in fact targeted her because of her imputed political opinion. The
record, however, does not compel that conclusion. Asylum and withholding provide4

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address that issue, however, because Serna-Garcia’s argument clearly lacks merit. See
Jordon v. Att’y Gen., 424 F.3d 320, 325 n.8 (3d Cir. 2005).
6
protection from “persecution on account of the victim’s political opinion, not the
persecutor’s.” INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992). The opinion may be the
victim’s actual opinion or one imputed to her by the persecutor. See Gomez-Zuluaga, 527
F.3d at 344. In either event, however, an applicant must provide evidence that her actual
or imputed opinion is what motivates the persecutor. See id. at 343.
In this case, the IJ properly concluded that there is no evidence of record that
FARC has targeted Serna-Garcia on account of her actual political opinions or any that
FARC imputes to her. On the contrary, she acknowledges that she never took any action
against FARC, and did not testify that the threatening telephone calls included any
accusations about her affiliations or beliefs. Nor did she present any other evidence of
political affiliation or activity.
Serna-Garcia nevertheless argues that FARC imputes a political opinion to her
because it uses kidnaping to target “class enemies” for political reasons. The record does
show that there is a political element to FARC’s use of kidnaping. (A.263, A.319,
A.325.) FARC’s own political motivation, however, does not mean that it imputes any
political opinion to its targets generally or to Serna-Garcia in particular. See Elias-
Zacaria, 502 U.S. at 482. See also Orejuela v. Gonzales, 423 F.3d 666, 674 (7th Cir.
2005) (rejecting similar claim for this reason even though petitioner belonged to wealthy

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As the Government argues, Serna-Garcia relies on reports that are not part of the5
agency record. We thus do not consider them. See 8 U.S.C. § 1252(b)(4)(A). We note,
however, that even the 2001 United States Customs and Immigration Services Report on
which she principally relies describes only FARC’s own political motivations, and does
not compel the conclusion that it generally imputes a political opinion to its targets.
Serna-Garcia also notes that an asylum officer determined at her credible fear interview
that her claim is based on political opinion. She does not argue that the IJ was bound by
or owed deference to that conclusion, however, and we do not believe he did.
7
class unlikely to share FARC’s political opinions). Accordingly, the record does not
compel the conclusion that FARC targeted Serna-Garcia for her imputed political
opinion.5
Second, Serna-Garcia argues that the IJ erred in failing to address whether she
qualifies for asylum or withholding as a member of a particular social group. We agree.
Serna-Garcia squarely presented a claim based on her membership in a potential social
group to both the IJ and the BIA. She claims to belong to a social group composed of
young, single women with financial means who are vulnerable to kidnaping and have
been threatened by FARC. Cf. Gomez-Zuluaga, 527 F.3d at 345 (recognizing social
group defined as “women who have escaped involuntary servitude after being abducted
and confined by the FARC”); Orejuela, 423 F.3d at 672 (recognizing social group defined
as “the educated, landowning class of cattle farmers targeted by FARC”). Neither the IJ
nor the BIA, however, addressed whether that category qualifies as a particular social

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The IJ did not implicitly decide this claim by ruling that wealth is not a basis for6
political asylum. The IJ stated merely that “I’m not going to expand the INA Act to cover
anybody that’s got a dollar in their pocket.” (IJ Dec. at 11) (A.113). Serna-Garcia’s
claim is based on more than wealth alone, and the IJ did not mention a potential social
group claim, let alone cite or apply the relevant standard. See Escobar v. Gonzales, 417
F.3d 363, 366-69 (3d Cir. 2005) (explaining the standard and surveying social group
claims).
8
group or otherwise addressed this claim. Thus, as Serna-Garcia argues, we must remand6
for the BIA to do so in the first instance. See Valdiviezo-Galdamez, 502 F.3d at 291.
B. The CAT Claim
Serna-Garcia next argues that the IJ applied the wrong legal standard in rejecting
her CAT claim. We find that argument persuasive as well. This claim required Serna-
Garcia to show both that “it is more likely than not that she will be tortured if removed to
Colombia, and that such torture will occur with the consent or acquiescence of the
[Colombian] government.” Gomez-Zuluaga, 527 F.3d at 349. The IJ did not reach the
first of these issues. Instead, it rejected this claim on the sole basis that “the torture, if
any, has to be by the government or the government’s agents and it is clearly [sic] the
government’s agents are not the [FARC]. The fact that the government can’t control the
[FARC] does not mean that the government is going to torture this women [sic].” (IJ
Dec. at 14) (A.116).
That was not the proper standard at the time of the IJ’s decision, and is not the
proper standard now. CAT provides relief from torture likely to be inflicted, not only by
the government itself, but by others with the government’s consent or acquiescence. See

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Serna-Garcia also argues that torture at the hands of FARC qualifies for protection7
under CAT because FARC operates as an “alternative government.” She cites no
authority in support of that contention, but we leave it to the BIA to address it in the first
instance if and when appropriate on remand.
9
Gomez-Zuluaga, 527 F.3d at 349-50 (citing 8 C.F.R. § 208.18(a)(1)). And, as we
recently explained, acquiescence does not require that the government have even actual
knowledge of the torture; instead, wilful blindness will suffice. See id. at 350.
Accordingly, we will remand for the BIA to apply the proper standard to this claim. See
id. at 350-51 (remanding for application of proper standard where IJ concluded merely
that the petitioner had not shown that torture by FARC would occur “at the hands” of the
Colombian government).7
C. Asserted Procedural Errors
Finally, Serna-Garcia argues that this case as a whole should be remanded for three
procedural reasons. Although her arguments raise concerns, they do not warrant
independent relief. First, Serna-Garcia argues that the IJ denied her due process by taking
over her examination at the hearing. It is true that the IJ repeatedly took over Serna-
Garcia’s examination, both on direct and cross. Serna-Garcia, however, does not claim
that the IJ curtailed her ability to present evidence, cf. Kaita v. Att’y Gen., 522 F.3d 288,
301 (3d Cir. 2008), and his conduct did not rise to the level of intemperance or apparent

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A possible exception concerns Serna-Garcia’s testimony regarding mistreatment by8
her brother, but that testimony is irrelevant to any issue on review. The IJ took over
cross-examination from the Government’s counsel to establish that Serna-Garcia had not
mentioned her brother at her airport or credible fear interviews. (A.174-79.) He then
concluded for that reason that her testimony regarding her brother was “a recent
fabrication,” and faulted her for not calling her mother as a witness to corroborate that
testimony. (IJ. Dec. at 11-13) (A.113-15). Serna-Garcia, however, never asserted her
treatment by her brother as a basis for relief and, though she takes issue with the IJ’s
assessment of her testimony on this issue, concedes that it is “irrelevant and immaterial to
her claim based upon the kidnaping threat from FARC[.]” Moreover, the IJ’s denial of
her kidnaping claim was not based on his credibility finding regarding Serna-Garcia’s
brother. Instead, he expressly found the kidnaping claim credible, (IJ Dec. at 13) (A.115),
but denied it solely for the reasons discussed above. Accordingly, we have no occasion to
reach the IJ’s treatment of Serna-Garcia’s testimony about her brother. If her claims
about her brother prove relevant on remand, the BIA should address those issues in the
first instance.
10
partiality that we have condemned in other cases, cf. Fiadjoe v. Att’y Gen., 411 F.3d 135,
154-57 (3d Cir. 2005).8
Second, Serna-Garcia argues that the IJ’s decision reflects “confusion” regarding
the proper asylum standard because it suggests (wrongly) that the absence of past
persecution precludes a finding of future persecution. Although the IJ’s decision might
be read to raise that suggestion, (IJ. Dec. at 14) (A.116), any error in that regard is
harmless. Serna-Garcia did not claim before the Agency and does not claim before this
Court that she suffered past persecution in Colombia, and that issue clearly played no role
in the IJ’s rulings.
Finally, Serna-Garcia argues that the BIA abused its discretion in summarily
affirming without addressing her “serious legal issues.” Although we have jurisdiction to

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review the BIA’s decision to affirm without opinion, and agree that a more thorough
discussion would have been preferable, the BIA’s decision to summarily affirm means
that the IJ’s decision is that of the Agency for purposes of our review. See Smriko v.
Ashcroft, 387 F.3d 279, 296 & n.11 (3d Cir. 2004). Thus, because we can review the IJ’s
decision directly, the BIA’s decision not to write its own opinion does not independently
warrant relief under these circumstances. See id.
III.
Accordingly, we will grant the petition for review to the extent that it challenges
the denial of Serna-Garcia’s claims for asylum and statutory withholding based on her
claimed membership in a social group and her claim for relief under CAT. We will deny
the remainder of the petition.

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